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Owner of four Kennebec River dams sues the state over alleged illegal rulemaking

Brookfield Renewable filed a complaint in Kennebec County Superior Court against Maine's departments of marine resources and environmental protection.

AUGUSTA, Maine — Brookfield Renewable filed a complaint late Monday in Kennebec County Superior Court against the state.

The complaint claims the Department of Marine Resources and the Department of Environmental Protection are intent on removing the four Brookfield-owned dams on the Kennebec River. The DMR threw out its Kennebec River Management Plan, which recommended the removal of two dams this spring, after Brookfield sued the DMR because it claimed the department had no authority to make that plan. 

The lawsuit claims the DMR is "repeatedly exceeding its authority under state law in an effort to compel Brookfield to remove its dams."

The DEP is also named in the complaint, as Brookfield claimed the department adopted DMR's "illegal regulations" when it denied Brookfields' water quality certification for the Shawmut Dam in Fairfield.

The Shawmut Dam is up for federal relicensing. Brookfield spokeswoman Miranda Kessel said the revised water quality application will be submitted on Oct. 15.

“We just want a fair process that follows the law and regulatory proceedings," Kessel said Tuesday. “[The DMR] said [it was] going to engage in a more robust stakeholder process upfront that would include waterfront municipalities, employer’s dependent upon the dams.”

Besides receiving pushback from Brookfield on the DMR's river management plan, several towns along the Kennebec expressed concerns over dam removal as residents would see an increase in excise tax payments, and lower water levels could affect recreational opportunities on the river.

RELATED: Kennebec dam controversy could cost hundreds of Mainers their jobs

Brookfield cities in its complaint that the state violated the 1998 Kennebec Hydro Developers Group Agreement. That agreement lists ways fish passage standards should be set and enforced on the river and all disagreements should go through the Federal Energy Regulatory Commission.

Brookfield claims the state is trying to change the fish passage standards, which would violate that agreement.

Credit: NCM

“DEP adopted these unfeasible fish passage performance standards as a condition of the water quality certification. This pushes the Shawmut dams relicensing until another year," Kessel said.

RELATED: Agency: Endangered salmon can co-exist with dams on Kennebec

The lawsuit requests that the court declare the fish passages standards developed by the DMR as "illegal and unenforceable because they were not developed through the process required."

A spokesperson for Gov. Janet Mills responded to the lawsuit in a statement, calling it "meritless."

"But, more importantly, it is a disappointing demonstration of the company’s continued unwillingness to partner with the State of Maine to solve this serious issue," the statement reads.

The statement went on to say Brookfield is "squandering" the opportunity to help the state by restoring the endangered Atlantic salmon population to the Kennebec, and is protecting "corporate interests".

Earlier this month Atlantic Salmon Federal, the Conservation Law Foundation, Maine Rivers, and Natural Resources Council of Maine sued Brookfield for allegedly violating the Endangered Species Act by killing Atlantic salmon trying to pass through the dams.

The Natural Resources Council of Maine (NRCM) has advocated for the removal of all four of Brookfield's dams on the river since this debate began in the spring. 

"This is the biggest river restoration issue in the state," NRCM Staff Scientist Nick Bennett said. "Really the fate of Atlantic salmon hangs in the balance.”

Bennett said the only way to restore the population of Atlantic salmon is to remove all four of Brookfield's dams on the Kennebec. Brookfield proposed new fish passage infrastructure that claimed to provide a 96% passage rate. Bennett argued that is near impossible.

“There is no fish passage system on planet earth that can move 96% of Atlantic Salmon upstream," he added. “It’s preposterous, their proposals won’t work, we all know that.”

Bennett added if the dams are removed it would be one of the biggest and important restoration projects in the world. 

"We continue to call on Brookfield to play a productive role in achieving this outcome instead of filing meritless lawsuits and fear-mongering local communities," Mills' spokesperson added.

RELATED: DEP finds no permit violations associated with recent 'die-off' incident at salmon farm off MDI

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