Case 1:21-cv-00257-JDL Document 1 Filed 09/09/21 Page 1 of 26 PageID #: 1
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MAINE
`
`ATLANTIC SALMON FEDERATION U.S.,
`CONSERVATION LAW FOUNDATION,
`MAINE RIVERS, and NATURAL RESOURCES
`COUNCIL OF MAINE,
`
`Plaintiffs
`
`v.
`
`BROOKFIELD RENEWABLE PARTNERS, L.P.,
`MERIMIL LIMITED PARTNERSHIP,
`HYDRO-KENNEBEC LLC,
`BROOKFIELD WHITE PINE HYDRO LLC,
`BROOKFIELD POWER US ASSET MANAGEMENT
`LLC, and BROOKFIELD POWER US HOLDING
`AMERICA CO.
`
`Defendants
`
`Civil Action No.
`
`COMPLAINT FOR VIOLATION OF THE ENDANGERED SPECIES ACT, 16 U.S.C. §§
`1531, et seq., INCLUDING DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
`
`[INJUNCTIVE RELIEF SOUGHT – Local Rule 9(b)]
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`NOW COME Plaintiffs Atlantic Salmon Federation U.S., Conservation Law Foundation,
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`Maine Rivers, and the Natural Resources Council of Maine, by and through undersigned counsel,
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`and state the following in support of their Complaint for Declaratory Judgment and Injunctive
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`Relief arising under Defendants’ violations of the Endangered Species Act, 16 U.S.C. §§ 1531, et
`
`seq.:
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`1
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`

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`Case 1:21-cv-00257-JDL Document 1 Filed 09/09/21 Page 2 of 26 PageID #: 2
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`PRELIMINARY STATEMENT
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`1.
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`This action asserts violations of the Endangered Species Act (“ESA”), 16 U.S.C.
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`§§ 1531, et seq., by Defendants, resulting from Defendants’ activities, acts or omissions related
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`to the ongoing operations of four hydropower projects on the Kennebec River in the State of
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`Maine. The ongoing operations of each of these projects incontrovertibly “take” the ESA-listed
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`species, the Gulf of Maine Distinct Population Segment of Atlantic salmon (Salmo salar) (“GOM
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`DPS” of Atlantic salmon), in violation of section 9 of the ESA, 16 U.S.C. § 1538(a)(1)(B).
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`2.
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`Under section 9 of the ESA, “with respect to any endangered species of fish or
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`wildlife listed pursuant to section 1533 of [the ESA] it is unlawful for any person subject to the
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`jurisdiction of the United States to . . . take any such species within the United States or the
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`territorial sea of the United States.” 16 U.S.C. § 1538(a)(1)(B).
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`3.
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`These four hydropower projects are:
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`(a)
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`the Lockwood Project, located at river mile 63, the first hydropower project
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`on the main stem of the Kennebec River, spanning the river at the US Route 201 Bridge in
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`the cities of Waterville and Winslow, along the site originally known as Ticonic Falls;
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`(b)
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`the Hydro-Kennebec Project, located at river mile 64 on the Kennebec River
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`in the cities of Waterville and Winslow, and in the town of Benton, the second hydropower
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`project on the main stem of the Kennebec River;
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`(c)
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`the Shawmut Project, located at river mile 70, the third hydropower project
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`on the main stem of the Kennebec River; and
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`(d)
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`the Weston Project, located at river mile 83 in the town of Skowhegan, the
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`fourth hydropower project on the main stem of the Kennebec River.
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`2
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`4.
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`Each hydropower project is operating without authorization for the “take” of listed
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`species, in direct violation of the ESA. 16 U.S.C. § 1538(a)(1)(B).
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`5.
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`The ESA defines the term “take” as “to harass, harm, pursue, hunt, shoot, wound,
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`kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).
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`6.
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`“ ‘Harm’ in the definition of ‘take’ in the [ESA] means an act which actually kills
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`or injures fish or wildlife. Such an act may include significant habitat modification or
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`degradation which actually kills or injures fish or wildlife by significantly impairing
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`essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or
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`sheltering.” 50 C.F.R. § 222.102 (bold emphasis added).
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`7.
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`The listed species is the Gulf of Maine Distinct Population Segment (“GOM DPS”)
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`of Atlantic salmon.1
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`8.
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`The four hydropower projects are located within the critical habitat designation for
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`the GOM DPS of Atlantic salmon.2
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`9.
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`The lower Kennebec River main stem, where the four projects are located, is the
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`critical migration corridor for GOM DPS of Atlantic salmon, between the ocean and the Sandy
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`River spawning and rearing critical habitat units above the Sandy River/Kennebec River
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`confluence, located above the fourth project, Weston in Skowhegan. Thus, the combination of
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`the four hydropower projects of Lockwood, Hydro-Kennebec, Shawmut, and Weston on the
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`lower Kennebec River main stem blocks Atlantic salmon access to the critical spawning and
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`1 74 Fed. Reg. 29,344 (June 19, 2009) 75 (Determination of Endangered Status for the Gulf of Maine
`Distinct Population Segment of Atlantic Salmon).
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`2 74 Fed. Reg. 29,300 (Designation of Critical Habitat for Atlantic Salmon (Salmo salar) Gulf of Maine
`Distinct Population Segment) (June 19, 2009).
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`3
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`rearing habitat in the Sandy River area, which is located upstream from the 4-project barrier and
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`impediment.3
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`10.
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`The ongoing operations of the projects therefore “take” the species, 16 U.S.C. §
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`1538(a)(1)(B) and 50 C.F.R. § 222.102, with respect
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`to both upstream and downstream
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`migrations, for nearly nine months of every year. The seasonal upstream migration period for
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`Atlantic salmon adults is generally May 1 to October 31; the Spring downstream migration period
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`for smolts and kelts is generally April 1 to June 30;4 the Fall downstream migration period for
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`kelts is generally October 15 to December 31. Therefore, combined, migration periods in the
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`Atlantic salmon species lifecycle take up nine months of the year – April 1 through December 31.
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`Downstream outmigration alone takes up five and a half months of the year (April 1 to June 30,
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`and October 15 to December 31).
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`11.
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`“Takes” occur as the result of failures or delays in upstream passage at the first
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`project, Lockwood; and “takes” occur at all four projects as the result of failures or delays in
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`downstream passage – including delayed mortality. The project operations harm, injure, trap, and
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`kill the GOM DPS of Atlantic salmon over the course of a combined nine months of each year.
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`12.
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`In addition, other specific operations at the projects involve additional occurrences
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`of unauthorized “takes.” For example, at the Lockwood Project, false attraction to the bypass
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`channel, combined with annual fluctuations in station discharge caused by flashboard installation,
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`require a “fish rescue” every time flashboards are installed.
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`In 2021, hydropower project
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`3 The hydropower projects also block effective migrations of other species, such as American shad and
`river herring. As explained further herein, the failure to effectively pass these other co-evolved species
`has a direct correlation to Atlantic salmon increased mortality in the critical habitat area.
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`4 As explained further herein, “kelts” are post-spawn adults, which need to migrate back downstream to
`the ocean for eventual repeat spawning; “smolts” are young salmon after the “parr” stage, which are ready
`to migrate downstream to the ocean for the first time.
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`4
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`operations resulted in harming, injuring and stranding nearly two dozen smolts,5 and at least three
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`adult Atlantic salmon were stranded in isolated pools in the Lockwood bypass channel. One of
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`these salmon suffered extensive injuries, including “scraped up body dorsally, scraped up sides
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`(both left and right), an abrasion ventrally, a bruise on its left side, a lamprey wound scar on its
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`right side, a split dorsal fin, a split caudal fin and a bruised snout.”6 At least two other adult
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`Atlantic salmon, one with “significant scars located dorsally on its body”7 were also trapped in a
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`deep pool in ledges under the Route 100 bridge as a result of this event, but these salmon could
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`not be rescued for transport upstream to the Sandy River critical habitat.
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`PARTIES AND STATEMENT OF INTEREST
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`13.
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`This action is brought pursuant to the “citizen suits” provisions of the ESA, which
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`allow a civil suit by any person on her own behalf “to enjoin any person . . . who is alleged to be
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`in violation of any provision of this chapter or regulation issued under the authority thereof.”
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`16 U.S.C. § 1540(g)(1)(a).
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`14.
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`Each Plaintiff in the above-captioned matter has given prior sixty days’ written
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`notice of these violations to the Secretary of Commerce8 and to the alleged violators. 16 U.S.C.
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`5 National Marine Fisheries Service (“NMFS”) correspondence to Kimberly D. Bose, Secretary, Federal Energy
`Regulatory Commission (August 26, 2021) at page 3, first bullet point; FERC Accession No. 20210826-5106. (All
`public documents filed on the relevant project docket of the Federal Energy Regulatory Commission contain a
`document identification “Accession Number.” When relevant for reference purposes, the FERC Accession No.
`citation of a public document is provided here.)
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`6 Maine Department of Marine Resources (“MDMR”) (Jennifer Noll). June 17, 2021. Field Summary of Atlantic
`Salmon Stranding Rescue at Lockwood Dam. (This report was included as Attachment 1 to a filing about the event
`submitted on July 1, 2021: FERC Accession No. 20210701-5242.)
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`7 Ibid.
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`8 National Marine Fisheries Service (“NMFS”) is an office of the National Oceanic and Atmospheric
`Administration within the Department of Commerce. NMFS is the federal wildlife agency with the
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`5
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`§ 1540(g)(2)(A)(i). No action has been commenced by the Secretary of Commerce to impose a
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`penalty pursuant to subsection (a) of Section 11 [16 U.S.C. § 1540(a)]. 16 U.S.C. §
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`1540(g)(2)(A)(ii). The United States has not, to Plaintiffs’ knowledge, “commenced or [is]
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`diligently prosecuting a criminal action in a court of the United States or a State to redress a
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`violation of any such provision or regulation.” 16 U.S.C. § 1540(g)(2)(A)(iii). Thus, this
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`citizen suit against the Defendants as alleged violators is permitted under 16 U.S.C. §
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`1540(g)(2)(A).
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`15.
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`Plaintiff Atlantic Salmon Federation U.S. (“ASF”) is a 73-year-old international
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`non-profit organization dedicated to conserving and restoring wild Atlantic salmon and their
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`ecosystems. ASF and its Maine Council represent a dozen angling, conservation, and watershed
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`education organizations in the State of Maine and more than 5,000 members and volunteers in
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`the United States.
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`16.
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`Plaintiff Conservation Law Foundation (“CLF”) is a non-profit advocacy
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`organization with 5,000 members across New England, including approximately 500 in Maine,
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`with a mission to protect and restore Maine and New England’s environment and promote
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`vibrant communities.
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`17.
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`Plaintiff Maine Rivers is a nonprofit corporation, formed in 2002, with a mission
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`to protect, restore and enhance the ecological health of Maine’s river systems.
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`18.
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`Plaintiff Natural Resources Council of Maine (“NRCM”) is a 62-year-old nonprofit
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`environmental advocacy organization with over 25,000 members and supporters. NRCM’s
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`mandate for ensuring survival and recovery of this endangered species under the ESA. 16 U.S.C. §§
`1532(15) & 1533(a)(2); 50 C.F.R. § 402.01(b).; 74 Fed. Reg. 29,344, 29,358 (June 19, 2009).
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`6
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`mission is “to protect, conserve and restore Maine’s environment, now and for future
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`generations.”
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`19. Defendant Merimil Limited Partnership is the licensee of the Lockwood Project
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`(FERC No. 2574), which is owned 50% by Brookfield Merimil Partners LLC and 50% by
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`Kennebec Hydro Resources Inc.
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`20. Defendant Hydro-Kennebec LLC is the licensee of the Hydro-Kennebec Project
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`(FERC No. 2611).
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`21. Defendant Brookfield White Pine Hydro LLC is the licensee of the Shawmut
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`Project (FERC No. 2322) and Weston Project (FERC No. 2325).
