Douglas H. Watts v. Board of Environmental Protection

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 91
Docket: BCD-13-487
Submitted
On Briefs: May 29, 2014
Decided: July 15, 2014

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, GORMAN, and JABAR, JJ.

DOUGLAS H. WATTS

v.

BOARD OF ENVIRONMENTAL PROTECTION et al.

GORMAN, J.

[¶1] Douglas H. Watts appeals from a judgment entered in the Business and

Consumer Docket (Horton, J.) affirming the decision of the Maine Board of

Environmental Protection (BEP) approving S.D. Warren Co.’s application for

water quality certification pursuant to section 401 of the Clean Water Act,

33 U.S.C.A. § 1341 (West, Westlaw through P.L. 113-120 approved 6-10-14), and

Maine statute, 38 M.R.S. § 464(4)(F)(3) (2013). We affirm the judgment.

I. BACKGROUND

[¶2] Since at least 1827, a dam has existed at the outlet of Sebago Lake

where Sebago Lake flows into the Presumpscot River. The site is presently

occupied by the Eel Weir Hydropower Project (“the project”), which is owned and

operated by S.D. Warren Co. The project encompasses the Eel Weir Dam, an
2

impoundment (Sebago Lake), a power canal and powerhouse, a tailrace channel,

and associated infrastructure. The project also includes the Eel Weir Bypass, a

1.3-mile-long stretch of water that connects Sebago Lake to the Presumpscot River

by circumventing the project facilities. Water flowing over the dam goes either to

the power canal, where it is used to generate electricity, or to the bypass.1

[¶3] Pursuant to the Federal Power Act, the Federal Energy Regulatory

Commission (FERC) is responsible for issuing licenses for the construction,

operation, and maintenance of hydroelectric dams located in any navigable waters

over which Congress has jurisdiction pursuant to the Commerce Clause of the

United States Constitution. 16 U.S.C.A. §§ 797(e), 817(1) (West, Westlaw

through P.L. 113-120 approved 6-10-14). Pursuant to section 401 of the Clean

Water Act, any applicant for a license to conduct activity that “may result in any

discharge into the navigable waters” must provide FERC with a certification from

the state in which the discharge will originate confirming that any such discharge

will comply with water quality standards established by the Clean Water Act and

that state’s statutes. 33 U.S.C.A. § 1341(a)(1); see also S.D. Warren Co. v. Bd. of

Envtl. Prot., 2005 ME 27, ¶ 8, 868 A.2d 210, aff’d, 547 U.S. 370 (2006). FERC

1
Warren owns and operates five other hydroelectric dams on the Presumpscot River below the Eel
Weir Hydropower Project. See S.D. Warren Co. v. Bd. of Envtl. Prot., 2005 ME 27, ¶ 2, 868 A.2d 210,
aff’d, 547 U.S. 370 (2006). The approval of water quality certification for those dams was the subject of
a prior appeal by Warren to us. See id. ¶ 1. We affirmed the water quality certification, which required,
among other things, the gradual installation of fish passages at Warren’s other dams. Id. ¶ 1; see also
S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 375 (2006).
 3

issued a twenty-year license for the project in 1984.2 In 2002 Warren began the

process of relicensing the project and, as required, filed an application with the

Maine Department of Environmental Protection (DEP) for approval of water

quality certification (“WQC”) in conjunction with the proposed relicensing.3

[¶4] In August 2011, the DEP issued an order approving the WQC for the

continued operation of the project. That order included numerous conditions to

ensure that the continued operation of the project would not violate applicable

water quality standards for Sebago Lake and the Presumpscot River. The

conditions established minimum and maximum water flows into the Eel Weir

Bypass, provided for eel passage around the Eel Weir Dam, and set an annual

target lake level for Sebago Lake. The WQC also included provisions specifically

authorizing the DEP to reopen the certification in order to consider the installation

of fish passage facilities around the dam and to modify Sebago Lake’s water level.

Douglas Watts, a recreational user of Sebago Lake and the Presumpscot River,

appealed the WQC to the Board of Environmental Protection (BEP). The BEP

issued a decision affirming the DEP’s order approving the WQC in November

2
The initial license issued by FERC did not contain conditions regarding the management of Sebago
Lake’s water level and did not require minimum water flows into the Eel Weir Bypass. A 1992 FERC
order established minimum water flow requirements regarding the bypass. A 1997 FERC order, which
was amended in 2000 and 2001, established a lake level management plan for Sebago Lake.
3
As is common practice, Warren voluntarily withdrew its first DEP application and refiled it several
times as FERC continued to review its license application. Warren’s last filing was in 2011.
4

2012.4 Watts then filed a petition for review in the Superior Court pursuant to

M.R. Civ. P. 80C. The matter was transferred to the Business and Consumer

Docket, and in October 2013 the court entered a judgment affirming the BEP’s

decision. Watts appealed to this Court.

