Supreme Court ruling impacts Androscoggin

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LEWISTON – A decision by the U.S. Supreme Court is rippling along the Androscoggin River and into efforts to improve the quality of its water.

The court ruled Monday that hydroelectric dams are subject to the federal Clean Water Act and must meet water quality standards imposed by the state.

S.D. Warren Co., which owns the Sappi mill in Westbrook and its energy-producing dams along the Presumpscot River, had sued the Maine Board of Environmental Protection, arguing that the state does not have the authority to impose water standards upon dams because they don’t actually create a discharge.

The state argued that the presence of a dam along a river affects water quality, including its flow rate, chemistry and ability to sustain life, making it subject to regulation.

The court agreed.

“We hold that a dam does raise a potential for a discharge, and state approval is needed,” Justice David Souter wrote in the unanimous decision.

Along the Androscoggin, FPL Energy, which owns the dam that creates Gulf Island Pond, used the same argument as S.D. Warren, saying it is should not be held responsible for the quality of the water behind its dam.

The state Department of Environmental Protection issued new discharge permits to International Paper’s mill in Jay, NewPage’s mill in Rumford, the Livermore Falls wastewater treatment facility and FPL Energy’s dam in September.

All four permits were appealed.

According to Dana Murch, who works in DEP’s Bureau of Land and Water Quality specializing in dams and hydropower, FPL Energy based part of its argument on the issue the Supreme Court has put to rest.

“That part of their appeal goes away,” Murch said Tuesday. “There are still technical grounds within their appeal that must be decided, but their legal grounds disappeared.”

Murch said the Supreme Court’s decision would have broad implications around the country.

“This is the biggest case in 60 years for hydro-electric dams,” Murch said.

In 1946, the Supreme Court ruled that the Federal Power Act, which regulates hydropower projects, preempts state regulations. That ruling, however, ran counter to elements of the 1972 Clean Water Act, which said activities that require federal licenses were also subject to state water standards.

“Dams get licensed once in a lifetime,” once every 30 or 50 years, Murch said. “The question was whether new requirements could be imposed years after a dam has been built and licensed” by the Federal Energy Regulatory Commission. “The answer is yes.”

The decision applies to 1,500 FERC-licensed dams nationwide and 125 dams in Maine, Murch said.

For FPL Energy, the decision could come with a big price tag. As part of its appeal, the company has been fighting a mandate that it pay most of the costs to install a bubbler to pump oxygen into the deep water behind its dam as a way to improve water quality.

“If the court had said that this water quality licensing isn’t allowed, that may have meant that Florida Power and Light was no long a player at the table and would have no role in improving water quality” at Gulf Island Pond, Murch said. “It’s DEP’s stated belief that if it wasn’t for the dam, the river would likely meet water standards.”

On May 11, the DEP proposed changes to the IP and NewPage discharge permits, which significantly shortened their timelines to come into compliance with state standards.

As part of those changes, the DEP agreed not to fight part of FPL Energy’s appeal, which sought to overturn a $100,000 payment for upgrades to the Livermore Falls wastewater treatment plant. The bubbler requirement, however, stood.

FPL was hoping the Supreme Court would go the other way. If it had, then the company would no longer need a state permit and couldn’t be forced to take action to mitigate water quality.

In an interview last week, F. Allen Wiley, director of business and regulatory affairs for FPL Energy, said the state had overstepped its bounds in the assessment of responsibility on the river.

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