DEPARTMENT OF JUSTICE
Notice of Lodging of Proposed Consent Decree under the Clean Water Act
On September 7, 2022, the Department of Justice lodged a proposed consent decree with
the United States District Court for the District of New Hampshire, in a lawsuit entitled United
States v. State of New Hampshire and New Hampshire Fish and Game Department, Civil Action
No. 1:18-cv-00996-PB.
The United States filed this lawsuit under sections 301(a), 309(b), and 504 of the Clean
Water Act (“CWA”), 33 U.S.C. 1311(a), 1319(b), 1364, against the State of New Hampshire and
the New Hampshire Fish and Game Department (“NHF&G”), in connection with discharges of
pollutants from the Powder Mill State Fish Hatchery, in New Durham, New Hampshire (the
“Hatchery”). The Hatchery is owned by the State and operated by NHF&G. The Complaint
asserts two claims for injunctive relief. The first claim alleges that the State and NHF&G
violated a National Pollutant Discharge Elimination System permit (Permit No. NH0000710; the
“Permit”), issued by EPA under section 402 of the CWA, 33 U.S.C. 1342, by exceeding its
narrative and numeric discharge limits for total phosphorus and pH, in violation of CWA section
309(b), 33 U.S.C. 1319(b). The second claim alleges that such discharges have caused or
contributed to contamination, eutrophication, and the growth of toxic cyanobacteria in the
Merrymeeting River and its impoundments, known as Marsh, Jones, and Downing Ponds, which
poses an imminent and substantial endangerment to human health and welfare, in violation of
CWA section 504, 33 U.S.C. 1364.
Under the proposed consent decree, NHF&G must implement measures designed to bring
the Hatchery into compliance with the CWA and the Permit by the end of 2025. These measures
include constructing and operating new wastewater treatment systems and upgrading other
aspects of the Hatchery’s facilities and operations, and implementing best management practices
related to flow, pH, and phosphorus, such as adding a neutralizing agent, reconfiguring facility
tanks to promote the settling of solids containing phosphorus, and increasing the frequency of

removal of these solids. The proposed consent decree also requires NHF&G to perform a
phosphorus assessment and remediation options study for the Merrymeeting River and its
impoundments.
The United States filed its complaint as plaintiff-intervenor in a civil action initiated in
2018 by the Conservation Law Foundation (“CLF”), under the CWA’s citizen-suit provision,
33 U.S.C. 1365, entitled Conservation Law Foundation v. Scott Mason, Executive Director of
NHF&G, et al., Civil Action No. 1:18-cv-00996-PB. In that action, CLF asserted CWA claims
arising from the same or similar circumstances as those that gave rise to the United States’
claims. In addition to resolving the United States’ claims, the proposed consent decree resolves
CLF’s claims in this related action.
The publication of this notice opens a period for public comment on the proposed consent
decree. Comments should be addressed to the Assistant Attorney General, Environment and
Natural Resources Division, and should refer to United States v. State of New Hampshire and
New Hampshire Fish and Game Department, D.J. Ref. No. 90-5-1-1-12466. All comments must
be submitted no later than 30 days after the publication date of this notice. Comments may be
submitted either by e-mail or by mail:
To submit comments:

Send them to:

By e-mail

pubcomment-ees.enrd@usdoj.gov

By mail

Assistant Attorney General
U.S. DOJ – ENRD
P.O. Box 7611
Washington, D.C. 20044-7611

During the public comment period, the consent decree may be examined and downloaded
at this Justice Department website: https://www.justice.gov/enrd/consent-decrees. Paper copies of
the consent decree are available upon written request and payment of reproduction costs. Such
requests and payments should be addressed to:
Consent Decree Library

U.S. DOJ – ENRD
P.O. Box 7611
Washington, D.C. 20044-7611.
With each such request, please enclose a check or money order for $12.75 (25 cents per page
reproduction cost) per paper copy, payable to the United States Treasury.

Henry S. Friedman,
Assistant Section Chief,
Environmental Enforcement Section,
Environment and Natural Resources Division.

[FR Doc. 2022-19865 Filed: 9/13/2022 8:45 am; Publication Date: 9/14/2022]