FRIENDS OF MERRYMEETING BAY et al v. OLSEN et al
Filing
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ORDER granting 12 Motion to Dismiss; denying 13 Motion for Summary Judgment. By JUDGE NANCY TORRESEN. (dfr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FRIENDS OF MERRYMEETING
BAY, DOUGLAS H. WATTS, and
KATHLEEN McGEE,
Plaintiffs,
v.
NORMAN H. OLSEN, in his official
capacity as Commissioner of the
Maine Department of Marine
Resources,
CHANDLER E. WOODCOCK, in his
official capacity as Commissioner of
the Maine Department of Inland
Fisheries,
Defendants.
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) Civil Docket No. 1:11-cv-00167-NT
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
INTRODUCTION
Friends of Merrymeeting Bay, Douglas H. Watts, and Kathleen McGee bring
suit against Norman H. Olsen, in his official capacity as Commissioner of the Maine
Department of Marine Resources and Chandler E. Woodcock, in his official capacity
as Commissioner of the Maine Department of Inland Fisheries and Wildlife,
alleging that paragraph 2 of the 2008 Alewife Law, 12 M.R.S.A. § 6134(2) (2008)
(“Alewife Law”), which blocks alewife passage through the Grand Falls Dam into
the St. Croix River watershed, is preempted by the Federal Water Pollution Control
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Act of 1972, 33 U.S.C. §§ 1251-1387 (2006), known popularly as the Clean Water
Act (“CWA”).
Plaintiffs seek a declaratory judgment that the Alewife Law is preempted by
the CWA, an injunction prohibiting further implementation of the Alewife Law, and
an injunction ordering the removal of existing barriers to alewife passage at the
Grand Falls Dam. Defendants have filed a Motion to Dismiss under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim on which relief may be granted.
Plaintiffs argue in their Sur-Reply that the Court should convert Defendants’
Motion to Dismiss into a motion for summary judgment under Federal Rule of Civil
Procedure 12(d) because Defendants have introduced matters outside of the
pleadings. The Court hereby excludes any matters outside of the Plaintiffs’
Complaint for purposes of Defendants’ Motion to Dismiss and does not convert
Defendants’ Motion to Dismiss into a motion for summary judgment. 1
The Court finds that the Plaintiffs have failed to state a claim on which relief
may be granted and GRANTS Defendants’ Motion to Dismiss. Because the
Plaintiffs have failed to state a claim on which relief may be granted, Plaintiffs’
Motion for Summary Judgment is hereby DENIED.
Plaintiffs have also filed a Motion for Summary Judgment. (Doc. No. 13). The Court extended
the Defendants’ time to repond to the Motion for Summary Judgment until after it ruled on
Defendants’ Motion to Dismiss. (Doc. No. 12).
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LEGAL STANDARD
Rule 8 of the Federal Rules of Civil Procedure requires that a complaint
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief” and that “each allegation must be simple, concise, and direct.”
Fed. R. Civ. P. 8(a)(2) & 8(d)(1). The First Circuit has set forth, consistent with Bell
Atlantic Corp v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), the
“proper way of handling a motion to dismiss” under Rule 12(b)(6):
Step one: isolate and ignore statements in the complaint that simply
offer legal labels and conclusions or merely rehash cause-of-action
elements. Step two: take the complaint’s well-pled (i.e. non-conclusory,
non-speculative) facts as true, drawing all reasonable inferences in the
pleader’s favor, and see if they plausibly narrate a claim for relief.
Schatz v. Republican State Leadership Committee, No. 11-1437, 2012 WL 414264, at
*4 (1st Cir. Feb. 10, 2012) (citations omitted). “Plausible, of course, means something
more than merely possible, and gauging a pleaded situation’s plausibility is a
‘context-specific’ job that requires the reviewing court to ‘draw on’ our ‘judicial
experience and common sense.’” Id. (quoting Iqbal, 129 S. Ct. at 1950.)
FACTUAL BACKGROUND
The Plaintiffs allege the following facts. Alewives, which include both the
species of fish commonly known as alewives and blueback herring, are native to
Maine waters. First Amended Complaint at ¶ 42. (“Complaint”) (Doc. No. 11).
