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Saturday, June 15, 2024 | Back issues
Courthouse News Service Courthouse News Service

NH Cities Stumble in Great Bay Estuary Spat

(CN) - Three New Hampshire cities failed to repair unsuccessful claims regarding the inclusion of the Great Bay Estuary on a list of impaired waters, a federal judge ruled.

The remnant of a drowned 6,000-acre river valley, the Great Bay Estuary is historically considered one of the most pristine marine environments remaining on the East Coast of the United States. Its healthful productivity has also helped make it an important resource for New England's large commercial fishing industry.

Though the state had narrative nutrient criteria for different designated uses in the estuary, the New Hampshire Department of Environmental Services aimed to better manage the water body by converting those standards into readily usable numeric values.

Release of that 2009 document brought a challenge by the cities of Dover, Portsmouth and Rochester, N.H., all of which operate waste-treatment facilities that discharge into the estuary.

They wanted higher maximum nitrogen levels, and filed suit against the U.S. Environmental Protection Agency when the agency later relied on the criteria in deciding to include the estuary on its impaired waters list.

Claiming that the EPA's decision would have them spend millions to reduce the amount of nitrogen leaving their facilities, the cities decried it as arbitrary and capricious.

U.S. District Judge John Bates dismissed that complaint in July 2013 and did so again with the amended complaint Monday, complaining that the "plaintiffs still have not chosen the proper decisions to challenge."

"The court is mindful that, assuming plaintiffs' allegations are true, they may someday be forced to expend significant resources to comply with EPA's directives," he wrote. "That day is not today, however, which is the central flaw in their case. The regulatory decisions that plaintiffs challenge have not yet caused them harm, and indeed whether plaintiffs will be harmed in still uncertain. They ask the court to tell EPA that it acted improperly when listing the Great Bay Estuary waters as impaired or polluted. But EPA's action does not mean plaintiffs have to change their behavior today. And even if EPA had never listed those waters as impaired, plaintiffs might have to change their behavior anyway because of a separate permitting process. So even if Plaintiffs are right that EPA acted improperly, taking the waters off the list will not help them. Down the road, plaintiffs may receive permits that do force them to spend money, whether or not the waters are listed as impaired. When they do, by statute, plaintiffs will have to challenge those permits in another forum."

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