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.

A manure spreader overloads a St. Albans farm field with manure resulting in a direct discharge to Lake Champlain in 2007.

CLF is committed to protecting clean water AND to supporting a healthy farming economy in Vermont and throughout New England (read more about our food and farm work here). At CLF we know we Vermonters can grow our food without poisoning our water.  We have no choice if we are going to achieve a thriving New England for generations to come.

That’s why CLF has worked so hard to get Vermont officials to admit that intensive dairy operations and other types of industrial farming that confine large numbers of animals in small spaces needed to obtain Clean Water Act permits for discharges of manure and other pollution into waters of the state. Vermont is one of the last states, and in fact may be the last state to issue a permit to minimize and eventually eliminate these discharges from “Concentrated Animal Feeding Operations” (CAFOs) under the Clean Water Act.

In 2008, CLF issued a detailed report titled “Failing our Waters, Failing our Farms: Vermont Regulators Turn A Blind Eye to Threat of Illegal Pollution from Concentrated Animal Feeding Operations.” The report relied on years of agency inspection documents showing numerous cases of manure and other discharges that clearly violated the Clean Water Act. CLF’s report called for the Vermont Agency of Natural Resources, the state regulators who run the federal Clean Water Act program in Vermont, to begin requiring polluting operations to obtain Clean Water Act permits.

Sadly, CLF’s call to action went unheeded, and cases of unchecked CAFO pollution continued, resulting in contamination of Lake Champlain and other lakes, rivers, and streams throughout Vermont. Particularly, agricultural discharges can result in harmful bacteria outbreaks and in the explosive growth of harmful blue-green algae that can make water unsafe for swimming, fishing, boating, and drinking.

When state officials failed to act, CLF, with pro bono representation from Vermont Law School’s Environment and Natural Resources Clinic, petitioned the U.S. Environmental Protection Agency to take over Clean Water Act permitting because it was clear that Vermont officials lacked the political will to adequately deal with a major group of polluters in a manner consistent with the nation’s landmark clean water law. EPA officials took CLF’s allegations seriously. Though Vermont officials initially resisted acceptance of this core water protection obligation, the last couple years have seen breakthroughs in the negotiation over the petition which in part resulted in the issuance of today’s long-awaited draft permit as well as forthcoming commitments by the state and EPA to dedicate more resources to CAFO inspection and enforcement.

CLF applauds Governor Shumlin, Agency of Natural Resources Secretary Deb Markowitz, and Department of Environmental Conservation Commission David Mears for showing the leadership to have Vermont at last embrace this important Clean Water Act obligation. Though the issuance of a draft permit is merely a small step in the right direction–CLF hopes it is a clear signal that Vermont may be ready to stop backpedaling when it comes to protecting lakes, rivers, and streams from this serious source of pollution.

CLF looks forward to examining this draft carefully and to filing comments to ensure that the permit contains all of the protections the law requires. I urge all who care about water that is safe for swimming, fishing, boating, and drinking and that supports fish and other wildlife, to examine the Draft Permit (available from the Agency’s web site here) and to send comments supporting its final adoption. There is no doubt that the powerful interests of Big Agriculture will continue to fight this positive step forward, even though many other farmers are welcoming the opportunity to be better stewards of our shared water resources.

In 2010, CLF and three other Massachusetts conservation groups walked away from water policy discussions, terminally frustrated that the talks would produce any meaningful change that would stem the increasing trend of streams being drawn dry by public and private water suppliers.  To his credit, Governor Patrick encouraged us to come back to the table with a promise that the fundamental protection for fish provided under the water supply law, the so-called “safe yield” limit, would be interpreted by the state to protect fish populations.

The Commonwealth of Massachusetts has now released the long-awaited fruits of those renewed discussions: the “Sustainable Water Management Initiative” Framework. The Commonwealth promotes this initiative, called SWMI, as a “substantial improvement” on the regulatory framework for providing for essential public water supply services while protecting the Commonwealth’s freshwater fish and other aquatic populations. But is it? What benefits does SWMI produce over current conditions? Does this effort still fall short of the Governor’s promise?

On the positive side, SWMI vaults Massachusetts into the forefront in the country in my opinion with respect to its knowledge base of its rivers and streams. The state’s partnership here with the U.S. Geological Survey has produced a set of stream and stream flow analytical tools and a streams data base that allow the state to understand the ecological impacts of various flow regimes  in a stream, very close to the gold standard.

