Watts v. Maine Bd. of Envtl. Protection

• Court: Superior Court of Maine
• Decided: October 4, 2013
• Docket: CUMap-13-01
• Status: Unpublished

Opinion

STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland Docket No.: BCD-AP-13-01 ;\, M ft - ( Lj (1\- I 0/1/ -:J.o/3 ) DOUGLAS H. WATTS, ) ) ../ Petitioner, ) ) V. ) ) MAINE BOARD OF ) ENVIRONMENTAL PROTECTION, ) ) Respondent, ) ) ) and ) ) S.D. WARREN COMPANY, ) ) Party-in-Interest )

DECISION ON soC APPEAL

Petitioner Douglas H. Watts appeals from the November 15, 20l'i2, Decision of the

Board of Environmental Protection (the Board) that affirmed the approval of a water quality

certification for the Eel Weir Hydropower Project on Sebago Lake owned by the S.D. Warren

Company (Warren). See 5 M.R.S. § 11001 (2012); 38 M.R.S. § 346 (2012); M.R. Civ. P. SOC.

(Administrative Record (hereinafter "A.R.") 1919 (hereinafter, "Decision"). )1 Petitioner asserts

numerous legal challenges to the Board's decision regarding the Eel Weir Hydropower Project

(Project). Because Petitioner only challenges certain portions of the Decision, the Court begins

with the procedural history of this matter and addresses relevant portions of the Decision in the

context of Petitioner's arguments.

1 The court permitted the Board to submit the Administrative Record in this matter electronically. The operative

decision is within document number 1919, at the electronic pagination of 19 through 59. The Court refers to the November 15, 2012, Decision by its internal pagination. Future citations to the record will be by document number and then by electronic pagination, when necessary.

1 PROCEDURAL BACKGROUND

Warren own the Project, "which is located at the outlet of Sebago Lake and controls

water levels in Sebago Lake and flows in the downstream Presumpscot River." (Decision 1.)

The Project includes a dam, an impoundment (Sebago), a power canal, a powerhouse, tailrace

channel, a bypass reach (Eel Weir Bypass or Bypass), and other facilities. (Decision 1.) A dam

has existed at this site since at least 1827. (Decision 1.) The Federal Energy Regulatory

Commission (FERC) licensed the Project in 1984 for a 20-year term. (Decision 1.)

Amendments to the license have established minimum flow requirements in the Bypass and a

lake management plan. (Decision 1.)

In 2002, Warren filed an application with the Department for a water quality

certification (WQC) in conjunction with the proposed FERC relicensing of the project.

(Decision 1.) The application was withdrawn and refiled each year by Warren, with the last

filing in January of 2011. 2 (Decision 1.) By order dated August 30, 2011, the Department

issued a final order approving the WQC for the Project. (Decision 2; A.R. 1840.) Petitioner

initially filed an appeal of the Department's order to the Superior Court pursuant to M.R. Civ.

P. soC. The Superior Court remanded the matter to the Board for its consideration. Petitioner

v. Me. Dep't ifEnvtl. Prot., KEN-AP-11-54 (Me. Super. Ct., Ken. Cty., March 3, 2012) (Murphy,

J.). (A.R. 1864 at 4.) The Board reviewed the appeal without hearing, 3 based on the record

alone, and issued the subject order on November 15, 2012. (Decision 4.) Petitioner filed a

timely petition for review in Kennebec County Superior Court on December 14, 2012. The

2 States have one year from the filing of an application for water certification to issue or deny a WQC. See 33 U.S.C.A. § 1341(a)(1) (West, Westlaw through P.L. 113-36 (excluding P.L. 113-34)); FPL Energy Me. Hydro LLC v. Dep't cif"Env'l Prot., 2007 ME 97, ~ 15, 926 A.2d 1197. As noted by the Board in its opposition, because major projects often take longer than year, the applicant will often withdraw and refile its application to provide for meaningful review. 5 A participant in the administrative process that is not a party to the present appeal requested a hearing.

(Decision 4.) The Board has discretion to conduct a hearing or not and elected not to in this case. See 38 M.R.S. § 341-D(4) (2012). matter was transferred to the Business and Consumer Court on January 14, 2013. The Court

heard oral argument on the appeal on July 31, 2013.

DISCUSSION

I. STANDARD OF REVIEW

In an soC appeal of an agency's decision, the court may affirm the decision, 5 M.R.S.

§ 11007(4)(A) (2010), remand for further proceedings, 5 M.R.S. § 11007(4)(B) (2010), or:

[r]everse or modify the decision if the administrative findings, inferences, conclusions or decisions are:

( 1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (S) Made upon unlawful procedure; (4) Affected by bias or error oflaw; (5) Unsupported by substantial evidence on the whole record; or ( 6) Arbitrary or capricious or characterized by abuse of discretion.

