UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Conservation Law Found. Case No. 18-cv-996-PB v. Opinion No.

N.H. Fish and Game Dep’t, et al.

MEMORANDUM AND ORDER

The Conservation Law Foundation (“CLF”), a non-profit

environmental advocacy organization, brought this citizen suit

for injunctive relief under Section 505 of the Clean Water Act

(“CWA”) against the Executive Director of the New Hampshire Fish

and Game Department and the eleven individual officers who serve

as commissioners of the New Hampshire Fish and Game Commission

(collectively “defendants”). CLF alleges that the Powder Mill

State Fish Hatchery (the “Facility”), a hatchery owned and

operated by the defendants, has for several years been

discharging pollutants into the Merrymeeting River in violation

of the Facility’s National Pollutant Discharge Elimination

System (“NPDES”) permit. CLF bases its claims on two types of

what it alleges are ongoing CWA violations. The first — “Direct

Discharge” claims — are based on current and anticipated future

releases of pollutants directly from the Facility itself. The

remaining claims — “Indirect Discharge” claims — stem from past

releases of phosphorus by the Facility that have settled into sediments at the bottom of the river and continue to leach

phosphorus into the river.

The parties have filed cross-motions for summary judgment

addressing both types of claims. For the reasons that follow, I

deny the motions without prejudice with respect to the Direct

Discharge claims and instruct the parties to file supplemental

briefing with respect to the Indirect Discharge claims.

I. BACKGROUND

A. The Claims

CLF’s suit against defendants consists of seven counts, which

I summarize here. Each count describes an alleged violation of

the Facility’s NPDES permit and, by extension, the CWA and its

implementing regulations. The Facility’s NPDES permit was

initially issued in December 2011. Am. Compl., Doc. No. 20 at

10. The permit expired in 2016 and has since been

administratively continued. Doc. No. 20 at 10.

In Count I, CLF alleges that phosphorus discharged by the

Facility directly or indirectly causes violations of state water

use classifications, water quality criteria, dissolved oxygen

standards, benthic deposit standards, water color standards,

phosphorus standards, biological and aquatic community integrity

standards, and antidegradation standards. Doc. No. 20 at 22–23.

CLF alleges that the Defendants directly discharge phosphorus

2 into the river from the outflows of the Facility. See, e.g.,

Mem. of Law in Support of Pl.’s Mot. for Sum. J., Doc. No. 47-1

at 9–10. CLF further alleges that this phosphorus, once it has

been discharged, settles into the sediment at the bottom of the

river and is then re-discharged into the river. Doc. No. 47-1 at

23. Of particular relevance to this Order, CLF argues that these

discharges violate the NPDES permit, even though the permit

contains no numerical limit for phosphorus discharges. Doc. No.

47-1 at 16–23.

In Count II, CLF alleges that the Facility’s ongoing

discharges, both direct and indirect, render the receiving

waters unsuitable for their designated uses, harm aquatic life,

and settle to form harmful deposits. Doc. No. 20 at 23–24.

In Count III, CLF alleges that the Facility is discharging

formaldehyde into the Merrymeeting River in concentrations that

violate the NPDES permit. Doc. No. 20 at 24–25.

In Count IV, CLF alleges that the Facility’s discharges

violate the NPDES permit’s limitations on effluent pH. Doc. No.

20 at 25–26. Count V alleges effluent pH violations of State

Certification requirements. Doc. No. 20 at 26.

In Count VI, CLF alleges that the Facility improperly

discharges cleaning water into the Merrymeeting River. Doc. No.

20 at 26–27. Finally, in Count VII, CLF alleges that defendants

have failed to implement and maintain a Best Management

3 Practices Plan (“BMP Plan”) in violation of NPDES permit

requirements. Doc. No. 20 at 27–28.

Currently before me are Defendants’ Partial Motion for

Summary Judgment (Doc. No. 44) and CLF’s Motion for Summary

Judgment (Doc. No. 47).

B. Interceding Events

While this case has been pending, two events have occurred

that bear on my analysis. First, on December 31, 2019, the

Environmental Protection Agency (“EPA”) released a new draft

NPDES permit for the Facility. Joint Public Re-Notice of Comment

Period, Defs.’ Obj. to Pl.’s Mot. for Sum. J., Ex. A-1, Doc. No.

53-3 at 1. The comment period closed on February 14, 2020. Doc.

No. 53-3 at 1. According to the notice, “[f]ollowing the close

of the comment period, and after the public hearing, the [EPA]

will issue a final permit decision . . . .” Doc. No. 53-3 at 3.

