Powder Mill Fish Hatchery Litigation

As of May 2020:

The Conservation Law Foundation (CLF) filed suit in 2019 in the federal district court in Concord, NH, against the NH Fish and Game Department (among others) relating to the discharge of various pollutants from the Powder Mill Fish Hatchery into the Merrymeeting River. The claims brought by the CLF relate to both direct and indirect discharges of such pollutants. The direct discharge claims focus on the continuing and anticipated future discharge of pollutants in violation of an existing federal Environmental Protection Agency (EPA) permit (NPDES permit) dating from 2011. The indirect discharge claims focus on past discharges of pollutants into the river which have settled into river bottom sediments and which will continue to leach into the river water in the future. The CLF is seeking injunctive relief to compel the defendants to comply with federal (and NH) law and current permit requirements, and to remediate the past discharge of pollutants. The EPA issued an updated NPDES permit in draft form in December 2019. This draft permit would establish certain numerical limits for one or more pollutant discharges from the Powder Mill Fish Hatchery and would also establish a compliance schedule.

The public comment period for this draft permit expired in February 2020. The draft permit recommends limits on total phosphorus (TP) discharge, but does not place any limits on nitrogen or suspended solids. This draft permit also does not require that any of the recommended TP limits be implemented during the next 5 years, despite acknowledging that the fish hatchery is the source of the pollutants in the Merrymeeting River. Local residents responded critically to this draft permit by requesting lower limits for TP discharge throughout the year, inclusion of discharge limits on nitrogen and total suspended solids, immediate changes to include an increase in fish hatchery staff to vacuum solids from raceways from once to twice a week or more, and, if necessary, a reduction of in the remaining fish population until a final treatment facility is built. A public hearing process for the draft permit is following, with a final EPA NPDES permit to be issued in September 2020 at the earliest. The goal of the community is to eventually reduce pollutant discharges from the fish hatchery to a level below the threshold the NH DES sets for unimpaired waterways.

In addition, the U.S. Supreme Court issued an opinion in April 2020 in an unrelated case in Hawaii. The Supreme Court’s decision in that other case determined that the federal Clean Water Act requires a permit when pollutants originating from a point source are then conveyed to navigable waters by a non-point source, such as ground water. This decision bears favorably on at least a portion of the claims being pursued by the CLF in the fish hatchery case relating to leaching (re-release) of pollutants into the Merrymeeting River. The federal court in Concord has asked for further briefing on the legal impact of the Supreme Court decision; it also appears that the new EPA NPDES permit in its final form (when issued) will have a significant impact in the fish hatchery case.

The MMLA BOD will continue to follow the progress of this case.