While alewives live at sea, they return to the fresh waters of Maine to spawn. Id. at
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¶ 41. Historically, alewives were the most abundant of all the migratory fish that
came up Maine’s rivers. Id. at ¶ 44. Many species of fish, birds, and mammals eat
alewives, and alewives provide cover from birds of prey when endangered Atlantic
salmon migrate upstream. Id. at ¶ 43. Alewives are also commercially important as
lobster bait. Id. at ¶ 44.
The alewife population declined during the last 200 years as a result of dams,
pollution and overfishing. Id. at ¶ 45. In 1915, a dam was constructed on the St.
Croix River at Grand Falls. Id. at ¶ 46. In 1964, a fishway was constructed at the
Grand Falls Dam, which allowed alewives to pass and resulted in a resurgence of
the alewife population. Id. at ¶ 50. Between 1981 and 1987, the number of alewives
that returned to the St. Croix watershed to spawn increased from 169,000 to
2,625,000. Id.
The resurgence of alewives led to concern among people who fish for
smallmouth bass that the increase in alewives was causing a decrease in
smallmouth bass in Spednick Lake, located in the St. Croix watershed. Id. at ¶ 51.
As a result, in 1995, the Maine legislature passed “An Act to Stop the Alewives
Restoration Program in the St. Croix River,” P.L. 1995, ch. 48, § 1 (emergency,
effective April 27, 1995) without public comment. Complaint at ¶ 52. The 1995
Alewife Law stated that “the commissioner and the Commissioner of Inland
Fisheries and Wildlife shall ensure that fishways on the Woodland Dam and the
Grand Falls Dam, both located on the St. Croix River, are configured or operated in
a manner that prevents the passage of alewives.” P.L. 1995, ch. 48 § 1. In
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compliance with the 1995 Alewife Law, the owner of the Grand Falls Dam installed
a “stop log” to block access to the Grand Falls Dam fishway during the months when
alewives migrate upstream. Complaint at ¶ 53.
The restriction of access to their spawning ground caused by the 1995 Alewife
Law resulted in a “precipitous” decline in the alewife population in the St. Croix
River. Id. at ¶ 54. Studies conducted in the 1990s, however, concluded that alewives
do not have a negative impact on the smallmouth bass population. Id. at ¶¶ 55-56.
In April of 2008, the 1995 Alewife Law was amended by “An Act to Restore
Diadromous Fish in the St. Croix River,” P.L. 2008, ch. 587, § 1 (emergency,
effective April 9, 2008), which stated:
This section governs the passage of alewives on the Woodland Dam
and the Grand Falls Dam located on the St. Croix River.
1. Woodland Dam. By May 1, 2008, the commissioner and the
Commissioner of Inland Fisheries and Wildlife shall ensure that the
fishway on the Woodland Dam is configured or operated in a manner
that allows the passage of alewives.
2. Grand Falls Dam. The commissioner and the Commissioner of
Inland Fisheries and Wildlife shall ensure that the fishway on the
Grand Falls Dam is configured or operated in a manner that prevents
the passage of alewives.
P.L. 2008, ch. 587, § 1 (codified as amended at 12 M.R.S.A. § 6134 (Supp. 2011)).
As a result of the current Alewife Law and the blocked fishway at the Grand
Falls Dam, alewives cannot access 98 percent of their spawning and nursery habitat
in the St. Croix River basin and the alewife population in the St. Croix River is
greatly depleted. Complaint at ¶¶ 60, 3.
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STATUTORY BACKGROUND
I. The Clean Water Act
Congress enacted the CWA to “restore and maintain the chemical, physical
and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA also
seeks to attain “water quality which provides for the protection and propagation of
fish, shellfish, and wildlife.” 33 U.S.C. § 1251(a)(2). The CWA’s statutory structure
requires the Environmental Protection Agency (“EPA”) and state governments to
work together to meet the CWA’s goals. See e.g. 33 U.S.C. §1251(b).
A. Water Quality Standards
Under the CWA, states are responsible for establishing water quality
standards for all of their water bodies. 33 U.S.C. § 1313(a)(1)-(3); 40 C.F.R. § 131.4
(2011). The EPA’s duty is to review each state’s standards, and either approve the
standards, disapprove the standards, or promulgate its own standards if necessary.
40 C.F.R. §§ 131.5(a)-(b). Any water quality standard must include the designated
uses of the waters and water quality criteria sufficient to protect the designated
uses. 40 C.F.R. § 131.6.
[W]ater quality standards should, wherever attainable, provide water
quality for the protection and propagation of fish, shellfish and wildlife
and for recreation in and on the water . . . .