Unlike the 2011 permit, the draft permit contains numerical

limits for phosphorus discharge. E.g., Draft Permit, Defs.’ Obj.

to Pl.’s Mot. for Sum. J., Ex. A-2, Doc. No. 53-4 at 2, 4, 6.

The draft permit also includes a compliance schedule, pursuant

to which the Facility must — after meeting a variety of

benchmarks — come into compliance with the permit’s requirements

within five years. Doc. No. 53-4 at 18. Of course, it remains to

be seen which aspects of this draft permit will ultimately be

adopted in the final permit.

4 Second, the U.S. Supreme Court granted certiorari and heard

oral arguments in the case of County of Maui v. Haw. Wildlife

Fund, ___ U.S. ___,

,

(2019). Specifically, the Court granted certiorari with respect

to the question “[w]hether the CWA requires a permit when

pollutants originate from a point source but are conveyed to

navigable waters by a nonpoint source, such as groundwater.”

Pet. For Writ of Cert., No. 18-260,

, at *i (Aug.

27, 2018).

On March 25, 2020, I held a telephone status conference

with the parties.

II. ANALYSIS

As I explained to the parties during our telephone status

conference, I understand CLF’s Direct Discharge and Indirect

Discharge claims to be analytically distinct. The Direct

Discharge claims consist of claims arising out of the Facility’s

present and anticipated future discharges into the Merrymeeting

River directly from the Facility. The Indirect Discharge claims

consist of claims arising out of pollutants previously

discharged by the Facility that have settled into the sediment

and, CLF alleges, continue to leach phosphorus into the river. I

address these categories of claims in turn.

5 A. Direct Discharge Claims

This category of claims contains all alleged NPDES permit

violations stemming from the Facility’s present and ongoing

point source discharges directly from its outflow. It includes

those aspects of Counts I and II that pertain to present

discharges, as well as Counts III–VII. 1

The CWA forbids all point source discharges of pollutants

into the waters of the United States, unless a discharge

complies with an NPDES permit or is otherwise allowed by the

CWA. See

, 1342. The Citizen Suit provision of

the CWA permits “any citizen [to] commence a civil action on his

own behalf . . . against any person . . . who is alleged to be

in violation of [an NPDES permit]”

(emphasis

added); accord Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc.,

,

,

(1987). CWA citizen suits may be brought only to abate ongoing,

as opposed to “wholly past,” violations. Gwaltney, 484 U.S. at

56–63. 2 Further, injunctive relief claims against state officials

1 While the failure to implement and maintain a BMP Plan alleged in Count VII does not allege an unpermitted discharge per se, it does allege a failure by defendants to maintain “solids management and control processes,” resulting in present discharges and violations of its NPDES permit. Doc. No. 20 at 27–28. As such, I analytically include Count VII in this category.

2 CWA citizen suits for civil penalties have, in some cases been permitted to redress past violations where the violation was

6 for retrospective relief are also subject to constitutional

limitations. See Town of Barnstable v. O’Connor,

(1st Cir. 2015) (“The Constitution does not permit

[injunctive] relief that ‘would have much the same effect as a

full-fledged award of damages or restitution by the federal

court, the latter kinds of relief being of course prohibited by

the Eleventh Amendment.’”) (quoting Mills v. Maine,

(1st Cir. 1997)).

CLF’s Direct Discharge claims allege violations of the

December 2011 NPDES permit. That permit, however, will

imminently be replaced by a new permit. If, as expected, the new

permit contains a numeric limit for phosphorus discharge, I will

no longer need to decide whether defendants’ phosphorus

discharges violate its NPDES permit notwithstanding the lack of

a numeric phosphorus limit. Additionally, if the new permit

contains a compliance schedule, and defendants can demonstrate

compliance with that schedule, they may be able to avail

themselves of the CWA’s shield provision. Under the shield

provision, a party may demonstrate compliance with the CWA by

ongoing at the time the suit was commenced. See, e.g., Atl. States Legal Found., Inc. v. Stroh Die Casting Co.,

(7th Cir. 1997), cert. denied,

,

,

(1997); Atl. States Legal Found, Inc. v. Pan Am. Tanning Corp.,

(2d Cir. 1993). Here, however, CLF abandoned its claim to civil penalties as barred under the Eleventh Amendment, so this exception does not apply.

7 demonstrating compliance with the permit. See U.S. Pub. Interest

Research Grp. v. Atlantic Salmon of Me., LLC,

(1st Cir. 2003) (citing

(k)).

