FLP Energy Maine Hydro LLC v. Maine Dept. of Enviro. Prot.

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. DOCKET NO. AP-04-50

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FPL ENERGY MAINE

HYDRO, LLC,

Petitioner

DECISION AND ORDER

DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondent

This matter is before the court on petition of FPL Energy Maine Hydro, LLC's

("FPL" or "petitioner") for review of final agency action pursuant to M.R. Civ. P. 80C

(2005) and petitioner's motion to strike, pursuant to M.R. Civ. P. 80C(d)and (f).

T h s case involves the certification of the Flagstaff Storage Project ("Project")

(which consists of a dam, reservoir, and appurtenant facilities), and whether or not

1 clean water standards for the Project should be based on other similar bodies of water

1 (an "impoundment to impoundment" standard) or on "natural" bodies of water. Water

I quality standards are implicated because of the large drawdowns hydroelectric dams

call for in order to produce energy.' The parties agree on the facts pertinent to the

dispute, but there are numerous procedural and legal differences between the parties

that constitute the bulk of their dispute.

The petition alleges the following: FPL owns and operates the Project, which it

acquired from Central Maine Power in 1999. The federal Clean Water Act requires

applicants for a federal license that might involve a discharge into navigable waters to

Hydroelectric dams can deplete reservoirs over 30 feet at a time, thereby reducing the chance of survival

of aquatic life. The Department of Environmental Protection recommends drawdowns of no more than

11 feet.

obtain certification of water quality from the state in which the discharge originates.

Federal Water Pollution Control Act (the "Clean Water Act") 3 401, 33 U.S.C.

3 1341(a)(l) (2005). From December 1996 (when CW1P still owned the Project) to

November 15, 2002, an application for certification was filed and then withdrawn on an

annual basis with Maine's Department of Environmental Protection ("DEP" or

"respondent"), without the DEP acting on it. FPL filed its requests for certification with

a reservation to challenge the applicability of the certification requirement. On

November 14, 2003, the DEP Commissioner issued the certification pursuant to Maine

and federal law, indicating that the continued operation of the Project would not violate

applicable water quality standards, subject to numerous conditions. See 38 M.R.S.A.

§§ 361-A, 464 (2005); 33 U.S.C. 3 1341(a)(l).

On December 9, 2003, Maine Rivers, Trout Unlimited, Appalachan Mountain

Club, and the Natural Resources Council of Maine ("the NGOs") filed a timely appeal

to the Board of Environmental Protection ("BEP" or "Board"). On July 15, 2004 the BEP

granted the appeal, reversing the Commissioner's certification of the Project. This

petition followed, sounding in two counts. First, that DEP exceeded its authority by

engaging in the certification process at all. The Clean Water Act requires clean water

certification only if there is a discharge into navigable waters and that discharge

contains pollutants. See 33 U.S.C. § 1341. Further, the DEP has one year to act on a

certification application, and if it does not do so, certification is waived. See id. Count I

alleges that DEP's failure to act in a timely manner, and DEP's engaging in the

certification process at all when no discharge or pollutant was involved resulted in DEP

exceeding its mandate.

Second, FPL alleges that the Board committed errors of law and abused its

discretion when it made conclusions relating to the water quality standards and

procedures for applying those standards (to be discussed further infia), including

granting standing to the NGOs for filing their appeal in the first place.

The petition for review was filed on August 9, 2004. The certification of the

record was disputed by both parties, culminating in a decision and order of April 22,

2005, denying the admission of an audio tape of BEP deliberations, but also denying the

inclusion of a Federal Energy Regulatory Commission ("FERC") decision, whch was

made after the DEP's ruling denying certification, and thus not a decision that was

relied upon by the DEP.

The petitioner's 80C brief, the DEP's and intervenor NGOs response briefs2, and

the petitioner's reply brief were all filed in a timely manner, pursuant to a scheduling

order. An amicus curiae brief in support of petitioner's position was filed. The

petitioner then filed a motion to strike and respondent DEP timely filed a reply.

When the decision of an administrative agency is appealed pursuant to M.R. Civ.

