I love rivers.  In fact, I love all things water. And so today I’m celebrating the 40^th birthday of the Clean Water Act, perhaps America’s most effective and far-reaching environmental law.

I grew up on a farm in upstate New York and spent a lot of time stomping around in our ponds, streams, and wetlands catching frogs, listening to spring peepers, watching birds and muskrats and ermine. We fished whenever we could and had a family challenge about who would be the first in the water after ice-out in the spring and last out before (or after) the frost in the fall. We marked the seasons by the coming and going of the ice, by the water temperature in the ponds, and, in some years, watched anxiously as drought lowered water levels and put our water supplies at risk. All of this has led to a connection to waters that has infused my life, including my professional career.

One of my earliest memories from over 40 years ago and leading to my lifetime of advocacy for clean water is of my father taking me to the Cayadutta Creek in Fonda, New York to see the stream running bright red and foul from pollution from the tanneries in Gloversville and Johnstown. I was overwhelmed by the image of the creek flowing by as a river of blood. My dad fumed that creeks and rivers all over were being poisoned by such pollution.

Cuyahoga River Burns in 1969

So it’s not a surprise that my family watched the news with outrage as America was shown the image of the Cayahoga River in Ohio literally burning in 1969. Perhaps we were told at the time that the river had burned on nine occasions in the prior 100 years. But in any case, that fire became the symbol of unacceptable water pollution for us and for millions of Americans who called on Congress for action. It helped spur the first Earth Day in 1970, and thankfully, it contributed to the political urgency for passage of the Clean Water Act on October 18^th 1972, 40 years ago today.

Passage of the Clean Water Act by the United States Congress marked the end of an amazing political process. On this day 40 years ago with strong, bi-partisan votes in the House (247 yes and 23 no (with 160 not voting)) and Senate (52 to 12 (with 36 not voting)), Congress overrode the wrongheaded veto of the law by President Nixon. Many members of Congress from both parties voted yes, but just as significant were those that didn’t vote. By consciously withdrawing from the debate, many Republicans heeded the voices of their constituents, defied a President of their own party, and allowed the override votes to succeed.

What has been the result of this historic event? The Clean Water Act became law and much of the severe industrial and sewage pollution of our precious waters has been brought in check. The Cayadutta Creek no longer runs blood red, and the Cuyahoga has recovered to the point that it won’t catch fire. That is a 40^th birthday present that we all can enjoy.

But, it also raises the question: if the Cuyahoga were burning today, could we pass the Clean Water Act?

I like to think that Americans would pull together again and demand action. However, the reality is that we are now living with “dead zones” that are threatening our communities and industries in Chesapeake Bay, Long Island Sound, Narragansett Bay, on Cape Cod, and in Lake Champlain. The dead zone in the Gulf of Mexico ranges from 6-7000 square miles – bigger than the State of Connecticut! This is the result of nitrogen and phosphorus pollution that is pouring into our waters from agriculture, lawn fertilizing, excessive development, and sewage discharges.

Blue-Green Algae Fouls Lake Champlain 2011

And, just two years ago, we all watched with horror, as the Gulf burned from the BP oil spill.

So, this 40^th birthday of the Clean Water Act should also serve as a reminder to us all that clean water is as important now as it ever has been and there is still much more to do.

Here at CLF, we have a long legacy of fighting for clean water across New England. CLF filed the Federal Court lawsuit that led to a clean Boston Harbor. We have held numerous polluters accountable for discharges into New England’s waterways. We stopped oil and gas drilling off of New England’s coasts.

Today, we are fighting to protect waters from nitrogen and phosphorus pollution from Cape Cod to the Charles River, New Hampshire’s Great Bay to Long Island Sound, and from Narragansett Bay to Lake Champlain.  We are working with cities and towns to create green infrastructure that cleans up stormwater pollution and beautifies our communities.  All of our efforts are possible because of Congress’s action 40 years ago today.

Happy 40^th Birthday Clean Water Act!

This post was originally published on TalkingFish.org.