5 M.R.S. § 11007(4)(C) (2010); accord Goodrich v. Me Pub. Emps. Ret. Sys., 2012 ME 95, ~ 6, 48

A.Sd 212. The court will "not attempt to second-guess the agency on matters falling within its

realm of expertise" and judicial review is limited to "determining whether the agency's

conclusions are unreasonable, unjust or unlawful in light of the record." Imagineering, Inc. v.

Sup'tojins., 593 A.2d 1050, 1053 (Me. 1991). The party seeking to vacate the agency's decision

has the burden of proving the agency's decision is clearly erroneous. Douglas v. Ed. ofTrs. of the

Me. State Ret. Sys., 669 A.2d 177, 179 (Me. 1996). A court will not overturn the agency's fact-

finding unless the party seeking to overturn the agency's decision demonstrates that the

administrative record compels a contrary result "to the exclusion of any other inference." I d. at

179.

Finally, with respect to interpretation, a court will interpret a statute according to its

plain meaning, without examining legislative history or giving deference to the Board's

construction. See Whitney v. Wal-Mart Stores, Inc., 2006 ME 37, ~~ 22-23, 895 A.2d 309; Dombkowski v. Ferland, 2006 ME 24, ~ 22, 893 A.2d 599 (explaining that the court's ultimate

objective when interpreting a statute is to "effectuate the intent of the Legislature, which is

ordinarily gleaned from the plain language of the statute"). In doing so, a court will consider

the language in the context of the whole statutory scheme and construe the statute to avoid

absurd, illogical, or unreasonable results. See FPL Energy Me. Hydro LLC, 2007 ME 97, ~ 12,

926 A.2d 1197.

II. ANALYSIS

A. Water quality standards: 5 M.R.S. § 11007(4)(C)(1)

Petitioner makes numerous legal challenges to the Board's order, but one overarching

argument is Petitioner's interpretation of the water quality standards and what constitutes a

"natural" habitat for indigenous fish. Maine's water quality standards classify the segment of

the Presumpscot River below the Dam as Class A, see 38 M.R.S. § 467(9)(A)(1) (2012), and

Sebago Lake as GPA, see 38 M.R.S. § 465-A(1) (2012). The Class A standard is as follows:

Class A waters must be of such quality that they are suitable for the designated uses of drinking water after disinfection; fishing; agriculture; recreation in and on the water; industrial process and cooling water supply; hydroelectric power generation, except as prohibited under Title 12, section 403; navigation; and as habitat for fish and other aquatic life. The habitat must be characterized as natural.

38 M.R.S. § 465(2)(A) (2012). The GPA standard relevant to Petitioner's arguments is as

follows:

Class GPA waters must be of such quality that they are suitable for the designated uses of drinking water after disinfection, recreation in and on the water, fishing, agriculture, industrial process and cooling water supply, hydroelectric power generation, navigation and as habitat for fish and other aquatic life. The habitat must be characterized as natural.

38 M.R.S. § 465-A(1)(A) (2012). Finally, the parties agree that because Class A and Class GPA

are intended to be more protective than Class C standards, the Class standards are implicitly

applicable to water bodies. Relevant here is the Class C standard that requires waters to "be of

4 sufficient quality to support all species of fish indigenous to the receiving waters." 38 M.R.S.

§ 465(4)(C) (20HZ).

As the BEP points out in its brief, the Class A and Class GPA standards designate

different and competing uses of the water bodies, including drinking water, fishing, habitat for

fish and other aquatic life, recreation, and hydroelectric power generation. 38 M.R.S.

§ 465(2)(A); 38 M.R.S. § 465-A(l)(A). It is the role of the Department and the Board to ensure

that all of these uses designated by the Legislature are present in a body ofwater, or take steps

to enhance the water quality so that they may be achieved. See S.D. Warren Co. v. Bd. ofEnvtl.

Prot., 2005 ME 27, ~ 21, 868 A.2d 210. Relevant to Petitioner's arguments, both standards

also state: "The habitat must be characterized as natural." 38 M.R.S. § 465(2)(A) (emphasis

added); 38 M.R.S. § 465-A(l)(A) (emphasis added). "Natural" is a defined term, which "means

living in, or as if in, a state of nature not measurably affected by human activity." 38 M.R.S. §

466(9) (2012).

Underlying many of Petitioner's arguments is Petitioner's incorrect interpretation of

the combined term, "natural" habitat. Petitioner incorrectly asserts that "natural" means a body

of water untouched by human activity, essentially in a pre-dam condition. The Court disagrees

with Petitioner and agrees with the Board on this point. As the Board concluded and

repeatedly explained in the Decision, "natural" applies to the habitat and not to the water body.

