The owner of four dams along the Kennebec River accused Maine on Monday of violating an agreement over setting fish passage standards when the state denied a water quality certification for a dam in Fairfield.
The lawsuit from Brookfield Renewable, filed Monday in Kennebec County Superior Court, is the latest wrinkle in a dispute between the company and the state over the future of the power-generating dams and efforts to restore the Atlantic salmon population.
Brookfield Renewable claims in its court complaint that the Mills administration is trying to force the decommissioning of the Shawmut Dam in Fairfield through more rigorous fish passage standards the Department of Marine Resources tried to put in place earlier this year.
Those plans had to be abandoned after the state realized it tried to pursue them under the wrong law.
The state initially denied Brookfield a water quality certification in August after saying the company’s fish passage standards were not what the state wanted to see.
Brookfield estimated 96 percent of salmon would be able to pass through the dam, but the state said it would only accept 99 percent — the threshold the Department of Marine Resources said Brookfield needed to meet for the state not to recommend removing the dam earlier this year when the department tried to change the river management plan. The certification is crucial to the dam’s relicensing through the Federal Energy Regulatory Commission.
Monday’s lawsuit is the second Brookfield has filed against Maine over the recertification process, showing how testy the relationship between the company and the state has become during the dam’s federal relicensing. Brookfield dropped the first lawsuit, filed in March, earlier this year.
The fight has sparked debate about the Shawmut Dam and the fate of three other lower Kennebec River dams among a number of parties. Conservationists are concerned about restoring Atlantic salmon to the river while nearby communities, businesses and politicians have focused on the economic effects of losing the dams. It all puts Gov. Janet Mills in a difficult position as she tries to balance those competing interests.
The latest lawsuit hinges on a 1998 agreement between Brookfield, the Kennebec Coalition, and state and federal marine and wildlife agencies. The Kennebec Coalition is a group of conservation organizations interested in salmon restoration and dam removal.
The agreement governs how fish passage standards are set on the Kennebec River, and lays out a dispute resolution process through FERC if the parties cannot agree.
But Maine has violated that agreement by trying to change fish passage standards through the relicensing process and thus force the removal of the dam, Brookfield alleged.
The Department of Marine Resources “continues to violate both state law and its contractual obligation to work with Brookfield on fish passage,” the lawsuit states. The department’s “lawless requirements are not somehow legitimized by passing them through a different agency.”
Scott Ogden, Mills’ communication director, called the complaint “meritless.” It shows the company is unwilling to solve the challenges around fish passage at the dam and that it prefers to protect its corporate interests, he said.
“This Administration has made clear that it believes we can achieve a solution that balances the need for clean energy, the needs of local communities, and the need to provide a path for all migratory fish, including Atlantic salmon, to move up the Kennebec into prime spawning and nursery habitat,” Ogden said.
Mills had previously supported her agencies’ push for strict passage standards or dam removal, but backed off after Sappi North America, which owns the Skowhegan paper mill, said the denial of the water quality certification could lead to the mill closing. In an open letter to Sappi employees, Mills said removal of the dam would not be needed to meet the state’s fish passage standards.
Brookfield seeks for the court to prevent the Department of Marine Resources from attempting to impose any fish passage standards without going through the process laid out in the 23-year-old agreement and to withdraw any comments related to those standards.