Despite its caption, the “Transparent and Science-Based Fishery Management Act of 2012,” H.R. 6350, introduced by U.S. Representative John Runyun of New Jersey just hours before Congress adjourned for summer recess on August 2^nd is a misguided piece of legislation.  It brings political interference and micro-management back into fisheries management, thwarts science-based decisions, costs jobs and any hope of increased prosperity for hundreds of fishing families, eliminates government and fisherman accountability for a public resource, and reverses the painful progress and sacrifice that has been made in recent years to restore many of America’s once-bountiful fisheries.

New England certainly doesn’t need this bill.  All it would do here is to pull fishing families and businesses back into the tar pit of mismanagement and economic and social decline from which they have been struggling to escape for the past two decades. Whatever Representative Runyan’s intentions might be, the only outcome this legislation guarantees is more chaos and productivity losses in this nation’s fisheries.

In 2006, important accountability provisions were introduced into the Magnuson-Stevens Act, and recent reviews of fisheries management indicate that they are working to rebuild fish stocks. Despite this success, Representative Runyun is trying to un-do these provisions. In 2006, 28 % of the nation’s fisheries for which data was available were overfished; in those fisheries with adequate data, 26% of them were subject to overfishing. By June 2012, just one or two years after the new Magnuson measures took effect, 23% remained in an overfished condition and overfishing was down to 17%. Not great after 35 years of federal management but headed the right way. Unfortunately, New England’s fish stocks–the poster child for what happens with “management flexibility”—remained among the worst in the nation.

New England managers have destroyed hundreds of good fishing businesses and plummeted cod populations to levels never seen in history by catering to short term economic interests at the expense of long term profitability.  In the New England groundfish fishery, overfishing and mismanagement have resulted in significant revenue losses. If stocks were at managed at sustainable levels, current groundfish revenues could be three times greater – infusing New England’s economy with nearly $170 million in additional dockside revenues compared to 2010 revenues. In New England, we’ve seen the human and ecological damage caused by ”flexible fishery management.” It doesn’t work. Not for the fish and not for the fishermen..

If Congressman Runyun cared about fisheries, he would lead the charge to secure adequate federal appropriations for better research, better stock assessments, more data, better assessment technology research and development, and innovative gear research by fishermen, not file backward laws. Unfortunately, he appears to be more interested in demagoguery and ideology than he is in solving real fisheries problems. From where I sit, his legislation is a political distraction to the real work that needs to be done —  restoring sustainable fisheries and communities in New England.

The recent Congressional hearing entitled “EPA Overreach and the Impact on New Hampshire Communities” accomplished one thing – it proved that to some, politics are more important than cleaning up the Great Bay estuary.

Congressmen Guinta (R-NH) and his colleague from California, Congressman Issa (who chairs the House Committee on Oversight and Government Reform) came to Exeter on June 4 for one reason – to seek confirmation of what they already believed: that EPA is somehow engaging in “overzealous” regulation or “overreach” in taking action required by the Clean Water Act to reduce nitrogen pollution in Great Bay. The only invited speakers were four representatives of the Municipal Coalition – a small group of vocal municipalities doing everything in their power to delay EPA’s permitting process – and EPA Region 1 Administrator, Curt Spalding. Notwithstanding a packed room, the public was not allowed to speak.

Despite numerous claims by the Municipal Coalition that the science is flawed, not a single scientist was asked to testify about the real pollution threats to the Great Bay estuary. Instead we had a Congressman from California listening to a paid consultant from Washington, DC whose only apparent objective was to bash EPA.  Hardly a sound or non-biased approach to determine what action needs to be taken to save our estuary.

The mere title of the hearing made it clear that Congressmen Guinta and Issa had their minds made up before the hearing even began, and that they had one goal in mind – to undermine EPA’s approach to reducing nitrogen pollution in the estuary.  In fact, EPA is proceeding on sound science – based on years of analysis – and doing exactly what is required to restore and protect the estuary before it reaches a tipping point.

At a time when we need to be solving the serious pollution problems threatening the Great Bay estuary, it’s disturbing to see such a concerted effort to denounce the science that clearly documents the estuary’s continuing decline and the need for meaningful action. While other Great Bay communities are willing to move constructively toward solutions, it’s especially sad to see the small handful of communities comprising the Municipal Coalition resort to raw politics and attempt to capitalize on anti-environment, anti-EPA currents in D.C.

