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Brookfield sues Maine over alleged effort to remove 4 Kennebec River dams

Brookfield Renewable argues state agencies are violating a binding river management agreement in their fight over the future of Atlantic salmon.

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Lockwood Dam, one of four hindering Atlantic salmon migration
The Canadian conglomerate that owns most of the dams in Maine has sued the state over the high-stakes battle over the future of four dams on the lower section of the Kennebec River and the survival of Atlantic salmon in the United States.

Brookfield Renewable Power, a subsidiary of $600 billion global asset company Brookfield Asset Management, sued the Department of Environmental Protection and the Department of Marine Resources late Monday in Kennebec Superior Court. The suit claims that the agencies have not conformed to a legally binding 1998 management agreement and other state laws in their alleged goal to demolish the four dams between Waterville and Skowhegan.

“The state of Maine is intent on demolishing Brookfield’s four dams on the lower Kennebec River,” the suit asserts, and argues that one state agency, DMR, has violated state laws governing administrative procedures by drafting materials for another, DEP, which has the power to block the federal relicensing of hydroelectric dams.

The lawsuit argues that the DMR is “leading the state’s efforts to remove Brookfield’s dams” but that it is prohibited from ghost-writing fish passage policies for DEP, the agency that participates in the relicensing process conducted by the Federal Energy Regulatory Commission. One of the four dams – the Shawmut project in Fairfield and Benton – is under review for FERC relicensing and must get water quality approval from Maine as part of that process.

Gov. Janet Mills’ spokesman Scott Ogden blasted the company in a written statement Tuesday, calling its suit “meritless” and “a disappointing demonstration of the company’s continued unwillingness to partner with the State of Maine to solve this serious issue.”

“Their position and outright refusal to play a constructive role in solving this problem undermine any claims they make of environmental leadership and demonstrate that they are more invested in protecting their bottom line than they are in protecting our environment,” Ogden said.

Sean Mahoney, executive vice president of the Conservation Law Foundation, described the suit as “bordering on the frivolous” and said its argument that state agencies can’t work together on water quality certification is absurd. “I guess in today’s age there’s no shame, and if you say anything loud enough and often enough maybe enough people will think it’s true,” said Mahoney, whose organization supports removal of the dams.

A Brookfield spokesperson, Miranda Kessel, said the suit was filed to make DMR comply with state law in disputes over fish passages as well as its obligations under the 1998 Kennebec Hydro Developers Group agreement, which the firm argues binds the state to conduct negotiations in certain fashions.

“Brookfield Renewable will continue to pursue state of the art fish passage infrastructure at its lower-Kennebec facilities consistent with its obligations and believes safe, effective, and timely fish passage can be installed without sacrificing the important economic, community and recreational benefits these projects bring to the Kennebec region,” Kessel said in an email.

At stake in the fight over the four dams is the fate of river-run fish in the Kennebec River watershed and, environmentalists say, the future of Atlantic salmon in the United States. The dams – the others are Hydro Kennebec and Lockwood in Waterville and the Weston dam near Skowhegan – effectively block salmon’s access to pristine spawning habitat in western Maine’s Sandy River. Conservationists and Mills’ administration want at least one of them removed, but Brookfield has argued that building or improving fish passages will remedy the situation while continuing to provide clean power.

In September, CLF and three other Maine conservation groups sued Brookfield – which owns 5,300 hydro dams worldwide and 38 in Maine – in federal court over alleged violations of the Endangered Species Act at the four dams. The conservation groups alleged that Brookfield has been killing Atlantic salmon at its dams on the Kennebec in violation of the law since Dec. 31, 2019, when its federal authorizations to kill salmon expired.

Brookfield’s suit doesn’t address the future of salmon but asserts that the state tied its hands when it negotiated and signed a hydropower resource management agreement for the Kennebec in 1998. That plan, the suit asserts, was a legally binding agreement among the then-owners of the dam, the state, environmental groups and federal agencies that compels disputes over fish passage to be handled through FERC processes.

But Brookfield also claims it is illegal for DMR to have submitted comments to FERC calling for one or more of the dams to be removed because a comprehensive plan for the river developed in 1993 “explicitly recognizes the value of the lower Kennebec dams to the State of Maine.” It also says DMR is prohibited from directly advising DEP to impose fish passage standards on Brookfield because such advice took place “outside the FERC process.”

This interpretation appears to argue that when preparing water quality certification requirements for the dams, DEP cannot obtain advice or information from any other agencies of state government because such inter- agency cooperation would be occurring outside the FERC process. Asked about this, Brookfield’s Kessel said DMR could help inform DEP policies, provided “the fish passage and performance standards are legally developed through the statutory process established by the Legislature. This includes a public process that allows broad public input and detailed review and supporting data.”

Brookfield therefore has asked the court to declare DMR’s proposals regarding fish passages and dam removal to be illegal and unenforceable and that it can’t address such concerns via the state water quality certification process.

In the filing, Brookfield says it had a cooperative relationship with state agencies during the years Gov. Paul LePage was in office but that there was a marked turn under Mills. It says that in May a DMR official warned Brookfield the parties were on a mutually destructive path and that the agency would “lean into” the water quality certification proposal for the Shawmut dam to achieve dam removals.

Mills’ spokesman said Brookfield was squandering the opportunity to restore the endangered salmon and make Maine the last refuge in the U.S. for the fish. “We continue to call on Brookfield to play a productive role in achieving this outcome instead of filing meritless lawsuits and fear- mongering local communities,” Ogden wrote.

The state and environmental groups have argued that removing one or more of the dams would increase the odds endangered Atlantic salmon and other sea-run fish will make it through the fish bypasses in the ones that remain and improve environmental conditions in the stretches of the river that have served as impoundments for the dams.

Brookfield’s spokesperson said the firm intends to spend millions to install fish lifts at the Shawmut, Weston and Lockwood dams in addition to the $14 million fish lift previously added to the Hydro Kennebec dam.

This summer officials at the Sappi paper mill in Skowhegan have expressed concern that if the Shawmut dam were removed they would no longer have access to water supplies. In response, Mills issued a letter saying she “will not allow” the mill to be endangered. She said Brookfield had “wrongly suggested that the state is requiring the removal of the Shawmut Dam, going so far as to employ scare tactics and to suggest that my administration wants to close the mill.”

Brookfield has emphasized the importance of keeping Maine’s hydropower capacity intact to help it meet its ambitious climate change goals, which include Mills’ goal of becoming carbon-neutral – having net zero carbon emissions – by 2045. Environmental groups engaged in climate change want at least some of them removed all the same as together the four generate just 46.9 megawatts of power, or about 3 percent of the state’s renewable electricity production.