Boston, MA – On Oct. 23, NELC attorneys filed their final brief in the appeal of two cases seeking to enforce the Clean Water Act water quality certifications governing four hydroelectric dams on Maine’s Kennebec River.
The lawsuits, originally filed in U.S. District Court in Portland, Maine, on behalf of Environment Maine and Friends of Merrymeeting Bay, were consolidated for appeal in the First Circuit Court of Appeals in Boston after the district court issued a ruling in favor of the owners and operators of the dams, energy conglomerates Brookfield Power and NextEra Energy.
At issue is a provision in the dams’ water quality certifications requiring that, “to the extent that” the owners and operators desire to allow downstream-migrating adult Atlantic salmon and American shad to pass through the dams’ turbines, they must first demonstrate that such passage will not cause “significant injury and/or mortality” to these imperiled fish.
Brookfield and NextEra acknowledge that they have not made the requisite demonstration of safety, and they themselves have calculated that more than half the fish passing downstream at these four dams do so through the turbines. Nonetheless, the companies claim they do not actually “desire” this to occur, and the district judge took them at their word.
On appeal, NELC attorneys are urging the First Circuit to evaluate the defendants’ intentions by their conduct, and not by their words. “The companies could take effective measures to keep fish out of their turbines,” noted NELC’s Charles Caldart, “and by failing to do so they have chosen to subject salmon and shad to the high risk of turbine blade strike.”