Rather than playing politics with the estuary in an effort to disrupt the permitting process, we would better served by Rep. Guinta if he helped communities secure funding to help with upgrades to wastewater treatment plants. Those sorts of solutions – not obfuscation – are what I expect from my government officials.  And we certainly don’t need someone from California telling us in New Hampshire how to clean up our waters.

In the end, the only real outcome from Monday’s hearing was another day wasted. EPA staff had to invest time defending themselves in a hostile and politically motivated environment rather than proceeding with real solutions required to restore and protect the Great Bay estuary.  Enough is enough. The time has come to take real action and support EPA in its efforts.

• 

  Soon, Boston residents will be able to buy day-boat-caught fish at farmers markets like this one. Read about this and other interesting fish-related news on TalkingFish.org. (Photo credit: Commonwealth of Massachusetts)

  Monday, May 21 – “Congress, Catch Shares, and the Councils” – An opinion piece by Nick Battista of the Island Institute and Ben Martens of the Maine Coast Fishermen’s Association on the effort by some members of Congress to prohibit NOAA, NMFS and the councils from developing new catch shares management plans on the East Coast and in the Gulf of Mexico.

• Tuesday, May 22 – “Taking Stock of New England Fish: Part 1” – TalkingFish.org interviews Mike Palmer, Research Fisheries Biologist in the Population Dynamics Branch of the Northeast Fisheries Science Center. In this post, the first in the series, Mike Palmer talks about his background and interest in fisheries science and the types of data used in stock assessments.
• Thursday, May 24 – “A Small ‘Catch’ in Recent Fisheries Coverage” – Lee Crockett of the Pew Environment Group writes to “make an important distinction between catch limits and catch shares, a difference that has been inadequately explained by NOAA and has resulted in some understandable confusion.”
• Friday, May 25 – “Fish Talk in the News – Friday, May 25” – Interesting stories this week: Boston brings local and fresh fish to its farmers markets; disconcerting news about Thailand’s seafood export industry; and recipes for healthy fish stocks.

At a time when our governors and our President were preparing to address their constituents, CLF was (and is) making news – news that raises a series of enduring questions: In our country, where is the line between federal and state authority? How clear is it? Who gets to draw it? Why would you draw it in one place instead of another?

These questions are so challenging because they are so fundamental; Americans have wrestled with these same questions for over 200 years. You’ll recall that our first national government, under the Articles of Confederation, was too weak to do the job. The Constitution granted greater power to the national government, but had to be balanced by the Bill of Rights, securing the rights of individuals and of states. The rest of our efforts to get the federal/state balance right has been marked by long periods of contentious negotiation and flashbulb moments of fractious history –national banking, secession and the Civil War, the busting of industrial trusts, the New Deal, and civil rights for all.

Protecting our health and our environment has been a part of the national and regional negotiations for decades. Recent events have provoked further discussion.

By the 1960’s and ‘70’s, when Congress began to address environmental protection and energy in a serious way, its constitutional authority to do so was relatively clear. It exercised that authority boldly, for the great benefit of generations of people and other species. However, as in much of our federalist system, there’s still a sharing of power between national and state governments, both by design and by default. The zone between federal and state authority is sometimes gray. It’s in that messy, gray area that many of our most controversial environmental issues are being debated.

These debates continue to this day. Take two of CLF’s hot issues recently in the news: Vermont Yankee and Cape Cod nitrogen pollution.

Vermont Yankee

The first is the adverse federal court decision CLF (and the State of Vermont) received on Vermont Yankee, the aging nuclear power plant in Vernon, VT. The decision affirmed the Nuclear Regulatory Commission’s broad authority over safety issues relating to nukes. It  preempted a role for states and handed a major victory to Entergy Corporation.

However, as Anthony Iarrapino points out in this blog post, the fight is far from over. There is a clear role for states in shaping our energy future; in the absence of federal action, states are leading the effort in promoting a clean energy future. Furthermore, as Anthony pointed out in his post, the court said:

“This Court’s decision is based solely upon the relevant admissible facts and the governing law in this case, and it does not purport to resolve or pass judgment on the debate regarding the advantages or disadvantages of nuclear power generation, or its location in this state. Nor does it purport to define or restrict the State’s ability to decline to renew a certificate of public good on any ground not preempted or not violative of federal law, to dictate how a state should choose to allocate its power among the branches of its government, or pass judgment on its choices. The Court has avoided addressing questions of state law and the scope of a state’s regulatory authority that are unnecessary to the resolution of the federal claims presented here.”

