The owner of the four dams on the Kennebec River subject to removal as part of a revised plan is suing the Maine Department of Marine Resources and its commissioner, Patrick Keliher.
A lawsuit filed by a subsidiary of Toronto-based Brookfield Renewable Partners calls the rulemaking process of the Kennebec River Management Diadromous Resources Amendment “unlawful,” and seeks to have the amendment process stopped. The filing claims that the Marine Resources agency is not consulting with its sister agencies regarding the provisions of the management plan, nor is it following the plan as it was conceived in 1993.
“The (M)DMR does not have statutory authority to amend the Kennebec River Management Plan,” reads the complaint, which was filed in the Maine Superior Court in Augusta and requests preliminary injunction. “The (M)DMR’s efforts unilaterally to change Maine’s policy with respect to hydropower on the Kennebec River should be declared illegal.”
MDMR declined comment Wednesday, as did the Office of the Maine Attorney General.
The amendment to the plan includes the potential removal of four dams along the Kennebec River: the Shawmut in Fairfield, Weston in Skowhegan, and Lockwood and Hydro Kennebec Dams in Waterville. All of the dams are owned by Brookfield. The dams account for more than 250 million kilowatt-hours of renewable energy annually. The complaint references the state’s 1993 Kennebec River Resource Management Plan.
“After leaving the 1993 Plan untouched for nearly three decades, (M)DMR is now engaged in a wholesale rewriting of the 1993 Plan,” the complaint says. “Contrary to the legislative mandate to promote hydropower, (M)DMR is in the process of illegally changing the 1993 plan to force the removal of Brookfield’s dams on the lower Kennebec River.”
Brookfield believes MDMR is acting outside its legal rights. In its filing, the company highlighted what it believes are deficiencies within the plan, including not allowing the Department of Agriculture, Conservation and Forestry or other agencies to assist with the plan and not providing an estimate of the fiscal impact of the project.
The state allowed public comment until Saturday, which mostly came in the form of letters. Central Maine municipalities weighed in. Two weeks ago, the Waterville City Council voted to support the state’s plan, which is lauded by conservationists. The Winslow and Fairfield town councils voted last week in opposition to the plan, citing lasting financial repercussions. The license for the Shawmut Dam in Fairfield expires this year. Brookfield is in the process of relicensing the dam. The proceedings before the Federal Energy Regulatory Commission will determine whether and under what terms that relicensing would take place.
The Skowhegan Regional Chamber of Commerce is against the potential dam removal. Chamber of Commerce President and CEO Jason Gagne fears properties and businesses along the river would be adversely impacted by the dam removal.
“We’ve opposed (the plan),” Gagne said Wednesday. “It’s ridiculous to have the dams removed, especially with the economic impact in our region.”
The goal of the Marine Resources plan is to improve fish passages for diadromous fish, or species that spend part of their life cycle in both fresh and saltwater. The Mid-Maine Chamber of Commerce is also against the plan.
Sean Ledwin, Sea Run Fisheries and Habitat Division director for the MDMR, said last week that the department will review and respond to all written comments the agency has received concerning the amendment to the management plan. The department also plans on seeking advice and consent from the Marine Resources Advisory Council.
The state said the process does not involve the Federal Energy Regulatory Commission, but they do intend to submit the plan to FERC. Although the plan is not legally enforceable, Brookfield fears it will be carried out by the MDMR.
The dam removal itself would impact approximately 12 union-represented positions, Brookfield spokesperson Miranda Kessel said Wednesday. Of those jobs, nine are represented by the International Brotherhood of Electrical Workers. Brookfield is represented by attorneys Matthew Warner and Jonathan G. Mermin of Portland-based Preti Flaherty Beliveau & Pachios. The suit does not seek any financial repercussions from MDMR.
“The Court should not require security in this case because the (M)DMR will not incur any monetary damages if it is not permitted to finalize and disseminate a rule it had no authority developing in the first place,” the complaint says.
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