(Decision 9, 13, 27.) Thus, what the law contemplates in effect is that the permitted uses of

Class A waters must not cause the habitat to be measurably affected by the human activity

associated with those uses. Petitioner's arguments would, in effect, reclassify the river to Class

AA, see 38 M.R.S. § 465(1) (2012), rather than the designated Class A standard, and would also

read the enumerated permitted uses out ofthe Class A standard.

5 Finally, the Department must consider all of the designated uses of the water bodies,

seeking "a balance that maintains all statutory goals, even if there are perceived conflicts

between uses." (Decision 10.) The Court agrees with the Board's interpretation of the water

quality standards.

B. Fish passage: 5 M.R.S. § 11007(4)(C)(1)

Petitioner first asserts that the Board erred by not requiring the immediate installation

of a passage for all types of anadromous fish at the Eel Weir Dam, rather than a passage for

only juvenile eels. Anadromous fish "are those that migrate from the ocean to fresh water to

spawn." (Decision 24.) Petitioner is primarily concerned with freshwater salmon that inhabit

Sebago Lake. In support of this assertion of error, Petitioner contends that the Clean Water

Act and Maine's water quality standards require that native fish be able to live in a self-

sustaining condition. Next, Petitioner argues that the Board erred by delegating its authority

to the Maine Department of Inland Fisheries and Wildlife (MDIFW). Petitioner further

contends that the Decision unlawfully discriminates against the salmon in favor of the eels and

in violation of the Clean Water Act. Petitioner asserts that the lack of passage for salmon

violates the anti-degradation clause, 38 M.R.S. § 464( 4 )(F)( 1). Finally, Petitioner argues that

relevant case law requires fish passage for the salmon.

1. Self-sustaining condition

Petitioner asserts that the Class A and Class C water standards require native fish to be

m a self-sustaining condition. As explained above, the Class A standards only require the

habitat to "natural"; the Class A standards do not require fish populations to be self-sustaining.

(Decision 23, 25.) Petitioner points to no other authority for his assertion that fish populations

must be self-sustaining. Indeed, the record shows that the salmon population in question is not

6 self-sustaining; the salmon population is supported by stocking. The Court sees no error in the

Board's decision on this point.

2. Delegation if authority

Petitioner asserts that the Board delegated its authority to the MDIFW on the fish

passage issue, that is, instead of determining whether the water quality standards required the

installation of a fish passage, the Board adopted the preference of the MDIFW. The Board

addressed this argument in its decision:

The Board finds that, while the Department's determinations regarding fish passage are not controlled by the fisheries agencies, the Department necessarily relies on these agencies for their expert opinion regarding the suitability of ecological conditions to support indigenous species, including the interaction of different species in the context of fishery management objectives. However, the final decision on compliance with water quality standards rests with the Department.

(Decision 25.) The Court sees no evidence of the Board delegation to the MDIFW on this

issue. Rather, the Board appropriately took into account the expertise of the MDIFW and the

evidence submitted by MDIFW in determining whether the project complied with the water

quality standards. (A.R. 1222.)

S. Discrimination amongst species

The Board concluded, based on evidence in the record, that self-sustaining populations

of American eel are present in the Bypass and the Lake, both above and below the Eel Weir

Project. (Decision 26.) Because the American eel is of considerable interest to both state and

federal agencies, the Board concluded both upstream and downstream passage for the eels was

required to support their habitat. (Decision 26.)

Petitioner does not challenge this finding outright. Petitioner asserts that the Board,

however, is discriminating against salmon and in favor of eels. Petitioner argues that relevant

7 state and federal laws require the immediate installation of a fish passage for all fish, not just

the eel and that the EPA has stated that species-specific discrimination is not permitted.

The Court agrees with the Board that Petitioner has mischaracterized the EPA's letter

regarding alewives. Notably, the law at issue in the EPA letter has been repealed by the

Legislature. See P.L. 2013, ch. 47 (effective April 24, 2013). Moreover, the present situation is

distinct from that involving the alewives because of the factual findings of the Board. The

Board found that while the salmon were not a self-sustaining population, the eels were.

(Decision 17-18, 26.) Its decision was based on a factual distinction between the two

populations, not unlawful discrimination between species.

4. Anti-degradation clause

Petitioner argues that the certification violates the anti-degradation clauses because

salmon have dropped into the Bypass; thus, Petitioner argues, not allowing the salmon to

continue into the river equates to backsliding an existing use in violation of the policy. The

statute provides:

Existing in-stream water uses and the level of water quality necessary to protect those existing uses must be maintained and protected. Existing in-stream water uses are those uses which have actually occurred on or after November 28, 197 5, in or on a water body whether or not the uses are included in the standard for classification of the particular water body.

