On Monday, January 14, U.S. District Court Judge George Singal dismissed Endangered Species Act (ESA) and Clean Water Act (CWA) claims against several dam owners and operators located along the Kennebec and Androscoggin rivers in Maine. The claims involved the companies’ alleged harming of endangered Atlantic salmon by allowing the fish to pass through turbines.
The plaintiffs in the litigation, Friends of Merrymeeting Bay and Environment Maine, sued the companies in four separate complaints under the ESA and CWA in January 2011. The complaints alleged that the dams were killing or injuring migrating salmon that attempt to pass through the dams’ spinning turbine blades, and that the dams were impeding the fish’s ability to travel upstream and downstream on the rivers. The plaintiffs claimed that these actions constituted a taking of the endangered salmon without a permit, in violation of the ESA.
In the first three complaints, Judge Singal dismissed the ESA claims against Brookfield Power, Miller Hydro Group, and Topsham Hydro Partners, finding that before the complaints were filed, these companies had applied for incidental take permits, and have since acquired them. Judge Singal noted in his orders that each company’s application process had concluded with the National Marine Fisheries Service’s issuance of a biological opinion, and that each opinion included an incidental take statement (ITS) that satisfied permit requirements.
“The [biological review] is ‘based on a review of the best available scientific and commercial information,’” Judge Singal stated in each order. The judge also pointed out that “after over 60 pages of analysis and review, the [biological opinion] concludes that operation of the…project pursuant to the interim species protection plan ‘may adversely affect but is not likely to jeopardize the continued existence of the [population] of Atlantic salmon.’”
Because the plaintiffs’ claims were predicated on the allegation that the defendants did not have an ITS, Judge Singal granted the three defendants’ motions for summary judgment, even though the defendants had not yet obtained the ITSs at the time the claims were filed.
Judge Singal denied the motion to dismiss the ESA claim against NextEra Energy and Merimil Limited Partnership because those defendants had not obtained an ITS. Judge Singal also refused to dismiss the CWA claims against Miller Hydro Group and Topsham Hydro Partners, finding that the bulk of their evidence was not properly presented, and rejecting their sole remaining argument that the issuance of an ITS would “clearly resolve any subordinate concerns under other statutes.”
If you would like more information, or have questions about the implications of these holdings going forward, please do not hesitate to contact Matt Manahan (207-791-1189 or mmanahan@pierceatwood.com) or John Formella (603-373-2010 or jformella@pierceatwood.com).
