Staff Attorney Ivy Frignoca helps plant vegetation along Long Creek

On July 20, many volunteers including CLF Attorney Ivy Frignoca helped plant vegetation along a tributary of Long Creek which winds through South Portland, Maine, and eventually empties into Casco Bay. The planting was part of the Long Creek Restoration Project, a collaborative 10 year plan to reverse the impacts of years of stormwater pollution to Long Creek. The creek runs through the Maine Mall and surrounding industrial/commercial area where it receives runoff from impervious areas like rooftops, roads and parking lots. This runoff carries heavy metals and other toxins into the creek, and has killed brook trout and other species that once lived there.

In 2008, CLF petitioned the Environmental Protection Agency (EPA) and asked it to issue a permit requiring area businesses to clean up the pollution. EPA issued the permit. Landowners and other stakeholders then banded together to form the Long Creek Restoration Partnership. To learn more about that effort, read this archived article from the Portland Press Herald.

The partnership is 3 years into its 10 year management plan and has put in place plantings, filters, and other items that have already reduced runoff from 30% of the land subject to the permit. Water quality testing is showing promising improvement and more projects are planned for the next several years! This year expect to see plantings in road medians and in 2015, trees added to the Maine Mall Parking lot.

Photo courtesy of Curt MacNeill, Boulder Health Revolution

Each year contaminated food sickens 48 million Americans and causes 3,000 deaths.  As the recent federal sequester highlights, Americans depend on programs that inspect food to ensure a safe food supply.  Unfortunately for those who run small farms in New England, the costs of complying with the confusing jumble of federal and state food safety laws can be daunting.

In Maine, nine towns — Brooksville, Sedgwick, Penobscot, Blue Hill, Trenton, Hope, Plymouth, Livermore and Appleton —have passed ordinances allowing food producers and processors to sell their goods directly to consumers without state or federal oversight, exempting them from licensing and inspection laws. These ordinances have created controversy and have landed at least one Maine farmer in court.

The legal issue arises from the Commerce Clause of the United States Constitution (Article I, Section 8, Clause 3). The clause states that Congress shall have power to regulate commerce among the several States. Congress has long used this authority to regulate the safety of food products placed into inter-state sales. The states can separately regulate food safety of products produced and sold solely within state borders. Maine’s Constitution similarly provides that state laws take precedence over local ordinances that frustrate the purpose of a state law.

Photo courtesy of Foods U chose 2 Eat, UK Website

Recently the State of Maine sued a farmer from Blue Hill Maine. The farmer had been selling unlabeled, unlicensed raw milk at his farm stand under a town ordinance, the Local Food and Community Self Governance Ordinance. Under state law, however, the farmer could not sell his milk without a license and without labeling the raw milk as unpasteurized; he also could not operate a food establishment without a license. The farmer maintained that his sales were legal under the Blue Hill ordinance, which exempts local food vendors from state licensure and inspection, provided they sell their products directly to consumers.

The court recently ruled against the farmer, finding that he was not protected under the Blue Hill ordinance.  The court reasoned that state dairy law pre-empted the local ordinance because the state laws in question were clearly designed to protect consumers from illness caused by improperly handled or unpasteurized milk.  The court wrote that: “It is axiomatic that a municipality may only add to the requirements of the statute, it may not take away from those requirements unless permitted to do so otherwise.”

The court’s ruling makes sense in terms of following constitutional law principles and the existing food safety legal regime. The bigger policy issue not addressed by the legal decision is whether the current food safety regulatory structure is one that prices small scale farmers focused on local markets out of  business. We think this is an important issue to address and are actively working on it as part of CLF’s Farm and Food Initiative.

We’d like to hear from you.

Do you recognize these fish?

They are anadromous alewives, also known as river herring. These small fish leave the ocean and swim upriver to spawn each May and June in Maine ponds and lakes. They provide food and cover for other migrating fish and are a critical part of the food chain in the ocean. Because so many Maine rivers are blocked by dams, the number of alewives has dipped dangerously low, so much so that the National Marine Fisheries Service is considering listing them under the Endangered Species Act. Through a series of legal actions, this trend is reversing.