P. 80C, this Court reviews the agency's decision directly for abuse of discretion, errors

of law, or findngs not supported by the evidence. Centamore v. Dep't of Human Services,

664 A.2d 369, 370 (Me. 1995). "An administrative decision will be sustained if, on the

basis of the entire record before it, the agency could have fairly and reasonably found

the facts as it did." Seider v. Board of Exam'r of Psychologists, 2000 ME 206 ¶9, 762 A.2d

551, 555 (Me. 2000) (citing CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, ¶6, 703

A.2d 1258, 1261 (Me. 1997)). In reviewing the decisions of an administrative agency, the

Court should "not attempt to second-guess the agency on matters falling within its

realm of expertise" and the Court's review is limited to "determining whether the

Note that the NGOs are seeking to intervene pursuant to 5 M.R.S.A. 5 11005 and M.R.C.P. 80C;

section 11005 provides that "all parties to the agency proceeding who wish to participate in the review

shall file a written appearance ..." Petitioner disputes the intervenors' claim that they are a party to the

agency proceeding.

agency's conclusions are unreasonable, unjust or unlawful in light of the record."

Zmagineering v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991). The focus on

appeal is not whether the Court would have reached the same conclusion as the agency,

but whether the record contains competent and substantial evidence that supports the

result reached by the agency. CWCO, Inc., 1997 ME 226, 703 A.2d 1258, 1261.

"Inconsistent evidence will not render an agency decision unsupported." Seider, 762

A.2d 551 (citations omitted). The burden of proof rests with the party seelung to

overturn the agency's decision, and that party must prove that no competent evidence

supports the Board's decision. Id. "[Petitioner] must prove that no competent evidence

supports the Board's decision and that the record compels a contrary conclusion."

Bischoffv. Board of Trustees, 661 A.2d 167, 170 (Me. 1995).

Factual determinations must be sustained unless shown to be clearly erroneous.

Zmagineering, 593 A.2d at 1053 (noting that the Court recognizes no distinction between

the clearly erroneous and substantial evidence in the record standards of review for

factual determinations made by administrative agencies). "A party seelang review of

an agency's findings must prove they are unsupported by any competent evidence."

Maine Bankers Ass'n v. Bureau, 684 A.2d 1304,1306 (Me. 1996) (emphasis added).

"When the dispute involves an agency's interpretation of a statute administered

by it, the agency's interpretation, although not conclusive on the Court, is accorded

great deference and will be upheld unless the statute plainly compels a contrary result."

Maine Bankers Ass'n, 684 A.2d at 1306 (citing Centamore v. Dqartment ofHuman Services,

664 A.2d 369,370 (Me. 1995)).

Petitioner's Brief

The substantive dispute between the parties involves which water quality

standard to apply to the Project. Petitioner's brief outlines the contours of that debate,

stating that between 1995 and 2003, DEP maintained that the Project's water quality

should match that of a "natural" lake, while FPL (and CMP previously) contended that

a distinct standard should apply to water storage reservoirs. The confusion

surrounding the applicable water quality standard originated in 1986, when water

storage reservoirs were classified as "natural" by the (then) current legislation, 38

M.R.S.A. § 465-A(l)(A), 5 466(9). By 1991, when FERC re-licensed another reservoir

system in Maine (Chesuncook Lake), DEP became concerned that the large drawdowns

of water that occur in reservoirs meant that those impoundments would not be able to

meet "natural" aquatic standards. A Maine law was thus passed in 1992 amending 38

M.R.S.A. § 464(9), to acknowledge that Chesuncook Lake would have to meet less

stringent water quality standards, but that all other "existing impoundments" would

have to meet so-called "Class C" standard^.^ Such an amendment of standards required

a Use Attainability Analysis ("UAA") that had to be approved by the EPA. FPL

maintains that such approval was granted by the EPA in 1993, and the Maine legslature

amended 38 M.R.S.A. 3 464(9) accordingly.

