Photo by Robert F. Bukaty, courtesy of Portland Press Herald Archives

As mentioned in prior posts here and here, CLF’s lawsuit to reopen the St. Croix River to alewives resulted in this letter from EPA agreeing that the Maine Alewife Law violated water quality standards for the St. Croix.

Yesterday, the Maine Attorney General responded to that letter here and the response is disappointing to say the least.  The first half of the letter is not even related to the Alewife Law but rather a gratuitous attempt to bolster the State’s efforts to restrict the jurisdiction of the Passamaquoddy Tribe and other Maine tribes.  The second half of the letter does not contest the findings in EPA’s letter that the Alewife Law constitutes a change in the St Croix’s water quality standard but rather attempts to justify that change as a fishery management exercise unrelated to the Clean Water Act.

As I noted in a interview yesterday on MPBN, you can put lipstick on a pig but it is still a pig.  Nor is the State’s “commitment” to the so-called adaptive management plan for the St Croix currently under consideration by the International Joint Commission of any real value.  As noted in this article by Colin Woodard, the adaptive management plan may be better than nothing but just barely.

What this means for the St Croix is really nothing more than status quo – passage at the Grand Falls dam will remain closed to alewives as long as the State is willing to let bad science and a small minority of self-interested fishing guides call the shots.  This is even more unpalatable given the current crisis that our lobster fishery is in. A resurgent alewife population (close to 3 million before the State closed fish passage) could only help that industry that can use alewives as bait fish. A robust alewife population would also help the Maine groundfish and whale watching industries, for whom alewives are a key source of food.  For these reasons, as well as the health of the St Croix ecosystem as a whole, CLF remains committed to restoring alewives to their native habitat in the St. Croix.  Stay tuned for next steps.

Bike Lane on Park Ave, near Deering Oaks Park, Portland. (Photo courtesy of Corey Templeton @ flikr)

I felt like thumping my chest last week after reading an article in the Portland Press Herald about the decline in the number of cars registered here in Portland and the increasing number of people who are getting to and from work by bus, bike or foot. Ours is a small office (4 full time employees and this summer 4 student interns) and it was not unusual to see 5 or 6 bikes in the office, representing commuters from Deering Oaks, the West End, South Portland and Falmouth. Last Spring, one of our interns, a 3rd year law student commuted from Biddeford by bus. As our intern Brian Lessels wrote on this blog, he, like others at CLF, are biking devotees.

photo courtesy of Justin D. Henry @ flickr

As the article points out, the move away from relying on cars has been born both of necessity due to their high costs and of choice. Certainly, no one wants Maine’s or the country’s economic challenges to persist but to the extent those challenges create the opportunity for more people to choose to both save money and reduce their environmental footprint by driving less, CLF will continue to encourage those choices by supporting commuting alternatives and incentives, public transportation opportunities, and livable and compact developments in our existing cities.

Getting out of our cars more and getting to work by bus, bike or sidewalk is a win-win proposition for our health, our communities and our environment. For more on CLF’s transportation work in Maine, see this fact sheet.

Sand Beach, Mount Desert Island, Maine. Photo: timsackton@flickr

Summer is truly a blessed but all too short season in Maine. That is particularly true this year, when weather has been particularly magnificent after a very wet spring. But that has not been the case for most of the rest of the country which is in the grip of one of the worst droughts in over a century and suffering from more bouts of extreme weather.

A number of recent articles and columns brought this point home to me in dramatic terms, including this piece about the impact of such extreme weather on basic infrastructure like roads, drinking water sources and power supply.In the face of this evidence of a changing climate and its threat to some of our very basic building blocks for our way of life – food production, clean water to drink, reliable energy and safe means to travel and ship goods — the issue remains in the hinterlands of our political discourse on a national level, as noted by John Broder in the New York Times. This is shocking to me.

Closer to home, we have news of the steady northward migration of the emerald ash borer, an invasive species that could decimate our ash trees, warming temperatures in the waters off our shores, one reason for the unusually early harvesting of soft shell lobsters which has led in part to the challenges currently facing our critically important lobster industry, as well as the slow motion disaster in progress of ocean acidification, as noted by Professor Mark Green last May.

So what is a poor fellow to do in the face of this depressing news?

A recent column by Philip Conkling, founder and president of the Island Institute, and a CLF Board member, urges us to use our “own senses—your eyes, nose and skin—and act on your own common sense” the next time someone says the climate is not changing and our collective actions have nothing to do with that change.

As we can see, hear, and feel, our climate is changing dramatically with enormous consequences for our communities, our natural resources and our economy. That is a fact. And if our leaders don’t start acting to address these issues, summers in Maine will be altogether different for my children’s children. And that too is a sad but undeniable fact.

