DEFENDING THE IPSWICH RIVER

CRWA Files Suit Against the Department of Environmental Protection for Failure to Comply with the Water Management Act

Section 9. FACTS: Damage to the Ipswich River 

74.              The Ipswich River suffers from a severe loss of water, or flow, that leaves extensive portions of the riverbed dry and exposed for months at time on a regular basis.  During low flow conditions the river's water quality is impaired and habitat is lost, harming fish and other biota.  During no-flow conditions, extensive and dramatic fish kills and loss of aquatic organisms occur. 

75.              The river's loss of flow is acute and chronic in summer and early fall.  

76.              The Ipswich River reached critical low and no-flow levels for an extended period last summer and fall.  By mid-August, 2002, a number of river reaches in the upper watershed were dry or drastically reduced in flow.  Record low flows were recorded at the South Middleton and Ipswich U.S. Geological Survey ("USGS") gages.  The low flows recorded at the South Middleton gage were only one-tenth of the lowest flows ever recorded prior to 1997.  Photographs of the river on September 12 and 13, 2002, are attached as Exhibit C1 hereto and incorporated herein. 

77.              Long stretches of riverbed in Reading were dry and only a trickle of water existed in the river in Wilmington.  For much of the 2002 summer and fall, no water flowed over the South Middleton Dam, resulting in dry conditions downstream. 

78.              On September 12 and 13, 2002, the tire treads of dirt bikes and all terrain vehicles were observed crisscrossing the dry riverbed in Reading.  Photographs of the tire treads in the riverbed are attached at Exhibit C2.  The tearing up and destruction of the streambed altered its physical characteristics and had devastating, lethal effects on the biota.

79.              The loss of flow in the Ipswich River in 2002 caused large fish kills and the destruction of macroinvertebrates, including freshwater mussels.  As the riverbed dried up, the fish congregated in fissures in the mud for survival where the last remaining water existed.  Most of the dessicated fish were no more than four inches in length, with many less than two inches in size.  The small size of the fish is indicative that juvenile fish are not surviving to reproductive age, thereby reducing the viability of the fish population.  Photographs of the Ipswich River fish kills last summer are attached at Exhibit C3 hereto and incorporated herein.

80.              Painted turtles left the river and were observed crossing roads in search of better habitat last summer.  Many were found dead by the side of the road in Reading, having been run over by vehicles.  

81.              In 1995, 1997 and 1999, the upper third to one-half of the Ipswich River dried up in the summertime, causing fish kills, mussel die-offs, and other ecological damage.

82.              Water withdrawals are a major cause of the reductions in river flows. 

83.              In 1997, the Ipswich River was named one of the 20 most threatened rivers in the United States by American Rivers, a national river protection organization.  American Rivers has now declared the Ipswich River to be one of the 10 most endangered rivers in the entire country, based on the worsening condition of the river.   Water withdrawals, development and pollution are central factors in the river's continuing degradation.

84.              The Ipswich River's physical, chemical and biological integrity has been impaired by the loss of flow in the river. 

85.              The Ipswich River is listed as an impaired water under section 303(d) of the Clean Water Act, 33 U.S.C. §1313(d).  Listed reasons for impairment are flow alteration, high nutrient concentrations and presence of pathogens, including fecal coliform.  Low dissolved oxygen is listed as the cause of impairment in several of the river's tributaries.  

86.              The reduction in water quantity in the Ipswich River is causing pollution to become more concentrated in the river. 

87.              The Ipswich River Basin is classified as "highly stressed," by the Water Resources Commission in its 2001 Stressed Basins in Massachusetts report.  A stressed basin is defined therein as one in which "the quantity of streamflow has been significantly reduced, or the quality of the streamflow is degraded, or the key habitat factors are impaired."   The Ipswich River Basin meets all three of these criteria.       

88.               Beginning in 1997, the USGS conducted a series of studies of the Ipswich River and its watershed.  These studies were funded in part by the Department. 

89.              One USGS study, based on computer hydrological modeling of the Ipswich River watershed, found that "the cumulative ground-water withdrawals substantially decrease low flows."  USGS also concluded that low flows at the South Middleton gage in the upper watershed are less than one-tenth of what they would be naturally without the effects of water withdrawals and other alterations on the watershed's hydrology.  USGS found that the river dries up completely over ten percent of the time on average (more than 36.5 days a year) in the Reading area, located in the upper watershed.     

90.              Low flows also impact the lower half of the river: as water recedes from the banks, critical habitat is reduced.  Numerous aquatic species rely on this habitat for all or part of their life cycles and cannot survive without it.   

91.              Riffles and streambank habitat throughout the entire course of the river have been adversely affected by the water withdrawals.          

92.              Riffles, which are shallow, cobbly areas of the streambed where water flows swiftly, are an extremely important habitat where river water is aerated, adding oxygen essential for food chain organisms.  Fish such as brook trout are attracted to the riffle flows and food sources.  When flows diminish, the shallow riffles are the first reaches of the river to become dry.

