EPA v. POWDER MILL FISH HATCHERY

Case summary

On April 5, 2024, following successful three-way negotiations among the U.S., the Conservation Law Foundation (CLF), and the New Hampshire Fish & Game Department (NH F&G Dept.), the court has entered a consent decree modification that requires the NH F&G Dept. to comply with a numeric National Pollutant Discharge Elimination System (NPDES) permit limit for phosphorus at its Powder Mill Fish Hatchery, located at the headwaters of the Merrymeeting River in New Durham, New Hampshire. To achieve compliance, the Modified Consent Decree requires the Hatchery to implement best management practices and either modify facility operations, principally through a reduction of biomass, or cease the discharge, by December 31, 2025. Based on EPA's authority under Clean Water Act Sections 309 and 504, the NH F&G Dept. is also required to conduct a water quality assessment in the downstream waters and study the options for remediating the harmful effects of legacy phosphorus pollution caused by the Hatchery over the years. EPA, CLF and the NH F&G Dept. will then enter into further discussions on the implementation of any necessary remediation. 11/17/22 Following successful three-way negotiations among the U.S., the Conservation Law Foundation (CLF), and the New Hampshire Fish & Game Department (NH F&G Dept.), the parties have lodged a consent decree that requires the NH F&G Dept. to upgrade its Powder Mill Fish Hatchery in New Duram, New Hampshire to meet NPDES permit phosphorus limits and to also assess remediation of legacy pollution in downstream waters which are contributing to downstream water quality impacts, including the growth of toxic algae blooms and cyanobacteria. On September 7, 2022, the United States, on behalf of EPA, filed a motion to intervene in a citizen suit action brought by CLF in 2018 and filed the consent decree, which if entered by the Court, will resolve the claims of both the U.S. and CLF. The consent decree requires the construction of water treatment facilities designed to meet the Hatchery's NPDES permit's numeric phosphorus limit by December 31, 2025, as well as the implementation of best management practices to reduce the phosphorus discharge in the interim. Based on EPA's authority under Clean Water Act 309 and 504, the NH F&G Dept. is also required to conduct a water quality assessment in the downstream waters and study the options for remediating the harmful effects of legacy phosphorus pollution caused by the Hatchery over the years. EPA, CLF and the NH F&G Dept. will then enter into further discussions on the implementation of any necessary remediation. EPA sent a civil referral to the Department of Justice (DOJ) pertaining to the New Hampshire Fish & Game Department's (NH F&G) Clean Water Act noncompliance at its Powder Mill State Fish Hatchery located at the headwaters of the Merrymeeting River in New Durham, New Hampshire. EPA requests that DOJ engage in settlement discussions with the Conservation Law Foundation (CLF) and NH F&G with the goal of intervening in a citizen suit brought by CLF under CWA Section 505. CLF's suit alleges NH F&G violated an EPA-issued NPDES permit limiting the pollutants that can be discharged to the Merrymeeting River from the hatchery. EPA involvement in the case occurred after the judge invited EPA to attend an informal conference of the parties. As part of any settlement, EPA will be seeking not only compliance with the NPDES permit effluent limits but, under CWA 309(b) and 504 authorities, remediation of the legacy pollutants (in particular, phosphorus) in downstream ponds that are causing eutrophication as well as cyanobacteria blooms which are hazardous to human health. The New Hampshire Department of Environmental Services has been providing assistance to EPA at the negotiations with NH F&G.

Defendants (1)

• NH Fish & GameNamed in complaintNamed in settlement

Facilities (1)

• POWDER MILL FISH HATCHERY

  RFD MERRYMEETING LAKE ROAD, NEW DURHAM, NH, 03853

  Registry ID: 110011033096

Statutes cited

• CWA 301 — NPDES Discharge without a Permit

Enforcement conclusions (2)

• POWDER MILL FISH HATCHERYentered 2022-11-17

  Primary law: CWA

• POWDER MILL FISH HATCHERYentered 2024-04-04

  Primary law: CWA

Timeline (5 milestones)

• 2021-06-25Referred To Dept Of Justice
• 2021-06-30Enforcement Action Data Entered
• 2022-09-07Complaint Filed With Court
• 2023-12-29Final Order Lodged
• 2024-04-04Final Order Entered