Pressure is building to reopen the St. Croix River to the alewife, a critical forage fish.

Earlier this week the Environmental Protection Agency (EPA) issued a letter adopting the recommendations made in our lawsuit seeking  to restore alewives, a key forage and bait fish, to the St. Croix River.

As noted last month, CLF initiated a lawsuit against the EPA due to its failure to review and reject the Maine law that requires an existing fish passage facility at the Grand Falls dam to be closed. You can find the blog post here, explaining why we sued EPA.

As I said in the press statement, “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. 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.”

Since CLF filed its complaint, the Passamaquoddy Tribe, joined by other Maine Tribes, has formally requested Maine’s Governor Le Page to repeal the state law and, in the alternative, asked the International Joint Commission to invalidate the law. See a copy of the letter here. CLF is working with the Tribes to achieve the goal of restoring alewives to their native waters in the St. Croix watershed

This story was the subject of a front page article by Colin Woodard in the Maine Sunday Telegram. You can find that article here.

Image courtesy of USDA @ flickr.

Last week, CLF filed a lawsuit against the EPA and Curtis Spalding, EPA Regional Administrator, Region 1. (You can find a copy of the suit here, and copy of the press release here.) I want to take a moment to explain why this lawsuit is important.

The alewife is a critical “keystone” species in marine and fresh waters – it is an important source of food for many fish and marine mammals and for numerous birds.  The alewife is a native fish to many Maine rivers and is anadromous, meaning it starts its life in freshwater ponds and lakes, migrates down river to the ocean where it spends most of its life and then returns to its native waters to spawn.

As on many Maine rivers, alewives on the St. Croix River were all but extirpated due to pollution and the damming of the river. However, in the early 1980’s, the population of alewives in the St. Croix River was restored, reaching more than 2.5 million a year due to cleaner water and effective fish passage at the dams on the river.  But in 1995 the Maine legislature passed a bill specifically designed to block alewife passage at the Woodland Dam and Grand Falls Dam on the St. Croix River, based on what turned out to be unsubstantiated claims that alewives were causing a decline in the non-native smallmouth bass population in the St. Croix watershed. In 2008, even after those claims were found to be without merit, the Maine legislature amended the law to allow alewives passage only at Woodland Dam, restoring only 2% of the natural habitat previously available to alewives – effectively preventing them from accessing 98% of their natural habitat in the St Croix above the Grand Falls Dam.

As a result of this change, as I said in my letter to EPA Administrator Lisa Jackson, “the Maine Legislature intentionally and effectively changed the water quality standards for that section of the St. Croix [from Class A] to Class B.” As we allege in our suit, this action obligated the EPA to review and reject that change pursuant to its non-discretionary duties under the Clean Water Act (or CWA).

Under the Clean Water Act, any change to an existing water quality standard must be consistent with the state’s anti-degradation policy and must be submitted to the EPA for review. The de facto change to the water quality standards of the St. Croix was not submitted to the EPA for review, nor did EPA review the change for approval or disapproval, as required.

As a result, Maine was allowed to circumvent its responsibilities, and the EPA failed to fulfill its legal obligations.

As I said in the press release, “The law is fundamentally at odds with the legal requirement that the St. Croix River provide natural habitat unaffected by human activity for these fish and EPA has a continuing obligation to review and reject this change in that requirement.”

I was joined in my statement by Bill Townsend, a longstanding member of CLF and one of the deans of Maine’s environmental community, who noted that when he served as President of Maine Rivers, it obtained the funding and data to support studies that alewives are not detrimental to small-mouth bass populations, the original basis for the law. “The failure of the Maine Legislature to change the law in the face of that evidence and of the EPA to take every possible step to address that wrong is unacceptable.”

For more, find copies of my letter to EPA Administrator Lisa Jackson here, CLF’s filing here, and our press release here.

Stay tuned for more!

Until the last week or so, it’s been a dry spring here in Maine and so most of us have welcomed the recent spate of rain. But as I rode past the Back Cove and the East End Wastewater treatment plant in Portland this morning, it was hard not to think about the downside of all this rain–the runoff from streets, rooftops and other hard surfaces that overwhelms our sewer system and treatment facilities and washes untreated right into Back Cove and Casco Bay, carrying pollutants like oil, metals, waste and other accumulated debris along with it. It’s no surprise that these concerns might occur to me, given CLF’s long-standing involvement in tackling this issue, but it doesn’t take an advocate to see the need for action. For Chris Aceto, CLF’s landlord here at 47 Portland Street in Portland’s Bayside neighborhood, a recent article by Seth Koenig of the Bangor Daily News brought back some not so great memories of a dirtier Casco Bay and was a reminder that we still have a lot of work to do:

“I am 46. My mother used to take me to the East End Beach when I was 6 which would have been 1972. I can remember it so clearly because although I was 6, I thought, “This is not a beach!!” You could SEE the raw sewage like some kind of movie footage!  I think she wanted me to see the “beach” she went to when she was a little girl. My brother was the first lifeguard hired when that beach was opened up for swimming. It may have been 1979 or so. My cousins used to have a place at Peaks Island and NO ONE wanted to go there because the Ferry used to pull in to the docks on Commercial Street and you could not “see” water – it was brown, gross, stinky filth floating on top of the water.

