The U.S. Environmental Protection Agency has directed the Maine government to restore the passage of alewives to their natural habitat on the St. Croix River, ruling that a 17-year-old state law banning the sea run fish violates the federal Clean Water Act. The decision supports the decades-long efforts of the Passamaquoddy Tribe and environmental conservation groups to restore the native river herring to its spawning grounds.
Stephen S. Perkins, EPA’s director of the Office of Ecosystem Protection, wrote to Maine Attorney General William Schneider July 9, that the state law blocking alewives on the Grand Falls Dam on the St. Croix River creates an unauthorized change to the river’s water quality that violates the federal Clean Water Act. The unauthorized change has lowered the water quality, making it impossible for the EPA to approve the law that stops the anadromous alewives from accessing 98 percent of their spawning habitat above the dam. The blockage also fails to protect the river’s designated uses—another condition mandated by the federal law. Furthermore, the decision to block the alewives from their natural habitat was “not based on a sound scientific rationale,” Perkins writes. The EPA orders the state to remove the barrier—a two-foot-long piece of wood—from the dam.
The annual migration of the once millions of saltwater alewives back to the St. Croix River’s 1,600-square-mile watershed that is the heart of the Passamaquoddy nation’s aboriginal territory has been blocked by the Grand Falls Dam barrier since 1995, when the Maine legislature passed a law banning the native species at the request of local smallmouth-bass guides who felt that the alewife posed a significant threat to their sport fishing industry and livelihoods. The EPA ruling also laid to rest a claim by alewife restoration opponents that the fish were not a native species, but rather were stocked.
“Indeed, according to the Maine Department of Marine Resources, ‘alewives and blueback herring [another anadromous river herring] have co-evolved and co-existed with other native fish and wildlife in Maine’s streams, rivers, ponds and lakes for thousands of years,’ ” Perkins wrote.
The July 9 EPA ruling was welcomed by the chiefs of the three Passamaquoddy Tribe and the other Wabanaki Confederacy nations—the Penobscot, Houston Band of Maliseet Indians, and the Aroostook Band of Micmac Indians, who together wrote to Maine Gov. Paul LePage on June 21, seeking his support for a legislative fix to open the fish way.
Ed Bassett, a member of the Passamaquoddy tribal council at Sipayik, said he hopes the state “does the right thing” and opens up the fishway. “The way I see it, this could be a win-win situation for everyone. The state could work with the tribal chiefs, especially the Passamaquoddy, and show this as an example of cooperation with each other for the ultimate good of the ecosystem,” Bassett said. “I’m hoping for the best. We already know it’s going to go to court if they don’t open it up. I think ultimately the alewives will prevail.”
The EPA ruling was also a victory for the Conservation Law Foundation, which filed suit against the EPA arguing the exact points that the EPA acknowledged in its ruling. “EPA’s letter is a gratifying sign that we’re finally making substantive progress in restoring this important fish to the St. Croix River watershed,” Sean Mahoney, director and vice president of the Conservation Law Foundation (CLF), said in a statement July 10. “As EPA now agrees, this law is scientifically and legally unsupportable. We hope that further litigation is unnecessary to ensure that the state follows the directive of EPA in allowing alewives to return to their native waters.”
Mahoney told Indian Country Today Media Network on July 25 that so far there has been no response from the state.
“At this point, we’re still working with the EPA to determine what, if anything, should happen with the court proceeding,” Mahoney said. “In the next step, either the state will voluntarily comply with the EPA order to remove the barrier or the state will appeal the EPA ruling, or the International Joint Commission [the body established to oversee the 1909 Boundary Waters Treaty between the U.S. and Canada—the St. Croix River demarcates the international boundary] will order the fishway opened, or we’ll file a lawsuit against the state arguing that the state law conflicts with federal law.”
The attorney general’s office did not return several calls seeking comment.