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`22. Defendant Brookfield Renewable Partners, L.P., is a Bermuda limited partnership,
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`the stock of which is publicly traded on the New York Stock Exchange (stock symbol NYSE:
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`BEP) and the Toronto Stock Exchange, and is an indirect parent of each of the above entities,
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`owning more than 10% on a fully exchanged basis.9
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`23.
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`Defendant Brookfield Power US Asset Management LLC purports to manage the
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`licensees’ operations.10 Brookfield Power US Asset Management LLC is a subsidiary of
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`Brookfield Asset Management, Inc., a corporation headquartered in Toronto, Ontario, Canada,
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`and publicly traded on the New York Stock Exchange (stock symbol NYSE: BAM) and the
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`Toronto Stock Exchange.
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`9 See also Letter from Brookfield Renewable to Kimberly Bose, Secretary, Federal Energy Regulatory
`Commission (February 12, 2018), wherein “Brookfield Renewable Partners” had requested and had been
`designated non-federal representative for the purpose of undertaking informal consultation with the
`National Marine Fisheries Service (NMFS) pursuant to section 7 of the ESA, on behalf of each of the four
`licensees; FERC Accession No. 20180212-5110.
`
`10 See Brookfield Power US Asset Management, LLC letter to Kimberly Bose, Secretary, Federal Energy
`Regulatory Commission (July 28, 2020), whereby Brookfield Power US Asset Management LLC submits
`request “on behalf of its affiliated licensees for the above referenced Projects;” FERC Accession No
`20200729-5053.
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`7
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`24. Defendant Brookfield Power US Holding America Co. is a Delaware corporation
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`headquartered in New York, NY, which holds an equity interest in and, through its subsidiaries,
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`operates and manages each of the four projects in issue.
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`25.
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`Each Defendant is jointly and severally liable as an alleged violator for all
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`violations and “takes” asserted herein. The Defendants named in the above-captioned pleading
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`are collectively referred to hereafter as “Brookfield.”
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`JURISDICTION AND VENUE
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`26.
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`This Court has jurisdiction over this action pursuant to the ESA, 16 U.S.C.
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`§ 1540(g), and under 28 U.S.C. § 1331 (federal question) as a civil action arising under the laws
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`of the United States.
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`27.
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`The Court may grant the relief requested under the ESA, which confers jurisdiction
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`upon the district courts, “without regard to the amount in controversy or the citizenship of the
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`parties,” and allows suit to be brought in the judicial district in which the violation occurs. 16
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`U.S.C. § 1540(g)(1) & (3)(A); 28 U.S.C. §§ 2201 and 2202 (declaratory and injunctive relief).
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`28. As alleged above in Paragraph 14, Plaintiffs gave sixty days’ written notice of their
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`intent
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`to file this suit pursuant
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`to the citizen suits provision of the ESA, 16 U.S.C. §
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`1540(g)(2)(A)(i), by letters to Defendants dated May 12, 2021 and May 20, 2021.
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`29.
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`To date, Defendants have neither remedied these continuing ESA violations nor
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`obtained restored take authorization under the ESA at any of the four projects.
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`30.
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`Indeed, in the face of these notices of intent to sue, given to them on or about May
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`12 and 20, 2021, Defendants thereafter continued to violate the ESA, exemplified by the events
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`of June 2021 at the Lockwood Project, when flashboard repair/replacement operations resulted in
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`severe trapping, injury, harm, and risked death, of at least 3 adult salmon and nearly two dozen
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`8
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`smolts. And further, death and injury to downstream migrating smolts through all of the projects
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`into the month of June was reasonably certain to occur, by Brookfield’s own public admissions
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`regarding downstream migration survival data, over all four projects (i.e, June outmigration from
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`the Sandy River spawning and rearing habitat to the ocean, which requires smolts to pass all four
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`projects in their downstream outmigration).