Even in the highly “federalized” area of nuclear power there is an undeniable role for states.

Cape Cod

The second is a settlement in principle of our litigation to clean up pollution from sewage on Cape Cod. This is a great step forward – one that  has attracted the focused attention of anti-environmentalists in Congress, as this article attests.

They preposterously allege collusion between environmentalists and the EPA in cases like this to expand federal jurisdiction beyond what Congress authorized in the Clean Water Act, thereby trumping state authority.  However, the federal/state line under the Clean Water Act is about as blurry as they come, in part because the facts relating to pollution and its impacts are extremely complex. As in all cases, the facts matter. Careful, dispassionate assessment of the scientific facts about discharges and pollution, and how the law applies to those facts – not political grandstanding by Members of Congress – is what’s necessary to achieve the visionary goal Congress as a whole committed to decades ago: the elimination of polluting discharges to United States waters, by 1985! It’s time we lived up to that commitment.

There is opportunity in messy, gray areas like the shifting federal/state interface: we can go forward or backward. That is, we can develop sensible allocations of authority between federal and state governments to achieve the public goals behind all of these public initiatives – a healthy environment and a healthy economy, or we can descend into politically motivated mudslinging that obscures the real issues and thwarts real progress.

At CLF we are committed to rational, fact-based discussion of the issues, and prudent forward motion that yields a thriving New England, for generations to come and for all. We know this terrain well. You can count on us to keep working it.

Today’s New York Times contains a letter to the Editor I wrote in response to an article published in this weekend’s Sunday Review. See below for a copy of that letter, as it appears in today’s paper. You can also click here to view it on The New York Times website.

To the Editor:

Re “Environmentalists Get Down to Earth” (news analysis, Sunday Review, Dec. 18):

It would be hard to find “a tougher moment over the last 40 years to be a leader in the American environmental movement” only if your sole focus is the national debate. All the rest of us — at the local, state and regional levels — have known for years what the nationals are only now realizing: we’ve got to engage people closer to where they live.

That’s also where we’ll make positive changes on energy and other big issues. The article cites good examples: coal plants, fracking and clean water. Progress on those issues is not happening in Congress. In state and regional arenas, it is.

For those of us who have worked there these last 40 years, the time for our earthbound experience, savvy and skills has arrived. It’s actually a great time to be in the environmental movement. We’re pleased to welcome national organizations to the action.

JOHN B. KASSEL
President
Conservation Law Foundation
Boston, Dec. 18, 2011

Last Thursday, I testified before the House Committee on Natural Resources on a topic that I have worked on for years: restoring New England’s fisheries and commercial fish populations.

The topic is as important today as it was when I started working on it in 1989, if not more: our fish species continue to face immense pressure with a number of stocks still in terrible condition after a decade of concerted effort and the region’s fishing communities and fishermen continue to face unacceptable levels of business uncertainty and volatility. At the same time, there are some positive signs in the fishing industry that are critical to build on rather than  continuing to focus on the past.

There were not any commercial fishermen on the panel before the Natural Resources Committee, which was a lost opportunity for the panel to hear what’s working and what’s not working for the working fleets.  In any event,  I appreciated the opportunity to voice CLF’s support for rebuilding a vibrant New England fishery.

Below find the full text of my testimony. Or, if you like, you can find a .pdf here.

****

Chairman Hastings, and Ranking Member Markey, thank you for inviting me to testify today.

My name is Peter Shelley. I am a senior attorney with New England’s Conservation Law Foundation, the oldest regional conservation advocacy group in the nation. I have worked on federal fishery management issues in New England since 1989.

Next to my computer at work, I have a post-it note with formula on it:

31 billion (dollars more in fish product sales) + 500,000 (new jobs) +

2.2 billion (more dollars flowing to America’s fishermen and their communities).