II. DISCUSSION

A. Standard of Review

[¶5] When the Business and Consumer Docket acts in an intermediate

appellate capacity pursuant to M.R. Civ. P. 80C, we review the BEP’s decision

directly for errors of law, abuse of discretion, or findings of fact not supported by

the record. See S.D. Warren Co., 2005 ME 27, ¶ 4, 868 A.2d 210. Our review of

state agency decision-making is “deferential and limited.” Friends of Lincoln

Lakes v. Bd. of Envtl. Prot., 2010 ME 18, ¶ 12, 989 A.2d 1128. The BEP’s

interpretation of the statutes it administers “will be given great deference and

should be upheld unless the statute plainly compels a contrary result.”

S.D. Warren Co., 2005 ME 27, ¶ 4, 868 A.2d 210 (quotation marks omitted). We

will affirm the BEP’s findings of fact if they are supported by any competent

4
Watts initially appealed the DEP’s issuance of the WQC directly to the Superior Court, which
remanded the matter to the BEP for consolidation with a separate appeal. The BEP did not hold any
hearings on the consolidated appeals because members of the public had “attended meetings and
submitted numerous comments” during the years the application was pending and because there was no
“credible, conflicting technical evidence in the record that warrant[ed] . . . a hearing to gather additional
information.” Pursuant to 38 M.R.S. §§ 341-D(4) and 345-A(1-A) (2013), the BEP has discretion to hold
hearings on matters under its consideration.
 5

evidence in the record, even if the record contains inconsistent evidence or

evidence contrary to the result reached by the BEP. Friends of Lincoln Lakes,

2010 ME 18, ¶¶ 13-14, 989 A.2d 1128. As the party seeking to vacate the BEP’s

decision, Watts bears the burden of persuasion on appeal. Id. ¶ 15.

B. The Water Quality Certification

[¶6] Watts’s primary contention on appeal is that the WQC fails to comply

with Maine’s water quality standards governing the Eel Weir Bypass and Sebago

Lake. Maine’s water quality standards designate uses and related characteristics

for each class of water and prescribe numeric and narrative criteria to protect those

uses and characteristics. See generally 38 M.R.S. §§ 464-470 (2013)5; Bangor

Hydro-Elec. Co. v. Bd. of Envtl. Prot., 595 A.2d 438, 442 (Me. 1991). With

respect to fresh surface waters that are not classified as great ponds, Maine law

creates a hierarchy of water quality in which Class AA is the highest, followed by

Classes A, B, and C. See 38 M.R.S. § 465 (2013).6 The Presumpscot River

immediately below the Eel Weir Dam, including the Eel Weir Bypass, is a Class A

water. 38 M.R.S. § 467(9)(A)(1) (2013).

5
Maine’s water classification program is set forth at 38 M.R.S. §§ 464-470 (2013). Some of the
relevant statutes have been amended since Warren began its license application in 2002, but not in any
way dispositive to this appeal. See, e.g., P.L. 2003, ch. 227, §§ 1-9 (effective Sept. 13, 2003) (codified at
38 M.R.S. §§ 465 to 465-B (2013)).
6
Maine’s water quality standards also contain the federally required anti-degradation policy. See
38 M.R.S. § 464(4)(F) (2013); 40 C.F.R. § 131.12 (2014).
6

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) (2013). Sebago Lake is classified as GPA (Great Pond A):

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) (2013). The term “natural,” as it is used in

38 M.R.S. §§ 465(2)(A) and 465-A(1)(A), is defined as “living in, or as if in, a

state of nature not measurably affected by human activity.” 38 M.R.S. § 466(9)

(2013).

