State must wrestle with EPA's St. Croix alewife ruling

First published in the MLA Newsletter, August, 2012.

On July 9, the Environmental Protection Agency (EPA) ruled that Maine’s 1995 and 2008 laws limiting the movement of alewives on the St. Croix River are against federal law. The EPA said the laws violated the federal Clean Water Act and EPA regulations. “Maine should take appropriate action to authorize passage of river herring to portions of the St. Croix River above Grand Falls Dam,” wrote Stephen Perkins, director of the EPA Office of Ecosystem Protection, in a letter to Maine Attorney General William Schneider.

Action by two environmental groups prompted EPA’s ruling. The Boston-based Conservation Law Foundation filed suit against the EPA in May to force the agency to review Maine’s laws. Friends of Merry meeting Bay notified EPA that it too intended to sue on the same grounds. Prior to this Friends of Merry meeting Bay filed suit in 2011 in U.S. District Court against the commissioners of the Maine Department of Marine Resources and the Department of Inland Fisheries and Wildlife on behalf of St. Croix River alewives and blueback herring.

In June, the chiefs of the state’s Passamaquoddy, Penobscot, Maliseet and Micmac Indian tribes sent a letter to International Joint Commission, which manages the river, urging the Commission to permit alewives’ unconstructed access to the reaches of the St. Croix River.

As of late July, the LePage administration had issued no response to the EPA ruling. Patrice McCarron, executive director of Maine Lobstermen’s Association, said, “Maine lobstermen depend on a diversified stream of bait for their lobster traps. Alewives are a highly sought after local bait during the spring season. Allowing a strong population of alewives to thrive in the St. Croix will greatly benefit Downeast lobstermen and reduce demand for non-native baits.”

The St. Croix River is shared by the United States and Canada and jointly managed through the International Joint Commission (IJC). In 1995, the Maine Legislature passed a law prohibiting the passage of spawning alewives in the St. Croix River above the Woodland Dam near the river’s head of tide. In 2008, the Legislature amended this 1995 law to allow alewife passage at the Woodland Dam but continued to prohibit alewives from migrating past Grand Falls Dam. The action kept alewives from traditional spawning grounds in order to protect smallmouth bass, a non-native fishery economically important to local guides and sportsmen.

In his letter to Attorney General Schneider, Perkins said that “the EPA is not aware of any sound scientific rationale for excluding indigenous river herring (or other migratory species) from the St. Croix River. . . Maine should take appropriate action to authorize passage of river herring to the portions of the St. Croix River.”

The EPA found that Maine’s 2008 law created a degradation of the St. Croix River’s water quality. Under the Clean Water Act, a river is considered degraded if the use of the river is compromised, typically by changes in water chemistry.

However, the federal law considers a river degraded if a pre-existing use disappears. Since the passage of migratory alewives was a pre-existing use, closing the river to alewives was a reduction of water quality under the law.

The IJC published a plan in 2010 to improve the chances of alewives making it to their spawning grounds. Dams would be removed at two locations chosen to avoid affecting prime fishing areas for smallmouth bass. The number of migratory alewives passing by would be tied to the population of smallmouth bass. If smallmouth bass numbers drop, then alewife numbers would be held in check or decreased. The Maine Lobstermen’s Association wrote to then Governor Baldacci in support of this plan.

Environmentalists and marine fisheries advocates say restoring the alewife population will benefit both the freshwater and marine ecosystems, because they are a source of food for smallmouth bass, cod and other species.

Despite the clarity of EPA’s ruling, there are complications. The Grand Falls Dam is not subject to federal licensing under the Clean Water Act because it was built before the Federal Power Act of 1920 and thus is not affected by EPA’s ruling against the Maine laws. The LePage administration has not yet indicated how it will respond to the EPA letter and the IJC has yet to issue its final advice on this issue. In the meantime, alewife passage will remain blocked at the Grand Falls Dam.