U.S. Proposes Settlement to Resolve Clean Water Act Violation Claims by CLF and EPA Regarding New Hampshire Fish Hatchery

U.S. Proposes Settlement to Resolve Clean Water Act Violation Claims by CLF and EPA Regarding New Hampshire Fish Hatchery

September 8, 2022

NEW DURHAM, N.H.(Sept. 8, 2022) - The U.S. Environmental Protection Agency (EPA) and the Conservation Law Foundation (CLF) have reached an agreement with the New Hampshire Fish and Game Department that will require the Powder Mill Fish Hatchery, located in New Durham, N.H., to take action to comply with the Clean Water Act by reducing its phosphorus discharges and studying the water quality impacts of historic pollution on downstream waters.

"Harmful algal blooms, which can cause severe environmental and human health effects, have been increasing in recent years in New England and need to be addressed in order to protect human health and the environment" said EPA New England Regional Administrator David W. Cash. "This settlement not only requires the hatchery to reduce phosphorus discharges that can contribute to harmful algal blooms, but also requires steps to be taken to address the phosphorus that has already accumulated in sediments downstream of the hatchery over the years."

"This settlement demonstrates that the Department of Justice and Environmental Protection Agency are committed to addressing risks to water quality in our nation's rivers and streams," said Assistant Attorney General Todd Kim of the Justice Department's Environment and Natural Resources Division. "This settlement will lead to significant reductions in phosphorus discharges to the Merrymeeting River and downstream ponds and help reduce risks to anyone fishing or coming into contact with these waters."

The state-owned and operated Powder Mill Fish Hatchery is located at the Merrymeeting Lake Dam in New Durham, N.H. The hatchery supports recreational fishing in the state and discharges wastewater to the Merrymeeting River, pursuant to a federally issued permit under the Clean Water Act. In October 2020, EPA re-issued a permit for the hatchery, which included, for the first time specific limits, for phosphorus discharges, based on EPA's determination that the hatchery's discharge of phosphorus negatively impacts downstream water quality, including contributing to the growth of toxic algae blooms and cyanobacteria.

In 2018, the Conversation Law Foundation sued officials of the New Hampshire Fish and Game Department under the citizen-suit provisions of the Clean Water Act. CLF alleged, among other claims, violations of the permit's prohibition against water quality violations caused by its phosphorus discharges and, in an amended complaint, violations of the new numeric phosphorus limits. After successful settlement negotiations, the U.S. Department of Justice, on behalf of EPA, filed a motion to intervene in the CLF action and filed its own complaint against the New Hampshire Fish and Game Department. These actions were coupled with the lodging of a proposed Consent Decree, signed by all parties.

Under the proposed settlement, the New Hampshire Fish and Game Department is required to make upgrades to the hatchery, including the construction of a new water treatment facility to help meet permit limits by December 31, 2025. N.H. Fish and Game will also implement best management practices to reduce the phosphorus discharged from the hatchery in the interim, including adding a neutralizing agent, reconfiguring facility tanks to promote the settling of solids containing phosphorus, and increasing the frequency of removal of these solids.

In addition, N.H. Fish and Game is required to conduct a water quality assessment in the downstream waters and study the options for remediating the harmful effects of historic phosphorus pollution. EPA, CLF, and N.H. Fish and Game will then enter further discussions about the implementation of any necessary remediation.

The proposed Consent Decree is subject to a 30-day public comment period and final court approval. For more information, copies of the Complaint and the Consent Decree will be available on the Department of Justice website.

For more information:

EPA Clean Water Act Enforcement