Similarly, Massachusetts regulators and biologists are now much better informed on the risk to wildlife and river ecosystems associated with water withdrawals for water supplies. It turns out that these aquatic biological communities are much more sensitive to stream flow fluctuations than previously assumed. While this linkage might have been qualitatively suspected before, the last two years of analytical work have now unequivocally quantified that fragile connection.

Massachusetts also has demonstrated through this process that it has some remarkable and dedicated public employees who performed the work with the highest level of professional skill. The Commonwealth is in very good hands at a technical level.

Finally, this initiative will help ensure that some of the highest quality streams in the Commonwealth will be protected to a greater degree than they are today against degradation. While the additional levels of protection will depend on the regulations that are ultimately passed and the implementation of those regulations by the agency, SWMI will provide another level of protection to those near-pristine stream segments.

Where the technical side of SWMI is robust and innovative, however, the policy side of SWMI is compromised and unlikely to produce significant ecological protection in more heavily impacted stream segments or restore stream flows to rivers that are currently being drawn dry by water supply withdrawals.

The “safe yield” tool in SWMI, which the Governor Patrick assured us would include an environmental protection factor, doesn’t really protect the environment. “Safe yield” is a stream flow calculation that is meant to set a maximum amount of water that can be diverted from a water source without adversely affected native biota.

SWMI throws out this tool as a regulatory limit for all practical purposes in many rivers including, for example the Ipswich River, an important water body that water suppliers drain every year in the summer. This results from the fact that SWMI averages the safe yield calculation over the whole watershed and on an annual basis. Because this averaging includes the late winter and spring floods, it shows high levels of safe yield even when a river is going dry in August.  It just isn’t a protective approach in any sense.

SWMI and the Commonwealth rely on other tools and regulatory tactics to avoid this result by requiring water suppliers to minimize their adverse stream impacts “to the maximum extent practicable.” The policy also goes to great length to protect water allocations from the 1980’s when the water supply law was first passed. There is nothing in the law that requires this continued grandfathering of water withdrawals in situations where there is harm to streams and such an outcome is just not good enough.

Massachusetts is fortunate to have abundant natural water supplies, receiving some 44 inches on average a year–Los Angeles gets about 10-11 inches. There is no real conflict between essential water services and healthy stream flows in Massachusetts that cannot be technically solved at reasonable costs. Unfortunately, however, while the framework may drive water use down, SWMI seems to reduce rather than increase the incentives water suppliers and municipalities have to use water smarter. All CLF can do at this point is wait to see whether the Commonwealth demonstrates through its implementation of SWMI that CLF’s concerns are misplaced.

MassDEP and the Executive Office of Energy and Environmental Affairs worked hard to find a path forward that municipalities and conservationists could both embrace. And the answers, needless to say, are not easy. The politics of water supply in Massachusetts are complex and often confrontational as they are in most states. Nevertheless, we had hoped for more for the Commonwealth’s rivers and streams.

Next week, Vermonters will mark an anniversary many of us would rather forget.  It is hard to believe that a year has passed since the deluge of Tropical Storm Irene caused destructive flooding in much of the state.  Federal, state, and charitable organizations are still working to help the storms victims recover (the Vermont Irene Fund is one of the many ways you can help).  Yet as the process of recovery continues, it is important to take stock of the lessons we should learn from this disaster, and our response to it, because the overwhelming scientific evidence suggests that climate change may bring more such extreme weather to our state and region.

At CLF, Lake Champlain Lakekeeper Louis Porter, has led the effort to learn the hard lessons taught by Irene’s hard rain.

The gist of his message this week has been that science and experience teaches us that we reduce damage to the built and natural environment when we work with nature rather than against it.

