BOSTON—On July 14, the United States Court of Appeals for the First Circuit reversed the dismissal of NELC’s Clean Water Act lawsuits against energy conglomerate Brookfield Asset Management, sending the suits back to the U.S. District Court for further action. NELC brought the suits on behalf of Friends of Merrymeeting Bay (FOMB) and Environment Maine to save Atlantic salmon and American shad from the turbines of four hydroelectric dams.
The plaintiffs allege that Brookfield has violated the Clean Water Act water quality certifications at its hydroelectric facilities on Maine’s Kennebec River by allowing salmon and shad to access the dams’ turbines. The Kennebec River is a key migration route for both of these imperiled species, but turbine-related deaths have contributed to their steep decline.
“If Brookfield simply can’t keep these fish out of its turbines, they should shut off the turbines during migration season,” said Ed Friedman, chair of FOMB. “Without safe dam passage for salmon and shad, these species will not recover.”
While Brookfield has employed some form of bypass system at each dam, these systems are ineffective, and a significant percentage of the fish continue to pass through the dams’ turbines.
NELC will again ask the U.S. District Court in Portland to order Brookfield to comply with its legal obligation to protect these salmon and shad, either by installing effective bypasses, installing screens in front of the turbines, or implementing turbine shutdowns.
“Brookfield is required to operate its dams in strict compliance with all federal laws, including the ones designed to protect Maine’s precious natural resources,” said Emily Figdor, director of Environment Maine.
The Appeals Court ruling reverses the summary judgment granted by U.S. District Judge George Singal in favor of Brookfield in 2013. Judge Singal had ruled that Brookfield is in compliance with its water quality certifications because Brookfield does not “desire” to pass the fish through its turbines. In reversing this ruling, the Appeals Court held that Brookfield’s “desire” must be measured by objective evidence, such as the fact that Brookfield operates its turbines despite knowing that the fish continue to access them.