United States District Court, D. Maine
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
GEORGE Z. SINGAL, District Judge.
Before the Court are the cross-motions for summary judgment and the supplemental memoranda filed in support of those motions filed by Plaintiffs Friends of Merrymeeting Bay and Environment Maine (together, the "Plaintiffs") and Defendants Hydro Kennebec, LLC, Brookfield Power U.S. Asset Management, LLC, Merimil Limited Partnership, FPL Energy Maine Hydro, LLC (now Brookfield White Pine Hydro LLC), and Brookfield Renewable Services Maine LLC, (together, the "Defendants"). For the reasons explained herein, the Court GRANTS Defendants' Motion for Summary Judgment as supplemented by their Supplemental Memorandum of Law In Support of Motion for Summary Judgment (ECF No. 164) ("Dfs.' Mot. for Summary J.") and DENIES Plaintiffs' Motion for Summary Judgment as supplemented by their Supplemental Memorandum in Support of Plaintiffs in the Parties' Cross-Motions for Summary Judgment (ECF No. 162) ("Pls.' Mot. for Summary J.").
I. LEGAL STANDARD
Generally, a party is entitled to summary judgment if, on the record before the Court, it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. A "material fact" is one that has "the potential to affect the outcome of the suit under the applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993) (citing Anderson, 477 U.S. at 248) (additional citation omitted).
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).
Once the moving party has made this preliminary showing, the nonmoving party must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted); see also Fed.R.Civ.P. 56(e). "Mere allegations, or conjecture unsupported in the record, are insufficient." Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) ("A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation." (citations omitted)). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (quoting In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993)).
The above-described "standard is not affected by the presence of cross-motions for summary judgment." Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005) (citation omitted). "[T]he court must mull each motion separately, drawing inferences against each movant in turn." Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003) (citation omitted); see also Alliance of Auto. Mfrs., 430 F.3d at 34 ("[L]ike the district court, we must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party's behoof.").
The Court presumes familiarity with the lengthy litigation and background of these consolidated cases. Accordingly, the Court discusses only those facts that are pertinent to the Motions currently before the Court.
A. Water Quality Certifications
The Lockwood, Hydro Kennebec, Shawmut and Weston Projects are four hydroelectric projects, or dams, located on the mainstem Kennebec River. The Lockwood Project is the first hydroelectric project upstream of Merrymeeting Bay on the Kennebec River. The Hydro Kennebec, Shawmut and Weston Projects are dams located upstream of the Lockwood Project on the Kennebec River. Each of these Projects operates subject to the terms and conditions of a water quality certification issued by the State of Maine pursuant to Section 401 of the CWA, 33 U.S.C. §1341. (Joint Stipulated Facts for Summary Judgment (LSW ECF No. 85) ("LSW JSF") ¶ 193; Stipulations of Fact (HK ECF No. 95) ("HK JSF") ¶ 131.) The water quality certifications for each project are included in the projects' Federal Energy Regulatory Commission ("FERC") licenses. Among the requirements of each Project's water quality certification is the following provision:
INTERIM DOWNSTREAM FISH PASSAGE: The applicant shall continue and where needed improve existing operational measures to diminish entrainment, allow downstream passage, and eliminate significant injury to out-migrating anadromous fish in accordance with the terms of the KHDG Settlement Agreement.
(LSW JSF ¶ 195; HK JSF ¶ 132 (emphasis added).) The KHDG Settlement Agreement (the "Settlement Agreement") provides:
To the extent that licensee desires to achieve or continue interim downstream passage of out-migrating alewife, and/or juvenile Atlantic salmon or shad by means of passage through turbine(s), licensee must demonstrate, through site-specific qualitative studies designed and conducted in consultation with the resource agencies, that passage through turbine(s) will not result in significant injury and/or mortality (immediate and delayed). In the event that adult shad and/or adult Atlantic salmon begin to inhabit the impoundment above the... project, and to the extent that licensee desires to achieve interim downstream passage of out-migrating adult Atlantic salmon and/or adult shad by means of passage through turbine(s), licensee must first demonstrate through site-specific quantitative studies designed and conducted in consultation with the resource agencies [ i.e., the Services, MDMR, Maine Department Inland Fisheries and Wildlife, and Maine Atlantic Salmon Authority], that passage through turbine(s) will not result in significant injury and/or mortality (immediate or delayed). In no event shall licensee be required to make this quantitative demonstration for adult shad and adult Atlantic salmon before May 1, 2006.
(HK JSF ¶ 196; see also LSW JSF ¶ 134.) As discussed below, this litigation turns on what Defendants "desire" in regard to downstream fish passage at each project.