The forthcoming NPDES permit may moot many, if not all, of

the Direct Discharge claims. In any event, I would require new

briefing to determine if defendants were in compliance with the

2020 permit. I, therefore, deny the parties’ motions for summary

judgment as they pertain to the Direct Discharge claims, without

prejudice to their right to re-file once the new NPDES permit

issues.

B. Indirect Discharge Claims

This category of claims includes all allegations in Counts

I and II that the defendants are violating the CWA due to past

phosphorus discharges that settled in sediment and are re-

discharged into the receiving water. During our telephone

conference, the parties agreed that a new permit would not moot

this category of claims.

CLF advances two interconnected but distinct theories for

why these indirect discharges violate the CWA. First, CLF

alleges that the re-discharges of phosphorus from the sediments

are “themselves point sources.” Mem. of Law in Support of Pl.’s

Obj. to Defs.’ Mot. for Sum. J., Doc. No. 56-1 at 25. If these

re-discharges are, in fact, point sources, they are not

permitted by the 2011 NPDES permit and are not expected to be

8 permitted by the 2020 NPDES permit. Under this theory, these

such discharges would, therefore, continue to be CWA violations

regardless of the new permit.

Second, CLF argues that, even if the phosphorus re-

discharges are not, themselves, point source discharges, they

still constitute an ongoing violation of the CWA because “[t]he

lingering presence of a discharge of pollutants that

‘continue[s] to have roughly the same net polluting effect over

years or decades thereafter’ is a continuing violation under the

[CWA].” Doc. No. 56-1 at 24 (quoting Sierra Club Inc. v. Granite

Shore Power LLC, No. 19-cv-216-JL, at 27 (D.N.H. Sept. 13, 2019)

(Doc. No. 33)) (second alteration in original). Under this

theory (adopted by some courts and not others) if a pollutant

was discharged from a point source in the past in violation of

an NPDES permit, the discharge will be treated as ongoing if the

pollutant remains in the receiving water and continues to cause

harm. See City of Mountain Park, Ga. v. Lakeside at Ansley, LLC,

, 1296–97 (N.D. Ga. 2008) (analyzing split

and concluding that “the continuing presence of illegally

discharged fill material can constitute an ‘ongoing

violation’”). But see, e.g., Conn. Coastal Fishermen’s Ass’n v.

Remington Arms Co.,

(2d Cir. 1993) (“The

present violation requirement of the [CWA] would be completely

undermined if a violation included the mere decomposition of

9 pollutants.”). Under this theory, the phosphorus in the sediment

need not be a point source discharge to constitute an ongoing

violation, provided that (1) defendants initially discharged it

from a point source in violation of their NPDES permit, (2) it

remains in the receiving water, and (3) it continues to cause

harm.

I agree with the parties that the new NPDES permit is

unlikely to affect my analysis of these claims. I consider it

plausible, however, that the U.S. Supreme Court’s forthcoming

opinion in County of Maui will provide me with some guidance as

to how I should analyze one or both of CLF’s theories of

liability. It would be an unfortunate waste of the court’s

limited resources if I were to issue an opinion on these claims

that had to be re-briefed and re-heard in a few short months. I,

therefore, decline to rule on these claims at this time, unless

the parties convince me that the County of Maui opinion will

have no bearing on my analysis of CLF’s theories. Accordingly,

further briefing on the issue is required.

CLF shall file a supplemental memorandum of law limited to

five pages within fourteen days, explaining what, if any impact

the County of Maui opinion is likely to have on my analysis of

these Indirect Discharge claims. Defendants will have fourteen

days to respond with their own memorandum of law, also limited

to five or fewer pages. Following this briefing, I will hold a

10 telephone conference with the parties to explain how I plan to

proceed.

III. CONCLUSION

For the reasons explained above, the parties’ motions for

summary judgment (Doc. Nos. 44, 47) as they pertain to the

Direct Discharge claims are denied without prejudice. Within

fourteen (14) days of this order, CLF shall file a supplemental

memorandum, not to exceed five pages, on the impact, if any,

that the U.S. Supreme Court’s forthcoming decision in County of

Maui may have on my analysis of the Indirect Discharge claims.

Defendants shall then have fourteen (14) days to respond with

their own memorandum, not to exceed five pages.

The clerk shall schedule a telephone status conference to

occur within one week of defendants’ memorandum being filed.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

April 6, 2020

cc: Chelsea Elizabeth Kendall, Esq. Heather A. Govern, Esq. Kenta Tsuda, Esq. Thomas F. Irwin, Esq. Christopher G. Aslin, Esq.

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