Once the city showed some initiative to clean the water and build its first treatment plant, economically, Portland started to turn around. I am sure I am preaching here to the choir, but that article just brought back a ton of memories.” — Chris Aceto

Thanks to Chris for recounting that story that reminds us all about how important our continued vigilance is on finding short-term and long-term solutions to the problem of polluted runoff fouling our waterways, not just here in Portland, but around Maine and the country.

The City of Portland has made good progress in the past few years, but there remains a good deal of work to do.  CLF will continue to push for a solution that will allow us to stop sending untreated pollution and sewage to Casco Bay.

Passamaquoddy Bay. Courtesy of Jay Woodworth @ flickr. Creative Commons.

For some reason, the folks behind the last remaining proposed LNG import facility on the East Coast, Downeast LNG, are still pursuing their license from FERC to build a liquefied natural gas terminal on the shores of Passamaquoddy Bay here in Maine. And even more perplexing, FERC is still willing to spend time and resources on a project that the energy market is clearly saying makes no sense, or cents for that matter.

As our friends at Save Passamaquoddy Bay 3 Nation Alliance point out, Downeast LNG has “just become the sole remaining LNG import terminal on the entire continent.” In light of the already overbuilt capacity for importing LNG, the significant amount of domestic natural gas now flooding the market and bringing prices to an all-time low, and the number of import facilities that are now reversing course to become export facilities, the logic for continuing this quixotic adventure eludes us. For that very reason, FERC dismissed the application of the Calais LNG project, also slated for Passamaquoddy Bay and opposed by CLF in 2010. (Find CLF blog posts on Calais LNG here.) If anything, Maine should focus on more infrastructure to deliver gas to businesses and residents but new sources of natural gas supply are not needed now nor for the next foreseeable 50 years.

Perhaps it is time for FERC and Downeast Energy to face the music and realize that while a decade ago, LNG terminals  may have been a bridge to a better energy future that used less polluting energy sources, they are now a bridge to nowhere and should meet the same fate as that famous Alaskan boondoggle.

On March 30, I testified before Maine’s Legislative Joint Standing Committee on Environment and Natural Resources in opposition to LD 1853: An Act to Improve Environmental Oversight and Streamline Permitting for Mining in Maine.

In my testimony (which you can read below, or as a .pdf here) I outlined the reasoning for our opposition, including:

1) Open pit mining has a track record in Maine and elsewhere of causing significant harm to Maine’s waters and natural resources, and should be subject to the review of other models, new technologies, risks and benefits.

2) The bill in its original form was poorly drafted and overreaching in many respects. CLF has made numerous recommendations that if made in their entirety would significantly improve the bill.

3) Open pit mines have left unfunded environmental liabilities all over the world and as close as the Callahan mine on the Blue Hill peninsula.  Should open pit mining take place in Maine, every possible protection should be taken to prevent Maine taxpayers from footing the bill.

4) Because Maine has very limited experience with open pit mining and mineral mining in general, it is critical that the relevant agencies have adequate resources, frameworks and enforcement capacity, while the responsibility for the cleanup and closure of any mining operations falls squarely on the owner and operator of the mine.

To read my testimony in full, see below. If you have any questions, don’t hesitate to contact me.

–

Testimony of Sean Mahoney

Conservation Law Foundation

In Opposition to LD 1853

An Act to Improve Environmental Oversight and Streamline Permitting for Mining in Maine

Before the Legislative Joint Standing Committee on Environment and Natural Resources

March 30, 2012

Senator Saviello, Representative Hamper and Members of the Environment and Natural Resources Committee:

My name is Sean Mahoney and I am the director of the Conservation Law Foundation here in Maine. Prior to joining CLF in 2007, I represented a mining company that was involved with the copper and zinc mine in Blue Hill Maine under Second Pond.  Based on that experience, I have significant concerns with LD 1853.