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`31. Venue is proper in this Court pursuant to 16 U.S.C. § 1540(g)(3)(A) because the
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`violations occurred in this judicial district, and pursuant to 28 U.S.C. § 1391(b) because a
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`substantial part of the events or omissions giving rise to the claims in this case occurred in this
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`judicial district as they relate to project operations on the Kennebec River and its watershed.
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`STATUTORY FRAMEWORK OF THE COMPLAINT ALLEGATIONS
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`32.
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`The ESA was enacted, in part, to provide a “means whereby the ecosystems upon
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`which endangered species and threatened species depend may be conserved ... [and] a program
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`for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b).
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`33.
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`Section 9 of the ESA makes it unlawful for “any person” to “take” a listed species,
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`including take of “any such species within the United States or the territorial sea of the United
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`States.” 16 U.S.C. § 1538(a)(1)(B). “Take” means to “to harass, harm, pursue, hunt, shoot,
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`wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C.
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`§ 1532(19). The ESA’s legislative history supports “the broadest possible” reading of “take.”
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`Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 704-05 (1995).
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`34.
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`“Harm,” as that word is used in the ESA, means “an act which actually kills or
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`injures fish or wildlife,” including “significant habitat modification or degradation which actually
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`kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including,
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`breeding, spawning, rearing, migrating, feeding or sheltering.” 50 C.F.R. § 222.102; see Babbitt
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`9
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`v. Sweet Home Chapter, Communities for Great Oregon, 515 U.S. at 708 (upholding
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`interpretation of the term “take” to include significant habitat degradation).
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`35.
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`Each Defendant is a “person” under the ESA, as “person” is defined, in relevant
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`part, as “an individual, corporation, partnership, trust, association, or any other private entity.”
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`16 U.S.C. § 1532(13.)
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`36.
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`Section 10 of the ESA provides an exception to the take prohibition, allowing the
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`take of a listed species where the National Marine Fisheries Service (“NMFS”), which receives
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`delegated authority from the Secretary of the Department of Commerce, issues a permit
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`authorizing the take. 16 U.S.C. § 1539.11 If the “taking is incidental to, and not the purpose of,
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`the carrying out of an otherwise lawful activity,” such as take associated with construction,
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`development, or operation of an industrial site, the person intending to cause the take must first
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`apply to NMFS for an incidental take permit. 16 U.S.C. § 1539(a)(1)(B).
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`37.
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`There is no current take permit authorizing any operations of any of the four
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`projects.
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`38.
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`Section 11 of the ESA allows “any person” to commence a civil suit “to enjoin any
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`person . . . who is alleged to be in violation of any provision of [the ESA]. . . .” 16 U.S.C.
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`§ 1540(g)(1)(A). Thus, the ESA authorizes private enforcement of unpermitted take in violation
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`of the take prohibition through a broad citizen-suit provision. Citizens may seek to enjoin both
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`present activities that result in take as well as future activities that are reasonably likely to result
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`in take. National Wildlife Fed’n v. Burlington Northern Railroad, 23 F.3d 1508, 1511 (9th Cir.
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`1994).
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`11 National Marine Fisheries Service (“NMFS”) is an office of the National Oceanic and Atmospheric
`Administration within the Department of Commerce. NMFS is the federal wildlife agency with the
`mandate for ensuring survival and recovery of this endangered species under the ESA. 16 U.S.C. §§
`1532(15) & 1533(a)(2); 50 C.F.R. § 402.01(b).; 74 Fed. Reg. 29,344, 29,358 (June 19, 2009).
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`10
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`THE STATUS OF ATLANTIC SALMON IN THE GOM DPS
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`39. Atlantic salmon are anadromous fish, spending most of their adult life in the ocean
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`but returning to freshwater to spawn.
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`40. Atlantic salmon have a complex life history that includes spawning and rearing in
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`rivers and extensive feeding migrations on the high seas. During their life cycle, Atlantic salmon
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`go through several distinct phases that are identified by specific changes in behavior, physiology,
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`morphology, and habitat requirements.