38 M.R.S. § 464(F)( 1) (2012).

First, the Court is not convinced that this argument has been preserved, as it does not

appear to have been presented to the Board. See New Eng. Whitewater Ctr., Inc. v. Dep't of Inland

Fisheries & Wildlife, 550 A.2d 56, 58 (Me. 1988). Nevertheless, the Court agrees with the

Board's brief that while the certification does not further the opportunity for salmon to drop

into the Bypass, the WQC also does not do anything to prevent the salmon from doing so. The

8 Court sees no violation of the anti-degradation policy, in that the salmon will still be able to

drop down into the Bypass, consistent with current circumstances.

5. Law Court precedent

Finally, Petitioner asserts that the Law Court, in a senes of cases, has already

determined that "native fish must be able to conveniently pass and repass at the dams built

across" the Presumpscot River. Petitioner specifically cites S.D. Warren Co. v. Board if

Environmental Protection, 2005 ME 27, 868 A.2d 210, for this proposition. Petitioner's

argument is based on a misunderstanding of that decision, which does not stand for the

proposition asserted. The Board's decision is not inconsistent with the Warren decision or any

other Law Court precedent identified by the Petitioner.

C. River flows: 5 M.R.S. § 11007(4)(C)(1)

Petitioner next argues that the artificial diversion of the river into a bypass violates

Class A standards because there is not enough water and thus not enough oxygen to support a

natural fish habitat. Here, Petitioner focuses on the Class B requirement that the habitat be

"unimpaired," which is defined as being "without a diminished capacity to support aquatic life."

38 M.R.S. § 466(11) (2012). Petitioner asserts that the Department and Board used the

improper baseline to evaluate the river flow and that the flow in the bypass does not meat the

Class B standard, and thus cannot meet the Class A standard.

Petitioner's challenge suffers from the same misinterpretation of the water quality

standards as previously noted. Petitioner is in effect applying the Class AA standard of "free

flowing" habitat to the Class A setting. Cf 38 M.R.S. § 465(l)(A) (2012) (designating the Class

AA standard of habitat as "free flowing"). As noted above, the Class A standard requires the

habitat to be "natural," i.e., "living in, or as if in, a state of nature not measurably affected by

human activity." 38 M.R.S. § 466(9). In addition, hydroelectric power is a designated use of

9 the Class A standard. 38 M.R.S. § 465(2)(A). Any consideration of the river flow must be

examined in light of that designated use. Although Petitioners challenges the methodology

utilized, the Board was within its discretion to utilize the methodology selected. The record

amply supports the Board's conclusion.

D. Lake levels: 5 M.R.S. § 11007(4)(C)(1)

Petitioner next challenges the lake levels by essentially making the same arguments as

made to challenge the river flows, which suffer from the same fatal flaws. Incorporating the

analysis addressing the river flows, the Court likewise concludes that the Board's decision on

the lake levels is supported by the record and contains no error oflaw.

E. Outflow cap: 5 M.R.S. § 11007(4)(C)(1) &

Petitioner's final challenge is to the WQC's outflow cap, which limits the outflows to

1,000 cfs or less during from mid-October to mid-November each year. The purpose of the

outflow cap is to discourage the landlocked salmon from migrating through the Bypass to

spawn, thus increasing the likelihood that salmon will return to the Jordan River collection site

which supports the salmon fishery. (Decision 27.) The outflow cap will thus further the

MDIFW agency's objectives for its landlocked salmon fishery. Petitioner asserts that the cap

will prevent the salmon from behaving "naturally," that is, migrating downstream to their

historic habitat to spawn.

Again, Petitioner misconstrues the requirement that the fish habitat be "natural" to

satisfy the water quality standards. Moreover, discouraging salmon from migrating

downstream will promote the fishery and the use of the water bodies for fishing, as required by

the water class standards. 38 M.R.S. § 465(2)(A); 38 M.R.S. § 465-A(l)(A). The Court discerns

no error in the Board's decision on this point.

10 CONCLUSION

Based on the foregoing, the court concludes that the Board committed no error in

interpreting Maine's water quality standards. The Decision is supported by sufficient record

evidence. Accordingly, the court affirms the November 15, 20H2, Decision of the Board of

Environmental Protection and denies the appeal.

Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into

the docket by reference.

Dated October 3, 2013 4~~ A.M. Horton Justice, Maine Business & Consumer Court

Entered on the Docket: \() .q. \? _v Copies sent via Mail_ Electronically

11 BCD-AP-13-01

Douglas H. Watts,

Petitioner,

v.

Maine Board of Environmental Protection,

Respondent,

and

S.D. Warren Company,

Party-in-Interest

Douglas H. Watts, ProSe 131 Cony Street Augusta, ME 04330

Maine Board of Environmental Protection Gerald Reid, AAG Office of the Attorney General 6 State House Station Augusta, ME 04333-0006

S.D. Warren Company Matthew D. Manahan, Esq. Pierce Atwood, LLP 254 Commercial Street Portland, ME 04101