Bookmark & share:

E-mail this page E-mail a letter to the editor Reader Comments (below)

By COLIN HICKEY
Staff Writer Wednesday, August 08, 2007

The court, in a case argued Feb. 13, upheld a decision in Kennebec Superior Court that the Department of Environmental Protection acted properly in issuing a permit to allow the removal of the hydroelectric facility on the Sebasticook River -- a decision subsequently supported by the Board of Environmental Protection.

Save Our Sebasticook (SOS), a group led by Rep. Kenneth Fletcher, R-Winslow, a landowner on the Fort Halifax impoundment, is the party that contested the DEP and BEP decisions at the Superior and Supreme court level.

In its decision, the Supreme Judicial Court wrote:

"SOS contends that the Board did not comply with the (Maine Waterway Development and Conservation Act) because it failed to perform a balancing test and make appropriate findings, and because FPL Energy failed to demonstrate compliance with applicable water quality laws. We disagree and affirm the judgment."

Dana Murch of the DEP said the court's decision was gratifying for his agency.

"Our position is we did everything required and more by the law," he said, "and the court agreed."

Murch said with the decision he expects the dam will be removed next year so as to allow fish passage without mechanical means by 2009 -- passage of alewives has been provided by a fish pump in recent years.

F. Allen Wiley of FPL Energy acknowledged that the court's decision would seem to be the last legal barrier to dam removal.

But Wiley said he would have to confer with FPL Energy lawyers before he could say that definitively.

The energy company is bound by a 1998 agreement that required fish passage be provided for sea-run species by either a fish lift or dam removal by May 1, 2003.

FPL Energy opted to pursue dam removal after it determined building a fish lift would be too expensive.

SOS delayed the dam removal process through a series of court challenges at the state and federal level.

Fletcher said he was disappointed but not surprised by the court's decision "considering the court's recent actions in upholding other BEP and Superior Court actions."

The Kennebec Coalition, one of the 1998 agreement's signers, had the opposite reaction to the ruling, according to William Harwood, a lawyer representing the collection of fishery and conservation groups.

"Overall," Harwood said, "we are very pleased and our clients are very pleased that the court recognized that DEP and BEP did a very careful job of reviewing the case before they ordered the dam removed."

DEP's Murch said the legal rulings on his agency's handling of Fort Halifax are unprecedented in Maine.

"This the first time," he said, "that the courts have ruled on how the department applies state law on dam removal."

Even removal of Edward's Dam in Augusta, while highly contentious, never involved any challenges to DEP's role in the process, he said. Fletcher said the 1998 agreement involving state agencies, hydro owners and various state and federal fishery and conservation groups played a big part in the court's decision. "It has become apparent," he said, "there are many who want to protect the agreement at all costs rather than consider the broader issues involved in the interest of achieving balanced solutions." Fletcher argues much has changed in the world since the 1998 pact, most notably grave concerns about greenhouse gas emissions and the need to limit those emissions through greater reliance on renewable energy sources.

SOS continues to back a proposal by dam operator Essex Hydro Associates to purchase and operate Fort Halifax. As part of its proposal, the Boston-based company said it would build a fish lift.

Essex Hydro has not given up on its plan.

"We still have a desire to proceed and take over the project and continue its operation unless and until the dam is out," Essex Hydro President Dick Norman said.

Norman was uncertain about the impact Tuesday's ruling would have on his company's hopes for Fort Halifax.

"We haven't had an opportunity to see the court decision," he said, "and frankly have not been a part of that process, so I'm really not in a position to comment on the legal effect of that decision."

The Kennebec Coalition and two federal agencies rejected the Essex Hydro proposal. Essex Hydro and Fletcher have asked for a meeting to address their concerns but so far have been unsuccessful.

Fletcher said the Kennebec Coalition is the only party to the 1998 agreement unwilling to meet with Essex Hydro.

"We are only asking just to get together to see if we can work something out here," Fletcher said. "I'm not sure what we can legally do about it, but we are trying to pursue this in a logical, sensible matter."

Harwood, the Coalition's representative in Supreme Court appeal, said he has not been involved in Essex Hydro's request for a meeting.

But Harwood said, "My understanding is (Kennebec Coalition members) did not find the proposal something they were interested in pursuing and also felt it was a bit of too little, too late."

Daniel Marra of the Kennebec Coalition said previously that the Coalition, as well as federal and state agencies involved, found several substantive flaws with the Essex proposal, especially the lack of a functional design for the fish lift.

Town officials in Winslow, meanwhile, share Fletcher's disappointment in Tuesday's ruling, as well as his frustration that the Essex Hydro proposal has not been accepted.

Winslow selectmen sent a letter to Gov. John Baldacci last month to ask that he intervene in the matter. Town Manager Michael Heavener said the Baldacci administration wrote back but made no commitment to get involved in the matter.

Heavener, though, said he remains hopeful that a way can be found to preserve the dam.

"I think as a municipal leader I have an obligation not just to the residents of Winslow but to the people of Maine to keep looking at other proposals," he said.

Colin Hickey -- 861-9205

chickey@centralmaine.com

Bookmark and share this story: