Submitted by Ted Williams on Fri, 02/03/2006 - 10:03.
On Nov. 29, 2005, Friends of the Kennebec Salmon celebrated its 9th anniversary by filing a lawsuit in Kennebec County Superior Court against the Maine Dept. of Environmental Protection for the agency's issuance of a permit to destroy 1.5 miles of Atlantic salmon habitat Messalonskee Stream in Waterville, Maine via construction of a new 40 foot high concrete dam at the former Union Gas hydroelectric site in downtown Waterville, Maine. The dam will also cause annual fish kills of pregnant female American eels as they attempt to migrate to the Atlantic Ocean to give birth. The new dam is proposed by Synergics Energy Services of Annapolis, Maryland. There has been no dam at the site since summer 2001, when the former owner, FPL Energy, removed the old granite block Union Gas dam all the way down to bedrock and restored 1.5 miles of high to medium gradient Atlantic salmon habitat that been hidden for more than a century. The docket number of the lawsuit is AP-05-76. On Nov. 3, 2005 the Maine Board of Environmental Protection voted 6-3 to deny our appeal of the permit. Friends of the Kennebec Salmon has been an affiliate of the Maine Council of the Atlantic Salmon Federation since January, 1997. This lawsuit is of critical importance to all of Maine's rivers because the Maine DEP approved the Messalonskee dam reconstruction permit solely on the grounds that it is entitled under law to "grandfather" existing and future violations of Maine's water quality statutes, including annual fish kills. If our lawsuit fails, the Messalonskee fish kills will be legally allowed to continue until 2036 when the hydro project's federal license expires. Because the Maine DEP and Maine BEP based their permit approval at Messalonskee Stream solely on interpretations of Maine water quality laws and the Maine Waterways Development and Conservation Act (MWDCA), their statutory interpretation at Messalonskee is transferrable to any other hydro dam or river in Maine. This lawsuit is of particular importance to the Androscoggin River, where FPL Energy has strenuously argued that existing violations of Maine water quality statutes at the Gulf Island Dam impoundment are now "grandfathered" because the violations have existed and have been tolerated for a long time. On Sept. 21, 2005, the Maine DEP and Maine Attorney General informed FPL Energy that no such "grandfathering" of statutory water quality standards exists under law. On Messalonskee Stream, the DEP and AG have affirmed the opposite. If the State of Maine prevails in our lawsuit on Messalonskee Stream, there will be a fresh precedent decision in Maine Superior Court holding that existing and future fish kills and violations of Maine's water quality statutes can be "grandfathered" at hydroelectric dams. The deadline for intervention in the Messalonskee lawsuit is December 12, 2005. Immediately prior to this lawsuit, myself and Friends of Merrymeeting Bay filed extensive petitions under Ch. 2 §27 of the Maine DEP's administrative rules to amend the state water quality certifications for all 14 of the hydroelectric dams on the Androscoggin and Little Androscoggin Rivers to require immediate safe upstream and downstream passage for American eels. On Sept. 28, 2005 I filed a petition under Ch. 2 §27 to amend state water quality certifications to require immediate and safe downstream passage for Atlantic salmon, American eels, American shad, alewives and blueback herring on the four main-stem Kennebec River dams below Madison, Maine (Lockwood, Hydro Kennebec, Shawmut and Weston). That's 18 dams in total (one of the Androscoggin Dams is owned in part by Daimler Chrysler, in case you hold that stock). By statute the Maine BEP has 30 days to either dismiss these petitions or schedule formal public hearings on them. The dam owners are now whining and crying and engaging in dilatory tactics to delay any BEP action on these petitions for as long as possible. I have informed the Maine BEP I am willing to allow initial consideration of my Kennebec and Androscoggin petitions to be delayed, for scheduling purposes only, to a date no later than Dec. 31, 2005. To my knowledge, these petitions represent the first time that Maine citizens have utilized the petition provision of Ch. 2 §27 of the DEP's administrative rules to re-open previously issued water quality certifications at hydroelectric dams to require the immediate provision of safe and effective fish passage and to stop ongoing fish kills pursuant to Maine's water quality statutes. This raises novel legal issues, since the amendment of state water quality certifications for these 18 dams will require amendment of their federal licenses and FERC approval of the construction plans of the required downstream fish passage systems. Thanks to Steve Hinchman, attorney at the Conservation Law Foundation, for informing myself and Friends of Merrymeeting Bay to this very useful provision in Maine's statutes. The above actions have not been taken without lots of deliberation, research, effort and coffee. The Kennebec and Androscoggin petitions together comprise more than 80 pages and 200 pages of appendices. The Messalonskee lawsuit is 60 pages. All three actions arise from the complete failure of the State of Maine and its agencies to enforce the most fundamental aspect of Maine's water quality laws: to stop fish kills. Years have now been wasted attempting to "work within the system" to effect the changes sought in these petitions through meetings, letters etc. with state agencies. These velvet glove efforts have produced no relief or protection for these animals, several of which are nearing extinction in the United States. If excuses were salmon you could walk across the Kennebec on their backs. I believe all three of these actions will be sustained in Maine's courts, no matter how hard the dam owners try to fight them, because they are all firmly grounded in the most basic aspects of Maine's water quality statutes and the public trust rights these statutes were enacted to protect. Like the public trust doctrine, these actions are not about creating new rights, but are about preserving very old rights which for the past two centuries have been whisked away like bone-dry flour. Thanks for listening -- Doug Watts www.kennebecriver.org www.glooskapandthefrog.org