Here are a few of the things he’s had to say this week with links to the major media outlets who have turned to him for analysis on this fateful anniversary:

• From his Vermont Public Radio commentary: “Especially after Irene, we know that the key to flood protection lies in giving rivers room to move, keeping flood plains intact and building roads and bridges that are ready for our new climate.”
• From Paul Heintz’s story “Water Ways” in Seven Days: “We are in for a lot more wet and violent weather,” he says. “We need to realize we’re going to need all of that flood capacity, all of that natural resilience in the years to come.”
• From Suzie Steimel’s report “Did Recovery Efforts Hurt Vt’s Rivers” on WCAX TV: “It was a systemic breakdown from the people doing the work to the folks overseeing it to the state oversight which should have been in place”

As the recovery continues, Louis and others at CLF will work with Vermont officials to ensure that we have the policies and the resources in place to prevent natural disasters from being magnified by man-made disasters caused when recovery work goes wrong.

In their rush to exploit recovery efforts from Tropical Storm Irene, ideologues who perpetually fight against regulation and science and who posture as the defenders of traditional “Yankee” values are forgetting two important rock-ribbed principles.

The first is frugality. There has been a lot of loose talk about how much money was supposedly saved by largely ignoring environmental review and permitting as bulldozers, excavators and dump trucks rushed into rivers across Vermont in dozens of places. Understandably, given the dire situation facing the state at the time, these claims are based on initial, back-of-the-envelope cost estimates made with little or no analysis. However, using those alleged savings to argue for a change in policy is irresponsible as a matter of policy, and discourteous to basic math.

The accounting trick the deregulation folks are trying to pull off ignores the near-term and future public and private costs that Vermonters will inevitably incur and in some cases are already incurring to fix the problems caused by hasty “restoration” that did more harm than good. The overall restoration effort was extraordinary, and the state’s road system has been rebuilt quickly. But as any old hill farmer can tell you, a quick repair is rarely the last fix you need, and haste, even when necessary, makes waste.

Camp Brook in Bethel is a prime example where "restoration" work done hastily in the throw-the-law-and-science-out-the-window free-for-all that followed Tropical Storm Irene is now being redone, at additional cost to taxpayers, to minimize new flooding risks caused by the hasty Post-Irene stream alteration

The second Yankee principle ignored by those who don’t want to let modern understandings of river physics, science-based laws and common sense stand in the way of their crusade against regulation is that we don’t solve our problems by pushing them on to our neighbors.

One of the purposes of the science-based river alteration regulations that have evolved in Vermont during the last few decades is to minimize and prevent flooding altogether rather than simply transfer problems onto neighboring properties. Mining gravel from the stream next to your house might prevent – for a time – your fields from flooding. But it increases the likelihood of your neighbor’s house getting washed away. Striking the balance calls for smart regulation such as Vermont has developed. To do river work right, is to do right by your neighbors.

And, although some would not have it so, those principles of true frugality, quality workmanship, and true community remain in Vermont, and must be restored along with our roads, homes, and towns.

Take for example the case of Camp Brook in hard-hit Bethel.  As reported in Sunday’s Times Argus and Rutland Herald (sorry I can’t link to the story it is behind a paywall), the bulldozers are back in the river.  But this time scientists from the U.S. Fish and Wildlife Service, Vermont Agency of Natural Resources, and volunteers from nonprofit White River Partnership are guiding their work closely.  You see, the bulldozers are there trying to fix the mess (likely made with the best of intentions) that the early recovery efforts made of the Brook; a mess that, according to the news report, actually increased the risk of flash flooding and threatens upstream and downstream bridges along Rt. 12 with erosion around their abutments and more intense flows from a river artificially straightened after Irene.  Here is an excerpt that sums up the status of the Brook as a result of the rush job:

“[N]o one in the excavators really knew what the brook had looked like before.  The valley was flattened.  Berms stood mid-slope.  Where the lawn had once been, the river now braided over dirt and rocks, with no banks to direct its flow.  There were no boulders or even large rocks to add burbles to its sound or prevent flash flooding.”

After weeks of careful remediation, the new science-guided effort is restoring Camp Brook to a healthy functioning stream with natural structures that will help prevent future flooding and restore habitat for fish.  Even though it’s buried in the back pages of the paper, it’s good news for people who care about protecting property and maintaining healthy streams.  It’s bad news for the deregulation crowd because it directly contradicts the claim that we can save money by gutting environmental regulations that require recovery work to be done carefully in a manner that is consistent with science-based state and federal laws. In the long run it is cheaper for us and for those downstream to do a job right the first time lest we keep having to relearn the lesson that haste makes waste.

