Thursday, July 19, 2012

Water Quality Standards, Fish Passage, and EPA

Last week, EPA determined that the State of Maine had illegally adjusted its water quality standards by preventing fish passage at two dams along the St. Croix River.

To anyone who follows water quality or fisheries issues, the preceding sentence will seem a little bit surprising.  In Maine, as in many other places in the country, squabbles over fish passage began in the colonial era and have resurged in recent years.  Water quality standards also are an ongoing issue.  But the two don’t usually go together unless Clean Water Act section 401 is involved, which wasn’t the case with the St. Croix dams.   More typical fish passage controversies arise in the context of FERC’s relicensing processes for hydroelectric facilities, with the Fish and Wildlife Service or NOAA Fisheries, not EPA, serving as the lead governmental advocates for improved passage.  And even when section 401 is involved, a state agency, not EPA, is primarily responsible for assessing whether the proposed license will comply with state water quality standards (see, e.g., PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U.S. 700 (1994).  So the juxtaposition of direct EPA involvement, fish passage issues, and water quality standards is something new.

Dams0712A little more background should put the controversy in context (for newspaper coverage with much more background, see here and here; the map at left also comes from the Portland Press Herald stories).  For years, the St. Croix watershed was effectively closed to alewife migration.  Alewives, or river herring, are anadromous fish.  Their runs in many Maine rivers once numbered in the millions, but because of pollution and dams, present populations are much lower (more on that here), so much so that the Natural Resources Defense Council recently petitioned for alewives to be listed under the Endangered Species Act.  For a while the St. Croix was a hopeful exception to those trends.  By the 1980s, water quality had improved enough that alewives could migrate up the watershed and access their traditional spawning grounds, and the run had recovered to approximately 2.6 million fish.  That scared local fishing guides, who feared adverse impacts on the bass populations their clients preferred to catch (subsequent research found those fears to be unfounded), and they successfully lobbied the Maine Legislature to close fish passage at several dams.  Later legislation resulted in one dam opening, but over 90% of the watershed remains closed.

In May, the Conservation Law Foundation sued EPA, arguing that the dam closure represented a de facto change in Maine’s water quality standards, and that EPA has a non-discretionary duty to review changes in water quality standards.  CLF was joined in their advocacy by lobstering groups (alewives are the best lobster bait around) and by the local Native American tribes, one of which had previously supported the dam closures.  In a letter last week, EPA agreed with essentially all of the plaintiffs’ legal claims.  What happens next isn’t exactly clear; the questions about legal next steps could form a cruelly complex federal courts/remedies/constitutional law/environmental law exam question.  But what’s already happened should be intriguing to anyone interested in the law of water quality or fisheries.

-Dave Owen

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