The lawyers who drafted this proposed legislation for the Irving Corporation have stated that it is in part modeled on legislation recently passed in Michigan.  Unfortunately they have adopted only the end product and not the process used in Michigan.  In Michigan, that process took more than a year to review other models, new technologies, risks and benefits and ended up with legislation supported by mining companies, fisherman, guides, environmental groups and county and municipal officials.  That legislation was adopted unanimously by the Michigan Legislature followed by regulations developed by the analog to our DEP and also unanimously approved a year later.  I know how hard this Committee has worked to gather information and understand the ramifications of the proposed testimony.  But open pit mining is more than just a potential economic development – it has a track record in Maine and elsewhere of causing significant harm to Maine’s waters and natural resources – and before new setting statutory requirements are set, a process like that in Michigan should be followed.

LD 1853 itself in its original form was poorly drafted and overreaching in many respects.  I recognize that the version before you now is an improvement and appreciate and commend the work that you and Committee staff have done in that regard.  CLF remains opposed to the bill nonetheless for a number of reasons.  Working with other organizations who share our concerns, we have provided specific changes that if made in their entirety would significantly improve the bill.   I attach those comments again for ease of reference and would be happy discuss them in detail should you like.  I would like to focus on three areas in particular.

Financial Assurance – The current regulations require that financial assurance be accomplished through a trust instrument.  As I noted in testimony during a work session, a trust provides the most protection against the State being left with an abandoned mine site that is contaminating land and water resources.  There has been no testimony to the contrary that I am aware of.  Open pit mines have left unfunded environmental liabilities all over the world and as close as the Callahan mine on the Blue Hill peninsula.  Should open pit mining take place in Maine, every possible protection should be taken to prevent Maine taxpayers from footing the bill.

Public Notice/Participation – As with any development, notice of a proposed mining operation should be provided not just to municipalities or counties but also to abutting landowners, existing users of the resource and other interested parties.  That includes notice not just of the initial application but also any significant modifications to the scope or nature of mining operations, changes in ownership and suspension of operations.

DEP/LURC resources – Because Maine has very limited experience with open pit mining and mineral mining in general, it is critical that the agencies tasked with governing and regulating the location, development, operation, reclamation and closure of mine operations have adequate resources to develop the necessary regulatory framework, implement and enforce the relevant statutory and regulatory requirements and to ensure that responsibility for the cleanup and closure of any mining operations falls squarely on the owner and operator of the mine.

Open pit mining is an inherently risky activity regardless of technological advances.  We do and should use our natural resources to provide economic opportunity for our communities but we must do so in a way that doesn’t sacrifice those natural resources over the long term.  In its current form, LD 1853 fails to achieve that balance.

Keeping the spotlight on administrative agencies is often the best way to ensure that they perform as intended and in the best interests of the people. It’s not sexy and it doesn’t make for good headlines, but it’s true – as we at CLF saw this Valentine’s day.

As I detailed a few months ago in two blogs (Malpractice post , Patricia Aho post) and in Maine’s newspapers (Sun Journal article), outside the glare of the spotlight the Maine DEP deliberately waived Maine’s rights under the Clean Water Act to control and mitigate the water quality impacts to Flagstaff Lake of the hydropower project owned by Florida Power & Light. We challenged that decision (Aho Letter) and sought to hold the DEP accountable.

We also turned our focus, and spotlight, to a similar situation pending at Brassua Lake. (Brassua letter 1-24-12, Brassua letter 2-13-12). For those who have been been there, Brassua Lake is situated in the northern county of Somerset. It sits to the west of Moosehead Lake, to which its connected by the Moose River.

At Brassau, we were specifically concerned with the water quality certification (WQC), on two accounts:

1. First, in 2004, the Maine Board of Environmental Protection (BEP) found that the original WQC was not legally sufficient. We asked Commissioner Aho of the Maine DEP to clarify whether it was or was not sufficient.
2. Secondly, as I wrote, “another FPL Energy hydropower project, Brassua Storage Project, raises similar concerns to those previously raised by the Department about the Flagstaff Storage Project, concerns still shared by the EPA and many stakeholders. A WQC application for the Brassua project has been filed, withdrawn and re-filed for a number of years now. Most recently, that application was withdrawn and re-filed on March 24, 2011, requiring a decision by March 24, 2012.”

We asked Commissioner Aho to advise as to whether the Department intends to waive its rights under the Clean Water Act for the Brassua WQC as it did for the Flagstaff Storage Project and the basis for such a waiver.

Our efforts were rewarded on Valentine’s Day when the DEP confirmed that rather than waive Maine’s right, the dam owner was forced to withdraw its application and refile it, starting the clock over and maintaining Maine’s rights to control its water quality standards (FPL Letter).

We plan to keep the spotlight on DEP and the LePage administration, to acknowledge and thank them when they do right by Maine’s environment and to expose and hold them accountable when they do wrong.