[¶7] Watts contends that the water quality certification issued by the DEP

fails to comply with these water quality standards in two ways: first, by failing to

ensure the existence of self-sustaining populations of landlocked Atlantic salmon

in the Eel Weir Bypass, and second, by establishing water levels for Sebago Lake

that Watts considers to be too high. We address each contention in turn.
 7

1. Landlocked Atlantic Salmon in the Eel Weir Bypass

[¶8] The landlocked Atlantic salmon is Maine’s state fish. Maine Secretary

of State, State Fish – Landlocked Salmon, http://maine.gov/sos/kids/about/

symbols/fish.htm (last visited July 11, 2014). Unlike anadromous fish species such

as alewives or sea-run Atlantic salmon that migrate from the ocean to fresh water

to spawn, “resident” species like the landlocked Atlantic salmon live their entire

lives in freshwater lakes and rivers. To support a popular fishery at the Eel Weir

Bypass, the Maine Department of Inland Fisheries and Wildlife (MDIFW) stocks

the bypass with landlocked salmon, as well as brook trout and brown trout. During

the application review process, MDIFW requested that the WQC continue to

provide for a cap on the amount of water that flows into the bypass during the

landlocked salmons’ spawning season in the fall, and that the WQC not provide for

fish passage between Sebago Lake and the bypass. Although these restrictions on

fish movement inhibit the landlocked salmons’ ability to reproduce in the bypass,

MDIFW considers the restrictions necessary to support its fish stocking program

and to support salmon fishing in Sebago Lake and the bypass. The WQC

ultimately incorporated a fall outflow cap and did not provide for fish passage

between the lake and the bypass.

[¶9] Watts argues that the WQC violates Maine’s Class A water quality

standards because those standards mandate that landlocked salmon in Sebago Lake
8

have free access to and from the Presumpscot River. Watts asserts that the WQC,

by limiting the reproduction of landlocked salmon in the bypass, fails to provide

for a “natural” habitat in the bypass as required by 38 M.R.S. §§ 465(2)(A)

and 466(9). The BEP directly addressed Watts’s contentions in its order, and

stated:

Nothing in the State’s water quality standards necessarily
requires installation of fish passage at all dams or that all populations
of indigenous species be self-sustaining, without regard to the
particular circumstances of the waterbody. Rather, Class GPA and
Class A water quality standards require that waters must be of such
quality that they are suitable for the designated use of habitat for fish
and other aquatic life, with the habitat characterized as natural, and of
sufficient quality to support all indigenous species. The evidence in
the record supports a finding that if the Project is operated as
proposed, the water quality conditions in both Sebago Lake and the
Presumpscot River, including the Eel Weir Bypass, will support
indigenous species of fish and aquatic life and therefore meet
applicable habitat and aquatic life water quality standards.

[¶10] We defer to the BEP’s determination that the WQC satisfies the

requirement that the habitat of the bypass be characterized as “natural,” that is,

“living in, or as if in, a state of nature not measurably affected by human activity.”

38 M.R.S. § 466(9); see also S.D. Warren Co., 2005 ME 27, ¶ 4, 868 A.2d 210

(“The [BEP]’s interpretation of a statute administered by it, while not conclusive or

binding on this court, will be given great deference and should be upheld unless the

statute plainly compels a contrary result.” (quotation marks omitted)). The

definition of “natural” as “living in, or as if in, a state of nature not measurably
 9

affected by human activity” allows for a range of habitat conditions that may be

deemed “natural” while simultaneously accounting for the various designated uses

of Class A waters. 38 M.R.S. § 466(9) (emphasis added). These designated uses

include not only habitat for fish and other aquatic life, but also fishing, recreation,

agriculture, drinking water supply, and hydroelectric power generation. 38 M.R.S.

§ 465(2)(A). Because the statute “contemplates that the designated uses actually

be present,” Bangor Hydro-Elec. Co., 595 A.2d at 442, the BEP properly

determined that the WQC should provide for all designated uses of the bypass,

including “natural” habitat, despite the absence of a self-sustaining salmon

population.

[¶11] The remainder of Watts’s contentions regarding the Eel Weir Bypass

largely amount to policy preferences about how the habitat of the bypass should be

managed. In reviewing the BEP’s decision, we do not weigh the merits of

evidence or substitute our judgment for that of the agency. See Friends of Lincoln