For 150 years, alewives have been unable to swim upstream to spawn in the Presumpcot River. They have been blocked by a series of dams. The first dam in the series, the Cumberland Mills Dam, is at Sappi’s paper mill in Westbrook.

What’s changed at the Cumberland Mills Dam?

In 2009, in a  proceeding initiated and prosecuted by CLF and the Friends of the Presumpscot River, the Maine Department of Inland Fisheries and Wildlife ordered Sappi to construct a fishway through the dam. After two years of construction, the nearly five million dollar fishway is completed and will enable fish to pass above the dam. It opened with fanfare on May 1, 2013 and awaits the spring migration of alewives and shad.

Sappi now has another two years to build a fishway at its next dam upstream, and then as the fish return to their native habitat must construct fish passage at four other dams beyond that. The timing will depend on how many fish migrate up the river. CLF’s Executive Vice President Sean Mahoney, with another attorney for the Friends of the Presumpscot River, spear-headed the petition that has led to the re-opening of the river to alewives and shad.

Sappi plans to create a webpage which will in part track the progress of alewives up the river.  We will share that resource when we have it. Keep checking back here, on CLF Scoop, for more!

After a full day of vigorous testimony (including supportive testimony from CLF) on March 25, Maine’s Marine Resources Committee today unanimously voted that LD 72, a bill that will reopen the St. Croix River to alewives, ought to pass. This is an excellent outcome.

With that strong recommendation, the bill will soon go to the full Legislature for a vote. If passed, LD 72 will reverse the law on the books since 1995 that has closed the fish ladder at the Grand Falls Dam  to alewives, preventing them from reaching their spawning grounds. Originally justified by a mistaken belief that alewives competed with smallmouth bass and caused a decline in their population, numerous scientific studies since then debunked that myth. But in the intervening years, the alewife population has shrunken to the point where the species may be listed as threatened. Alewives provide food for numerous species higher in the food chain, provide bait for the spring lobster fishery, provide cover for other migrating species, and much more.

CLF has been blogging on this topic regularly. To read those posts, click here. For a great article on the issue in the Bangor Daily News, click here. 

CLF has been pushing for the unfettered restoration of alewives to the St. Croix in the Courts and in the Legislature. We’re very close to an historic victory that helps the environment and economy of the St. Croix region. Now is the time to push this over the finish line. Please stand with us and contact your legislators and urge them to support this bill.

An important step forward for restoring alewives to the St. Croix river

Fishermen, environmentalists, anglers, representatives from the Passamaquoddy tribal government, federal agencies and the Canadian government have spoken: Alewives should be allowed to return to their native St. Croix river.

At a legislative hearing Monday, speaker after speaker rose in support of a bill, L.D. 72, that would immediately open many fishways at the river’s dams to Alewives.

Our own Sean Mahoney, EVP & Director, CLF ME, testified in support of the bill, arguing, “L.D. 72 is simple, it does the right thing and its benefits – to the watershed, the ecosystem and the many whose livelihoods would be enhanced by a return of the alewives – would be relatively immediate.”

The legislature is currently considering three bills, and Mahoney was joined by the vast majority in supporting L.D. 72, an emergency bill sponsored by Passamaquoddy tribal Rep. Madonnah Soctomah, that would require the Grand Falls Dam fishway to be opened to the “unconstrained passage” of Alewives by May 1^st, before the species’ spring spawning season.

The opening would give the fish immediate access to over 24,000 acres of habitat, compared to a sparse 1,174 open today. In all likelihood, this opening would lead to Canada’s opening the fishway upstream at the Vanceboro dam, allowing access to thousands of additional acres. One researcher estimated that if spawning runs had access to the entire watershed, alewives could number more than 20 million, up from just over 31,000 now.

The alternative Adaptive Management Plan, L.D. 584, calls for a more gradual, staged reintroduction of spawning Alewives to the river. Proposed by Governor Page’s administration, this plan met overwhelming opposition at Monday’s hearing, and was even condemned by one of its own co-authors. It falls far short of restoring alewives throughout the watershed.  It also would run afoul of federal law concerning the operating of dams such as the Vanceboro Dam, as well as the State’s own water quality standards, as noted by Sean in his testimony.

