Yarmouth may face lawsuit over Royal River fish passage

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YARMOUTH — An environmental watchdog group intends to sue the town and the owner of the Sparhawk Mill in U.S. District Court unless they fix the Bridge Street dam to allow fish passage on the Royal River.

The Conservation Law Foundation filed a notice of intent to sue May 11 against the town, mill owner Allan Jagger and real estate agent Michael Cardente for alleged violations of the federal Clean Water Act.

The Clean Water Act is administered by the U.S. Environmental Protection Agency, which requires a notice of intent 60 days before a suit can be filed. Not all such notices result in lawsuits.

According to CLF’s notice, the town owns both the dam and its fishway. Jagger was named because the dam “is associated with” the Sparhawk Mill, at 81 Bridge St., which he co-owns. The notice lists Cardente as the property manager.

Neither Jagger nor his attorney, Juliet Brown of Verrill Dana, could be reached for comment on the matter.

On June 4, Cardente said he is the landlord employed by Jagger, but has no other involvement with the property and therefore, would not be part of the possible litigation.

“The last I heard, my named was being removed,” Cardente said.

However, Emily Green, an attorney for CLF’s Maine branch in Portland, said no such conversation had taken place. She said she could not further “discuss any ongoing strategic decisions or conversations with regard to the Sparhawk Mill case.”

According to the notice, a hydroelectricity generation project is contained within the basement of the mill, powered by a penstock that diverts water from the dam to turn its turbines.

The hydro project is permitted by the Federal Energy Regulatory Commission, which grants license exemptions for small hydroelectric projects of 5 megawatts or less. This exemption is held by Jagger; Cardente is listed as the primary contact for FERC communications regarding the project, according to CLF.

The notice argues that the defendants are not complying with the terms of the exemption, specifically because the fishway at the Bridge Street Dam is not operational.

A fishway, or fish ladder, is a series of pools built like steps to allow fish swimming upstream to bypass a dam or waterfall.

Green said the fishway has been “non-operational” for many years.

“Efforts over the years (to improve) fish passage or removing the dam … (have) not gone anywhere,” she said. “Enough is enough.”

Green said as long as native fish are blocked from traveling upstream, the success and population of other species, such as bald eagles, are also compromised.

Town Manager Nat Tupper said June 4 that the fishway in the dam was built by the state in 1974. It was leased by the state until 1999, when the lease expired and was not renewed.

Gail Wippelhauser, of the Department of Marine Resources, said the department has two employees responsible for monitoring 47 fishways in the state and relies on the town for maintenance of the structures.

Data sent to the town in 2011 from Wippelhauser suggested neither dam removal nor improvements to the fishways would result in “large runs” of alewife, blueback herring, American shad, Atlantic salmon, and rainbow smelt in the Royal River.

On June 4, Wippelhauser said her opinion hasn’t changed. She said the short distance between the Bridge and Elm street dams doesn’t create a viable habitat for fish spawning.

Wippelhauser said the DMR is aware that rocks and granite are partially blocking the entrance to a fish ladder in the Bridge Street dam, but said the natural cascade between the two dams creates conditions making it impassable.

“I know this has been an ongoing thing since that information went out … but the information we have hasn’t changed,” she said.

Sean Mahoney, executive vice president of CLF Maine, said he “respectfully disagrees” with Wippelhauser’s opinion.

According to CLF’s notice, records indicate the alewife runs initially increased in 1981 as a result of stocking efforts made by the DMR, but dropped by about half between 1982 and 1983.

Discussion of the Bridge Street and Elms Street dams and their impact on the health of the Royal River and fish passage is not new.

“There isn’t a specific event that triggered this (suit),” Green said. “It’s an obstacle that’s been on the minds of environmentalists and conservationists … for a long time … It’s been a long time coming.”

According to a timeline provided by Tupper, the Town Council voted Feb. 19, 2009, to appropriate funds “to study alternatives for improved fish passage and river restoration alternatives on the Royal River.”

Funds were appropriated for various studies and dam removal was considered. But on Sept. 17, 2015, the council voted 6-1 not to take action on “further investigation and consideration of Bridge St. dam removal.”

Alan Stearns, executive director of the Royal River Conservation Trust, said June 4 that the trust was frustrated by the council’s action in 2015.

“We think the council’s best response to threatened litigation would be for the council to offer to roll up its sleeves and return to the table,” he said. “Litigation should be a last resort and would be unnecessary if the Town Council returned to the table with a leadership posture.”

Green said CLF, which describes itself as a nonprofit organization “dedicated to the conservation and protection of New England’s environment,” works closely with the trust, along with other organizations and companies, such as the Royal River Alliance, Trout Unlimited and Maine Rivers.

“While we consider ourselves ‘allies’ with many organizations on many goals, that’s not a term I’d use regarding current posture, certainly not current litigation posture,” Stearns said.

Tupper said the notice of intent doesn’t bind the foundation to filing a lawsuit after the 60 days have passed.

“The council hasn’t had a chance to meet with the town attorney to get a sense for what this (notice) means,” he added. “In general, a conversation about a problem would be much better than a conversation about a lawsuit. … We need to discuss what’s best for the community and river.”

Attorney Katherine Joyce, of Bernstein Shur in Portland, is representing the town.

“It is important for the Town Council to weigh next steps on this matter thoughtfully in light of all relevant information and interests,” Joyce said in a June 5 email.

Jocelyn Van Saun can be reached at 781-3661, ext. 183 or jvansaun@theforecaster.net. Follow her on Twitter @JocelynVanSaun.

The Conservation Law Foundation has threatened to sue Yarmouth and the owner of the Sparhawk Mill if fish passage in the Bridge Street dam is not improved.

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