Boston, MA – On May 23, NELC attorneys filed a brief asking the U.S. First Circuit Court of Appeals to overturn a ruling by the U.S. District Court of Maine. The ruling declines to enforce the fish passage provisions of the Clean Water Act water quality certification issued to Brookfield Power’s Hydro Kennebec dam.
The water quality certification—part of the dam’s federal operating license—forbids Brookfield from using the dam’s turbines as a downstream passage route for adult Atlantic salmon or American shad unless it first proves that such passage is safe. The certification requires the company to “eliminate” significant injury to out-migrating fish, and specifically mandates that, “to the extent [Brookfield] desires to achieve interim downstream passage of [salmon or shad] through turbine(s),” it must first demonstrate through site-specific studies that the turbines will not cause significant harm.
Yet in January, the Maine court ruled that because Brookfield claims it does not “desire” salmon or shad to access its turbines—even though it knows full well that they do so—it is free to ignore the requirements of the certification.