Those are the results that rebuilt fisheries in this country could produce. Even if the country could only reach half those numbers, rebuilding fisheries would be an important national strategic objective.

Those were the goals Congress had when it overwhelmingly passed the Magnuson Reauthorization Act in the Bush Administration in 2006.

To get to those goals, I believe, Congress needs to do three things:

1. Allow the current law to work and allow the regional councils and the agencies to implement it — it’s only just begun to take effect.
2. Fund the Act so it can work, perhaps on the order of three times the current appropriation for the essential tasks of stock assessments, monitoring, and data collection, and
3. Invest in our working waterfronts and coastal communities so they will be there to benefit from a healthy, restored ocean.

In my view, three of the bills before the Committee today are aligned with those actions. The other five bills, notwithstanding the good intentions of their sponsors, are not.

The Coastal Jobs Creation Act, sponsored by Representatives Pallone and Pingree, is a great piece of legislation with broad public support. The infrastructure and capacity investments the bill identifies are essential to our maritime and fishery future and will be repaid many times over. H.R. 594 should be supported by the Committee.

Rep. Frank’s Asset Forfeiture Fund bill and Rep. Keating’s Strengthen Fisheries bill also have merit.  These two bills are the only ones before the Committee today that make an effort to identify new funding streams for the fisheries science and data collection that is critically needed in the regions. HR 2753 also has merit but no new funding source.

In my opinion, the other four major bills before the Committee, H.R. 1646, 2304, 2772, and 3061, would move this country farther from our common goals, perhaps out of reach.

Without exception, they

–impose new costs and mandates for marginal benefits and without new funding
–create more business uncertainty and volatility for fishermen
–require substantial new regulations and guidelines
–cause more procedural delay in the management process
–mandate that councils take higher risks than they might deem advisable
–and eliminate one of the only market-driven and de-regulatory tools in the management toolbox—the LAPPs.

Finally, by providing the least protection to the weakest fish populations, these four bills actually increase the probabilities of future stock failures and job losses in my opinion.

I think that they could put New England’s groundfisheries right back in the 20-year deep ditch they have just now started to climb out of.

The first New England groundfishing season using a management plan in full compliance with the new Reauthorization Act requirements ended April 2011.

The net profits to the small business boat owners that year are reported to have increased $10.8 million—in a year when quotas were significantly cut, the Council started an entirely new management program, and diesel prices went up 30%.

If the New England Council had not shifted to the “sector” catch share program they now use, the economic estimates were that the fleet might lose 15 million dollars.

As stated in a letter sent to the New England Congressional delegation on Nov. 14, 109 fishing captains –- some of N.E.’s best small business owners in the groundfishery –- want to retain the current catch share program and management program.

By my count, these folks have seen rules changes on average every four months from March 1994 to May 2010. They think that’s enough and I tend to agree with them. They believe they can make the Magnuson Act work and I agree with them there as well.

These four bills do not directly address one of the three specific things those knowledgeable fishermen have asked for in their letter to the delegation.

1) Management stability
2) New opportunities to target rebuilt fish stocks and reduce operations costs
3) Funding to improve and increase frequency of stock assessments to support effective management

Despite the often heated rhetoric, it is clear to me that more New England fishermen are starting to have some hope based on the success of the sectors program. These fishermen now need regulatory stability so they can continue to grow their businesses.

Moreover, there are strong signs that the Magnuson Act Reauthorization is working around the country. Overfishing is finally stopping and many fish stocks are growing, sometimes rapidly.

I am confident that  conditions will continue to improve if the course is continued and not weakened. Decades of overfishing can’t be turned around overnight. Full recovery will take time and patience and there will be some very rough spots ahead. we can get through them without new law and when statutory changes are needed, such as with the Canadian trans-boundary issue last year in New England, precise and surgical changes can be made that minimize the ever present risk of unintended consequences.

In 1976, Congress created a fishery management council system, which is unique in the country and one that many skeptics thought couldn’t work. But the system brings regional and local values and local political accountability to these complex and multi-faceted fishery decisions and management actions and risks get adjusted for local conditions.  In New England, the Council system is starting to work for more and more fisheries and fishermen.

