LOWELL — Two federal agencies that have been fighting with each other over Boott Hydropower’s controversial project to install a new inflatable flashboard at Pawtucket Dam are now heading to federal court.
The U.S. Department of Justice has filed a lawsuit against the Federal Energy Regulatory Commission (FERC) asking the U.S. Court of Appeals to review FERC’s earlier decision to allow Enel Green Power North America to replace the existing wooden flashboard system on Pawtucket Dam with a rubber-made pneumatic one. Enel, which is based in Andover, is the parent company of Boott Hydro, which owns Pawtucket Dam.
The lawsuit comes from the U.S. Department of the Interior, under which national historical parks operate, said Peter Aucella, assistant superintendent of Lowell National Historical Park.
The Justice Department is representing the Interior Department in this case.
“The matter has been referred to the appellate court for review and therefore, Boott Hydropower does not have a comment at this time,” Enel Green Power North America said through a spokesman Wednesday.
FERC also declined to comment.
Lowell park officials had been opposed to the flashboard-replacement project because it believes the proposed pneumatic system, which would be bolted into the bedrock, would damage the historic dam. After FERC approved the flashboard project, the Interior Department filed an appeal with the agency. FERC then dismissed the Interior Department’s plea to reconsider the commission’s earlier decision in September, saying that the department failed to prove the new crest gate would result in irreversible damage to the dam.
Taking FERC to court was the only avenue left for the Interior Department to pursue to have FERC’s decision overturned, Aucella said.
Aucella said the proposed flashboard system requires “jack-hammering the anchors through the top of the dam down to the bedrock” and putting concrete on top of the dam.
“There will be hundreds of them,” Aucella said of the metallic plates to be drilled.
Aucella noted that he is not aware of any pneumatic crest gates anchored in such a manner. He believes Enel wanted to work around issues related to historic properties, such as the requirement to preserve their appearances and functions, but that it would only damage the dam structure.
“In the end, what the park and the Park Service in Washington and the Department of the Interior are looking for is the compliance with the Lowell Act that authorized the Lowell National Historical Park” to be established in 1978, Aucella said. The Act specifically prohibits federal approval of licenses or permits that adversely affect contributing resources to the Lowell National Historical Park, according to the National Trust of Historic Preservations, a Washington-based group that led a fundraising campaign this past summer to help appeal FERC’s decision from April.
Aucella said the rare decision on part of the DOJ to sue FERC, another federal agency, speaks to the importance of preserving the dam, which is not only located within the city’s Historic District and the national park’s boundary but also is part of the area on the National Register of Historic Places.
In a letter to U.S. Attorney General Eric Holder sent on Monday in support of the lawsuit, U.S. Rep. Niki Tsongas and Sens. Edward Markey and Elizabeth Warren called Pawtucket Dam a part of “a cohesive collection of significant early industrial resources” that are important not only to Lowell but also to the country.
“I’m so pleased. It’s a big win,” said Deb Forgione, chairwoman of the Pawtucketville Citizens Council, who has long opposed to the flashboard project.
Forgione and some residents have claimed that the inflatable crest gate would cause upstream water levels to increase and make the neighborhood more susceptible to spring flooding.
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