Friends of Merrymeeting Bay

P.O. Box 233

Richmond, ME 04357

Testimony of Ed Friedman, Chair, Friends of Merrymeeting Bay

Before the Natural Resources Committee

In Support of L.D. 330:

An Act To Change the Classification of Certain Waters of the State

February 17, 2009

Senator Goodall, Representative Duchesne and members of the committee, I’m Ed Friedman, Chairman of Friends of Merrymeeting Bay [FOMB]. Thank you for allowing me to speak today regarding this bill. For those of you who don’t know, Merrymeeting Bay, draining nearly 40% of Maine’s waters lies at the junction of the Kennebec, Androscoggin, and four smaller rivers. The Bay, a unique freshwater tidal riverine ecosystem is known for its rare and endangered or threatened plants, fish and birds including Atlantic salmon, shortnose sturgeon, Atlantic sturgeon, bald eagle and Parker’s Pipewort. It is also the largest staging ground in the northeast for migratory waterfowl. FOMB works to preserve, protect and improve this area through research, advocacy, education and land conservation.

We happily support any effort to upgrade our state’s water quality. Clean rivers with healthy fish populations are literally the life blood of our state and in fact we often compare them to our arteries. Transporting vital nutrients as well as fish and people, rivers and the riparian corridors on either side host 60% of the species biodiversity in our state.

FOMB is happy to support this upgrade proposal but with a serious caveat. An essential river segment is missing, the lower Androscoggin. We submitted a proposal, as solicited by the Department, to upgrade from C to B, the section of river from Worumbo Dam in Lisbon Falls to its mouth in Merrymeeting Bay. Our proposal was opposed by the DEP. Today, we request you amend LD 330 to include an upgrade for this section. Our group of well-trained volunteers has been actively engaged in river monitoring since 1999. We train yearly with and practice the same techniques for much of our work as Friends of Casco Bay who have long operated under an EPA quality assurance plan or QAAP. In 2005 the lower Kennebec from Augusta to Abbagadassett Pt. was upgraded from C to B in part because of our data record which at that time did not include bacteria sampling but only dissolved oxygen and several other parameters. Still, our data supported the DEP model and the model supported our data.

A double standard continues to exist. Despite non-compliance, the Kennebec upgrade was recommended by the DEP and BEP and passed by the legislature. A deal was struck with the Augusta Wastewater District giving them until summer of 2009 to meet Class B bacteria standards. This is as it should be. The Clean Water Act is meant to be goal oriented.

In the past, DEP has sometimes said they can’t upgrade a river classification because under worse case scenarios [max. license loads and low flows], proposed Class B [in this case] standards might be violated. At the same time, the Department has also said because receiving waters already meet the current classification levels, Maine cannot upgrade classifications to meet actual conditions.

This scenario, while often supported by industry, clearly violates the intent of the Clean Water Act and NPDES creating an artificial ceiling on water quality improvement. In fact, reclassification and permitting must be used together to improve water quality. The Supreme Judicial Court of Maine states in Bangor Hydro Electric v. BD. OF ENV. PROT., 1991 ME, 595 A.2d 438 that the BEP must consider state water reclassification when engaged in the permitting process and that “classification is goal oriented as required by the federal Clean Water Act”.

Industry influence still weighs heavy on this river. While once the inspiration for Senator Muskie’s work on the 1972 Clean Water Act, the Androscoggin continues to be the poor stepchild of Maine’s rivers. There are no doubt many in these chambers who continue to caution change must come slowly. To this we must respond; 39 years are long enough.

It is critical to remember when considering our requested amendment that the point of federal and state clean water laws is to improve water quality, thus:

  1. Standards of the next highest classification need not be met. From the DEP Submission Guidelines:When proposing an upgrade in classification, recommend waters that either presently attain or with reasonable application of improved treatment or Best Management Practices (BMPs), could reasonably be expected to attain, the standards and criteria of a higher proposed class.” And from the DEP document: 2008 Proposed Reclassifications for Maine Waters: “While it is desirable for the actual quality of a water to achieve the standards in any proposed classification, classification assignments can and should be made where there is a reasonable expectation for higher uses and quality to be attained. Upgrades to classification are appropriate where it is socially or ecologically desirable to attain higher standards and where the technological and financial capacity exists to achieve those higher standards within a reasonable time. Once a classification assignment is made, and the uses and criteria are achieved, that goal is protected by the antidegradation provisions of the water quality statute, thus the law provides a mechanism for the State to continually move forward in the improvement and protection of water quality.

