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Friends of Merrymeeting Bay v. Hydro Kennebec, LLC

ELR Citation: 44 ELR 20166
Nos. 13-1220, -1750, (1st Cir., 07/14/2014)

The First Circuit vacated and remanded a lower court decision dismissing environmental groups' CWA claims against the operators of four hydroelectric dams along the Kennebec River. The groups alleged that the operators are in violation of their water quality certifications, and thus the CWA, because they failed to comply with a settlement agreement that required them to conduct site-specific quantitative studies if they "desire" the passage of the fish through the turbines. A lower court dismissed the case, rejecting the groups' evidence as to whether fish were in fact passing through the turbines and whether the operators knew fish were passing through them. That court concluded that the operators' knowledge and the effectiveness of the bypass systems were simply irrelevant. But while the lower court was correct that it should not substitute "knowledge" for "desire" in the settlement agreement, it does not follow that evidence of the operators' knowledge and the effectiveness of the diversion systems is necessarily irrelevant. Reading the settlement agreement as a whole, it makes more sense to assess the operators' desire in the context of the continuous efforts required by the settlement agreement, rather than in reference to a single decision the operators make at one particular point in time. This broader context belies the notion that the installation of diversionary facilities is alone sufficient to determine the operators' desire regarding downstream passage and opens the door to evidence regarding the extent to which the facilities actually work and what the operators know about it. On remand, the lower court must consider all relevant evidence in the light most favorable to plaintiffs.