Thursday, April 25, 2013

A Water Quality/Fish Passage Controversy Reaches Closure

River_herring_2Last week brought closure to a rather interesting legal controversy at the northeastern corner of the country.  The St. Croix River, which forms part of the boundary between Maine and Canada, once supported millions of alewives (also known as river herring).  Dams and pollution decimated alewife runs throughout the northeast, but by the mid-1990s, the St. Croix run had partially recovered.  That recovery alarmed local fishing guides, who blamed the alewives for declining smallmouth bass populations.  In response to these concerns, Maine enacted legislation requiring closure of a key fish ladder.  With the ladder blocked, alewife populations again declined precipitously.

This second decline eventually led to both litigation and legislative activity.  On the litigation front, the Conservation Law Foundation, a regional environmental group, began by suing EPA.  CLF argued that the state’s actions constituted a de facto amendment of water quality standards for the St. Croix, and that EPA was obligated to review that change.  That suit culminated in an EPA letter to the state of Maine, in which EPA concurred in CLF’s position.  But the state initially brushed off the letter, and it appeared that CLF would need to file another lawsuit to compel state action.  CLF did file that lawsuit, but the suit raised a host of jurisdictional issues, some of them quite thorny.  As thoroughly explained here, bringing lawsuits to compel compliance with water quality standards is no easy matter.  Those jurisdictional issues now have been briefed but not yet addressed by the court.

Now, however, those same issues are moot.  The state legislature recently passed a bill requiring the reopening of the fish ladder.  The legislation had broad support: Native American tribes and commercial fishing interests joined environmentalists in support of the bill, while only a few fishing guides remained opposed.  That alone was no guarantee of gubernatorial support.  Maine’s governor spent part of last week speaking at an anti-Agenda 21 rally, and when it comes to pro-environmental legislation, all bets are currently off.  But even if he could not bring himself to sign the bill, the governor also declined to veto it, and last week the bill quietly became law.

So why should anyone outside of an obscure corner of Maine care?  There are three main reasons.  First, this controversy highlights intriguing questions about EPA’s obligation to review state actions that serve as de facto amendments of water quality standards.  Many state actions arguably could meet that description.  Installing a board in a fish ladder, and thus preventing fish migration through a river system whose designated uses include supporting native fisheries, seems like an obvious example.  But what about approving subdivisions that alter stormwater runoff in ways that damage water quality?  Could that require EPA approval as well?

Second, the litigation, had it proceeded, would have compelled the courts to confront some interesting questions about the enforceability of water quality standards.  And those theories in turn would have implicated basic questions of federalism.  For example, the plaintiffs’ most plausible source of a cause of action might have been the U.S. Constitution’s supremacy clause.  And the United States Supreme Court recently raised, without resolving, questions about whether such a cause of action exists.

Finally, and perhaps most importantly, the ecological benefits of this recovery project could be substantial.  Alewives are the anadromous equivalent of rabbits; they reproduce in astonishing numbers, and just about every predator that lives in northeastern river systems or the near-shore ocean eats them.  Right now, they’re under consideration for ESA listing, but a recovered population could help New England’s iconic, and beleaguered, groundfishery bounce back.

-Dave Owen

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Hi Dave, excellent overview. I was plaintiff in the federal pre-emption proceeding which was concurrent to the CLF suit against US EPA which you cite above. Our counsel (EarthJustice and David Nicholas) recommended a straight federal pre-emption on CWA grounds; Justice Torreson in Portland dismissed in Jan. 2012 on grounds we had not exhausted our administrative relief under US EPA (we had already exhausted it, but that's a complicated story). CLF then went straight to EPA via the CWA citizen suit provision and we followed once our pre-emption suit was vacated. Faced with two federal CWA lawsuits, the EPA then produced on July 9, 2012 the decision letter which struck the Maine law as void for CWA purposes, which is what I had originally requested from Region 1 Administrator Spalding by letter on July 4, 2010. It took two years and three federal lawsuits to get this 3-page letter. The importance of this chain of decisions is that it represents the first time (to my knowledge) that US EPA has ever explicitly stated that the passage of native fish at a dam is an integral component of the Clean Water Act and state laws which intentionally bar passage by native fish at dams are hostile to the Act. Future implications are still open.

Posted by: Douglas Watts | Apr 25, 2013 5:37:48 PM

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