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.

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.

For a question as big, complicated and important as what role new imports of Canadian hydropower should play in New England’s energy future, it takes more than two lines in a press release to answer it. Indeed, we at CLF have been working on this issue for years. So, it’s worth explaining in a little more depth how a new initiative announced this week could help the region come up with a sound answer that serves the public interest. The “could” is crucial, because the initiative follows in the wake of a series of poorly conceived transmission (Northern Pass) and subsidy (Connecticut and Rhode Island energy legislation) proposals that ignored key questions and advanced narrow interests.

What we know: the major Canadian utilities want to sell more power into our markets and have been executing plans to build massive new hydropower facilities and to develop new transmission corridors into and through New England.

What we don’t know: are new large-scale hydropower imports the right move for New England? In particular:

• Will new imports supply cost-effective power to the region – i.e., with economic benefits that exceed impacts?
• Will new imports actually help reduce the region’s greenhouse gas emissions?
• Will new imports diminish the impetus for renewable energy projects that are based in New England?
• Will new imports displace the dirtiest power on the regional grid?
• Will new imports drive more and more development of costly and environmentally damaging hydropower projects in Canada?
• How many and what kind of new transmission projects do we need (if any), and are the community and environmental burdens and benefits of those projects shared equitably?
• What are the energy alternatives to new imports and are they a better solution to the region’s energy needs?

On Monday, five New England states announced that they would be initiating a process that could lead to a large procurement of Canadian hydropower. Almost all the details remain to be worked out, with the New England States Committee on Electricity (NESCOE) – an organization that represents the shared interests of New England state governments in electric energy policy – managing the effort. NESCOE also is implementing the New England states’ initiative to procure renewable energy from qualifying sources, to satisfy the goals of the states’ Renewable Portfolio Standard programs.

As I indicated in the press release on the initiative, CLF is optimistic that NESCOE’s procurement process could help New England define the right role for new hydropower imports. In fact, if done well, the procurement process could provide a version of the regional assessment and strategic plan for hydropower imports that CLF and others have been advocating for more than two years. What would “done well” mean?

• The process must include, up front, a sound, technical analysis of the region’s long-term need for new hydropower imports in the context of the many alternatives, including renewable energy, distributed generation, and energy efficiency efforts that exist here in New England.
• The process must be carefully structured to assure a level playing field that properly values the most intelligent strategies to meet the states’ climate and economic goals, with no special preferences for particular companies and no ratepayer-financed windfalls.
• The process must honestly, rigorously, and credibly analyze the potential climate benefits of new imports, in light of the unequivocal science that large-scale hydropower projects and especially new facilities result in significant greenhouse gas emissions and that most net reductions will likely be over the long term, not the short term.
• The process must fairly and equitably allocate properly-accounted greenhouse gas emissions impacts among the participating states, as states like Massachusetts and Connecticut look to make good on their legal obligations under their Global Warming Solutions Acts to reduce emissions.
• The process must acknowledge and avoid rewarding the considerable environmental damage associated with large-scale hydropower development in Canada, especially the additional dam projects that new imports may facilitate.
• The process must disavow the early, troubling signs that it could be used as a vehicle specifically to promote Northeast Utilities’ current, fatally flawed Northern Pass proposal through New Hampshire.
• The process needs to bring New Hampshire to the table, as a willing and empowered participant.
• The process must assure that new imports complement, not undermine, renewable energy development in New England, in order to assist in the beneficial development of wind and other renewable projects and to help the states in meeting their existing renewable energy goals and mandates.
• If new transmission solutions are needed, it is essential that the process ensure that developers pursue the lowest-impact technologies and routing options.

As I said, it’s complicated. But there’s a real opportunity to get it right, and CLF is committed to ensuring we make that happen.