Prior to 2003, FPL and DEP agreed that Class C standards applied to the Project,

but DEP interpreted that to mean that the Project had to maintain aquatic life in the

reservoir akin to what would be found in a "natural" lake. FPL argues that the

legislative amendments Qscussed supra were adopted precisely to combat tkus

interpretation. Alternatively, the lower "what you see is what you get" standard

applied to Chesuncook Lake would not pertain, as that lower standard was approved

only for that particular project. FPL thus urges the adoption of a "middle roadn-a

standard higher than that adopted for Chesuncook Lake, but one lower than that

Class C standards still require that aquatic life be sustained, but that "some changes" to aquatic life are

permissible. See 38 M.R.S.A. 5 465(4)(C) (2005).

applied to "natural" bodies of water. It thus concludes that a comparison to water

storage reservoirs with drawdowns of similar magnitude would be the most

appropriate way to assess whether or not the Project met acceptable water quality

standards.

In 2003, Governor Baldacci signed L.D. 1059, Resolves 2003, ch. 37 ("Chapter 37")

whch stated in part, "The goal of the rules and any license, permit or certification must

be to require that the structure and function of the resident biological community that

must be maintained in a water storage reservoir is the structure and function that

would be expected to exist in a water storage reservoir with a drawdown of similar

magnitude."4 There was some dispute at the state level as to whether or not Chapter 37

triggered the need for EPA approval, as it could be interpreted as introducing a new

water quality standard. Therefore, without reference to Chapter 37, the DEP

Commissioner approved the FPL certification application on November 14, 2003,

essentially embracing the FPL position on water quality standards by stating that DEP

was interpreting existing standards, not introducing a new one.

The NGOs then appealed the Commissioner's decision to the BEP. The BEP

overturned the Commissioner's certification of the FPL Project, stating that the

"impoundment to impoundment" standard used by DEP was contrary to that which

the EPA approved in 1992, and contrary to how DEP had been interpreting existing law

in recent years. The BEP urged the DEP to either obtain EPA approval of the

"impoundment to impoundment" standard (embodied in Chapter 37), or conduct a

UAA in order to recalibrate the water quality standards for water storage reservoirs.

As a threshold matter, petitioner argues over the standard of review, asserting

that reliance on the Commissioner's initial decision should outweigh the importance of

4

Chapter 37 amended 38 M.R.S.A. 5 466(10), which defines "resident biological community."

the reversal of that decision by the (lay) BEP. It is the Commissioner, and not the BEP,

who has the requisite expertise to interpret and administer relevant statutes. Citing

S.D. Warren Co. v. Bd. of Envtl. Prot., FPL maintains that though BEP is accorded

deference when interpreting federal environmental statutes, that deference is due to

BEP1s having greater experience than do courts, not the Commissioner, in interpreting

those statutes. See 2005 ME 27, ¶ 5, 868 A.2d 210, 214. FPL also asserts that legislative

intent trumps agency interpretation of a statute when the two conflict. See Cent. Maine

Power Co. v. Maine Pub. Utils. Corn., 436 A.2d 880, 885 (1981). As discussed infia, FPL

will attempt to demonstrate that the legislative intent behind Maine's water

classification standards conflicts with the DEP's interpretation of those standards, and

thus the legislative intent should prevail.

As a secondary threshold matter, petitioner argues that the NGOs did not have

standing to have appealed the Commissioner's decision to the BEP because they did not

suffer a "particularized injury." See Sforer v. Dep't of Envtl. Prot., 656 A.2d 1191, 1192

(Me. 1995). According to petitioner, DEP regulations regarding standing are similar to

the test used in Maine courts, namely whether or not a party has suffered a

particularized injury as a result of a licensing or other decision. The petitioner asserts

that the NGOs refer to their broad missions of environmental protection, but do not

allege a sufficient harm to create standing on their behalf or through their members on

their behalf. Petitioner also points out that only one of the four NGOs participated in

the drafting of the new water certification standards, and the comments made at that

time are in direct conflict with those made in the subsequent appeal to the BEP. If the

NGOs had no standing to appeal the certification of FPL, then the BEP decision

supporting that appeal must be invalidated and reversed.

