FPL Energy Maine Hydro LLC v. Maine Department of Environmental Protection (Maine Supreme Judicial Court)

• Supporting Reversal of an Agency Decision that Requires Owners of an Artificial Water Storage Facility to Operate It as if It Were a Natural Lake

The Flagstaff Storage Project is an artificial reservoir constructed under state legislative mandate for the purpose of regulating the natural flows of the Kennebec River in Maine to enable its use during the entire year in connection with manufacturing and power generation.  Thanks to the operation of the Flagstaff Project and other water storage reservoirs regulating its flows, the Kennebec River is the most productive source of clean, renewable power in the State of Maine.  Despite these facts, the Maine Supreme Judicial Court, in a decision in this case rendered on July 26, 2007, decreed that the Flagstaff Project, an artificial creation, must be operated as if it were a natural water body in that any draw-downs of water in the reservoir must match the ebbs and flows of a natural lake.  Disagreeing with NELF, the Court affirmed the Maine Board of Environmental Protection’s denial of water quality certification for the project.  The Court deferred to and upheld the judgment of the Board that the use of other artificial impoundments as the reference standard for application of state water quality standards, rather than natural lakes, would require advance EPA approval under provisions of the federal Clean Water Act, 33 U.S.C. §§ 1251 et seq., and regulations thereunder.  The decision imposes an operational regime on the Flagstaff Project that is inconsistent with its historical operations and adversely affects beneficial policy goals, including the creation of electricity through the renewable means of hydropower and regulation of the Kennebec River’s flows for other commercial and recreational uses.