Summer 2013: Vol. 16, No. 1

NELC Appeals Clean Water Act Ruling

Boston, MA – On May 23, NELC attorneys filed a brief asking the U.S. First Circuit Court of Appeals to overturn a ruling by the U.S. District Court of Maine. The ruling declines to enforce the fish passage provisions of the Clean Water Act water quality certification issued to Brookfield Power’s Hydro Kennebec dam.

The water quality certification—part of the dam’s federal operating license—forbids Brookfield from using the dam’s turbines as a downstream passage route for adult Atlantic salmon or American shad unless it first proves that such passage is safe. The certification requires the company to “eliminate” significant injury to out-migrating fish, and specifically mandates that, “to the extent [Brookfield] desires to achieve interim downstream passage of [salmon or shad] through turbine(s),” it must first demonstrate through site-specific studies that the turbines will not cause significant harm.

Yet in January, the Maine court ruled that because Brookfield claims it does not “desire” salmon or shad to access its turbines—even though it knows full well that they do so—it is free to ignore the requirements of the certification.

EPA Asks for NELC’s Feedback

Washington, D.C. – On March 8, NELC Senior Attorney Josh Kratka participated in a roundtable meeting between environmental organizations and top enforcement officials in the Washington, D.C., headquarters of the U.S. Environmental Protection Agency.

Attendees included Cynthia Giles, Assistant Administrator of the EPA’s Office of Enforcement and Compliance Assurance, and representatives of the Natural Resources Defense Council, Environmental Integrity Project (EIP) and Earthjustice. After Giles described the EPA’s current enforcement priorities, Kratka suggested three additional areas for the EPA’s attention.

First, Kratka suggested cracking down on polluter “sweetheart deals,” in which state officials agree not to enforce pollution limits in federal permits, and in return, polluting companies claim on public reporting forms that they are in compliance with their permits. The EPA needs to tighten reporting requirements, Kratka argued, so that illegal pollution cannot be hidden in this way.

Second, Kratka and EIP’s Eric Schaeffer, former director of Civil Enforcement at the EPA, urged the EPA to formally revise its regulations governing industrial flares. Refinery and chemical plant flares have been shown to emit harmful air pollutants at more than 10 times legally allowable rates.

Finally, Kratka recommended that, when settling cases against polluters, the EPA should prohibit companies from taking tax deductions for the civil penalties they pay. Kratka provided Giles with a report by the U.S. Public Interest Research Group documenting this problem.

Endangered Species Act is a Mixed Bag for Atlantic Salmon

Portland, ME – As had been requested in four lawsuits filed by NELC attorneys in 2011, seven hydroelectric projects on Maine’s Kennebec and Androscoggin Rivers will soon be covered by “incidental take statements”(ITS) issued by the National Marine Fisheries Service (NMFS).

The lawsuits, filed in U.S. District Court in Maine on behalf of Environment Maine and Friends of Merrymeeting Bay, alleged that the dams were violating the Endangered Species Act (ESA) by killing and otherwise “taking” endangered Atlantic salmon without the requisite ITS. Last fall, NMFS issued ITS for three of the projects, and it has committed to issuing them for the remaining four this sum- mer. As a result, extensive studies of salmon will be conducted at the dams over the next five years, and upstream fish passageways will be installed at the Kennebec River dams to allow the salmon to migrate more freely to their spawning grounds.

Sadly, though, the promise of the ESA has been undermined here by a federal agency too willing to compromise with the hydroelectric industry, and by a federal court unwilling to use its authority to prevent injury to an endangered species.

While the site-specific studies and upstream passage required by NMFS represent progress, these measures will do little to protect the downstream-migrating salmon passing the dams during the upcoming years of study. And while the District Court ruled that dams on the Kennebec and Androscoggin do kill salmon during their downstream migration, the court refused to issue an injunction compelling the dam owners to shut down their turbines.

“It’s been four years since Atlantic salmon were listed as endangered,” noted Emily Figdor, director of Environment Maine. “I’m disappointed the court chose not to exercise its power to protect them.”

2010 Court Victory Continues To Protect Bay From Contamination

Middletown, RI – On Jan. 7, the Middletown town council approved funding to complete the installation of a project that will protect beachgoers and boaters from contaminated stormwater runoff. Some members of the town council were reluctant to approve this funding, despite the reduced risk of disease to visitors of Narragansett Bay.

The project was ultimately approved, however, because of language in the consent decree entered two years ago in NELC’s Clean Water Act suit against the town. As Town Administrator Shawn Brown forthrightly acknowledged during the council meeting, “It’s not that we want to do this project, but rather, the consent decree compels us to do it.”

In the lawsuit, filed in 2008 on behalf of Environment Rhode Island and several local residents, NELC attorneys sought to bring an end to sewage overflows and stormwater discharges that had long contaminated popular beaches with excessive bacteria. Prior to the lawsuit, the town council had repeatedly deferred maintenance expenditures, putting off repairs to the sewage and stormwater systems and allowing pollution problems to worsen. The 2010 consent decree requires the town to end sewer overflows and stormwater pollution on a set schedule, with penalties for failing to meet deadlines. The town is now in the phase of the consent decree that requires it to implement a construction plan to eliminate overflows and ensure compliance with the Bay’s water quality standards.

This is one of two NELC suits aimed at cleaning up popular swimming beaches in Rhode Island. The companion case, also filed in 2008, focuses on longstanding sewage treatment and storm water discharge inadequacies in the neighboring city of Newport. Under a 2011 consent decree in that case, Newport has embarked on a series of major upgrades.