Next, FPL argues that DEP waived certification altogether by failing to do so

w i h n the one year deadline established by federal statute. See 33 U.S.C. § 1341(a). In

the alternative, the BEP decision reversing FPL's certification was made after the one-

year deadline, and thus should not be upheld. FPL traces legislative history describing

how an Executive Order of Governor Gng named the DEP as the water quality

standard certifying agency under FERC regulations. The Commissioner and BEP are

part of the DEP, but it is the DEP and not either one of these entities comprising it that

has certification authority. Though the DEP Commissioner certified the Project w i h n

one year of FPL's most recent application, the BEP decision reversed that certification

after that one-year deadline. The BEP decision was the "final agency action" and as that

final agency action occurred too late, DEP should be viewed as having waived

certification altogether. FPL's interpretation of timelines necessitates that it view

section 401 as requiring "final agency action" when it states "If the State, interstate

agency, or Administrator, as the case may be, fails to act on a request for certification,

w i h n a reasonable period of time (whch shall not exceed one year) after receipt of

such request, the certification requirements of tkus subsection shall be waived with

respect to such Federal application." Section 401. FPL concedes that a court, pursuant

to an 80C petition for review would be able to overturn a final agency action after that

one year deadline; however an agency cannot overturn its own decision outside of that

one year deadline, which is what the BEP did on July 15, 2004. FPL cites a recent

Waslungton District Court decision-clearly not controlling authority in Maine-for the

proposition that interpretations of deadlines pursuant to section 401 "must mean that

the issuance of state conditions outside the one-year time period must be treated

differently than the issuance of such conditions occurring within that period." See

Airport Communities Coalition v. Graves, 280 F. Supp. 2d 1207, 1215 (W.D. Wash. 2003).

9

FPL's most substantive argument points to the Project's not needing to be

certified at all under the Clean Water Act because it does not discharge anythng, let

alone pollutants, into navigable waters. The Law Court has recently determined that a

discharge results when "dams remove water from its natural course, exercise private

control over the water, and then add the water back into the river." S.D. Warren Co. v.

Bd. of Envtl. Prot., 2005 ME 27, ¶ 13, 868 A.2d 210, 216 (emphasis in ~ r i g i n a l ) .The

~ Law

Court urged a broad interpretation of "discharge," to include releases from a source

point that are both polluting and non-polluting. See id. at q[ 14, 868 A.2d at 216 (citation

omitted). As section 401 applies to discharges into navigable waters, the Law Court has

held that hydroelectric dams and reservoirs release such discharges, and thus

certification by the DEP is required.

In order to distinguish the FPL Project from the situation that was under review

in Warren (five contiguous hydroelectric dam projects on the Presumpscot Rver in

Cumberland County), the petitioner asserts that Warren did not address "the question

of whether Maine Water Quality Law requires the presence of a pollutant to trigger the

need for certification." Petitioner maintains that this law unambiguously links

"pollutant" with "discharge," such that if no pollutant is discharged, no certification is

required. See 38 M.R.S.A. § 361-A(1) (defining "discharge" as "any spilling, lealung,

pumping, pouring, emptying, dumping, disposing or other addition of any pollutant to

water of the State."). Petitioner asserts that it will operate the Project in much the same

manner in which it has been operated for decades, with "additional environmental

enhancements" that will not produce any discharge into navigable waters. See id.

The Law Court decision was affirmed by the United States Supreme Court on May 15, 2006, No. 04-

1527.

FPL further contends that if certification were required, federal EPA approval

was not necessary because no new standard was created for the Project. In its decision

reversing the Commissioner's certification of the Project, BEP maintained that her doing

so departed significantly from past DEP practice, creating a new standard for reservoirs

(below Class C) and doing so would need EPA approval. As discussed supra, FPL states

that the Project should be evaluated based on Class C criteria, which it interprets to

encompass a comparison to other reservoirs, not "natural" lakes. In addition, FPL

asserts that the Commissioner's interpretation of the standards does not change the

standards themselves, further negating the need for EPA approval of the certification.

Drawing its argument to a close, FPL says that reversing the certification violates

the Antidegredation Law, whch states that "existing in-stream uses 'must be

maintained and protected."' See 38 M.R.S.A. § 464(4)(F)(1). Any in-stream use that has

been in effect since 1975 qualifies for such protection, and FPL does not interpret the

statute as prioritizing preservation of aquatic life over use of a body of water to

generate electricity. See id. By not certifying the Project, the DEP would be disrupting

an established in-stream use and thus not only violate the Antidegredation Law, but

also offend Maine's stated energy policy goals, w h c h include supporting the continued

use of "indigenous hydro energy resources."

