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STATE OF MAINE  SUPERIOR COURT  
CIVIL ACTION  
KENNEBEC, ss.  DOCKET NO. AP-05-19  

SAVE OUR SEBASTIC100K, INC.,
et al.,
Petitioners
DECISION ON REVIEW
MAINE BOARD OF EIYVIRONMENTAL
PROTECTION, et al.,
Respondents
This matter comes before the court again for review of final agency action pursuant to 5 M.R.S.A. 5 11002,38 M.R.S.A. 5 346 and MR. Civ. P. 80C. Ths appeal is but the latest stop for the petitioners in their odyssey through both federal and state administrative agencies and courts. The last time the matter was before hs court was in CV-04-184, an attempt by Save Our Sebasticook, Inc. ("SOS) to obtain relief through a challenge to a 199'8 agreement concerning the future of dams throughout the Kennebec watershed. In the interest of judicial economy, the court will repeat much of the factual background set forth in its earlier decision, updated to reflect the present challenge.

Background
Early in the last century, the Fort Halifax Dam was constructed on the Sebasticook River in Tvrinslow, Maine. The dam created a lake-like impoundment approximately 5.2 miles long. The dam's primary function was generation of hydroelectric power, but the impoundment has created the added benefit of providing a home for fish and other aquatic species plus recreational sources, including boating, snowmobiling, swimming and fishng. The plaintiffs, indvidually and as members of
SOS, are primarily ovvners of property abutting the impoundment and beneficiaries of
its resources.
As a hydroelectric dam, the Fort Halifax Dam falls withn the regulatory jurisdiction of the Fed.era1 Energy Regulatory Commission ("FERC"). In 1987, the dam owner (Central Maine Power Co. at the time) and owners of four other dams joined to form the Kennebec Hydro Developers Group ("KHDG), whch together with state agencies negotiated an agreement concerning river resources, including fish passage at the dam sites. Included in the agreement was a requirement that a permanent upstream fish passage be established at the Fort Halifax Dam by May 1, 1999. Development of ths 1987 agreement was done with public notice and opportunity to participate.
In October of 1994 and again in November 1997, FERC amended or renewed the Fort Halifax Dam license and included the requirement of permanent upstream fish passage, but with no specified technology for that passage. In 1998, another KHDG agreement was entered, this time including the Kennebec Coalition agencies and Federal Wildlife and Fishery agencies. According to ths agreement, the owner would have to install specific "fish lift" technology by 2003 or, in the alternative, the dam must be partially or fully breached. On September 16,1998, FERC issued an amended license for the dam incorporating a requirement that a "fish lift" be installed by May 1,2003.
Abutting landowner concern about implementation of the fish passage requirements began to grow as the required implementation date approached. In August 2002, FPL Energy Maine, the present owner of the dam, petitioned FERC to be allowed to surrender jts license and partially breach the Fort Halifax Dam in order to allow fish passage. On January 23, 2004, FERC approved this request and issued an order approving license surrender and partial breach. A rehearing was sought and denied. The FERC decision was appealed to the United States Court of Appeal for the
District of Columbia Circuit, whch appeal was dismissed in part and denied in part on
December 9, 2005. Save Otrr Sebasticook v. FERC, 431 F.3d 379 (D.C. Cir. 2005).
Meanwhile, skirmishes were occurring in other administrative arenas. In August 2002, FPL filed an application with the Maine Department of Environmental Protection ("DEP") for a permit pursuant to the Maine Waterway Development and Conservation Act ("MWDCA") 38 h4.R.S.A.

Download KENap-05-19.pdf

Maine Law