Mismanagement has led to the current Cape Cod water pollution crisis.

A recent federal court decision in Conservation Law Foundation’s and Buzzards Bay Coalition’s lawsuit against EPA addressing nitrogen pollution in Cape Cod bays has major implications for the way local water pollution control projects are funded in the Commonwealth.

The impact of nutrient pollution on the streams and bays of Cape Cod was identified as a looming problem in the 1978 Areawide Wastewater Management Plan written by a predecessor to the Cape Cod Commission. Despite the Plan’s requirement of annual updates, it sat untouched for over thirty years as the looming threat of nutrient pollution became a present crisis. Spurred by a lawsuit filed by CLF and the Buzzards Bay Coalition in 2011, the 1978 Plan is finally being updated by the Cape Cod Commission.

The importance of the current planning process’s successful completion was thrown into stark relief on August 23, when Senior Judge Mark L. Wolf of the United States District Court of Massachusetts ordered that a central claim in CLF’s and BBC’s 2011 Areawide Wastewater Management Plan lawsuit could go forward.

The lawsuit contends that EPA’s annual approvals of loans and grants for local projects from the State Revolving Fund – a pool of federal and state funds dedicated to reducing water pollution—must be consistent with applicable Areawide Wastewater Management Plans. The claim states that it is not possible for EPA to make funding decisions based on the present Plan because its 35-year-old recommendations are no longer relevant to solving current water quality problems.

Judge Wolf’s order held that EPA must determine every year that Massachusetts is only providing water pollution control funding to those projects that are consistent with a current management plan for a particular area. Congress required this annual review in order to assure that water pollution control projects are planned, funded, and implemented based on an up-to-date understanding of local water pollution problems. The Judge’s ruling stemmed from the fact that the Cape Cod plan is so outdated that money is being spent haphazardly, rather than funding projects that will address the current problems.  The rampant and continuing pollution in Cape Cod’s bays is a result of this inconsistency.

Studies have indicated that the total cost of cleaning up the polluted bays will range from $3-6 billion.  In FY2012 alone, the State Revolving Fund provided $164.7 million for clean water projects in communities across the state, according the 2012 Annual Report prepared by the Commonwealth.

To get that money flowing to projects that will be effective in controlling Cape Cod water pollution, it is imperative that Areawide Plan be updated. As the Court opinion states, “If EPA determines that the state is not complying with the SRF provisions …, the agency must cease to provide SRF funding, unless the state rectifies its actions and complies with the statute.”  The real world implications of this order are clear and significant—the future of money for local governments disbursed under the State Revolving Fund program depends on an updated and approved Areawide Plan.

The Cape Cod Commission is currently in the process of gathering stakeholder input for the Plan update. If you’re a Cape resident, check out the meeting schedule, or sign up to participate in the next round of their online public engagement tool. This stakeholder process, scheduled to be complete this December, will form the basis of the Commission’s new draft Plan.

Good news for those whose livelihood and/or recreational pursuits involve Casco Bay. As noted in prior posts (6/17/11, 6/21/11, 5/8/12), for more than 4 decades Portland’s sanitary and stormwater sewer system was periodically overwhelmed by a storm event or snow melt, resulting in discharges of untreated wastewater that would close beaches and shellfish harvesting areas, and just plain old stink. Although legally obligated to address the situation under a 1993 consent decree that CLF was instrumental in obtaining, the City’s progress in doing so was sporadic until the past few years.

For this reason alone, it is worth celebrating the recent completion of the Baxter Boulevard storage project as noted by the Portland Press Herald. The two, million-gallon tanks, installed at a cost of $10 million, will provide critical storage during times of high volume (think the storms we had on Labor Day weekend) and literally keep at least 2 million gallons of untreated sewage and stormwater out of Casco Bay. While there is still a great deal to do to address the challenge that old infrastructure faces in light of the increasingly extreme storm events resulting from our changing climate, Portland continues to move in the right direction. CLF will continue to prod cities like Portland when necessary to clean up its act but is much happier to celebrate successes like this recent one when warranted.

Yesterday, EPA sent Vermont’s clean water agency, the Department of Environmental Conservation, a Clean Water Act “Corrective Action Plan,” outlining permitting and enforcement improvements and updates the state has made or needs to make to ensure that the state provides all the protections required by law to its citizens and the waters they have a right to use and enjoy. This marks a major milestone in CLF’s long-running efforts to secure clean water for all Vermonters.

The federal Clean Water Act is one of the most important and successful laws our nation ever enacted. Before its passage more than 40 years ago, massive volumes of raw sewage and industrial wastes flowed freely into our lakes and rivers. Polluters responsible for this mess faced little in the way of meaningful consequences. The patchwork of state permitting and enforcement programs Americans relied on to keep our waters safe and clean simply had too many holes in it.