Respondent's Brief

The DEP begins its brief with an overview of the statutory and regulatory

scheme pertaining to the certification of water quality in Maine. First, it outlines the

requirements of the Clean Water Act, whch echo FPLfsinterpretation of the statute, so

will not be rehashed here. Next, DEP outlines the role of FERC in issuing new licenses

for existing hydropower dams. See 16 U.S.C. § 808(a)(2). FERC also requires state

certification of water quality (or a waiver) in order to issue a federal license. DEP also

reviews the introduction of Chapter 37, but clarifies that it could not be made into law

until the EPA approves the new water quality standard implicit in it, whch EPA

informed DEP that it would not do by letter in November 2003.

DEP next introduces a different spin on the repeated denials of first CMP's and

then FPL's certification of the Project. DEP contends that since it knew the Project

would not meet the Class C standards in the years 1996-2002, it encouraged FPL to

withdraw its application to prevent its being rejected. DEP then recounts how the

Commissioner's decision to certify excluded a reference to the disapproved Chapter 37,

but used the rational behind that policy anyway. DEP thus finds the Commissioner's

contention that she was merely reinterpreting existing standards, and not relying on the

EPA-disapproved Chapter 37 standards to be disingenuous.

With regard to the standard of review, DEP asserts that FPL's reliance on the fact

that the BEP is a lay board and thus should not be accorded deference in interpreting

statutes is misplaced and also violates Law Court precedent. DEP cites its enabling

legislation to bolster its assertion that the BEP has both the responsibility to hear

appeals of the Commissioner's decisions and that in doing so, it may "adopt, modify, or

reverse the findings of fact or conclusions of law established by the Commissioner." See

38 M.R.S.A. 5 341-D(4)(A). In Warren, the Law Court specifically addressed the fact

that a lay board is due deference, and that "The standard is whether the subject matter

is beyond the scope of BEP expertise." 2005 ME 27, qI 6, 868 A.2d 210, 214. DEP states

that BEP has the requisite experience and expertise in interpreting relevant statutes as

evidenced by the appeal it considered in the Warren case.

DEP then refutes the argument that the NGOs lack standing by emphasizing that

"aggrieved person" is broadly defined by departmental regulations, as including any

individual, partnership, corporation, government entity, association or public or private

organization of any character that the Board determines may suffer particularized

injury as a result of a licensing or other decision. The DEP contends that the BEP had

substantial evidence before it, including affidavits from members of the NGOs,

indicating that the intervenors met that standard.

DEP then addresses FPL's contention that DEP waived certification because final

agency action was not completed within one year, per section 401 of the Clean Water

Act. A portion of DEP's argument relies on a different interpretation of Airport

Communities Coalition v. Graves, the Waslungton case that FPL relied upon in its brief, for

the proposition that an agency cannot overturn its own decision outside of the one-year

deadline. DEP contends that Airport Communities is more properly read to provide the

federal agency with discretion to consider state agency decisions made outside of the

one-year deadline. The remainder of DEP's argument in h s section relies on the FERC

decision specifically stricken from the record by this court, and thus subject to

petitioner's separate motion to trike.^ DEP maintains that the FERC decision dismisses

FPL's arguments that an agency must act and decide any appeals relating to that action

within a one-year deadline.7

DEP next invokes the Law Court's Warren decision in an effort to definitively

refute FPL's contention that the Project can escape the need for certification. Until the

Supreme Court ruled on the appeal, the Law Court's decision from earlier this year was

controlling law on the matter, and the Law Court unanimously rejected FPL's

arguments regarding the meaning of "discharge" and the relationship of that term to

See FPL Energy Maine Hydro LLC, 108 F.E.R.C. 9[ 61261 (September 21, 2004), 2004 FERC LEXIS 1939,

rehearing denied at 111FERC B 61104 (April 19,2005),2005 FERC LEXIS 1003.

