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Conservation groups cheer decision preserving state authority in Kennebec River dam relicensing

The Weston Dam holds back the Kennebec River, Tuesday, Sept. 14, 2021, in Skowhegan, Maine. Conservation groups recently filed a federal lawsuit against the Brookfield Renewable, owner of four dams along the Kennebec River, including Westin, alleging that the company is violating the Endangered Species Act. (AP Photo/Robert F. Bukaty)
Robert F. Bukaty/AP
The Weston Dam holds back the Kennebec River, Tuesday, Sept. 14, 2021, in Skowhegan, Maine.

Conservation groups are cheering a recent appeals court decision that they say will help to preserve some state oversight in the relicensing process for the Shawmut Dam, along the Kennebec River.

The state initially drafted a denial of the water quality certification for the dam, operated by Brookfield Renewable, in 2021, as part of a federal dam relicensing process, pointing to concerns about the passage of endangered Atlantic salmon. Brookfield submitted an updated proposal the following year, including significant modifications a few weeks before the state faced a deadline to act on it.

The Maine DEP later denied the application, saying that the state didn't have time to evaluate significant changes and needed additional information from federal agencies.

Brookfield argued to the Federal Energy Regulatory Commission that, in its denial, Maine waived its right to participate in the relicensing process by not following certain requirements. FERC rejected that argument, and Brookfield then filed a petition for an appeals court in Washington, D.C. to review the commission's order. The court ruled against Brookfield in a decision on July 5.

Sean Mahoney, with the Conservation Law Foundation, said the ruling will ensure that the state will play a role in the dam relicensing process, and Brookfield will have to refile a water quality certification application with the state.

"The Mills Administration and the Attorney General's Office deserve kudos for successfully defending their right to consider the impacts to water quality on the Kennebec River associated with the relicensing of this dam," Mahoney said.

A Maine DEP spokesperson said that the agency hasn't received any subsequent water quality certification application for the Shawmut project since the state issued its denial without prejudice.

A Brookfield spokesperson said that the company is still reviewing the decision, and notes that FERC staff have issued a draft environmental impact statement supporting the company's dam relicensing proposal.

“Our proposal, like all of our relicensing proposals, is the product of many years of study and consultation with federal and state resource agencies, as well as the public, and is intended to carefully balance public, economic, energy, and natural resource interests," the spokesperson said.

But some conservation groups have said Brookfield's proposed measures to ensure fish passage are inadequate and haven't worked on other rivers. Mahoney said a final environmental impact statement from FERC is expected by this fall.