B. The Lockwood Project
Downstream migrating salmon and shad can pass the hydro electric projects, including the Lockwood Project, by three basic means: through the turbines, through the fish bypass and via spill. (LSW JSF ¶ 90.) Indeed, Defendants testified at a 2007 hearing that "[t]here are a number of existing downstream passages for eels and anadromous fish at the Kennebec River Projects and these include gates, spillways and turbine passage." (Id. ¶ 198; see also id. ¶ 199 (stating that "[c]urrently fish are passed downstream at Weston, Shawmut and Lockwood projects via existing gates, sluices, spillways and turbines").)
The Lockwood Project has seven turbines, and each of the turbine intakes is screened by a trash rack with vertical bars. (Id. ¶ 92.) The trash racks screening the intakes at Units 1-6 have a space of 2.0 inches between the bars; the trash rack screening the intakes at Unit 7 has a space of 3.5 inches between the bars. (Id. ¶ 95.) In general, downstream migrating kelts in the Kennebec River are too large to fit through a 2-inch trash rack spacing, but most could physically fit through a 3.5-inch spacing. (Id. ¶ 96.)
In 2005, Defendants began working with the signatory agencies to the Settlement Agreement and FERC regarding a draft plan for interim downstream fish passage at the Lockwood Project. (Defs.' Supplemental Statement of Undisputed Material Fact (HK ECF No. 165) ("BFSF") ¶ 23; Pls.' Opp'n to Defs.' Supplemental Statement of Undisputed Material Facts (HK ECF No. 167) ("Pls.' Opp'n to BFSF") ¶ 23.) On March 3, 2006, MDEP wrote to Defendants and indicated that MDEP, in accordance with the August 26, 2004 water quality certification, had reviewed and approved of an interim downstream fish passage effectiveness study plan. (BFSF ¶¶ 2, 3; Pls.' Opp'n to BFSF ¶¶ 2, 3 (03/03/06 Letter from Dana Paul Murch of MDEP to Chad Clark (LSW ECF No. 83-8).) In addition, the FPL Energy Maine Hydro LLC Fish Passage Report for 2006 reflects that Defendants submitted a downstream fish passage study plan for Lockwood to FERC in September 2005 and that the study plan was approved by FERC in March 2006. (BFSF ¶ 3 (FPL Energy Maine Hydro LLC Fish Passage Report for 2006 (HK ECF No. 81-2) at Page ID # 1292).)
In late fall and early winter of 2007, Defendants conducted a study of adult salmon passage at the Lockwood Project using radio telemetry. (BFSF ¶ 24.) The study revealed that 11 of 15 fish that passed through Units 1 to 6 had immediate survival, while 7 of 10 fish that passed through Unit 7 had immediate survival. (Pls.' Supp. Statement of Undisputed Material Facts (HK ECF No. 163) ¶ 3.) It was difficult to extrapolate from the study, however, because it used smaller hatchery-raised salmon and involved a limited number of fish. (BFSF ¶ 24.) In addition, the study was done before any diversionary facilities were installed at Lockwood. (Id.)
In late summer of 2009, Defendants installed a downstream fish bypass facility at Lockwood in order to allow fish to bypass the turbines. (BFSF ¶ 25; LSW JSF ¶ 200.) The maximum flow rate to the bypass is approximately 6% of that to the turbines. (LSW JSF ¶¶ 94, 98.) At that time, Defendants also installed a 300-foot long floating guidance boom (called a "Slickbar" boom) in the project's forebay upstream of the turbines. (LSW JSF ¶ 200.) Robert Richter testified that the function of the downstream bypass at Lockwood and the reason that it was installed was to have migrating fish bypass the turbines in a safe manner. (BFSF ¶ 13 (Deposition of Robert Richter (ECF No. 82-4) ("Richter Dep.") 56:6-16).) The installation of the guidance boom was approved by NMFS, USFWS, and MDMR as part of a general practice to collaborate with those agencies on fish passage design. (BFSF ¶ 2; Pls.' Opp'n to BFSF ¶ 2 (Richter Dep. 157:10-19; 158:7-15).)
After installation of the diversion facilities at the Lockwood Project, during the "shakedown" period, Defendants evaluated the operation of the Slickbar boom. (BFSF ¶ 27.) The Slickbar Boom at Lockwood had problems with "overtopping, " which occurs when high river flows caused the floats on the top of the boom to be pulled down below the water's surface, providing an opportunity for fish to pass over the boom. (LSW JSF ¶ 202.) The Slickbar boom also had problems with the curtain ripping, which could create holes large enough for the salmon to swim through the curtain. (Id. ¶ 203.) During the shakedown period, Defendants identified the need for and made modifications, including additional flotation and upstream facing tether lines securing the boom and removing some of the unwanted billowing in the curtain. (BFSF ¶¶ 27, 28; Pls.' Opp'n to BFSF ¶ 28.) On certain occasions, the Slickbar boom and curtain were removed from the Lockwood forebay to allow for repair. (LSW JSF ¶ 204.)
