Water, Water everywhere …

by Pierce Atwood LLP
Contact

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

Watts

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.

© Pierce Atwood LLP | Attorney Advertising

Written by:

Pierce Atwood LLP
Contact
more
less

Pierce Atwood LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.