40 CFR § 131.2; see 33 U.S.C. § 1313(c)(2)(A).
The water bodies involved in the instant case have been classified by the
State of Maine as Class A, B, and GPA. 38 M.R.S.A. § 467(13) (Pamph. 2011). Those
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classes all require the water to be suitable as a habitat for fish and other aquatic
life.2 Class A and GPA water must be “natural,” which is defined as “living in, or as
if in, a state of nature not measurably affected by human activity.” 38 M.S.R.A. §
466(9) (2001). Class B requires that the habitat be “unimpaired,” which is defined
as “without a diminished capacity to support aquatic life.” 38 M.R.S.A. § 466(11).
B. Revision of Water Quality Standards
When a state revises an existing water quality standard or adopts a new
standard, the state must submit the revised or new standard to the EPA. 33 U.S.C.
§ 1313(c)(2)(A). The revised or new standard must state the designated uses of the
navigable waters involved and provide the water quality criteria for the waters
involved based upon the designated uses. “Revised standards shall be established
taking into consideration their use and value for public water supplies, propagation
of fish and wildlife, recreational purposes . . . .” Id. Pursuant to the CWA and its
implementing regulations, the Maine legislature has established a water
All of the pertinent classifications at issue require that the waters be of such quality that
they are suitable for the designated uses of:
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drinking water after disinfection (Class A and GPA) or after treatment (Class B);
fishing;
agriculture;
recreation in and on the water;
industrial process and cooling water supply;
hydroelectric power generation, except as provided under Title 12, section 403 (in the case of
Class A and B);
navigation; and
as habitat for fish and other aquatic life.
38 M.R.S.A. §§ 465(2)(A), (3)(A), (4)(A), 465-A(1)(A) (Pamph. 2011).
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classification system that vests sole authority in the Maine legislature to make
changes to the classifications of Maine’s state waters. 38 M.R.S.A. § 464(2)(D).
If a state wishes to create a sub-category of a designated use for a particular
water body that will require less stringent criteria, the state must demonstrate to
the EPA though a Use Attainability Analysis (“UAA”)3 that attaining the
designated use is not feasible. 40 C.F.R. §§ 131.10(g), 131.20(c). States may not
create a sub-category that removes an existing use4 unless they are adding a use
that requires more stringent criteria. 40 C.F.R. § 131.10(h)(1). The Maine
legislature requires that the Maine Board of Environmental Protection conduct a
UAA whenever the Board proposes to the Maine legislature the removal of a
designated use or the adoption of a subcategory of a designated use that requires
less stringent criteria. 38 M.R.S.A. § 464(2-A)(A)(2). Under Maine law, as required
by the CWA, the Board may not recommend the establishment of a subcategory that
removes an existing use. Id. at (B)(1).
EPA regulations require states to have an antidegradation policy. 40 C.F.R. §
131.12. According to the EPA’s Water Quality Standards Handbook:
No activity is allowable under the antidegradation policy which would
partially or completely eliminate any existing use whether or not that
use is designated in a State’s water quality standards. . . . Water
quality should be such that it results in no mortality and no significant
A UAA is defined as “a structured scientific assessment of the factors affecting the
attainment of the use which may include physical, chemical, biological, and economic factors as
described in § 131.10(g).” 40 C.F.R. § 131.3(g).
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An existing use is defined as “those uses actually attained in the water body on or after
November 28, 1975, whether or not they are included in the water quality standards.” 40 C.F.R. §
131.3(e).
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growth or reproductive impairment of resident species. Any lowering of
water quality below this full level of protection is not allowed.
EPA Water Quality Standards Handbook §4.4.2 (2nd ed. 2007). Even where the
quality of a water body exceeds that necessary for its designated uses, the quality
shall nonetheless be maintained and protected unless the state “after full
satisfaction of the intergovernmental coordination and public participation
provisions of the State’s continuing planning process” finds that lower water quality
is economically and socially important. 40 C.F.R. § 131.12(a)(2). Maine’s antidegradation policy provides that: “Existing in-stream water uses and the level of
water quality necessary to protect those existing uses must be maintained and
protected.” 38 M.R.S.A. § 464(F)(1).
The EPA must approve new or revised state standards within 60 days or
disapprove them within 90 days. 33 U.S.C. § 1313(c). If the EPA disapproves the
state’s new or revised standards, the agency has an additional 90 days to
promulgate substitute standards, unless the state comes up with an alternative
acceptable to the EPA. Id. The EPA has discretion to approve or reject the new or
revised standards, but its duty to review a new or revised standard is mandatory.
Miccosukee Tribe v. EPA, 105 F.3d 599, 602 (11th Cir. 1997) (“Even if a state fails to
submit new or revised standards, a change in state water quality standards could
invoke the mandatory duty imposed on the Administrator to review new or revised
standards.”)
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Section 1365 of the CWA authorizes suits by citizens against “the
Administrator where there is alleged a failure of the Administrator to perform such
act or duty under this chapter which is not discretionary with the Administrator.”
33 U.S.C. § 1365(a)(2).
II.
Plaintiffs’ Preemption Argument
Plaintiffs allege that the Alewife Law is preempted by the CWA in three
ways. First, they claim that the Alewife Law is an amendment to Maine’s water
quality standards for the St. Croix River, but that it was not submitted to the EPA
for approval as required under the CWA. Second, they claim that the Alewife Law
creates a less protective sub-category for the use of the waters above the Grand
Falls Dam but that it was enacted without a UAA and EPA approval. Third, they
claim that the Alewife Law was passed in violation of the CWA and of Maine’s antidegradation policy.
In their Motion to Dismiss, Defendants argue that the Alewife Law does not
amend Maine’s water quality standards for the St. Croix River and is instead a
routine wildlife regulation well within the state’s police powers. Defendants also
argue that even if the Alewife Law is an amendment to Maine’s water quality
standards for the St. Croix River, the CWA explicitly grants states authority to
amend water quality standards. Therefore, according to the Defendants, adopting
an amendment to the state’s water quality standards fits squarely within Maine’s
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authority under the CWA, and the Plaintiffs have not stated a cause of action for
preemption.
Preemption is a concept grounded in Article VI, clause 2 of the United States
Constitution, which provides that, “[t]his Constitution, and the laws of the United
States which shall be made in pursuance thereof . . . shall be the supreme law of the
land.” U.S. Const. Art. VI cl. 2. The Supreme Court has recognized two general
types of preemption: express and implied. Gade v. Nat’l Solid Wastes Mgmt. Assoc.,
505 U.S. 88, 98, 112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992). “Preemption is strong
medicine, not casually to be dispensed.” Grant’s Dairy–Maine, LLC v. Comm’r of
Maine Dep’t of Agric., Food, and Rural Res., 232 F.3d 8, 18 (1st Cir. 2000). The
Supreme Court has emphasized that preemption inquiries should be guided and to
the greatest extent possible, controlled, by Congressional intent. Gade, 505 U.S. at
96 (“[t]he purpose of Congress is the ultimate touchstone” in preemption analysis
and “[t]o discern Congress’ intent we examine the explicit statutory language and
the structure and purpose of the statute”); Mass. Assoc. of Health Maintenance
Orgs. v. Ruthardt, 194 F.3d 176, 179 (1st Cir. 1999). The Plaintiffs put forward three
theories of preemption – express preemption, implied field preemption and implied
conflict preemption.
A. Express Preemption
Express preemption may lie when “a federal statute explicitly confirms
Congress’s intention to preempt state law and defines the extent of that preclusion.”
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Grant’s Dairy, 232 F.3d at 15 (citing English v. Gen. Elec. Co., 496 U.S. 72, 78-79,
110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990)). The Plaintiffs fail to point to any specific
language in the CWA that expressly preempts the Alewife Law. They point only to
the regulatory structure that requires states to submit proposed changes to EPA for
review. But these requirements in the CWA do not expressly preempt a Maine law
that would change a water quality standard.
B. Implied Field Preemption
Field preemption occurs when the federal regulatory scheme is “so pervasive
as to make reasonable the inference that Congress left no room for the States to
supplement it.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146,
91 L. Ed. 1447 (1947). In Pharmaceutical Research and Manufacturers of America v.
Concannon, 249 F.3d 66 (1st Cir. 2001), the First Circuit specifically rejected a field
preemption claim where “coordinated state and federal efforts exist within a
complementary administrative framework.” Concannon, 249 F.3d at 75 n.6. An
inference that Congress intended to preclude state regulation is unreasonable in a
cooperative federal and state program, particularly where the state is given primary
authority to adopt regulations. Id. 5
Contrary to Plaintiffs’ claim, this case is not identical to Pacific Merchant Shipping Assoc. v.
Goldstene, 517 F.3d 1108 (9th Cir. 2008), which held that the Clean Air Act, 42 U.S.C. §§ 74017671(g) (2006), preempted California’s Marine Vessel Rules, which were state promulgated
emissions standards for diesel engines of ocean-going vessels. The structure of the CWA is different
from that of the Clean Air Act, which expressly preempts state adoption of emissions standards for
certain new engines in non-road vehicles. 42 U.S.C. § 7543(e)(1). For other non-road engines, the
Clean Air Act permits California to seek EPA authorization to adopt emissions standards. Pacific
Merchant, 517 F.3d at 1110; 42 U.S.C. § 7543(e)(2). In Pacific Merchant, the California Air Resources
Board argued that the Marine Vessel Rules were not emissions standards, but rather in-use
requirements, the adoption of which was expressly reserved to the states by the Clean Air Act.
Pacific Merchant, 517 F.3d at 1115; 42 U.S.C. § 7543(d). The court found that the Marine Vessel
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The Supreme Court has repeatedly characterized the CWA as a cooperative
federal and state program.6 The states have the authority to pass supplemental law
in the area, in fact they have the primary responsibility to establish water quality
standards.7 The Plaintiffs have thus failed to state a claim for field preemption.
Rules regulated emissions and therefore fell within the field of prohibited state regulation absent
EPA authorization under § 209(e)(2) of the Clean Air Act. Pacific Merchant, 517 F.3d at 1115. The
CWA creates a regulatory scheme that not only permits but explicitly requires state adoption of
water quality standards and anticipates federal promulgation of water quality standards only where
the EPA has rejected a state’s water quality standard and the state has failed to bring the standard
into compliance with the CWA. 40 C.F.R. § §131.5(b), 131.21. See Natural Res. Def. Council, Inc. v.
EPA, 16 F.3d 1395, 1399 (4th Cir. 1993) (“primary responsibility for establishing appropriate water
quality standards is left to the states . . . EPA sits in a reviewing capacity of the state-implemented
standards, with approval and rejection powers only.”) (internal citations omitted).
See e.g. PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 704, 114 S. Ct. 1900,
128 L. Ed. 2d 716 (1994); Arkansas v. Oklahoma, 503 U.S. 91, 101 112 S. Ct. 1046, 117 L. Ed. 2d 239
(1992); New York v. United States, 505 U.S. 144, 167, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1991); Int’l
Paper Co. v. Ouellette, 479 U.S. 481, 107 S. Ct. 805, 93 L.Ed. 2d 883 (1987).
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The CWA states:
It is the policy of the Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate pollution, to
plan the development and use (including restoration, preservation, and
enhancement) of land and water resources, and to consult with the Administrator in
the exercise of his authority under this chapter.
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It is the further policy of Congress that nothing in this chapter shall be construed to
supersede or abrogate rights to quantities of water which have been established by
any State. Federal agencies shall co-operate with State and local agencies to develop
comprehensive solutions to prevent, reduce and eliminate pollution in concert with
programs for managing water resources.
33 U.S.C. § 1251(b) & (g). Section 1370 provides:
Except as expressly provided in this chapter, nothing in this chapter shall (1)
preclude or deny the right of any State . . . to adopt or enforce (A) any standard or
limitation respecting discharges of pollutants, or (B) any requirement respecting
control or abatement of pollution; except that if an effluent limitation, or other
limitation, effluent standard, prohibition, pretreatment standard, or standard of
performance is in effect under this chapter, such State . . . or political subdivision or
interstate agency may not adopt or enforce any effluent limitation, or other
limitation, effluent standard, prohibition, pretreatment standard, or standard of
performance which is less stringent than the effluent limitation, or other limitation,
effluent standard, prohibition, pretreatment standard, or standard of performance
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C. Implied Conflict Preemption
Conflict preemption occurs where there is an actual conflict between federal
and state law ― when “compliance with both federal and state regulations is a
physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,
142-43, 83 S. Ct. 1210, 10 L. Ed. 2d (1963), or where “state law interposes an
obstacle to the achievement of Congress’s discernible objectives,” Grant’s Dairy, 232
F.3d at 15 (citing Gade, 505 U.S. at 98).
The Plaintiffs have also failed to state a claim of implied conflict preemption.