93.              Riffle habitat has been lost in Reading, North Reading, Middleton, Topsfield, Hamilton and Ipswich.  The loss of riffles has killed the organisms that depend on them and caused the river to become segmented into a series of isolated pools, thereby eliminating the flow of water.  Continuous flow is critical to the survival of river-dependent fish species. 

94.              The reductions in water have caused the loss of critical aquatic habitat, the serious degradation of the river's native fisheries, and higher temperatures associated with low dissolved oxygen.

95.              Decreased flow and ponding contribute to increased water temperature, which strongly correlates with low levels of dissolved oxygen ("DO").

96.              DO is one of the most critical water quality elements for supporting aquatic life.  The Ipswich River, and in particular the upper watershed, experiences chronic low DO in the summer months.  DO measurements below 1 milligram per liter ("mg/l") are common, and 0 mg/l has been recorded in the upper watershed.  The Massachusetts Surface Water Quality Standard for DO in the Ipswich River is 5 mg/l. 

97.              Sensitive Ipswich River species such as brook trout, and macroinvertebrates such as stonefly, caddisfly and mayfly larvae, which are important food chain organisms, cannot survive in such low DO conditions. 

98.              Low DO levels also impact water and sediment chemistry because anaerobic conditions release nutrients such as phosphorus bound to sediments.  This causes algae and "nuisance" aquatic plant growth that decompose and further deplete the DO in the water column. 

99.              The Ipswich River has experienced a loss of biodiversity of serious proportions.  The river historically supported a diverse, riverine fish community, including species dependent on flowing water for all or part of their life cycles ("flow-dependent species").

100.          The Ipswich River was once considered one of the premier angling rivers in southern New England.  The fisheries have now been seriously degraded and sport fishing is largely dependent on stocked fish.

101.          A study conducted jointly by USGS and the Massachusetts Division of Fisheries and Wildlife ("MA DFW") in 2001 assessed the Ipswich River's fish community and evaluated the relationship between low flows and aquatic habitat.  This study was partially funded by the Commonwealth of Massachusetts. 

102.          The USGS-MA DFW study found that flow-dependent species are being eliminated from the Ipswich River system and replaced by a fish community representative of warm ponds.  Riverine, flow-dependent species currently comprise less than 10% of the species found in the river and its tributaries.  In comparable river systems in New England, 67% of the fish population is comprised of flow-dependent species. 

103.           Macroinvertebrates, essential to the aquatic food chain, are also exhibiting poor diversity in areas of the river that are impacted by chronic reductions in water.  

104.          The streamflow in the Ipswich River in summer and early fall often does not meet even the .217 cubic feet per second per square mile ("cfsm") minimum streamflow threshold established by the Department of Environmental Management in the late 1980's for the Ipswich River ("DEM minimum streamflow threshold").  Recent studies show that the DEM minimum streamflow threshold is outdated and inadequate for the Ipswich River. 

105.          The Ipswich River Fisheries Restoration Task Group ("Task Group"), comprised of representatives of the Department, Massachusetts Division of Marine Fisheries, MA DFW, United States Environmental Protection Agency, U.S. Fish and Wildlife Service, IRWA, Greenbelt, and Massachusetts Audubon Society, has recommended that from June through October, Ipswich River flows should be 0.49 cfsm.   This is more than double DEM's minimum streamflow threshold for the Ipswich River. 

106.          The Task Group also recommended Ipswich River flows from November through February of 1.0 cfsm, and from March through May, of 2.5 cfsm (collectively, "fisheries thresholds").  

107.          Surface water diversions, which are restricted to December to May of each year, can result in significant alterations in Ipswich River flow patterns when flows are low in the winter and/or spring due to lack or rain or snow. 

108.          USGS evaluated the "firm yield" of the water systems that divert water from the Ipswich River to reservoirs.  Applying the fisheries thresholds from November to April and using a threshold of 1.5 cfsm for May, USGS concluded that the firm yield of these water systems is considerably less than the withdrawals currently authorized by the Department. 

109.          Existing uses in the Ipswich River include fishing, canoeing, kayaking, swimming, public water supply, habitat for fish, other aquatic life and wildlife and warm water fishery; a small subwatershed has recently been identified as a cold-water fishery.  

110.          Recreational uses have been seriously impaired and eliminated by the Ipswich River's loss of flow.  Most of the upper river cannot support canoeing, kayaking, fishing or swimming during the summer and early fall, the peak seasons for these activities. 

111.          Passive recreation adjacent to the Ipswich River is frequently impaired or eliminated due to loss of flow, algal blooms and other pollution.  Scenic vistas and aesthetic values are lost and offensive odors emanate from the riverbed.   

112.          Designated and existing uses in the river have been impaired or eliminated by the loss of flow in the Ipswich River and its tributaries. 

113.          The loss of flow has altered the physical nature of the bottom of the river, causing destruction of riffle habitat, interference with fish propagation, and adverse impacts to benthic organisms.