I urge the Committee to continue to trust the council system and the agencies with these tough management decisions without statutory micromanagement. I also urge the Committee to fund the agencies and programs so they can succeed.

Thank you and I look forward to answering your questions.

In 2009, President Obama started a process that established our Nation’s first National Ocean Policy in order to protect, maintain, and restore our ocean, coastal, and Great Lakes natural resources for present and future generations. Implementation of the National Ocean Policy will help our nation move toward better ocean management and protection and restoration of our ocean, coasts, islands and Great Lakes. Just when the NOP is getting up and running some Members of Congress are attempting to stop the National Ocean Policy with a backdoor attack through the FY12 Interior Appropriations Bill. The Interior Appropriations bill has already been deemed the “Worst. Bill. Ever.” for its attacks on bedrock conservation laws and the destruction it would wreak on environmental programs that keep our air breathable and our water drinkable. Now a well-oiled Texas Tea Partyer wants to take out the National Ocean Policy.

Reducing or eliminating federal funds for the development and implementation of the National Ocean Policy would be a “penny wise and pound foolish” approach to managing and sustaining our nation’s oceans, coasts and Great Lakes and should be opposed. The National Ocean Policy is being implemented now with existing resources. Halting implementation of the National Ocean Policy would throw away two years worth of work, investment and commitment by state governments, commercial and industrial ocean users, universities and scientists, 25 federal agencies and departments and tens of thousands of citizens across the country.

Massachusetts and Rhode Island now have complete ocean management plans for their states’ waters. These states recognize that building a sustainable clean energy economy will bring more jobs and economic benefits that in turn will attract new businesses and help create a thriving New England. The key to building a new industry based on clean, renewable offshore wind energy turbines is a comprehensive management plan that involves current ocean users, maintains existing jobs, and is based on solid scientific data and the best information — so MA and RI created an open process to establish ocean management plans. Both of these plans are supported overwhelmingly both citizens and businesses in each state.

This is why we need a National Ocean Policy. Let’s just say Congressional leadership has been a little slow on what President George H.W. Bush called ‘The Vision Thing.” Planning for better, coordinated and more efficient management eludes Congress’ planning horizon. A backdoor attempt to stop the NOP deserves to be opposed. We are fortunate to have a number of Representatives in New England who get it, but they need friends. Please call your Member of Congress through the Capitol Hill switchboard at 202-224-3121 or find your Rep’s webpage and send an e-mail at http://www.house.gov/representatives/#state The votes might be this evening or early tomorrow – -don’t delay!

Urge your Representative to SUPPORT THE NATIONAL OCEAN POLICY AND OPPOSE ANY ATTEMPTS TO HALT ITS IMPLEMENTATION.

Take a deep breath. Are you taking your clean air for granted? Don’t.

Today, the EPA proposed a rule to reduce hazardous emissions from coal and oil-fired power plants, such as mercury, arsenic, heavy metals, acid gases and dioxins, which cause thousands of deaths every year. This “air toxics rule” finally implements instructions that Congress gave to EPA in the Clean Air Act amendments of 1990. This much overdue effort, which builds upon decades of Clean Air Act implementation by EPA, protects the public health and serves as a reminder that if the EPA was stripped of its authority to enforce the Clean Air Act, essential safeguards like this wouldn’t exist.

The Clean Air Act is the most successful law our country has ever had to protect public health, preserve our environment and boost our economy. However, the key tool to ensure that protection is in jeopardy. Our senators are facing mounting pressure from our country’s biggest polluters to block the EPA’s ability to do its job, leaving harmful emissions from coal-fired power plants and other sources unchecked and threatening the health of our families and communities. Tell your senators that you expect them to protect you and your family, not big polluters.

New England states have shown leadership in passing progressive environmental laws to protect the health and homes of New Englanders. But it’s not just about us. Our region bears the brunt of pollution from power plants in the Midwest transported here by prevailing winds, which adds to pollution produced locally. Without federal EPA regulation, New England will remain vulnerable to harmful emissions literally blowing into our region.

Tell your senators today that you don’t take clean air for granted and that they shouldn’t either. Ask them to defend the EPA’s ability to do its job and enforce the Clean Air Act. Our region and our nation’s health, economy and environment depend on it.

TAKE ACTION NOW!