In May 2010, Defendants replaced the Slickbar boom with a Tuffboom to address the issues presented by the prior boom, including overtopping and ripping, and to guide fish towards the bypass and away from the turbines. (BFSF ¶¶ 29, 31; Pls.' Opp'n to BFSF ¶ 31; LSW JSF ¶ 201.) The Tuffboom was more buoyant and rugged and was designed to be deployed year-round. (BFSF ¶¶ 29, 32.) Modifications were made to the Lockwood Tuffboom in June 2010 to increase buoyancy, strength and add new screening. (Id. ¶ 32.) Around the same time, Defendants added a new surface sluice gate. (Id. ¶ 30.)
Problems arose with the Tuffboom. (BFSF ¶ 29; Pls.' Opp'n to BFSF ¶ 29; LSW JSF ¶ 209-12.) Specifically, in March 2011, the attachment point between the Tuffboom and the downstream bypass at Lockwood broke loose, and was not reattached until sometime in April, after the downstream bypass had been opened for the early part of the migration season. (LSW JSF ¶ 208.) In late April 2011, the Tuffboom was found to be tilting in such a way as to potentially impair its proper functioning. (Id. ¶ 209.) In early June 2011, Defendants discovered that a weighting chain on the bottom of the Tuffboom had ripped free of the curtain, which may have diminished the effectiveness of the screening by the boom, and sent divers to repair it. (LSW JSF ¶ 210; BFSF ¶ 33.) In April or June 2011, Defendants noticed that the trash rack bars covering the bypass sluice were rattling and vibrating in a way that could deter fish from using the bypass, and Defendants inserted wedges. (LSW JSF ¶ 211; BFSF ¶ 33.)
In May and June of 2011, a radio telemetry study was performed at Lockwood to determine the effectiveness of the Tuffboom at guiding salmon smolts to the bypass. (LSW JSF ¶ 213.) Based on the results of the study, Defendants and their consultants predicted that during median flow conditions in the Kennebec River during kelt migration periods, 38.7% of downstream migrating kelts pass Lockwood via spill, 11.5% pass via bypass and 49.8% pass via the turbine. (Id. ¶ 221.) Also based on the study, Defendants and their consultants predicted that, of those kelts passing Lockwood through the forebay powerhouse, 81.8% attempt to pass via the turbines. (Id. ¶ 222.)
After examining the results of the radio telemetry study, NMFS stated: "Overall, the downstream bypass system was not effective at passing smolts. The majority of smolts entering the power canal passed via turbine entrainment. Atlantic salmon passage via turbine entrainment would have greater impacts to the species than a highly effective, well-designed and functioning downstream fish bypass system." (LSW JSF ¶ 217.) NMFS further stated:
We understand that the [Defendants] plan several modifications to the existing downstream bypass in an attempt to increase its effectiveness. We are not confident that the proposed modifications will significantly improve effectiveness of the downstream bypass or reduce turbine entrainment. Based upon the results of studies evaluating the effectiveness of floating booms at the Lockwood and Hydro-Project in the Kennebec River, NMFS questions whether this technology can be an effective behavioral guidance for migratory fish species. Given this, the Licensee may want to consider physical exclusion at the site. Physical exclusion has been proven effective at significantly reducing turbine entrainment of Atlantic salmon and other diadromous fish species.
(Id. ¶ 218.) In addition, after reviewing the results of the radio telemetry study, a MDMR biologist stated in December 2011:
[M]DMR is disappointed with the poor utilization of downstream bypass facility.... Based on juvenile Atlantic salmon assessments undertaken at upriver nursery areas in 2010 and 2011, [M]DMR expects the largest smolt cohort to date to migrate downstream in the spring of 2012. NextEra needs to consider measures to ensure safe, timely and effective downstream passage of smolts in light of poor guidance and bypass utilization observed in 2011.
(Id. ¶ 219.)
In early 2012, Defendants began planning a complete overhaul of the Lockwood Tuffboom to create a stronger attachment appoint, to further improve flotation and to replace the netting with a metal punch plate, at a cost of approximately $125, 000. (BFSF ¶ 34.) Finally, Defendants have not shut down the turbines at the Lockwood Project to provide for alternative adult salmon or shad passage. (LSW JSF ¶ 224.)
