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Lawsuit against fish hatchery moves forward


August 19, 2020
NEW DURHAM — As with most things today, even the courts have gone virtual.

Those concerned about the ongoing pollution of the Merrymeeting River had the opportunity recently to watch the Conservation Law Foundation (CLF) pursue its suit against New Hampshire Fish and Game (NHF&G) regarding the discharge of wastewater by the Powder Mill Fish Hatchery via Zoom.

"I think it went well," Fred Quimby, a New Durham resident, retired professor of Environmental Toxicology at Cornell University, and member of the New Durham-Alton Cyanobacteria Mitigation Steering Committee said of the proceeding. "The judge met with both parties to make certain he understood the points each was making before he decides whether or not to give a summary judgment to either party."

Otherwise, everyone is headed to a trial.

At least 20 members of the public watched the proceedings from their computers.

Director of the Clean Air and Water division of CLF and lead attorney in the case Heather Govern said, "There's something missing when you're not there in person. We had a lot of figures, charts, and exhibits that would have been good to walk the judge through, so it's hard to deal with those logistics."

Even so, Govern asserted, "We are feeling confident there may be one to two claims granted a summary judgment," but chances are high that she and opposing counsel Chris Aslin, Senior Assistant Attorney General in the Attorney General's Environmental Protection Bureau, will go to trial in September or October.

Mr. Aslin had no comment on the case.

The suit, alleging violations of the Clean Water Act, was first filed in 2018 in U.S. District Court before Judge Paul Barbadoro after waterfront homeowners frustrated by inaction by the Environmental Protection Agency (EPA) and the New Hampshire Fish and Game Department (NHF&G) regarding conditions of the waterways, contacted CLF for assistance.

The background of the pollution problem is long; many will say much longer than it ever should have been.

Overt degradation of the waterways by blooms and green algae growth has occurred since 2015 and the Department of Environmental Services (DES) has marked the ponds as impaired since 2016. When those signs go up, recreational use goes down.

Flowing as it does from the pristine Merrymeeting Lake, how has this happened to the river?

The lawsuit alleges the fish hatchery has caused the pollution.

Tremendous amounts of phosphorus from fish food and waste are discharged from the hatchery, the largest in the state and operated by NHF&G, into the Merrymeeting River. The water flows down the river, through a series of ponds including Marsh Pond, Jones Dam Pond, and Downing Pond, and eventually reaches Lake Winnipesaukee in Alton Bay.

Cyanobacteria live along the bottom and with enough sunlight, warm water, and phosphorus, they go through uncontrollable reproduction that halts only when the amount of phosphorus is exhausted. Then they all die, and that is when the trouble begins.

In death, the cyanobacteria release toxins that cause the dangerous blooms of toxic compounds that can kill fish, mammals, and birds and cause skin rashes, nausea, and other gastrointestinal problems in humans and pets.

More seriously, blooms are increasingly being linked to neurological diseases such as Alzheimer's and Lou Gehrig's disease, and they can last for several weeks or even up to several months.

The solution to this threat to a valuable natural resource and to public health would seem to be simple, and, indeed, is one NHF&G actually considered following a study conducted in 2002– a wastewater treatment facility.

An engineering firm designed a treatment plan, but nothing was followed up on.

Quimby said the state has known the pollution has been a problem since the 1980s.

"When we had our first bloom in 2015," he said, "the state told us to look for a source of phosphorus. At that time, we had no idea the state already knew the hatchery was producing the phosphorus."

He points to the 2002 study. "Why did Fish and Game conduct this study?"

He said the answer goes beyond a DES report completed in 1986 that signified high concentrations of phosphorus in Marsh and Downing Ponds were due to the hatchery.

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