American Whitewater Opposes Brookfield Effort to Weaken Clean Water Act
American Whitewater has intervened in a legal appeal brought by Great Lakes Hydro (GLHA), a subsidiary of Brookfield Renewable, challenging state authority to protect rivers at Shawmut Hydroelectric Project in Maine. Under Section 401 of the Clean Water Act, states must certify that hydropower dams meet state water quality standards before the Federal Energy Regulatory Commission (FERC) issues a license to operate the project. Maine denied water quality certification at the Shawmut project due to incomplete information on the effect of the project on Atlantic Salmon migration. GLHA challenged Maine's certification denial under the new EPA Section 401 rules adopted in 2020 and asked FERC to find that Maine waived its Section 401 authority by failing to provide an adequate basis for the denial. GLHA appealed FERC's denial of its waiver request in the D.C. Circuit of the Court of Appeals, and the Court granted American Whitewater's intervention in the appeal.
American Whitewater and other river conservation partners challenged the EPA Section 401 rules in the 9th Circuit under the Clean Water Act, and that challenge is ongoing. GLHA's appeal in the Shawmut case is the first time a hydro dam owner has challenged a state's certification denial under the 2020 rules that significantly weakend state authority to protect rivers from the harmful effects of hydropower dams. Brookfield is the largest hydropower dam operator in the northeast. Another Brookfield subsidiary, Erie Boulevard, is similarly challenging New York's denial of water quality certification at West Canada Creek Hydroelectric Project. If Brookfield is successful in its appeals, state authority to deny certification to projects failing to meet water quality standards will be substantially reduced. American Whitewater is committed to protecting the ability of states to assure that hydropower dams meet state water quality standards.