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`41. Adult Atlantic salmon migrate from the sea to return to their natal freshwater
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`habitats to spawn; a small percentage (1-2%) of returning adults in Maine will stray to a new
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`river. Adults ascend the rivers within the GOM DPS beginning in the spring. The ascent of adult
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`salmon continues into the fall. Although spawning does not occur until late fall, the majority of
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`Atlantic salmon in Maine enter freshwater between May and mid-July. The full upstream
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`migration season is May 1 through October 31.
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`42. Atlantic salmon are repeat seasonal spawners. In the fall, female Atlantic salmon
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`select sites for spawning in rivers, and a single female may create several redds (nests) before
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`depositing all of her eggs. After spawning, Atlantic salmon may either return to the sea
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`immediately or remain in freshwater until the following spring before returning to the sea.
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`43.
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`Embryos develop in redds, hatching in late March or April. Newly hatched salmon,
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`referred to as larval fry, alevin, or sac fry, remain in the redd for approximately six weeks after
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`hatching and are nourished by their yolk sac. Survival from the egg to fry stage in Maine is
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`estimated to range from 15 to 35%.
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`44. When the fry reach approximately 4 cm in length, the young salmon – termed “parr”
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`– remain in the river for 2 to 3 years before undergoing “smoltification,” the process of
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`11
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`physiological changes parr will undergo in order to transition from a freshwater environment to
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`a saltwater marine environment.
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`In Maine, the vast majority of naturally reared parr (90% or
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`more) remain in freshwater for two years with the balance remaining for either one or three years.
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`45. Most smolts enter the sea during May to begin their first ocean migration. During
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`this outmigration, smolts must contend with changes in salinity, water temperature, pH, dissolved
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`oxygen, pollution levels, and various predator assemblages. The transition of smolts into seawater
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`is usually gradual as they pass through a zone of fresh and saltwater mixing that typically occurs
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`in a river’s estuary.
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`46.
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`The spring migration of post-smolts out of the coastal environment is generally
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`rapid, within several tidal cycles, and follows a direct route.
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`47.
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`The full downstream migration seasons are April 1 through June 30, and October
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`15 through December 31 (the latter period involving post-spawn adults returning to the ocean as
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`potential repeat spawners).
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`48.
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`Repeat spawners within the GOM DPS of Atlantic salmon hold a unique
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`importance for the survival and recovery of the species, as they are critical for population
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`resilience and therefore recovery.
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`12
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`49.
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`The Kennebec was once the most productive river in Maine, with Atlantic salmon
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`runs in the hundreds of thousands.12 Today, Atlantic salmon in the United States are on the edge
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`of extinction, 13 including Atlantic salmon in the Kennebec River.
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`50. Atlantic salmon’s continued existence depends on the Kennebec River watershed
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`more than any other river in the United States.
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`51.
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`In 2000, the Gulf of Maine Distinct Population Segment (“GOM DPS”) of Atlantic
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`salmon was first listed as an endangered species under the ESA. 65 Fed. Reg. 69459 (November
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`17, 2000).
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`52.
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`In 2009, that listing was expanded to include Atlantic salmon in the Kennebec,
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`Penobscot, and Androscoggin Rivers. 74 Fed. Reg. 29,344 (June 19, 2009).
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`53.
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`In June of 2009, designation of critical habitat for the GOM DPS of Atlantic salmon
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`became final. 74 Fed. Reg. 29,300 (June 19, 2009).
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`54.
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`The lower Kennebec River watershed is completely within designated critical
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`habitat for the migrating GOM DPS of Atlantic salmon. The vast majority of salmon spawning
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`and rearing habitat in the Kennebec River Watershed is located above Brookfield’s four
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`hydropower projects, in the critical habitat recovery units within the Sandy River spawning and
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`rearing area.14
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`12 2006. Saunders et al. Maine’s Diadromous Fish Community: Past, Present, and Implications for Atlantic
`Salmon Recovery. Fisheries 31(11):537-547. Table 2 (cited in ESA Atlantic salmon listing, 74 Fed. Reg.
`29344, 29374-75); Fay et al., 2006. Status review for anadromous Atlantic salmon (Salmo salar) in the
`United States. Report to the National Marine Fisheries Service and U.S.. Fish and Wildlife Service. P. 23.
