Maine Attorney General Ignores EPA’s Determination to Open St. Croix River to Alewives

CLF Files Second Lawsuit to Persuade State to Reopen Grand Falls Dam to Anadromous Fish

CONTACT:
Sean Mahoney, CLF: (207) 671-0845
Ben Carmichael, CLF: (617) 850-1743

Portland, ME October 15, 2012 – The Conservation Law Foundation (CLF) today filed a lawsuit against the State of Maine challenging the law that continues to prevent alewives, a key forage and bait fish, from accessing their native habitat in the St. Croix River watershed. A prior suit by CLF against the Environmental Protection Agency resulted in EPA determining that the Maine law was not consistent with the Clean Water Act and that the state should restore alewives to the St. Croix River.

“The State’s response to both sound science and the law has been to delay and to evade the issue,” said Sean Mahoney, VP & Director, CLF ME. “The State law clearly and intentionally frustrates the purpose of the Clean Water Act. It is our hope that this lawsuit will allow the operator of the Grand Falls Dam to open the existing and functioning fish ladder at the dam to allow alewives and other anadromous fish access to their native habitat. Further delay is unnecessary, unwise, and illegal.”

In the  prior lawsuit filed by CLF against the EPA, the EPA adopted the arguments made by CLF – principally, that the Maine law that blocks access to 98% of alewives’ natural, available habitat on the St. Croix River constitutes a degradation of water quality under the Clean Water Act (CWA). The Maine Attorney General did not dispute the EPA’s findings, but argued that it applied the law only as a fishery management tool – a position with which CLF disagrees.

“It would be more appropriate to call this a fishery mismanagement law. This law has no basis in science, it essentially has “managed” the close to 3 million population of alewives down to just thousands, and harms fishermen who use the alewife for bait or who catch fish that feed on alewives,” said Ivy Frignoca, CLF Staff Attorney. “It also harms other wildlife that rely on alewives for food and impermissibly affects the fishing and ceremonial rights of Native Americans who reside along the St. Croix.”

“At a time when only a shrunken population of commercial fishermen can eke out a difficult living while facing a mind-numbing set of rules, it is absurd that the state of Maine has a law that effectively limits a fish that is important biologically, sociologically and economically,” said Bill Townsend, a longstanding member of CLF and one of the deans of Maine’s environmental community. “In other areas, the state of Maine has already experienced the benefits of alewife restoration, overcoming an irrational prejudice. It is time the same prejudice was overcome in the St. Croix watershed.”

Background

Historically, the St. Croix River had large runs of anadromous fish, particularly Atlantic salmon, American shad, blueback herring and alewife. Alewives, an anadromous species, are native to the St. Croix River and play an important ecological role in both freshwater and marine food chains and nutrient cycles. Based on false claims that non-native smallmouth bass were struggling due to the restoration of native alewife stocks, the Maine legislature passed a bill in 1995 that blocked alewife passage at the Woodland Dam and Grand Falls Dam on the St. Croix. In 2008, even after several peer-reviewed scientific studies showed alewives have no impact on small mouth bass, the Maine Legislature allowed alewife passage at the Woodland Dam, restoring only 2 percent of available habitat for alewives.

The purpose of the CWA is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Any change to an existing water quality standard must be consistent with the state’s anti-degradation policy which means that the change cannot eliminate an existing use of the water. In this case, the existing use of the St. Croix was as a rich alewife habitat. As the EPA determined, the law that bars alewives from reaching their spawning grounds above the Grand Falls Dam improperly degrades the water quality of the river by eliminating that habitat, in vioation of the Clean Water Act. The suit filed by the CLF alleges that the State of Maine cannot apply the law solely as a fishery management law because of this conflict with the Clean Water Act. When there is a conflict between a state and federal law, the United States Constitution states that the federal law must be supreme.

 

Conservation Law Foundation (CLF) protects New England’s environment for the benefit of all people. Using the law, science and the market, CLF creates solutions that preserve natural resources, build healthy communities, and sustain a vibrant economy region-wide. Founded in 1966, CLF is a nonprofit, member-supported organization with offices in Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.

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