FERC Tells Parties to Renegotiate Fish Passage Condition in Landmark Settlement Agreement

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The Ft. Halifax Dam has been parked on Sebasticook River, a tributary of the Kennebec River, since 1907. In 1998, after many years of contentious relicensing proceedings, a group of hydropower dam owners known as the KHDG, or Kennebec Hydro Developers Group, a group of conservation organizations called the Kennebec Coalition, and federal and state resource agencies reached a landmark settlement agreement.

The 1998 KDHG Agreement - which included the removal of the Edwards Dam, the lowermost dam on the Kennebec - called on the owner of Ft. Halifax to provide for the installation and operation of a permanent fish lift that can pass American shad, alewife, and Atlantic salmon in sufficient quantities to meet fish restoration goals. The agreement further stipulated that by May 1, 2003 the licensee should make their choice of constructing the fish lift or surrender the license and remove the dam. FERC amended the Ft. Halifax and other licenses to reflect the 1998 KHDG agreement.

In 2002, licensee FPL Energy Maine Hydro, citing that the lift rendered the project unprofitable, chose to surrender its license and partially remove the dam. In reply a year later, FERC stayed its own fish passage license condition and directed FP& L to negotiate with the settlement parties. The Commission' s prior policy has been to adopt the terms of a settlement as the license terms and let the licensee proceed at its own peril: the licensee makes the decision to accept the new license. In this Ft. Halifax action, FERC throws into question the power of settlement agreements and their true status as license articles.

Several parties to the KHDG agreement are filing for rehearing of the Order.