`In the Kennebec alone, historic evidence puts the Atlantic salmon run at well over 216,000 fish, based on
`an 1867 Maine Agriculture report of a fish harvest on the Kennebec. Maine Agriculture, 1867 Report of
`Commissioners Nathan Foster and Charles Atkins at p. 114 (Jan. 16, 1868).
`
`13 65 Fed. Reg. 69459 (November 17, 2000); 74 Fed. Reg. 29344 (June 19, 2009).
`
`14 The critical habitat for the GOM DPS of Atlantic salmon is divided into “salmon habitat recovery
`units” or SHRU’s. Areas designated as critical habitat under the ESA within each SHRU are termed
`“habitat units,” with one unit representing 100 square meters of spawning or rearing habitat. With more
`
`13
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`Case 1:21-cv-00257-JDL Document 1 Filed 09/09/21 Page 14 of 26 PageID #: 14
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`55.
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`The combination of the four hydropower projects of Lockwood, Hydro-Kennebec,
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`Shawmut, and Weston on the Kennebec River totally blocks Atlantic salmon access to the critical
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`spawning and rearing habitat in the Sandy River area, located upstream from the four dams.
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`56.
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`The Sandy River has the greatest biological value for spawning and rearing habitat
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`within the Merrymeeting Bay SHRU, and is the best habitat in the Kennebec River watershed –
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`both in terms of quality and size – for the spawning and rearing of Atlantic salmon, and indeed
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`among the best in Maine (and hence the United States).
`
`57. Atlantic salmon access to and from the Sandy River area is therefore critical to
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`survival and recovery of this endangered species; without access to the Sandy’s spawning and
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`rearing habitat, survival and recovery goals for the GOM DPS of Atlantic salmon will never be
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`met.
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`58.
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`Currently, the only access Atlantic salmon in the Kennebec have to the Sandy River
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`critical spawning and rearing habitat is by means of a “trap and truck” program operated by the
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`Maine Department of Marine Resources (“MDMR”), where the small numbers of returning fish
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`enter a haphazard fish lift at Lockwood, and pass into holding tanks; MDMR staff capture these
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`fish and transport them to various release locations upstream, beyond the four-dam gauntlet posed
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`by Brookfield’s hydropower operations.
`
`59. Above Lockwood,
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`the Hydro-Kennebec Project has a completely untested
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`upstream passage facility, and there is no upstream passage facility installed at either the Shawmut
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`or Weston Projects. Further, all current available scientific data and information show that
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`than 43,000 units of habitat, the Sandy River HUC 10 watershed has more Atlantic salmon habitat than
`any of the other 27 HUC 10 watersheds that were historically accessible to Atlantic salmon within the
`Merrymeeting Bay SHRU. (HUC stands for Hydrologic Unit Code, and is the national classification
`system for watershed by size.)
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`14
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`Case 1:21-cv-00257-JDL Document 1 Filed 09/09/21 Page 15 of 26 PageID #: 15
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`upstream passage over four projects will not function to eliminate “take” in any event – salmon
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`are not able to pass a multi-dam system upstream without suffering a significant percentage of
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`death and injury by the dams and their impoundments, and by the projects’ degradation to the
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`environment (including failure to pass other co-evolved species, which is critical to salmon
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`survival and recovery, all as explained further herein.) There is no multi-project Atlantic salmon
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`passage system in the world which has ever worked sufficiently to avoid “take,” and none that
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`would ever completely avoid killing and injuring salmon.
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`60.
`
`In 2019, only 56 salmon returned to be captured in the Lockwood Project fish lift
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`in Waterville (the first dam on the Kennebec in the series of four).15 In the 2020 migration season,
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`only 51 salmon were captured at the Lockwood fish lift.16 As of June 21, 2021, only 15 returning
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`adults have been captured at the Lockwood Project.17
`
`61.
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`In terms of downstream migration, over 40% of outmigrating smolts are killed in
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`dam-related mortalities, based on Brookfield’s own studies.
