Baby Atlantic salmon (3/4 inch long).
Mill Brook, Upper Methodist Road, Westbrook, Maine. May, 2004.
Maine's right to regulate dams upheld by Maine Supreme Court.
By JOHN RICHARDSON, Portland Press Herald Writer
February 19, 2005.
Maine's highest court has upheld the state's right to require fish passageways
and set other operating conditions at five dams along the Presumpscot River.
Unless overturned by the U.S. Supreme Court, the decision preserves the
state's ability to place environmental standards on more than 125 federally-licensed
hydroelectric dams around the state, including more than 50 that already
have state permits, said Dana Murch of the state Department of Environmental
Protection.
Maine's Supreme Judicial Court on Tuesday upheld a Superior Court ruling
against S.D. Warren, the owner of the dams. Murch called it the most significant
legal ruling on dam relicensing in at least two decades.
"This was the ball game," he said. "If Warren would have
won this case, there would have been no state review process for relicensing
of existing hydropower projects. This is the first time the highest court
of any state has ruled that a state has such authority."
A spokesman for S.D. Warren's owner, Sappi North America, and its attorney
in the case could not be reached for comment on the ruling. The company
can appeal the decision to the U.S. Supreme Court.
While it has broad implications, the ruling won't have immediate impacts
on the Presumpscot. Many of the state's conditions are already being met
at the dams. Although fish passageways have not been built, they are not
technically required until a passageway is built at a dam that is lower
on the river and was not part of the court case.
The DEP imposed conditions in April 2003 that required S.D. Warren to maintain
water flows and water quality downstream from the dams, create recreational
access to the water, and build fish passageways, among other things. The
Board of Environmental Protection upheld the conditions that October.
S.D. Warren appealed to Superior Court, saying the state had exceeded its
authority. It argued that the release of water from dams is not a regulated
discharge and that dam licensing falls under the jurisdiction of federal
regulation.
The Superior Court upheld Maine's authority last May and S.D. Warren appealed
to the supreme court. The court order covers the Saccarappa, Mallison Falls,
Little Falls, Gambo and Dundee dams.
Since the removal of the Smelt Hill dam two years ago, the Cumberland Mills
dam is the first obstacle for migratory fish swimming upstream from Casco
Bay. The state is expected to require the installation of a fish passageway
there through a separate legal process.
The Presumpscot River is among Maine's first industrialized waterways and
dams have blocked the return of fish such as shad and alewives there for
about three centuries.
Friends of the Presumpscot River hailed the ruling Friday.
"The river deserves to live again and become the major recreational
resource to the surrounding communities that it once was and we all know
it can be again," president Dusti Faucher said in a written statement.