ELLSWORTH — In March, the Maine Department of Environmental Protection denied a request by Black Bear Hydro Partners for a water quality certification (WQC) under the Clean Waters Act.
The certification is critical to the company’s pending application for new licenses to maintain and operate the two Union River dams — one at the lower end of Graham Lake and the other forming Leonard Lake — known as the Ellsworth Hydroelectric Project.
In its decision, the DEP ruled that the project “will not result in all waters affected (the two lakes) being suitable for all designated uses and meeting all other applicable water quality standards.”
On April 17, the company appealed the DEP’s action and asked the Maine Board of Environmental Protection to hold a public hearing on its application. Black Bear asked the board to “(w)ithdraw the WQC Denial and issue a WQC finding that (1) Leonard Lake meets the applicable … water quality standards and (2) the Union River between Graham Lake and Leonard Lake meets applicable aquatic life and habitat criteria.”
According to the company’s Notice of Appeal, the DEP’s denial was “unsupported” by either Maine law or the department’s “course of conduct,” failed to consider all the data and information presented by Black Bear in its certification application and was “incorrect, arbitrary and capricious.”
Without the required certification, it will be virtually impossible for the Federal Energy Regulatory Commission to approve new licenses for the dams.
“This appeal from Brookfield does not come as a surprise,” Dwayne Shaw, executive director of the Downeast Salmon Federation, said in an email Monday morning. Black Bear, the company that operates the dams, is a part of the Toronto-based Brookfield Renewable Energy Group.
“The Maine DEP’s denial of Water Quality Certification was the right thing to do and is supported by Maine Water Quality law and the scientific data provided by Brookfield themselves,” Shaw said. “Some of the arguments in the appeal amount to asking for an increase in the speed limit after being pulled over and admitting to speeding.”
Under the Clean Water Act, state waters are divided among several classes, based on measurements of several environmental factors, for the purpose of determining what activities may be allowed on a particular water body and how those activities must operate to maintain particular water quality standards.
Black Bear advanced two main arguments in support of its appeal. The first was that DEP misclassified Leonard Lake and applied the wrong standard for the required level of “dissolved oxygen” (DO) in its waters. Dissolved oxygen is a significant measure of the capacity of a body of water to sustain a healthy ecosystem for aquatic species including fish, plants and microorganisms that may be part of the food chain.
DEP also ruled that, because of the project’s impact on the “benthic macroinvertebrate community,” tiny, bottom-dwelling aquatic animals and insect larvae in the water or burrowed into the bottom, Graham Lake and the section of the Union River that flows between the Graham Lake Dam and Leonard Lake “will not meet all applicable habitat and aquatic life standards.”
According to the National Institutes of Health, such benthic communities “are often used in biological monitoring programs to evaluate the ecological status of rivers” and serve as a way to measure the impacts of anthropogenic (human) activities.
Black Bear argues that DEP failed to give “due consideration” to all the information and data the company presented as to how its hydroelectric project would operate in the future. Because of that failure, the company says the DEP decision was “incorrect” and should be overturned.
In its application to FERC, the company has said it will reduce fluctuations in water levels at Graham Lake that often leave acres of mudflats exposed, and improve up- and downstream passage over the Leonard Lake dam for species such as alewives and eels which have suffered substantial injuries and deaths as the emigrate from the fresh water above the dam to the sea.
“As Brookfield continues to delay the outcome of this relicensing we know that fish kills will continue,” Brett Ciccotelli, a fisheries biologist at Downeast Salmon Federation, said Monday. “Brookfield needs to change how it does business on the Union River.”
As of Monday, the Board of Environmental Protection had yet to schedule a hearing on the Black Bear Hydro appeal.