A prolonged dispute over environmental violations at aging hydropower dams in Ellsworth remains unresolved after the Maine Supreme Court declined to rule on the matter.
Activists worry the decision will delay overdue improvements to water quality and fish passage on the Union River watershed.
In 2020 the Maine Department of Environmental Protection denied a water quality certificate for two dams owned by a subsidiary of Brookfield Renewable called Black Bear Hydro Partners. The department found that Graham Lake and Union River below it failed to meet habitat standards for fish and other aquatic life. Leonard Lake, the second impoundment in the system, failed to meet dissolved oxygen standards for Class B waters, according to the department.
But Brookfield argues the state’s standards are too strict and that Leonard Lake is categorized as a less stringent Class GBA water body. It appealed the issue all the way to the Maine law court.
Last week justices ruled they couldn't decide the matter since the company contested just one of the three reasons regulators denied their permits.
We "conclude that Black Bear's appeals to the superior court and to us are nonjusticiable," the justices said.
Dwayne Shaw, executive director of the Downeast Salmon Federation, said the decision sends the permitting process back to square one and will delay work to restore migratory fish to the Union River.
The federation was looking for a ruling on the categorization dispute from the court, he added.
"We would like to see this issue of the water classification for that water body resolved once and for all," Shaw said.
Brookfield needs the state certification to get a long-term federal license for the dam which could require updated fish passage and other improvements.
The dam system has blocked access to the Union River for migratory fish such as alewives, shad and salmon for more than a century, Shaw said.
"The entire project that Brookfield owns is very antiquated, built in 1907 and really hasn’t been modified since then," he said.
The dams have a generating capacity of 8.9 megawatts, according to state filings.
The Maine Department of Environmental Protection said that Brookfield can now refile applications for water quality certification or apply to surrender its federal license.
Brookfield spokesperson David Heidrich said that all parties to the case asked the Maine law court to decide the categorization issue. The company is reviewing the ruling and deciding next steps, he added.
