This week, S.D. Warren Co. brought its dispute with the Maine Department of Environmental Protection before the U.S. Supreme Court.
Now owned by Sappi Fine Paper, S.D. Warren claims the state went beyond its legal power by imposing environmental regulations on its hydroelectric dams.
In Washington, D.C. on Tuesday, William Kayatta Jr., attorney for S.D. Warren, argued that the Department of Environmental Protection does not have the authority to impose water quality conditions on five contiguous dams along the Presumpscot River.
These dams follow the Presumpscot River as it flows from Sebago Lake past S.D. Warren’s paper mill in Westbrook. The dams generate a total of 7,450 kW of electricity for the paper mill.
The debate revolves around what constitutes a “discharge” into rivers. Under the U.S. Clean Water Act of 1972, states may require water quality certification for any industry that creates a discharge into navigable waters.
S.D. Warren argues that the Clean Water Act does not apply to their Presumpscot River dams because there is no discharge of pollutants as river water runs through their turbines.
Previously, the Maine Supreme Judicial Court upheld a decision that the Department of Environmental Protection was within its legal right to force S.D. Warren to abide by a series of environmental conditions. Judges agreed with the Board of Environmental Protection’s findings that a redeposit of water into the river could be interpreted as a discharge.
“A discharge results because Warren’s dams remove the water of the river from its natural course, exercise private control over the water and then add the water back into the river,” the Maine Supreme Court ruled.
Conditions imposed by the state include monitoring of oxygen levels in the water, control of water levels and flows over the dams and ease of passage for migratory fish and eels.
These conditions were adopted as part of the dam’s new federal license to operate granted in 2003.
Maine Attorney General Steve Rowe represented the Department of Environmental Protection in court and asserted the state’s right to protect the integrity of Maine rivers and waterways.
Friends of the Presumpscot River, a local environmental organization, along with a national group, American Rivers, are advocating on behalf of the state’s ability to impose environmental standards on the dams. It has been a long-term goal of the environmental advocates to restore fish habitats along the Presumpscot, a river they view as more like a series of lifeless ponds segmented by dams than a healthy flowing river.
“I think that there can be a balance between hydropower and the protection and restoration of rivers,” said attorney Sean Mahoney who represents American Rivers and Friends of the Presumpscot River. “Presumpscot is an amazing river. It’s four miles from the biggest city in Maine, but you still feel like you are in the middle of nowhere.”
Historically, industry used rivers like the Presumpscot as their own private sewer, says Mahoney. Before the dams were built, many species of fish, like the Atlantic salmon, once migrated up and down the 25-mile long river from Casco Bay to Sebago Lake.
If the Supreme Court upholds the state courts’ decisions, S.D. Warren would be required to abide by the state’s water quality requirements and install fish passage, by means of “ladders and lifts,” on the five dams in the future.
Putting fish passage on three dams would cost anywhere between $1 and $8 million and would allow an estimated 250,000 fish to migrate the river to spawn, according to the Presumpscot Watershed Coalition, an environmental collective that includes state agencies and local advocacy groups.
If the Supreme Court finds in favor of S.D. Warren, environmental regulation of hydroelectric dams by states would be put in question nationwide.
While the nine justices – including newly appointed justice Samuel Alito – will not make their decision for several months, the eyes and ears of environmental watchdogs across the country are focused on what is being called a landmark case in the history of the U.S. Clean Water Act.
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