It had been more than a month since Tropical Storm Irene when I returned to kayak my favorite whitewater rivers in Vermont: the Middlebury and the New Haven. The massive flows from Irene moved some small rocks around, but in most places the overall character of the these rustic rivers remained the same, even after the storm. Sadly that is not true about sections of the rivers near roads where in the name of “repair” bulldozers literally flattened the rivers, excavating giant boulders, dredging gravel, and leaving the once vibrant river an unrecognizable shell. Rapids that used to be complex, multi-tiered stretches, supporting important habitat had transformed into homogeneous flat spots.

The untouched segments of river far from the road looked very different from the dredged and flattened stretches that destroyed not only a magical recreation space but crucial fish habitat as well. The contrast was stark and disturbing.  The river tamed unwillingly and transformed into little more than a pipe, losing its resilience, beauty, and health.  I thought again how important it is to protect these valuable and magical places.

Returning to these spots reminded me of the beatings we continue to inflict on our local waters: from stormwater and nutrient pollution to the destruction of fish habitat as we recover from Irene.  Our precious river ecosystems deserve better.  We can learn from their ability to heal after a hurricane.  We can stop treating our rivers like pipes and sewers and tell our friends, neighbors, and elected officials “enough is enough.” It is crucial that we do not ignore science and continue to reverse decades of recovery in our rivers.  We can contact our local town officials and request that they take a step back and seek expert advice before digging into your local river. The more actions we take as individuals, the more we can collectively do the work that will allow our rivers to heal.

The following op-ed was written by CLF Maine Director Sean Mahoney and published on Saturday, December 18 in the Portsmouth Herald.

On Monday, Dec. 20, a committee of the New England Fishery Management Council will meet in Portsmouth to continue the effort to develop a new management plan for Atlantic herring.

Atlantic herring are not only valuable as bait for lobstermen, but are a key forage fish for bigger fish and marine mammals such as striped bass, cod, tuna, dolphins and whales. The work of the council’s Herring Committee is critically important not just for the sustainability of Atlantic herring but for the continued viability of these other fisheries and tourism-related industries such as whale watching.

The Atlantic herring fishery is currently dominated by midwater trawling vessels. These vessels are large (up to 150 feet) and often fish in pairs, where their small-mesh nets the size of a football field, can be stretched between two boats. These small-mesh nets are efficient killing machines. The problem is they are also indiscriminate killing machines — any fish or marine mammal that is ensnared by the small-mesh nets is unlikely to survive, even if they are thrown back into the water after the nets are hauled on deck. These dead fish — referred to as bycatch or discards — include not just the fish that prey on Atlantic herring, such as stripers or haddock, but also the Atlantic herring’s cousins — alewives and blueback herring.

Alewives and blueback herring (collectively referred to as river herring) are anadramous fish — they are born in freshwater, spend most of their lives in the ocean, and then return to freshwater to spawn. The rivers of New England were teeming with river herring up to the 1980s. But in the last 20 years, their numbers have dropped precipitously. For example, until 1986 the number of river herring returning to spawn in the Taylor River averaged between 100,000 to 400,000 a year. But by 2000, that number had declined to 10,000 to 40,000 a year, and in 2006, only 147 river herring returned to the Taylor River. This is a tragedy for New Hampshire’s wildlife conservation.

The causes of the dramatic decline in the numbers of river herring include the fishing practices of the midwater trawl vessels. While at sea, river herring can often be found in the same waters as Atlantic herring and fall victim to the indiscriminate fishing practices of the midwater trawlers. In 2007, bycatch documentation showed that three times the amount of river herring was taken in one tow of one of these industrial vessels as returned that year to the Lamprey River, which boasts New Hampshire’s largest remaining population of river herring.

The meeting of the council’s Herring Committee will focus on management steps to curb this wasteful practice. Central to the success of any management effort must be a robust monitoring program, catch caps on river herring to serve as a strong incentive to avoid areas where river herring are known to aggregate and strong accountability measures to be applied when those catch caps are exceeded.

If river herring are to avoid the fate of Atlantic salmon — another anadramous species all but extirpated from New England’s rivers where they once teemed — a critical step is putting an end to the indiscriminate fishing practices of the midwater trawl boats pursuing Atlantic herring. All other efforts to improve the access to and water quality of the waters river herring spawn in are of little value if they are killed before they get there.

> Read more about CLF’s regional ocean conservation work