Environment Maine, a statewide environmental group, and Friends of Merrymeeting Bay, a group dedicated to the preservation of the Merrymeeting Bay ecosystem, filed their motion for a preliminary injunction in the U.S. District Court in Portland last Thursday. The defendants in the groups’ Endangered Species Act case are NextEra Energy Resources LLC (a Florida company), FPL Energy Maine Hydro, LLC, and affiliated companies.
“It’s been nearly four years since Atlantic salmon were listed as endangered, and NextEra still has failed to take action to save these iconic fish,” explained Emily Figdor, director of Environment Maine. “Time is running out to save the Atlantic salmon, and we simply can’t delay another season.”
“The Atlantic salmon in the Kennebec and Androscoggin Rivers are on the verge of extinction, yet the dam owners and government agencies continue to stall,” said Ed Friedman, Chair of FOMB. “This is a situation in which a federal judge – and only a federal judge – can take immediate action to help save this species. The court needs to step in before it’s too late.”
According to fisheries biologists consulted by the groups, this year’s salmon run is uniquely important to recovery efforts. Approximately 20,000 young salmon, called “smolts,” are expected to migrate down the Kennebec this spring and another 1,000 down the Androscoggin, the product of stepped-up state stocking efforts and a rare large return class of wild adult spawners in 2011. The size of this year’s run, and its genetic diversity – which is critical to the preservation and persistence of a species, the biologists say – make protection efforts vitally important.
The groups say that according to reports and studies conducted by NextEra’s own consultants, anywhere from one-third to one-half of the entire Kennebec run is likely to be killed trying to run the gauntlet of the Weston, Shawmut and Lockwood dams and another (the Hydro Kennebec dam) owned by Brookfield Asset Management. Temporarily shutting down the turbines could save nearly half of those smolts from being killed.
Biologist Jeff Murphy, of the National Marine Fisheries Service (NMFS) in Orono, reviewed the results of a fish passage study NextEra conducted at its three Kennebec River dams in 2012. After his review, he emailed comments to NextEra in November 2012 stating that the “extremely low survival” experienced by smolts in their passage from the Weston dam to downstream of the Lockwood dam “is certain to preclude recovery.”
In the same comments, Mr. Murphy stated that NMFS recommends “that NextEra implement complete turbine shutdowns in the spring and fall…or installation of state-of-the-art passage facilities” – neither of which NextEra has done, according to the groups.
The ESA prohibits the “taking” of any endangered species in the absence of a federal permit detailing the conditions under which a limited amount takes may occur “incidental” to a legally authorized activity. The Act defines the term “take” to include killing, wounding, or interfering with breeding patterns.
An electric industry consultant has determined that a turbine shutdown during the approximately seven-week smolt migration season would have no noticeable impact on electricity consumers. According to the consultant, the four dams produce only 0.1% of the New England electric grid’s generation capacity.
On March 1, 2013, Brookfield Power US Holding America Co. purchased stock in the corporate parent of two of the Defendant companies. The groups say that an injunction requiring a turbine shutdown would also bind this new parent company.
Friends of Merrymeeting Bay is a non-profit organization dedicated to preserving through research, advocacy, land conservation and education the ecological, aesthetic, historical, recreational and commercial values of Maine’s Merrymeeting Bay and its watershed, which includes the Kennebec and Androscoggin Rivers.
Environment Maine is a citizen-based environmental advocacy organization with more than 16,000 current members and supporters that works to preserve Maine’s open spaces, protect clean air and water, and move the state toward a clean energy future.
The groups are represented by David A. Nicholas of Newton, Massachusetts; Joshua R. Kratka, Charles C. Caldart, and Rachel G. Freed of the National Environmental Law Center; and Bruce M. Merrill, of Portland, Maine.