Water, water everywhere …


Two recent decisions came out regarding regulation of Maine rivers, one from the Law Court, Watts v. BEP2014 ME 91, and one from the First Circuit, Friends of Merrymeeting Bay v. Hydro Kennebec, LLC, Nos. 13-1220 and 13-1750.  The latter has an interesting dissent from Judge Kayatta.  


This is an 80C administrative appeal from a BEP decision that, in turn, affirmed a DEP water quality certification under Section 401 of the Clean Water Act.  Kudos to Jerry Reid at the AG's office representing the BEP; we represented the permittee.

The matter involved Sebago Lake and the Presumpscot RIver.  There's been a dam there since at least 1827, and S.D. Warren owns the hydro facility there now.  If there were no dam, Sebago would be teensy, so you would need to say good bye to drinking water for Portland, and lots of recreational activities, like boating, would be severely circumscribed.  Some people want the water high on the Lake, some low.  Different constituencies want different water levels at different times to advance difference uses.  Under Maine's water quality standards, each class of water has various designated uses and characterisics.  38 M.R.S. ss. 464-470.  The question is how do you balance all these competing uses, one of which is hydroelectric power. 

The pro se plaintiff wanted different water levels than the DEP decided was the right balance after consulting with all the various constituencies.  The relevant statutes provide that the waters must be of such quality that they are suitable for the listed designated uses, including "as habitat for fish and other aquatic life.  The habitat must be characterized as natural," which is defined as "living in, or as if in, a state of nature not measurably affected by human activity."  38 M.R.S. s 466(9).  Watts basically said that the levels prescribed in the WQC weren't "natural" enough. 

What does this mean?  The Court deferred to BEP's interpretation, which, among other things, notes that the habitat must characterized as natural, and that natural is defined as not just living in but as if in a state of nature.  Given this language, and that designated uses include things like power generation, the Court held that the DEP's balancing here was supported by law and substantial evidence.


In this case, two conservation groups brought citizen enforcement suits under the CWA and Endangered Species Act against the owners and operators of dams on the Kennebec Rriver (represented by Shaw Pitman).  The district court (SIngal, J.) granted summary judgment to the defendants.  The First Circuit, in an opinion by Judge Stahl, joined by Judge Thompson, vacated the judgment, remanding for further proceedings.

The case involves WQC again, in that the dams were certified, and those certifications incorporated provisions of a settlement agreement between the defendants and various federal and state agencies.  The agreement allows for two types of downstream fish passage - through or around the turbines.  A paragraph in the agreement provides:

"to the extent that licensee desires to achieve interim downstream passage of out-migrating adult Atlantic salmon and/or adult shad by means of passage through turbine(s), licensee must first demonstrate, through site-specific qualitative studies designed and conducted in consultation with the resource agencies, that passage through turbine(s) will not result in significant injury and/or mortality (immediate or delayed)."

The defendants, in consultation with the agencies, built bypasses; they chose the around, versus the through, route.

The suit alleged that the fish kept going through turbines and getting entrained, which amounted to illegal taking under the ESA, as well as a violation of the WQCs, because the defendants hadn't conducted the studies required if the defendants "desired" passage through the turbines.  The plaintiffs argued that the record showed that the diversions aren't working, and the defendants knew it, and that evidence on these issues was relevant as to whether the defendants desired at least some of the fish to go through the turbines, which would prompt the need for the studies.  The majority vacated summary judgment basically because it accepted this argument.

The majority found that there was a factual question regarding the owner's subjective intent.  While the court had "not found another case specifically analogous to this one, where a party's subjective desire for a particular outcome triggers the application of a contractual provision," it said that courts should use special caution in granting summary judgment as to intent.  Evidence that defendants knew the fish were getting mooshed, it said, was relevant to this intent question.  The majority rejected the defendant's argument that "desire" in this instance reflected a defendant ability to choose alternative methods, and once they chose bypass, any intent issue was gone.  It also rejected the argument that the fact that the agreement did not require defendants to achieve any measurable level of effectiveness showed the irrelevance of this factual point.  Rather, as the plaintiff's argued, it was relevant for the fact finder to determine what the defendants desired. 

The majority suggested that the trial court could still grant summary judgent if it concluded that the defendants didn't desire passage through the turbines, but the trial court had to analyze all the information, and the trial court had erroneously deemed that knowledge of effectiveness was irrelevant.

Nor did it matter to the majority that none of the signatories to the agreement was suggesting that the agreement wasn't being met, since the statutes provide for citizen suits.    

In his 15-page dissent, Judge Kayatta says that the majority was "drawn in by the myopic focus of the plaintiffs."  He goes through the language of the agreement in detail, and basically explains why he thinks the majority is misreading it, and why defendants' position as to what the agreement means is correct.  Under this interpretation, no one tries to determine what desires lurk in the hearts of the dam owners over the life of the agreement (which has been in effect 16 years).  The agreement allowed the owners to choose among two options, with certain listed requirements to fulfill, depending upon which option was chosen.  To read the agreement as dependent upon some ongoing subjective intent of the defendants after the choice of around or through was made, the dissent said, mis-read the agreement. 

Judge Kayatta also noted the challenges now faced by the trial court on remand in trying to figure out whether to grant summary judgment, a possibility that the majority expessly said remained.  (See slip op. at 28, stating that "the majority leaves the case adrift without a paddle"). 

Judge Kayatta concluded his dissent by stating:

"Crafted with the aid of five environmental groups [footnote listing them], the Agreement marked a significant turning point in the long history of Maine's exploitation of one of its great rivers. By facilitating the transfer of the Edwards Dam to the state, and securing some of the funds for dam removal, it led to the eventual removal of the Edwards Dam–an event etched in the memory of most Mainers desiring to see industry, environmental groups, and regulators work to find a balance that better protects the state's natural resources. Toward that same end, the Agreement funded the next phase of a fisheries restoration program for the Kennebec, and led to the installation of new interim downstream fish passage facilities at some of the hydroelectric project sites. I hope that the majority's willingness to read such an Agreement in a manner that ignores its overall structure will not deter owners from making other beneficial agreements with state and federal resource agencies for fear that third parties will flyspeck them for supposed ambiguities that none of the parties to the agreement claims exists."

I will be interested to see if anyone files a motion for rehearing en banc.  Given the small number of judges on the First Circuit, there's usually no point.  You need a majority of the active members to agree to rehearing.  There are only 6 members, so if 3 judges rule against you in a decision, good luck in pursuing any rehearing – unless one changes their mind, there can be no majority.

The current active judges, however are CJ Lynch, and Judges Torruella, Howard, Thompson, Kayatta and newbie Barron.  Judge Stahl, who wrote this opinion, is a senior judge.  And, as noted,  there was a vigorous dissent.  So who knows?