U.S. court reaffirms Blackstone River decision

The U.S. Court of Appeals for the 1st Circuit has declined to re-examine its August ruling that reaffirmed the authority of the U.S. Environmental Protection Agency to impose nutrient limits on the discharge permit for water treatment plants on the Blackstone River.

The court rejected the Upper Blackstone Water Pollution Abatement District’s request for a re-hearing on Oct. 10. The court also lifted a stay it had imposed while the matter was under consideration.

The Upper Blackstone District, which plans to appeal the decision to the U.S. Supreme Court, argued that the EPA based its decision on a national phosphorus limit rather than on site-specific circumstances of the Blackstone River. The district also argued that the EPA did not take into account measures put in place in 2008 at a local treatment plant on the river to reduce the discharge of phosphorus and nitrogen into the river.

The court, however, gave “deference” to the EPA on all technical and scientific matters as long as the agency’s decisions on those matters were not deemed “arbitrary, capricious, an abuse of discretion, or not in accordance with the law.” It advised the water district to take its case up with the EPA once again.

The Upper Blackstone District, which includes Worcester and surrounding communities, maintains that the required upgrades would cost $200 million, a figure well above EPA estimates. Worcester officials say the upgrades and additional operating costs would add $225 a year to the average ratepayer bill in the city.

In a memo to City Manager Michael O’Brien in August, Worcester Public Works Commissioner Robert Moylan wrote that the roughly 20 dams along the river are the key impediment to improving the river’s water quality.

“The best science of the river is a model developed by [the University of Massachusetts] and sponsored by [the Upper Blackstone] district,” wrote Moylan, who serves as chair of the district. “This peer-reviewed, sophisticated model concludes that even if the district discharged distilled water, water quality standards would not be satisfied because of impoundments [i.e., dams] along the river and the contaminated sediment they trap.”

Phosphorus causes excessive aquatic plant growth in freshwater, and nitrogen fuels growth in saltwater. Ultimately, the abundant plant growth and its decay consume oxygen in the water needed by fish and other wildlife.

The MMA has been opposing unfunded federal mandates and advocating for commonsense measures to improve the environmental health of rivers and streams.

This past summer, the state enacted a bill limiting the use of phosphorus and nitrogen in fertilizers in order to mitigate a major source of pollution that is carried by stormwater runoff.

During the current informal legislative session, the MMA is pushing to get a bill passed that would provide $17 million for dam repair and removal. The bill (S. 1985) also would allow communities to bond for dam removal and institute betterment fees to repair structurally deficient dams.