Lakes, 2010 ME 18, ¶¶ 12, 14, 989 A.2d 1128.7 Because the BEP did not err in

7
For example, Watts contends that the water quality certification, by providing for eel (but not fish)
passage around the dam, creates an unlawful subcategory of Class A standards. This contention fails to
recognize that competent evidence demonstrates that the documented presence of eels above and below
the dam requires passage. Further, the WQC includes a provision that allows the DEP to reopen the
certification for consideration of fish passage facilities if circumstances so require. Although Watts relies
on some of our precedent as well as a letter from the EPA to the Maine Attorney General, these
authorities are inapposite to the present case and generally support the BEP’s decision. See Save Our
Sebasticook, Inc. v. Bd. of Envtl. Prot., 2007 ME 102, ¶¶ 13-35, 928 A.2d 736 (affirming the BEP’s
cost-benefit analysis regarding the removal of a dam and its determination that state water quality
standards would be met by removal); S.D. Warren Co., 2005 ME 27, ¶¶ 4-31, 868 A.2d 210 (deferring to
10

interpreting the statutes relating to its regulatory authority, and because its factual

findings are supported by competent evidence in the record, we affirm the BEP’s

decision with respect to the water quality certification of the Eel Weir Bypass.

See S.D. Warren Co., 2005 ME 27, ¶¶ 4, 22 n.10, 868 A.2d 210.

2. Sebago Lake’s Water Levels

[¶12] Watts next contends that the BEP erred in approving the provisions of

the WQC regarding Sebago Lake’s water levels because the WQC does not ensure

a “natural” habitat in the lake as required of Class GPA waters.

38 M.R.S. §§ 465-A(1)(A), 466(9). In its discussion of the lake’s water levels, the

BEP directly addressed Watts’s contention:

The Board finds that, contrary to Appellant Watts’[s] assertion,
the standards for Class GPA waters require habitat not lake levels to
be natural. That is, water quality standards do not require that a lake
level be equivalent to the lake levels that existed prior to construction
of the impounding dam. The Department’s interpretation of Class
GPA water quality standards is consistent with the plain language of

the BEP’s determination that dams owned by Warren required water quality certification because the
operation of the dams may result in a discharge, and affirming the BEP’s imposition of conditions
necessary to meet water quality standards); Bangor Hydro-Elec. Co. v. Bd. of Envtl. Prot., 595 A.2d 438,
442-43 (Me. 1991) (concluding that the BEP may properly consider the designated uses of a body of
water in reviewing whether water quality standards are met); Letter from Stephen S. Perkins, Director,
Office of Ecosystem Protection, United States EPA Region 1, to William J. Schneider, Maine Attorney
General (July 9, 2012) (informing the Maine Attorney General that a since-repealed Maine statute that
prevented river herring from entering Class A and AA portions of the St. Croix River violated Maine
water quality standards). Watts also contends that the water quality certification fails to meet the
“unimpaired” standard for Class B waters pursuant to 38 M.R.S. § 465(3)(A) (2013). The parties agree
that the Class A standard governing the bypass necessarily includes the lower Class B standard. Because
the BEP did not err in determining that the WQC meets the Class A standard, though, there is no need to
discuss Watts’s contentions regarding the “unimpaired” standard. We find Watts’s remaining
contentions, including his argument that the WQC violates the statute’s anti-degradation provision,
38 M.R.S. § 464(4)(F), to be without merit and do not address them separately.
 11

the statute, the fact that hydroelectric power generation is a designated
use of GPA waters, and the Board’s long-standing interpretation of
the State’s water quality standards.

We agree with the BEP’s interpretation and application of the law.

[¶13] Watts’s remaining contentions regarding Sebago Lake’s water levels

are again based primarily on Watts’s preferences for how the lake should be

managed. He has failed to demonstrate either that the BEP erred in interpreting the

applicable statutes or that its factual findings were not supported by competent

evidence. See S.D. Warren Co., 2005 ME 27, ¶¶ 4, 22 n.10, 868 A.2d 210.

Contrary to Watts’s arguments, the BEP properly construed and applied the water

quality standards for Class GPA waters while balancing the lake’s designated uses,

which include recreation, fishing, agriculture, hydroelectric power generation,

drinking water supply, and habitat for fish and other aquatic life. 38 M.R.S.

§ 465-A(1)(A); see Bangor Hydro-Elec. Co., 595 A.2d at 442-43.

[¶14] We therefore affirm the BEP’s decision with respect to the water level

management of Sebago Lake.

The entry is:

Judgment affirmed.
12

On the briefs:

Douglas H. Watts, pro se appellant

Janet T. Mills, Attorney General, and Gerald D. Reid, Asst.
Atty. Gen., Office of Attorney General, Augusta, for appellee
Board of Environmental Protection

Matthew D. Manahan, Esq., and Catherine R. Connors, Esq.,
Pierce Atwood, LLP, Portland, for appellee S.D. Warren Co.

Business and Consumer Docket docket number AP-2013-01
FOR CLERK REFERENCE ONLY