With a regulatory scheme in place that explicitly allows for state amendment of
water quality standards, Plaintiffs have not described a conflict between the
requirements of the CWA and the Alewife Law. The Alewife Law may well effect a
change in the water quality standards,8 and this revision may trigger EPA review of
the Alewife Law, but it does not support a cause of action against the state for
conflict preemption.
under this chapter; or (2) be construed as impairing or in any manner effecting the
right or jurisdiction of the States with respect to the waters (including boundary
waters) of such States.
33 U.S.C. § 1370.
The Court notes that Plaintiffs have cited several sources that suggest that blocking the
upstream passage of fish thereby reducing the upstream fish population violates water quality
standards with a designated use of fish habitat and a “natural” characterization. Fish passage
“clearly bears on the attainment of the designated uses of fishing, recreation, and fish habitat.”
Bangor Hydro-Electric Co. v. Board of Envtl. Prot., 595 A.2d 438, 443 (Me. 1991). Plaintiffs have also
cited the Maine Department of Environmental Protection’s 2010 Integrated Water Quality
Monitoring and Assessment Report, reporting public comments supporting the Department’s
decision to list the Lower Androscoggin River as “impaired by a non-pollutant” because the
Brunswick Dam on the River blocks shad passage and has decimated the upstream shad population.
Maine Department of Environmental Protection 2010 Integrated Water Quality Monitoring and
Assessment Report, p.17, available at http://www.maine.gov.
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The EPA is under an obligation to review a law that changes a water quality
standard regardless of whether a state presents it for review. In the event that EPA
chooses not to review the Alewife Law, the Plaintiffs may sue the EPA under the
citizen suit provision of the CWA. Miccosukee Tribe of Indians of Florida v. EPA,
105 F.3d 599 (11th Cir. 1997). In Miccosukee, the Eleventh Circuit held that the EPA
has a mandatory duty to evaluate laws that effectively amend existing state water
quality standards even when the state has neither submitted the law to the EPA as
an amendment to water quality standards nor styled the law a water quality
standards amendment. Id. at 603. In Miccosukee, the plaintiffs sued the EPA under
§ 1365. The plaintiffs alleged that Florida’s Everglades Forever Act (EFA), a statute
regulating phosphorous loads in the Everglades, amended Florida’s water quality
standards for the Everglades. The plaintiffs challenged the EPA’s determination
that the EFA did not effectively amend the standards. Id. at 601. The Eleventh
Circuit held that the EPA has a mandatory duty to review potential effective
amendments to water quality standards and remanded to the District Court to
determine whether the EFA was an effective amendment to the water quality
standards,
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thereby requiring EPA review and approval. Id. at 602. See also
The Eleventh Circuit held that in the absence of action by the Administrator,
[T]he district court should have conducted its own factual findings. Because citizen
suit jurisdiction depended on whether or not the EFA constituted new or revised
state water quality standards, invoking a mandatory duty of the Administrator, the
district court had to decide independently the effect of the EFA on existing state
standards.
Miccosukee Tribe, 105 F.3d at 603. The Court believes it is premature to conduct factual findings in
this case. EPA should have the opportunity to reach out and review this statute, and EPA should be
a party to any suit alleging that the Alewife Act violates the CWA.
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Florida Pub. Interest Research Gp. Citizen Lobby, Inc. v. EPA, 386 F.3d 1070, 1091
(11th Cir. 2004) (Environmental group sued EPA to require the EPA to review
Florida’s Impaired Water Rule as a revised water quality standard; Eleventh
Circuit remanded to the district court to determine whether the Impaired Waters
Rule had the practical effect of amending Florida’s water quality standards.)
The Plaintiffs have failed to state a claim on which relief may be granted.
The CWA is structured to provide an administrative process for working out any
conflicts between a state law and the CWA, and the citizen suit provision provides a
safety net for correcting any administrative missteps that might occur along the
way. This process must be given a chance to work. The CWA provides a clear way
forward, and the Plaintiffs are required to follow it.
CONCLUSION
Because the Court finds that the Plaintiffs have failed to state a cause of
action on which relief may be granted, the Defendants’ Motion to Dismiss is hereby
GRANTED. Because the Plaintiffs have failed to state a claim on which relief may
be granted, Plaintiffs’ Motion for Summary Judgment is hereby DENIED.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 15th day of March, 2012.
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