' In its Response to FPL's Motion to Strike, the DEP contends that it relies on the FERC decision as

persuasive legal authority, and not as part of the certified administrative record, from which the FERC

decision was excluded by this court. Because the FERC decision is submitted as part of argument, the

motion to strike must be denied.

the certification process. See S.D. Warren Co. v. Bd. of Erlvtl. Prot., 2005 ME 27, ql 13, 868

A.2d 210, 216. Further, DEP emphasizes that Maine state law incorporates federal law

by reference, the relevant federal law being that which requires states to certify water

quality before federal hydropower licenses are issued. DEP thus properly participated

in the certification process and it was necessary that it do so in order to comply with

both state and federal regulations.

As for the anti-degredation policy, DEP agrees that some sort of balancing test is

necessary to weigh the importance of the competing uses of in-stream water-

sustaining aquatic life versus generating energy; that balancing test exists in the form of

a UAA. DEP opines that a UAA may indeed determine that hydro energy generation

should be prioritized over sustaining aquatic life, but until the proper analysis is

performed, the anti-degredation policy does not in and of itself require certification, or

prioritize the energy-related use.

Finally, DEP argues that the Project does not meet applicable water quality

standards as a matter of law. Focusing again on the term "discharge," DEP takes issue

with FPL's relying on a definition of the term that necessitates pollutants to be present

for there to be a discharge. As the Project does not involve pollutants, so FPL argues,

there is no discharge, so it should be exempt from the certification process. But as DEP

points out, depleting 95% of a reservoir in order to generate energy substantially

degrades the water quality whether or not pollutants or a discharge are involved. By

enacting water quality standards, it was the Maine's legislature's intent to "restore and

maintain the chemical, physical, and biological integrity of the State's waters and to

preserve certain pristine state waters." See 38 M.R.S.A. § 464(1).The DEP maintains that

the major depletion of the reservoir involved in the Project does not maintain the

"integrity" of the body of water and thus frustrates the legislative intent behnd Maine's

water classification scheme. Further, DEP notes that there would not have been a need

to introduce Chapter 37, which attempted to relax the water quality standard for

impoundments, if some type of water quality standards did not apply to

impoundments in the first place.

Petitioner's Reply Brief

With regard to the standard of review, FPL repeats its argument from its petition,

agreeing with the need for the BEP to have expertise in environmental statutory

interpretation, but then contending that a lay board could not possibly have such

expertise. But the case FPL cites to support h s proposition, Isis Dev., LLC v. Town of

Wells, concerns a local zoning board, not the BEP, whch is charged with and has

experience in interpreting a complex regulatory and statutory scheme. See 2003 ME 149,

q[ 3, n.4, 836 A.2d 1285.

As for the NGOs lacking standing, FPL dismisses the significance of the

organization membersf affidavits, which attest to their personally fishng, canoeing, and

hunting waterfowl in the waterways affected by the Project. FPL maintains that its

proposed operation of the Project will not affect these activities, and thus without a

"particularized injury" the NGOs had no standing to file their appeal, and it should be

dismissed.

The thrust of the petitioner's reply hones in on the interpretation of "discharge,"

emphasizing that it is only hydroelectric facilities that discharge pollutants that are

subject to certification; as FPL does not discharge pollutants, it should be exempt from

the process. FPL also reviews the legislative history and intent behind the appropriate

water quality standard that should apply to the Project, fine-tuning in detail the

arguments it made in its petition.

An angle that was relegated to footnotes in the initial briefs, but is given some

prominence in the reply is the notion of whether a denial of certification would result in

an unconstitutional taking of the Project from FPL. It is worth noting that the BEP's

denial of certification was without prejudice, however, and allows for a UAA to

determine the appropriate water quality standards to apply to the Project. Only then

will a final determination be made as to whether the Project can be operational. Though

FPL urges the court to interpret statutes to avoid an unconstitutional result (a taking),

the BEP's decision does not end the process of certification, but extends that process out

to include a UAA.

The court is satisfied the intervenors or NGOs have standing. Whle standing is

a question of law, the issue is factually driven. The court accepts the BEP determination

of their qualification as intervenors based upon its findings of fact.

The court is satisfied that Airport Communities Coalition v. Graves stands for the

proposition that the federal agencies are not bound by the decisions when the state

"fails or refuses to act on a request for certification w i h n a reasonable period of time

(whch shall not exceed one year) after receipt of such request" by decisions issued

beyond the one-year limitation. 280 F.S~pp.2"~

at 1217; 33 U.S.C. § 1341(a)(l). The

court finds no jurisdictional implications for state action affecting the final agency

action of the DEP.