Members of all groups participate in a Circle Dance lead by Passamaquoddy Leaders

It’s not often you get the chance to celebrate such a clear victory for the environment as the return of the alewife to the St. Croix River watershed.  As discussed in prior posts, a Maine law prohibiting alewives from accessing this fish ladder at the Grand Falls Dam was repealed this past May and for the first time in two decades, alewives are able to return to their spawning grounds upriver.  The victory was celebrated not only with partners like Chief Clayton Cleaves of the Passamaquoddy Tribe and the Downeast Salmon Federation but also with former adversaries, like the US EPA who we sued in order to break the logjam with the federal agencies and establish that the Maine law violated the Clean Water Act. For more background on the case and additional media coverage of this event, see these articles by MPBN and Bangor Daily News.

Sean Mahoney and son Owen hold one of the boards removed from the fish ladder

With the removal of this board  and six other just like it, the fish ladder is now open and alewives are returning to the St. Croix River. Work remains to be done on the St. Croix and it was heartening to witness representatives of the Federal trust agencies and the Passamaquoddy Tribe sign a statement of cooperation pledging to  work toward the complete restoration of the St. Croix River. CLF will continue to advocate for the restoration of alewives and blueback herring not only on the St. Croix River but in watersheds throughout New England. And just as importantly, CLF will be working to reduce the bycatch of these critical forage fish at sea when they are migrating back to their natal waters.

It was wonderful to share in the day with CLF board members Davis Pike and Anne Hayden, and CLF supporter Owen Mahoney, as well as other partners such as Lisa Pohlman of NRCM and Landis Hudson of Maine Rivers.  While much work remains, it is truly a thing to celebrate when we are able to reverse the damage we have done to our environment by building broad coalitions, using good science, holding accountable those who are entrusted to enforce the law, and, in this case, removing 7 boards from a fish ladder.

From left: Lisa Pohlman, Davis Pike, Sean Mahoney (with fish), Anne Hayden, and Landis Hudson

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!

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/

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.

A few weeks ago my colleague Peter Shelley stood in front of fishermen and policymakers and spoke about the startling decline of New England’s cod fishery. Did you know that, since 1982, it’s estimated we have lost more than 80% of the cod in New England’s ocean? That surely should be a wake up call to us all.

That day, Peter’s argument was simple, and backed by sound science. We must act quickly, he argued, to prevent the Atlantic cod – New England’s most iconic fish — from complete and utter collapse.

The response? Hisses and boos. Hisses and boos.

Peter is no fool – he knew what was coming. A fisheries expert who filed the first lawsuit that led to the cleanup of Boston Harbor, Peter has heard this same response too often. But still, this response is as startling as it is unhelpful.

The science is clear. Atlantic cod populations are at an all-time historic low. The cod fishery, which for generations has supported a way of life in New England’s coastal communities, may be in complete collapse. Don’t believe me? Watch this video of Peter explaining the science behind this critical issue.

Over the coming 14 days, NOAA – the agency in charge of setting limits on how much cod commercial fisherman can catch – is deciding how much to allow commercial fisherman to catch this year. We at CLF believe that the managers of this public resource have a responsibility to revive and rebuild cod stocks.

Instead, they are continuing a decades-long pattern of risky decision-making that has run this fishery and its communities into the ground.

We have an opportunity to urge NOAA to save the Atlantic cod from complete collapse. But we have to act now. The longer we wait, the more we risk losing this iconic fishery.

We at CLF are working to urge NOAA to do three things:

1. Shut down the commercial cod fishery, so as to save it for future generations
2. Protect cod populations, especially the adult females that produce as many as 8 million eggs a year
3. And, protect the ocean refuges that will allow cod to recover, not bow to industry pressure by opening them to more commercial fishing.

If you believe, as we at CLF believe, that the cod fishery is worth saving, please stand with thousands of New Englanders and take action today.

Now is not the time to push the limits of the law and set dangerously high catch levels. Now is not the time to bow to industry pressure. Now is not the time to risk this species for short-term gain.

Now is the time to show strength, and real leadership. Now is the time to try to save New England’s cod fishery for future generations to enjoy.

Please stand with us, and thousands of others, in calling on NOAA to protect this species before it’s too late.