C. The Shawmut Project
In March 2007, Defendants testified that "[t]here are a number of existing downstream passages for eels and anadromous fish at the Kennebec River Projects and these include gates, spillways and turbine passage." (LSW JSF ¶ 198.) The Shawmut Project has eight generating units. (Id. ¶ 100.) Each of the unit intakes is screened by a trash rack with vertical bars. (Id.¶ 103.) The trash racks screening intakes at Units 1-6 have a space of 1.5 inches between the bars; the trash racks screening the intakes at Units 7-8 have a space of 3.5 inches between the bars. (Id. ¶ 103.) In general, downstream migrating kelts in the Kennebec are too large to fit through a 1.5-inch trash rack spacing, but most could physically fit through a 3.5 inch spacing. (Id. ¶ 104.)
As of May 1, 2012, the downstream fish bypass facility at the Shawmut Project included a four foot wide by 22 inch deep surface sluice in the project's forebay that discharges into a three-foot deep plunge pool. (LSW JSF ¶105; BFSF ¶ 35; Pls.' Opp'n to BFSF ¶ 35.) The bypass at Shawmut was originally designed for debris but now provides a route for downstream migrating fish other than the turbines. (BFSF ¶ 35; Pls.' Opp'n to BFSF ¶ 35; LSW JSF ¶ 234.) The flow rate through the bypass at the Shawmut Project is less than 1% of that through the turbines. (LSW JSF ¶¶ 102, 106.) There is no boom in place at Shawmut to help guide downstream migrating salmon to the bypass. (Id. ¶ 234.)
In 2009, Defendants' engineers and operations personnel began to study options to address major debris issues as well as downstream fish passage. (BFSF ¶ 36; Pls.' Opp'n to BFSF ¶ 36). A team of consultants was hired to design the new facility. (BFSF ¶ 36.) In 2011, Defendants developed plans to use full-depth one-inch angled trashracks and a new surface sluice and flume, all to be designed in consultation with and approved by the resource agencies. (Id. ¶ 37.) Defendants were scheduled to complete the design consultation and permitting for this installation in the fall of 2011 and to complete installation in 2012, but Defendants, on recommendation from NMFS, decided not to proceed in order to prevent the Shawmut Project from being placed on a different process for an incidental take statement from the other dams owned by Defendants. (BFSF ¶ 37; Pls.' Opp'n to BFSF ¶ 37.)
An analysis by Defendants and their consultants predicted that based on the relative flows of water passing through the bypass and turbines at the Shawmut Project during median flow conditions during kelt migration periods, 29.6% of downstream migrating kelts pass Shawmut via spill, 1% pass via the bypass, and roughly 70% pass via the turbines. (LSW JSF ¶ 235.) The same analysis predicted that, of the kelts entering the forebay and powerhouse, more than 99% may attempt to pass through the turbines. (Id. ¶ 236.) Defendants have not shut down the turbines at the Shawmut Project to provide for alternative salmon passage. (Id. ¶237.)
D. The Weston Project
In March 2007, Defendants testified that fish pass downstream at the Weston Project via existing gates, sluices, spillways and turbines. (LSW JSF ¶¶ 198, 199.) The Weston Project has four turbines. (Id. ¶ 108.) Each of the turbine intakes is screened by a trash rack with vertical bars with a space of four inches between the bars, and nearly all downstream migrating kelts in the Kennebec could fit through the bars at the Weston Project. (Id. ¶¶ 111, 112.) To date, Defendants have not shut down the turbines at the Weston Project to provide for alternative adult salmon passage. (Id. ¶ 233.)
The downstream fish bypass facility at the Weston Project includes an 18 foot wide by 14 foot deep surface sluice. (Id.¶ 113.) As of March 2012, the bypass flow at the Weston Project was 2% of the flow through the project's turbines during salmon migration season, and since May of 2012, the flow rate at the Weston Project has been 6% of the flow through the project's turbines. (Pls.' Supplemental Statement of Undisputed Material Facts (HK ECF No. 163) ("Pls.' Supp. Facts") ¶ 4; Defs.' Opp'n to Pls.' Supplemental Statement of Undisputed Material Facts & Dfs.' Additional Supplemental Statement of Undisputed Material Facts (HK ECF No. 168) ¶ 4.) In general, the downstream fishway at Weston allows fish to bypass the dam without swimming through the turbines. (BFSF ¶ 42.)
An analysis by Defendants and their consultants concluded that, absent the guidance boom installed in 2011, 32.2% of downstream migrating kelts pass the Weston Project via the spill, 1% pass via the bypass and roughly 66% pass via the turbines. (LSW JSF ¶ 231.) The same analysis concluded that absent the guidance boom installed in 2011, the downstream migrating kelts passing the Weston Project through the ...