Water, Water everywhere …

by Pierce Atwood LLP

There were two court decisions this week regarding regulation of Maine rivers, one from the Maine Supreme Judicial Court, Watts v. BEP, and one federal, Friends of Merrymeeting Bay v. Hydro Kennebec, LLC


This is an administrative appeal from a BEP decision that, in turn, affirmed a DEP water quality certification under Section 401 of the Clean Water Act. Pierce Atwood represented the permittee.

The matter involved Sebago Lake and the Presumpscot River. There's been a dam at the outlet of the lake since at least 1827, and S.D. Warren owns the hydropower dam there now. If there were no dam, Sebago would be much smaller, so, among other things, we would need to say goodbye to drinking water in greater Portland, and recreational activities like boating would be severely circumscribed. Some people want the water high on the lake, some low. Different constituencies want different water levels at different times to advance difference uses.

Under Maine's water quality standards, each class of water has various designated uses and characteristics. The question is how to balance all these uses, one of which is hydroelectric power, for this class of water.

The pro se plaintiff wanted different water levels than the DEP decided was the right balance after consulting with all the various constituencies. The relevant statutes indicated that the waters had to be of such quality that they are suitable for the listed designated uses, including "as habitat for fish and other aquatic life. The habitat must be characterized as natural."  “Natural” is then defined as "living in, or as if in, a state of nature not measurably affected by human activity." Mr. Watts basically said that the levels prescribed in the WQC weren't "natural" enough.

What does this mean? The Court deferred to BEP's interpretation, which, among other things, notes that the habitat must characterized as natural, and that natural is defined as not just living in but as if in a state of nature. Given this language, and that designated uses include power generation, the Court held that the DEP's balancing here was supported by law and substantial evidence.

Friends of Merrymeeting Bay

In this case, two conservation groups brought citizen enforcement suits under the CWA and Endangered Species Act against the owners and operators of dams on the Kennebec River. The U.S. District Court granted summary judgment to the defendants. The First Circuit Court of Appeals vacated the judgment, remanding for further proceedings.

The case involves WQC again, in that the dams were certified, and those certifications incorporated the provisions of a settlement agreement between the defendants and various federal and state agencies. The agreement allows for two types of downstream fish passage - through or around the turbines. A paragraph in the agreement provides:

"to the extent that licensee desires to achieve interim downstream passage of out-migrating adult Atlantic salmon and/or adult shad by means of passage through turbine(s), licensee must first demonstrate, through site-specific qualitative studies designed and conducted in consultation with the resource agencies, that passage through turbine(s) will not result in significant injury and/or mortality (immediate or delayed)."

The defendants, in consultation with the agencies, built bypasses - they chose the around, versus the through, route.

The suit alleged that the fish kept going through turbines and becoming entrained, which amounted to illegal taking under the ESA, and a violation of the WQCs, because the defendants hadn't conducted the studies required if the defendants "desired" passage through the turbines. The plaintiffs argued that the record showed that the diversions aren't working, and the defendants knew it, and that this evidence raised a question of fact about whether the defendants desired at least some of the fish to go through the turbines.

The majority vacated summary judgment basically because it accepted this argument. It found that there was a factual question regarding the defendants’ subjective intent, and that this question was relevant to the suit. The majority rejected the defendant's argument that "desire" in this instance expressed the signatory parties’ agreement that the owners had a choice between alternative methods, and once the defendants chose bypass, any intent issue was gone. The majority suggested that the trial court could still grant summary judgment if it concluded that the defendants didn't desire passage through the turbines, but the trial court had to analyze all the information, and the trial court had erroneously deemed that knowledge of effectiveness was irrelevant.

Nor did it matter to the majority that none of the signatories to the agreement was suggesting that the agreement wasn't being met, because, the majority noted, the statutes provide for citizen suits.

In his 15-page dissent, Judge Kayatta reviewed the language of the agreement in detail, explaining why he thinks the majority was misreading it, why the defendants' position as to what the agreement means is correct. Under this interpretation, no one is supposed to determine what desires lurk in the hearts of the dam owners. The agreement allowed them to choose among two options, with certain listed requirements to fulfill depending on which option was chosen. To read the agreement as dependent on some ongoing desire of the defendants after the choice was made, the dissent said, misreads the agreement, as well as creates challenges for the trial court on remand. 

The dissent concluded:

"Crafted with the aid of five environmental groups, the Agreement marked a significant turning point in the long history of Maine's exploitation of one of its great rivers. By facilitating the transfer of the Edwards Dam to the state, and securing some of the funds for dam removal, it led to the eventual removal of the Edwards Dam--an event etched in the memory of most Mainers desiring to see industry, environmental groups, and regulators work to find a balance that better protects the state's natural resources. Toward that same end, the Agreement funded the next phase of a fisheries restoration program for the Kennebec, and led to the installation of new interim downstream fish passage facilities at some of the hydroelectric project sites. I hope that the majority's willingness to read such an Agreement in a manner that ignores its overall structure will not deter owners from making other beneficial agreements with state and federal resource agencies for fear that third parties will flyspeck them for supposed ambiguities that none of the parties to the agreement claims exists."

Judge Kayatta’s concern is very real, because such agreements have become important ways to achieve consensus on fish passage issues in Maine and New England.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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