The LePage administration, along with fishing guides from Washington county, were alone in their concerns that reintroduction of Alewives may lead to a decline in smallmouth bass. The National Marine Fisheries Service and the U.S. Fish and Wildlife Service asserted that smallmouth bass, which were introduced into the St. Croix in 1877, have lived harmoniously with spawning Alewives in hundreds of Maine’s lakes and rivers.  Mahoney’s testimony, which you can read here, provides the legal arguments against L.D. 584.

You can more about our work restoring the alewives to Maine’s rivers here, or check out our latest blog posts about alewives here.

An offshore wind farm off the coast of the Netherlands. Image courtesy of Nuon @ flickr

As of June 2012, the world boasted 4,619 megawatts of installed offshore wind energy capacity, while the United States had none. President Obama and other national leaders like Susan Collins want to change that statistic. The public also increasingly supports clean renewable energy in the wake of frequent severe weather events like Hurricane Sandy caused by climate change.

The biggest barrier to developing offshore wind energy has been criticism of its cost compared to other forms of energy. But offshore wind technology is in its infancy; it must be tested and supported much like subsidies were provided for the testing and development of oil and gas exploration. A recent study by the Brattle Group contained two findings that I found interesting.

- First, the study estimates the total investment needed to develop a U.S. offshore wind industry and how that investment would affect the price of electricity. The study showed that offshore wind could cost less to develop than subsidies paid for coal, oil and gas over the last 50 years.

- Second, the study estimates that offshore wind would result in an average monthly-rate increase for American consumers ranging from 0.2 percent to 1.7 percent.

Considering the huge amount being added to our tax bills to finance natural disaster relief from increased hurricanes, tornadoes and other weather events caused by global warming, this modest increase in electric rates to switch to cleaner power is a no brainer.

Here in New England, we have several potential opportunities for offshore wind: Cape Wind in Massachusetts, DeepWater Wind projects in Rhode Island, and the Hywind Maine pilot project in Maine.

What do you think? Would you pay a little more for electricity tax to reduce our dependence on fuels that add to global warming?

On Thursday, January 28, 2013, Maine’s Public Utility Commission (PUC) approved, by a 2-1 vote, the terms of a long-term contract for the first floating turbine offshore windfarm in Maine. After a few months of negotiation, this is good news for the state, and for renewable energy.

This vote clears a major hurdle toward Statoil putting four, three-megawatt wind turbines on floating platforms in deepwater 12 miles off Boothbay, and marks the early days of implementation of Maine’s Ocean Energy Act. Signed into law in 2009, the Act encourages projects like this one, so as to support the development of renewable energy technology that harnesses ocean energy. In this project, energy generated from the project would be transported via underwater cable to a transfer station on land, delivering renewable energy to the mainland.

Approval for this project has been a long time coming. Statoil, which has successfully operated a one-turbine pilot project off the Norwegian coast for the past year, originally sought approval for a version of its project in October of 2012. At the time, CLF submitted comments supporting the project and the long-term contract, but the PUC tabled its deliberations and asked Statoil to come up with terms that would have a lower price for the electricity generated and guarantee more future benefit to Maine. Click here to see PUC Chairman Welch’s notes from deliberations. Since then, the project has only improved.

Working with PUC staff, Statoil revised the terms of its contract to reduce the price of energy to Maine consumers and add more assurances that if its initial small scale windfarm is successful, it will make all efforts to employ Maine companies as it scales up the project. Click here to see Statoil’s Revised Term Sheet.  We liked these additional terms even more than Statoil’s initial proposal. Again we wrote in favor of the project and expressed our increased support. Click here to view our additional comments.

The vote at this past week’s hearing was 2-1, with Commissioner Littell and Chairman Welch voting in favor of the project. Littell has long been a champion of efforts to reduce carbon emissions, whether during his time at the DEP where he championed RGGI or now at the PUC. Welch deserves credit as he was not supportive of the long-term contract in its initial phase, but recognized that Statoil had made efforts to address his concerns and even more so recognized the potential that offshore wind holds for Maine.

Photo courtesy of phault @ flickr

This is an exciting time for clean energy in New England. Why? Because our region could have not one but three offshore wind farms constructed by 2016.  Not only that, these would be the first three in the nation!

