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Friends of Merrymeeting Bay v. Hydro Kennebec, LLC

ELR Citation: 45 ELR 20074
Nos. 1:11-cv-00035, (D. Me., 04/02/2015) (Singal, J.)

A district court, on remand from the First Circuit, dismissed environmental groups' CWA claim 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 fish through the turbines. The district court had previously 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. It reasoned that the operators' knowledge and the effectiveness of the bypass systems were simply irrelevant. On appeal, the First Circuit agreed that the court should not substitute "knowledge" for "desire" in the settlement agreement, but held that evidence of the operators' knowledge and the effectiveness of the diversion systems is not irrelevant. Rather, the operators' desire should be assessed in the context of the continuous efforts required by the settlement agreement. On remand, the district court again dismissed the groups' CWA claim, concluding that there is no genuine issue of material fact on the question of whether the operators desire to pass Atlantic salmon and/or shad through the turbines at the dams. Instead, the operators' desire at each of these projects is that the fish bypass the turbines.