Cities, State "Hopeful" For Settlement On Great Bay Question

Mar 6, 2014

Credit Flikr Creative Commons / Rickpilot_2000

There is a hint of light at the end of a two-year-long legal battle over waste-water treatment plant upgrades on the Great Bay.

The towns of Portsmouth, Rochester and Dover have been arguing that regulators with the Department of Environmental Services and the EPA hadn’t proved that requiring millions of dollars of state-of-the-art wastewater plants would substantially improve water quality. But after a panel of independent scientists issued a sharp critique of the science used by the DES, a deal could be on the horizon.

Last year The New Hampshire legislature ordered up a peer review of the science the DES had used to regulate how much nitrogen could be discharged into the bay. The review was delivered in late February.

The reviewers found that that in asking communities to spend tens of millions to install the best possible treatment technology, “you’d be doing good for the environment, there’s no doubt about it,” says Judson Kenworthy, a retired NOAA scientist and one of the four reviewers.

But he also says the DES did not use the best available science to determine precisely how much good you’d be doing. “Their analysis has some pretty severe deficiencies,” said Kenworthy.

The ecosystem in the Great Bay is all about eelgrass. It’s like the forest that all of the aquatic animals are living in. And while science is certain that too much nitrogen is bad for eelgrass, there are factors that are bad for it too: sediment, turbidity, erosion, and even water color.

The peer review scientists say DES doesn’t have enough data or analysis to isolate how much effect nitrogen from wastewater plants is having on the decline of habitat in the Great Bay.

“The actual evidence in the data is quite weak with regards to what levels of nitrogen are associated with what coverage of eelgrass,” says Ken Reckhow from Duke University, another peer reviewer.

All Parties Hopeful

This echoes what the communities of Rochester, Dover, and Portsmouth have been saying all along.

“We’re hopeful that we can move forward and get beyond the legal aspects of this whole issue,” says Dean Peschel, who has spearheaded the fight for the city of Dover.

Now that they’ve got back-up from the peer review, the Seacoast communities are in talks with New Hampshire’s DES, which could result in one or more settlements. Depending on how you count, there are three or four different court cases pending on this issue, before various state and federal high courts. The communities say they want to work out a plan for moving forward with upgrading their plants, but not to the maximum, or what’s called the “limit of technology.”

At the same time they could start working on some of the other sources of pollution to the Bay, like storm water that carries fertilizer, and pet waste. That would have the benefit of also reducing sediment and erosion, and making the water clearer.

“The real question is what do we do next?” says Ted Diers the administrator of the watershed management Bureau at DES.

He too is says he is “hopeful” that an end to the legal wrangling is near, and that New Hampshire will start doing something to clean up the Great Bay.

“Our system is clean enough right now that we don’t see the major like, fish-kills,” he says, “But that’s not to say we don’t’ have issues we shouldn’t be addressing, and now is the time to do that, before we have some of those really awful things.”

A Real Chance for Progress?

So this is where we stand.

The parties agree on three things: the bay is hurting, we generally know how to clean it up, but more study is needed to figure out how much effort – and money – to spend on the various clean up strategies.

Whether or not the communities and regulators can find a plan of action that satisfies them both on how to start improving water quality while that study is done, remains to be seen.

But the signs that an agreement is near are better than they have been in years.

This week, the state and the towns were set to argue a procedural dispute before the Supreme Court. That argument was delayed, and in their motion for a delay the towns said the issue might be settled before they ever get to the new hearing.