The Cape Wind Project, off the coast of Cape Cod, will site 130 wind turbines between 4–11 miles offshore and produce an average of 170 MW of electricity, or about 75% of the average electricity demand for Cape Cod, Martha’s Vineyard, and Nantucket Island. Block Island Wind Farm is scheduled to be constructed in Rhode Island state waters next spring. It is a 5 turbine, 30 megawatt demonstration-scale wind farm about three miles off of Block Island which will generate over 100,000 megawatt hours annually, supplying most of Block Island’s electricity with excess power exported to the mainland. And on a very exciting note, here in Maine, international energy company Statoil’s proposal to build a four turbine floating wind park is moving forward. For recent news coverage, read here.

Clean energy is sprouting up all around New England. For some projects, it’s about time. Recent FAA approvals on Cape Wind, for instance, come after more than a decade of exhaustive reviews and strong opposition from dirty energy-funded opponents. Each of these projects has enormous potential. Together, if built, these three offshore wind farms would transform New England’s energy mix.

Here in Maine, Statoil’s unsolicited bid to develop the floating wind farm is moving through the federal review process. The Bureau of Ocean energy Management (BOEM) has published a notice to determine if there are other developers interested in competing to use the area and to solicit comments about the proposal. The notice is published here.

CLF will provide comments that balance our commitment to helping New England develop clean renewable energy with protecting the ocean environment. BOEM published a second notice that it will prepare an environmental impact statement (EIS) when Statoil submits its construction and operations plan (COP). The EIS will consider the environmental consequences associated with the Hywind Maine project. BOEM will accept public comments about the environmental issues that should be considered in the EIS until November 8. For more, read here.

In addition, the Maine Public Utilities Commission (PUC) is reviewing the proposed terms of a long-term contract that would permit Statoil to sell the energy generated from the wind farm  into Maine’s energy grid over the next 20 years. The PUC’s authority to approve this contract flows from Maine’s 2010 Ocean Energy Act, which supports research and development of offshore wind energy technology. The PUC may decide whether to accept the proposed contract terms within the month.

For a current and accurate summary of the state of offshore wind off the Atlantic Coast, please read the National Wildlife Federation’s report released on September 24, “The Turning Point for Atlantic Offshore Wind Energy.” CLF helped write sections of the report and co-sponsored it.

There’s no question we’re making incredible progress – but there is more to be done. If you support this work, sign up to become a CLF e-activist to keep informed about our work. And check back in regularly for updates as we try to get these projects built!

Last week the development of wind energy offshore Rhode Island and Massachusetts moved one step closer with the publication of an environmental assessment (EA) by the Department of the Interior, Bureau of Ocean Management (BOEM) regarding commercial wind lease issuance and site assessment activities on the Outer Continental Shelf (OCS). The purpose of the EA is to determine whether or not issuance of leases and approval of site assessment plans within a designated area offshore Rhode Island and Massachusetts would lead to reasonably foreseeable and significant impacts on the environment. The EA is available online here.

BOEM will accept public comments on the EA and then will determine whether or not to issue a finding of No Significant Impact or conduct additional analysis under NEPA. The deadline for public comments is August 2.  CLF is reviewing the 379-page EA, with a particular focus on the impact to sensitive marine habitats, fish populations and fishing activities, water quality, and marine mammals – particularly the endangered right whale – and sea turtles. CLF will submit comments. CLF believes that offshore wind deployment is a critical clean energy supply resource which must be deployed expeditiously and in significant quantities, in a manner that protects ocean wildlife and sensitive seafloor habitats.

BOEM is hosting two public information sessions to provide an overview of the EA and the next steps in the leasing process. At these sessions, BOEM will accept comments and address questions, so CLF encourages interested members to attend.

Public Information Sessions:

Monday, July 16, 2012, 7:00 p.m.
University of Rhode Island
Coastal Institute – Hazard’s Room
218 South Ferry Road
Narragansett, Rhode Island 02874

Tuesday, July 17, 2012, 7:00 p.m.
Fairfield Inn & Suites
185 MacArthur Drive
New Bedford, Massachusetts 02740