`
`15 2020. DMR. MDMR Response to the Ready for Environmental Analysis (REA) Preliminary Terms and
`Conditions, and Preliminary Fishway Prescriptions for the Shawmut Project (P-2322-069). August 28,
`2020. P.3.
`
`16 Brookfield Renewable, Diadromous Fish Passage Report for the Lower Kennebec River Watershed
`during the 2020 Migration Season, at section 2.2.1.3 (Table 2-5). February 19, 2021. P. 20.
`
`17 2021. MDMR Comments on [Brookfield] Species Protection Plans at the [Lockwood, Hydro-
`Kennebec, and Weston] Hydroelectric Projects. August 25. Table 1 at P.8; FERC Accession No. 2021
`0825-5159.
`
`15
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`Case 1:21-cv-00257-JDL Document 1 Filed 09/09/21 Page 16 of 26 PageID #: 16
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`TAKE OF ATLANTIC SALMON AS A RESULT OF
`THE OPERATIONS OF THE FOUR HYDROPOWER PROJECTS
`
`Upstream Migration Take
`
`62. Upstream migration “take” occurs at the Lockwood Project, and would occur at the
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`remaining three upstream dams in the four-dam impediment which Atlantic salmon (and other
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`coevolved fish species) would face on their upstream migration, if they were able to pass at
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`Lockwood, which they are not.
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`63.
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`The Lockwood Project is the first dam that American shad, river herring, and
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`Atlantic salmon hit on their journey from the ocean to spawn in freshwater.
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`64.
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`The fish lift at this dam has never worked well since its installation in 2006, and
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`Brookfield has failed to improve it. In a recent filing to the Federal Energy Regulatory
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`Commission (FERC), the Maine Department of Marine Resources (MDMR) stated:
`
`the Lockwood Project provide a cautionary tale as
`Fish passage failures at
`unexpectedly poor performance has left hundreds of returning endangered Atlantic
`salmon to die or spawn in subpar habitats below the project and likely tens or
`hundreds of thousands of American shad and other species to be blocked from
`historic habitats annually.18
`
`65. NMFS stated in a 2018 letter to Brookfield that: “1) The Lockwood facility
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`demonstrates poor upstream passage efficiency for Atlantic salmon; 2) Atlantic salmon are highly
`
`attracted to the ‘bypass’ reach of the Lockwood facility; and 3) the Lockwood facility imposes a
`
`significant delay upon the upstream migration of Atlantic salmon. Although the study did not
`
`18 2020. MDMR. MDMR Response to the Ready for Environmental Analysis (REA) Preliminary Terms
`and Conditions, and Preliminary Fishway Prescriptions for the Shawmut Project (P-2322-069). August 28,
`2020. P.3; FERC Accession No. 20200828-5199 at 3.
`
`16
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`

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`Case 1:21-cv-00257-JDL Document 1 Filed 09/09/21 Page 17 of 26 PageID #: 17
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`address the facility’s upstream passage effect on other species, it is reasonable to assume that
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`other diadromous species experience similar effects.”19
`
`66.
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`Furthermore, delays in upstream migration can be fatal, to the individual and to the
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`species as a whole. Delays result from the ESA-defined “harm” caused by the hydropower
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`projects, whose dams and impoundments pose migration barriers and adverse modification and
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`degradation of the species’ critical habitat. Delays in passage to spawning and rearing habitat
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`directly reduce spawning or spawning success, because returning salmon have stored energy
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`reserves from the marine environment which cannot be expended or depleted before spawning
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`can occur. Delays reduce survival and spawning success by increasing vulnerability to parasites
`
`and predation, depleting energy reserves, and creating missed spawning opportunities. Salmon
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`that are not captured in the fish lift at Lockwood (or inordinately delayed by the project by
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`attempts at passage), are left to die, to never spawn, or to spawn in subpar habitats below the
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`Lockwood dam.
`
`67.
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`The very small numbers of the critical multi-season “repeat spawners” individuals
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`in the species’ population, which have not yet been extirpated from the Kennebec but are close to
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`extirpation, raise dire concern about each take that occurs at the Lockwood Project. Thes