The petitioner asserts that the so-called Chapter 37 Resolve does not change the

class C water quality classification and therefore it may rely upon the 1993 EPA water

quality standards and no further approval by the EPA is necessary. The DEP posits that

to the extent the resolve attempts to change a "natural lake" standard to a

"impoundment to impoundment" standard, it is a change in the water quality standard

requiring EPA approval. It appears to the court that whether or not it is a change of

standard is a techrucal decision based upon the facts of the science, clearly a matter

within the expertise of the agency and not subject to decision by this court based upon

the evidence put before it. This deference requires the court to reject the argument of

petitioner to overturn the agency action based upon the resolve. The court particularly

notes the position of the BEP suggesting that the DEP either obtain EPA approval of the

Chapter 37 water quality standard or conduct a UAA to recalibrate the water quality

standards for water storage reservoirs. T h s court infers that such a policy statement by

the BEP would prevail in the future actions of the DEP.

The remaining and most substantive issue before this court is whether or not the

certification in question is required under the federal Water Quality Act based upon a

jurisdictional requirement of the existence of a "discharge" and whether the facts of this

case give rise to the existence of a "pollutant" as defined in that law. The thrust of FPL1s

arguments were disposed of by the Law Court in Warren, and the affirming decision of

the U.S. Supreme Court is controlling. The Project releases a "discharge" and is thus

subject to existing water quality standards, whch were justly interpreted by the BEP to

deny certification to FPL for the Project.

The entry will be:

Petitioner's motion to strike respondent's extra-record materials

referenced in and attached to intervenor's and respondent's brief is

DENIED; the Board of Environmental Protection Order granting appeal

and denying water quality certification dated July 15, 2004, in the matter

of FPL Energy Maine Hydro, LLC is AFFIRMED.

Dated: May tr ,2006

Justice, Superior Court

Date Filed

I Action

8/9/04

Petition for Review

Kennebec

County

DocketNo.

!

AP04-50

FPL Energy Maine Hydro, LLC VS. DeDartment of Environmental Protection

Plaintiff's Attorney Defendant's Attorney

Matthew D. Manahan, Esq. Andrew A. Cadot, Esq.(MRyTUYAMCyNRCN)

One Monument Square Stephen D. Wilson, Esq.

Portland, Maine 04101 One Canal Plaza

P.O. Box 426

Portland, Maine 04112-0426

- Gerald E. Reid, AAG (DEP)

6 State House Station

Augusta, Maine 04333-0006

Date of

En try I

Petition for Review, filed. s/Manahan, Esq,

Written Appearance of Maine Rivers, Trou Unlimited, Appalachian Mountain

Club, and Natural Resources Council of Maine, filed. s/Cadot, Esq.

1 Motion for Enlargment of Time to File Administrative Record, filed. s/Reid

1 Proposed Order, filed.

1 Letter from attorney Reid informing court of no objections to the motion

I for enlargement

' ORDER ON MOTION FOR ENLARGEMENT, Studstrup, J. (dated 8/18/04)

Time enlarged to October 5, 2004.

Copies mailed to attys of record.

Dep's Unopposed Motion for Second Enlargment of Time to File Administrativc

Record, and for Other Procedural Relief, filed. s/Reid, AAG

Proposed Order, filed.

ORDER ON MOTION FOR ENLARGEMENT, Studstrup, J.

Time extended to November 15, 2004.

Copies mailed to attys.

AdministrativeRecord, filed. s/Reid,AAG (2boxesinvault)

Index to Record, filed. s/Reid, AAG

Certification of Record, filed. s/Dawn Gallagher, Corn.

Notice of briefing schedule mailed to attys.

Letter regarding notice and briefing schedule, filed. s/~anahan,Esq.

Motion of FPL Maine Hydro LLC to Modify the Contents of the Record with

Request for Hearing and Proposed Order, filed.

Intervenors' Response to petitioner's Motion to Modify Contents of the

Record, filed. s/Cadot, Esq.

Respondent Dep's Memorandum in Oppositlon to FPL Energy's Opposition to

Modify the Contents of the Record, filed. s/Reid, AAG