The law’s passage reflected a national commitment to restoring and protecting all of our nation’s waters, ensuring that they are safe for drinking, fishing, swimming, and boating, with water quality that also supports healthy populations of fish and shellfish. It established a national goal of eliminating water pollution. As important as this law is, its effectiveness depends on its faithful execution by political appointees and career professional regulators at EPA and partner state clean water agencies like Vermont’s Department of Environmental Conservation.

In 2008, CLF acted on its longstanding concerns that Vermont’s waters were suffering from excessive pollution in part because state officials were falling far short of fulfilling all of their Clean Water Act responsibilities. CLF, with tremendous assistance from its able pro-bono counsel from the Vermont Law School’s Environmental and Natural Resources Legal Clinic,  petitioned EPA to order significant improvements in Vermont’s water pollution control permitting and enforcement efforts. If Vermont officials failed to make needed improvements, CLF asked EPA to take over the lead in issuing permits and enforcing against polluters in Vermont.

After several years of investigation by EPA and negotiations with state officials, the Corrective Action Plan EPA issued represents a validation of CLF’s core concerns. It also represents a positive re-commitment to the Clean Water Act by the administration of Governor Peter Shumlin. Among the positive corrective actions Vermont has taken or will take to better control pollution per the EPA plan are:

• The final issuance of the state’s first ever permit to control pollution discharges from “Concentrated Animal Feeding Operations”—animal feedlot operations meeting certain regulatory criteria—in a manner that complies with the Clean Water Act.
• Commitments to increase annual inspections of actual and suspected “Concentrated Animal Feeding Operations” to detect unlawful pollution discharges and ensure that CAFO dischargers apply for and comply with Clean Water Act permits.
• Changes to state law allowing citizens to have a voice in the resolution of Clean Water Act enforcement proceedings.
• A plan for limiting the amount of nutrients discharged by municipal wastewater treatment plants into the Connecticut River and Long Island Sound.
• Enforcement against the Village of Waterbury sewage treatment plant that will significantly reduce one of the largest single phosphorous discharges into Lake Champlain through installation of state-of-the-art technology
• Conforming the state’s policy relating to the use of polluter’s penalty payments to EPA’s requirement
• Implementing a requirement of the Clean Water Act to prevent the degradation of existing high quality waters

The declining health of Lake Champlain and numerous other Vermont waterways underscores how far we. By implementing all of the Corrective Actions outlined above, Vermont is taking an important step in the right direction toward clean water solutions. Vermonters’ quality of life, economic vitality, and maintenance of our state’s green “brand” requires nothing less.

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.

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!

Alewives in Maine. Credit: Bremen Conservation Committee

After 18 years, Maine alewives can finally swim freely into their ancestral habitat on the St. Croix River.

On Monday, April 22^nd, with little fanfare legislation that essentially repeals a Maine law passed in 1995 that has prevented alewives from using existing fish ladders to surmount the Woodland  and the Grand Falls Dams on the St. Croix. The law comes into force without the usual fanfare because Governor LePage refused to sign it but also couldn’t veto it in light of its overwhelming support in the Legislature.

This victory caps a two-year effort by CLF advocates to restore a fishery that numbered close to 3 million before the 1995 law closed the fish ladder and the number of alewives dwindled to less than 10,000. The alewife, an anadromous fish that lives in the ocean but travels up rivers each spring to spawn, is a “keystone species” that provides food for many animals, birds and larger fish species native to Maine’s marine and fresh waters. In a classic case of fisheries mismanagement, despite its recognized importance, the fate of the alewife was sacrificed upon the altar of bad science and even worse politics.

Last year CLF successfully filed suit against the EPA to enforce the Clean Water Act’s water quality standards, resulting in a conclusion by EPA that there was no “…sound scientific rationale for excluding indigenous river herring (or other migratory species) from the St. Croix River.” CLF then used that decision as a basis in a subsequent suit against the State to invalidate the law. We at CLF are pleased that these lawsuits, which received not just the support of the EPA, but also the many organizations across the state of Maine, including the Passamaquoddy Tribe, who have had their shoulder to this wheel for many years, helped to move the legislation to become a law.

“It’s a historic moment,” Rep. Madonna Soctomah, who represents the Passamaquoddy Tribe in support of the legislation, was quoted as saying in the Portland Press Herald. “It’s a really good day for Maine people and the environment.”

That’s a belief that was shared widely amongst Maine’s legislature. The Marine Resources Committee unanimously endorsed the bill, before it went on to pass by a margin of 123-24 in the House and 33-0 in the Senate.

It is truly an historic occasion and one that would not have been possible without the commitment and hard work of a coalition of fishermen, environmentalists, the Passamaquoddy Tribe and many others.

To be sure, there are still challenges to meet to ensure that the St. Croix native fisheries are fully restored to the watershed, including upcoming relicensing proceedings for the Vanceboro and Grand Lake dams further up the St. Croix River. We look forward to continuing to work with on those efforts, and to restoring not just the St. Croix but other rivers in Maine.

