Winter 2015: Vol. 17, No. 2

Atlantic Salmon Protection Efforts In Maine Continue To Bear Fruit

PORTLAND, EAST MACHIAS, ME— The First Circuit Court of Appeals’ reinstatement of NELC’s Clean Water Act lawsuit against affiliates of Brookfield Asset Management, reported in our previous newsletter, continues a long line of NELC efforts to protect endangered Atlantic salmon.

In the current lawsuit, NELC recently completed a new round of briefing urging U.S. District Judge George Z. Singal to find that Brookfield has violated the Clean Water Act by allowing salmon and American shad to access the dangerous hydroelectric turbines at four dams on the Kennebec River in Maine. The Kennebec is a key migration route, and turbine-related mortality has contributed to the decline of these once thriving species.

Twelve years ago, NELC settled a lawsuit to protect endangered Atlantic salmon on seven smaller Downeast Maine rivers from unregulated salmon aquaculture facilities on the Maine Coast, which threatened wild fish with pollution, disease, sea lice infestations, and the risk of interbreeding with escaped farm-bred fish not genetically adapted to the wild.

The settlement included a $375,000 penalty for Clean Water Act violations and required defendant Heritage Salmon to provide seed funding for a new East Machias Aquatic Research Center (EMARC) to aid Maine’s wild salmon restoration efforts.

On Nov. 21, 2014, the Downeast Salmon Federation announced that it had just released more than 140,000 juvenile Atlantic salmon throughout the East Machias River watershed in an effort to restore the once great run of salmon in the East Machias.

These fish were reared at EMARC’s Peter Gray Hatchery, which raises the fish naturally, using unfiltered river water and specialized incubation boxes that mimic the gravel nests in which wild salmon lay their eggs, so they can better adapt to their new surroundings once in the river.

The project is in its third year, and the Downeast Salmon Federation hopes to continue it for many more years.

Cooling Water Challenge Now In Fourth Circuit

RICHMOND, VA—On Sept. 2, 2014, NELC filed a petition in the U.S. Court of Appeals for the First Circuit in Boston, challenging the adequacy of the Environmental Protection Agency‘s August 2014 rules governing cooling water intake at existing power plants and large manufacturing facilities. In all, six petitions for review were filed by environmental and industry groups, in six separate circuit courts of appeal. Under the random selection process dictated by federal statute, all of these cases were then consolidated in the Fourth Circuit Court of Appeals in Richmond, Va.

Cooling water intake systems pull in water from rivers, lakes, and estuaries to cool machinery at industrial facilities. The new regulations, which apply to 1,065 facilities across the country, fail to establish a national standard requiring the best technology available. Instead, the regulations rely on a case-by-case approach that would allow large companies to negotiate weak permit terms.

NELC’s petition for review, filed on behalf of Environment America and Environment Massachusetts, argues that EPA must require the installation of closed cycle cooling, or another system that achieves results similarly protective of aquatic life.

Before the merits of these and other challenges to the new rules are reviewed, the Fourth Circuit will first decide whether it is the appropriate forum to conduct this review. Environmental groups have asked that the cases be transferred to the Second Circuit Court of Appeals in New York, NY. The Second Circuit heard the appeals of the first two phases of EPA’s cooling water rules, and the new regulations were issued, in part, in response to that court’s previous rulings.

Community Members Continue Long Fight To Protect Valley Creek

VALLEY FORGE, PA—Local comm- unity groups have taken another step forward in their decades-long efforts to protect and restore Valley Creek, a pristine wild trout stream running through Valley Forge National Historical Park.

Recent spills from a 36-year-old sewage pipeline running parallel to Valley Creek have threatened water quality, but an impending NELC lawsuit on behalf of PennEnvironment and the Valley Forge Chapter of Trout Unlimited (VFTU) has compelled state environmental regulators to take their own legal action to protect Valley Creek (see related story, 2015 Winter – Legal Action Against Penn. Municipality Protects Valley Forge).

“We’ve worked too long and too hard to restore Valley Creek to its current exceptional quality to let it be turned into a sewer every time the latest patch to this old pipeline fails,” said Owen Owens, a member of VFTU and PennEnvironment who has been central to the creek’s restoration.

Owens has been working to protect and restore Valley Creek for the last 30 years. An avid fly fisherman, he cofounded the Valley Forge Chapter of Trout Unlimited in 1976 to protect the trout habitat in Chester County, Pa. By the mid-1980s, VFTU turned its focus to Valley Creek, which had been plagued by sewage, farm runoff, silt from dams, storm water erosion, and polychlorinated biphenyls (PCBs) emanating from an upstream Superfund site.

VFTU members helped call public attention to the PCB contamination, and helped secure funding for the efforts of the Pennsylvania Fish and Boat Commission to monitor PCB levels in area trout.

VFTU was also instrumental in preventing two large development projects that would have significantly increased pollution, in persuading Walmart and Home Depot to collect and channel the rainwater from roofs and parking lots into the ground (rather than allowing it to flow into the creek), and in providing the inadequately- shaded creek with an influx of cool water from a nearby quarry.

VFTU is not alone in its efforts; it is one of five non-profit organizations that make up the Valley Creek Coalition. These groups focus on projects—such as promoting water- efficient parking lots and planting new trees on the creek bank—that will help to get more water into the ground in the Valley Creek Watershed.

“It is the tireless work of local groups such as these that forms the backbone of water preservation and reclamation efforts throughout the country,” noted NELC Staff Attorney Heather Govern, who authored the Clean Water Act notice letter that prompted the recent legal action by the Pennsylvania DEP to address the sewage spills that have lately fouled Valley Creek.

Newport On Path To Improvement

NEWPORT, RI—As required by the terms of a 2011 settlement agreement, the City of Newport continues to work to fix its antiquated system for pumping, piping, and treating the wastewater it discharges to Rhode Island waters.

NELC attorneys filed suit against the city and its wastewater treatment contractor in 2007, seeking an end to decades of sewer overflows and beach closings. The Clean Water Act lawsuit, filed on behalf of Environment Rhode Island and four Newport residents known informally as the “Sewer Rats,” alleged that inadequate treatment of wastewater and stormwater, combined with sewage overflows occurring during and after heavy rain and snowfall, had long despoiled swimming beaches and shellfish beds in historic Newport Harbor.

Eventually, the Environmental Protection Agency and the Rhode Island Department of Environmental Protection joined the suit as plaintiffs, and the city, the citizen plaintiffs, and the government plaintiffs reached an agreement that was entered as a judicial consent decree by U.S. District Court Judge William E. Smith in August of 2011.

Under the 2011 decree, Newport has developed, and is now implementing, a system-wide plan to replace and repair leaky pipes, remove extraneous sources of water from the sewage collection system, and upgrade wastewater pumping and treatment capacity. Although full implementation of the plan will take years to complete, the city estimates that improvements projected to be in place by 2019 will reduce the volume of sewer overflows by approximately 95 percent.