  1. When a discharger wants to increase discharges they must demonstrate standards will not be violated under worst possible flow regimes. From 38 M.R.S.A. § 464 (4) D: “Except as otherwise provided in this paragraph, for the purpose of computing whether a discharge will violate the classification of any river or stream, the assimilative capacity of the river or stream must be computed using the minimum 7-day low flow which can be expected to occur with a frequency of once in 10 years.” [Note; this exercise is required for a discharge, not upgrade.]

  1. When higher actual standards exist than are reflected in the current classification, the classification must be raised. From 38 M.R.S.A. § 464 (F) (4): “When the actual quality of any classified water exceeds the minimum standards of the next highest classification, that higher water quality must be maintained and protected. The board shall recommend to the Legislature that water be reclassified in the next higher classification.”

Following the goals and statutes above, will over time, ratchet up water quality and there is much desire on the part of Mainer’s for this to occur. There is a good deal of support in particular for upgrade efforts to begin on the lower Androscoggin and little wonder, environmental benefits aside, studies show substantial economic benefits to riverside communities. In your packets are references to a couple of studies in Buffalo, NY and Sheboygan, WI showing losses in real estate values from 1-9% of assessed value or 8-140 million dollars because of proximity to contaminated water bodies. Direct surveys in these areas indicate buyers willing to pay up 10-15% [translating in Buffalo to $543 million more in assessed values] more for homes if the waters were cleaned up.

Your decision to include the lower Androscoggin in this bill will be well supported by constituents. Supporting FOMB’s proposal at the BEP were:

Laurence Faiman and DeWitt John, Androscoggin River Alliance; Angela Twitchell, Brunswick- Topsham Land Trust; John Berry, Merrymeeting Audubon Society; Steve Hinchman, Conservation Law Foundation; Nick Bennett, Natural Resources Council of Maine; Peter Milholland, Friends of Casco Bay; Jenn Burns, Maine Audubon; John Burrows, Maine Rivers and Atlantic Salmon Federation; Donald Gerrish, Town of Brunswick; Board of Selectmen, Town of Durham; James A. Bennett, City of Lewiston; Michelle Jones and Board of Selectmen, Town of Topsham; Normand Lamie, Auburn Sewerage District; Elizabeth Bouve; Susan Chadima, Monty and Moe Kalloch; William Van Twisk; Ruth Gabey; Helen c. Watts, PE, SECB; Jean Baker Stein; Lois Kilby Chesley; Stephen Bamberger; Jim Gillies; Ralph Pope; Chester Gillis; Kathryn Thorson, private citizens and members of FOMB. [Source: BEP summary]

The BEP’s summary of comments presented in favor follows:

1. Friends of Merrymeeting Bay (FOMB) has 6 yrs of water quality data showing attainment of Class B dissolved oxygen standards; bacteria criteria are nearly always in attainment;

2. FOMB data has been used by MDEP as the basis for the upgrade of other rivers in the past (e.g., the lower Kennebec River);

3. FOMB has collected high quality data and has followed good quality assurance practices; the data should be used to justify this upgrade;

4. Friends of Casco Bay (FOCB) has assisted FOMB in providing training and sample collection protocols, kit preparation and quality assurance measures and has re-trained oversight of FOMB volunteers since 1999; Friends of Casco Bay has had an EPA approved Quality Assurance Project Plan (QAPP) since 1995;

5. Both FOCB and FOMB collect DO, pH, temperature, salinity, and water clarity; FOMB also collects turbidity and coliform data;

6. The CWA and Maine water quality law state “where existing water quality, standards specify designated uses less than those which are presently being attained the state shall revise its standards to reflect the uses actually being attained”; thus, if a given waterbody meets a classification higher than its designated use the Board must recommend that it be upgraded;

7. It is illegal and illogical for the Department to require a showing of attainment of WQC for a proposed higher class at “maximum licensed loads”- no facilities operate at maximum licensed loads. The Board’s analysis must be based on existing water quality, not modeled water quality at maximum loads;

8. Class B standards are currently being attained so it is our understanding that no additional expenditures, now or in the future would be required to MDEP accomplish this upgrade. There will be no adverse economic impacts to existing industrial uses of the Androscoggin River because Class B has been met for years;

9. Clean rivers enhance local economy and provide an economic boon to surrounding communities; can't understand how it could have an adverse impact; the Androscoggin River deserves to finally be on par with the other important rivers in the state.

No comments in opposition [except the DEP].

Substantial investments to wastewater facilities along the river over the years are slowly paying off in the areas affecting classification. Our Androscoggin data, taken in the course of up to 6 years of dischargers doing business as usual show higher classification standards are being met on the lower river. The law requires an upgrade to reflect these positive changes.

Thank you for your consideration.

Attachments: Letters of support, economic indicators, FOMB proposal, data & map, DEP language.