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For a full archive of CLF’s blog posts and updates on L.D. 72, click here or visit: http://www.clf.org/blog/tag/alewives/

It’s a pleasure to report that on Wednesday, at the Charles River Watershed Association’s annual meeting, CLF was awarded The Anne M. Blackburn Award – CRWA’s premier honor.  As Executive Director Bob Zimmerman put it, they were intending to recognize a person and an organization.

That deserving person is CLF Senior Attorney Anthony Iarrapino.

Anthony was recognized for his terrific work in our case against the Boston Water and Sewer Commission, which settled last summer after years of preparation, litigation and negotiation, on extremely favorable terms. Those terms will catapult Boston (finally!) into the forefront of U. S. cities taking a creative approach to controlling stormwater runoff in ways that restore our environment, foster healthy communities, save money and create jobs.

Like all of our work, the BWSC case was a team effort, but every major project is driven by a person who owns it. He or she is supervised from above, influenced from many directions and supported by a team of colleagues, but that person is the captain, if you will. The buck stops with him and he deserves the lion’s share of the credit for success.

We had that person on the BWSC case. He immersed himself in the case, took on one of Boston’s largest and most powerful law firms, dealt gracefully with the Boston politics, held the line when necessary and negotiated very effectively. It has given all of us great professional and personal pride to see Anthony grow in stature and experience in this case, and this was part of the reason that we recently promoted him to the position of Senior Attorney, a well-deserved honor that he has earned through very hard work.

CLF was also recognized for the decades of work we have done alongside the CRWA – and other partners on the Charles, the Mystic and other rivers in Eastern Massachusetts – to begin to make real the lofty promises of the Clean Water Act.  Peter Shelley was rightly called out for his career of work on these issues, as well as Chris Kilian (who personally received the Blackburn Award two years ago) for directing (and performing) this work for so many years.

But as creative, persistent and effective as we’ve been for almost 50 years in making the admirable progress we’ve made, we’ll need to be far more creative, persistent and effective to meet the challenges that our changing climate will throw at us.

We’ve spent 50 years keeping pollution from our communities out of Boston Harbor; in the future, we also have to keep Boston Harbor out of our communities – like the North End and Chelsea, Everett and Back Bay. How do we do that?

We’ve spent 50 years to get to the point of beginning to grapple with runoff from storms as we have known them;  how do we do that while coping with 30-50% more precipitation, more extreme storm events, and increased unpredictability?

These challenges are big and systemic. They require us to make technical, strategic and cultural changes.  And we have to make them, in order to continue our collective legacy of excellent work that addresses our most pressing needs with great effectiveness.

Everyone in the room on Wednesday night seemed to “get” this, and also to agree that the community of groups that have worked together so effectively on these issues in Eastern Massachusetts (including Charles River Watershed Association, the Mystic River Watershed Association, and our partners at Alternatives for Community and Environment, La Comunidad Inc., Neighborhood of Affordable Housing, Tri_City Community Action Program, and Groundwork Somerville) forged by the trials of the past, has the stuff it will take to meet the challenges of the future.  Of all the regions in this country, we in New England are most likely to get it right.  We have the track record of success, we have the creativity and persistence, and most importantly we have a strong community committed to the cause.

As we in New England grapple with these important challenges, I am confident that CLF will continue to be in the middle of it all. And I hope that you will stand with us in this work.

The bill passed today will restore alewives, a key forage fish, to the St. Croix River, pictured here. Photo: CanadaGood @ flickr

We at CLF applaud today’s vote by the Maine state legislature to restore Alewives to their native habitat in the St. Croix River.

Today, the legislature voted to pass a bill that will reopen the fish ladder at the Grand Falls Dam, allowing the key forage fish to reach 98% of the St. Croix. This vote caps a two-year effort by CLF advocates to restore a fishery that numbered close to 3 million until a state law closed the fish ladder and the number of alewives dwindled to less than 10,000. Last year CLF successfully filed suit against the EPA to enforce the Clean Water Act’s provision related to the state law and then filed suit against the State to invalidate that law.

This bill corrects a practice of fisheries mismanagement that has been allowed to stand for almost two decades. It properly places good science and the interest of many over the self interests of a few. While litigation is the principal tool of our trade, it is wonderful to see the Legislature right this wrong and we hope to be able to dismiss our case against the State soon.

Introduced in March 2013, the bill found strong support among a number of the groups invested and concerned with the restoration of the St. Croix River and its native fish. These groups include Maine fishermen, environmentalists, anglers, federal agencies, and the Passamaquoddy.

The alternative bill proposed by the LePage administration was a half-measure that would have still kept alewives from reaching most of their native habitat.

This vote ensures alewives will now return to the St. Croix River. It is exactly the result that our legal advocacy was aiming for, and we applaud it as an important step forward.

CLF has been blogging on this topic regularly. To read those posts, click here.

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.