Breaking News: In response to today’s decision by the U.S. District Court that Vermont Yankee may continue operation beyond March 2012, Sandra Levine, a senior attorney in CLF’s Vermont office said, “This is a setback for Vermont and a setback for clean energy.  This decision forces Vermont to prop up an old, polluting nuclear reactor, and its untrustworthy owners. This matter will likely go back to the Vermont Public Service Board.  We hope they will confirm that Vermont Yankee has outlived its useful life and is ready to retire.  It is time to end Entergy’s legacy of broken promises and lackluster oversight.  Vermont is ready to join New England’s move away from obsolete, dirty, power plants and lead the region in its transition to clean, renewable energy. We hope the State will appeal the Court’s decision and seek to affirm its right to determine its energy future.”

A little background on a long-running case: By the terms of a Vermont law passed in 2006, as well as the 2002 approval of the sale of Vermont Yankee, and a 2002 express agreement with Entergy, approval by Vermont is needed for the plant to continue to operate after 2012. In 2002, the Vermont Public Service Board approved the sale of the Vermont Yankee facility to Entergy.  The sale included an agreement by Entergy not to operate the plant after 2012, when its license expires, without obtaining regulatory approval from the Vermont Public Service Board. Concerned about whether it would be good for Vermont if Vermont Yankee to operated past 2012, the Vermont Legislature passed a law in 2006 requiring approval of the Legislature before the Public Service Board could issue a new license. In 2008 and 2009 proceedings were underway at the Public Service Board to consider a license extension.  In an historic vote in 2010 the Vermont Senate declined approval.  In April 2011, Entergy filed a lawsuit in U.S. District Court challenging Vermont’s authority to regulate and license the power generation facilities operating in the state. Conservation Law Foundation and Vermont Public Interest Group (VPIRG) later intervened on Vermont’s side in the lawsuit. For a complete timeline of the activities leading up to today’s decision on Vermont Yankee, click here.

Sometimes, the failure to act is as harmful as an act itself.

Yesterday, I sent a letter to Patricia Aho, Commissioner of the Maine Department of Environmental Protection, whose recent failure to act on water certification standards for Flagstaff Lake has resulted in the state losing its ability to have any say in the matter for the next 25 years. You can access a copy of that letter here, or read it in full below.

Documents obtained through a Maine Freedom of Access Act (FOAA) request now lead us to conclude one thing: we believe Aho’s failure to act was intentional. Consider the following two points, outlined in the letter:

• Aho had been briefed on the status of the water quality certification application for the Flagstaff Storage Project by the applicant and its attorney and had met with Mr. Mullen, the head of the lead bureau on that application;
• Aho and her staff were aware of the options available to the State with respect to the application.

As stated in the letter, “this makes Ms. DePoy-Warren’s statements of December 9, 2011 that the failure to act on the application in a timely manner was due to reorganization efforts and changed assignments at best completely uninformed and at worst deliberately false… Even more troubling is the conclusion one can logically draw” that Aho “made the decision to not act on the application and thereby waive the State’s rights to certify whether the Flagstaff Storage Project’s new license meets our water quality standards.”

This deliberate inaction is troubling. As I said in a recent joint statement, it not only hurts Maine people who use Flagstaff Lake, but also “raises real concerns about the DEP’s ability and willingness to exercise Maine’s rights to control, manage and protect our natural resources.”

For the full letter, keep reading.

January 3rd, 2011

Patricia Aho, Commissioner January 3, 2012
Maine Department of Environmental Protection
17 State House Station
Augusta, ME 04333-0017

Re: Flagstaff Storage Project #L-19313-32-G-N

Dear Commissioner Aho:

We have finished a review of records provided by your Department pursuant to a December 9, 2011, Freedom of Access Act request from our organization, the Conservation Law Foundation.  That review leads us to conclude that the Department, under your direction, intentionally waived the State’s rights under section 401 of the Clean Water Act, 33 U.S.C. § 1341(a), to certify that the relicensing of Florida Power & Light’s Flagstaff Storage Project meets Maine’s water quality standards.  That conclusion is contrary to the assertions of the Department’s spokeswoman, Ms. DePoy-Warren, who publicly stated that the failure to act in a timely manner on the FPL application was neither intentional nor insidious.  While we will never definitively know about the latter, as set forth below, we believe the failure to act was certainly intentional.

As you know, for the past several years, a new license for the Flagstaff Storage Project, #L-19313-32-G-N, had been stayed by FERC based on the denial of the Section 401 water quality certification by the Board of Environmental Protection in 2004, a decision appealed and upheld by the Maine Law Court in 2007. Since then, FPL had filed an application for a water quality certification for the Flagstaff Storage Project as a placeholder while it worked with the Department staff to identify a means to meet the water quality standards identified by the Board in its original order.  The Clean Water Act provides that if an application for water quality certification is not acted upon within a year of its submittal, the State is deemed to waive its right to make or to withhold such a certification. To avoid such a waiver, the Department’s practice had been to request FPL to withdraw and refile the application. Failing that, the Department would deny the application.  FPL, as it had with its other hydroelectric projects, would withdraw its application for this project and then re-file, thereby “re-starting the clock.”  (This is a practice followed not just by FPL but by most other owners of hydropower projects seeking water quality certification from Maine.)  Thus, FPL filed its water quality certification application for the Flagstaff Storage Project with the Department on November 15, 2009, then withdrew and re-filed its application on November 16, 2010.

As you also know, action by the Department on water quality certifications applications had for many years been coordinated by a longtime Department employee, Dana Murch.  Mr. Murch announced that he would retire at the end of the summer in 2011 and documents produced in response to our FOAA request establish that he began preparing for the transfer of his responsibilities to other employees at the Department in early summer.  Specifically, in June, Mr. Murch and senior managers at the Department, including Michael Mullen, current head of the Department’s Land and Water Bureau, scheduled a series of meetings to discuss the transition of his work load. These meetings specifically included discussion of the Flagstaff Storage Project water quality certification application. Indeed, Mr Murch prepared a memorandum to the file dated July 13, 2011, concerning the history and status of the Flagstaff Storage Project and specifically noting that “Unless DEP acts to approve or deny the pending application for water quality certification on or before November 15, 2011, certification will be deemed waived by operation of law.”

On June 17, 2011, you were named acting Commissioner of the Department, subsequently nominated to take that position permanently on September 9, 2011 and confirmed on September 28, 2011 by the Senate. The documents produced by the Department in response to our FOAA request establish that shortly after you were named acting Commissioner, Pierce Atwood’s Matt Manahan, a partner at your former law firm and FPL’s attorney, contacted you to discuss FPL’s Flagstaff and Brassua Storage Projects and requested a meeting with you, Mr. Murch and representatives of FPL.  A meeting that you organized was set for August 5, 2011 at your office. On the following Monday, August 8, 2011, you sent an email to Mr. Mullen (delivered at 8:11 a.m. and read at 8:40 a.m.) stating the following – “Hi Mike – We need to talk about Flagstaff and Brassawa [sic] when you get a chance.  Thanks!  Pattie.”

A subsequent memorandum from Mr. Murch dated August 12, 2011 to DEP staff, including Mr. Mullen (who was by then overseeing all staffing of hydropower projects for the Department) attached a spreadsheet that listed the staff that would be overseeing the various hydropower projects in the state.  Ms. Dawn Hallowell was listed as being responsible for the Flagstaff Storage Project but it is our understanding that, at the direction of the Commissioner’s office, Ms. Hallowell never received that file.

Thus, by the time that Mr. Murch retired on August 31, 2011, the documents strongly support the following: you had been briefed on the status of the water quality certification application for the Flagstaff Storage Project by the applicant and its attorney and had met with Mr. Mullen, the head of the lead bureau on that application; and that you and your staff were aware of the options available to the State with respect to the application.  This makes Ms. DuPoy-Warren’s statements of December 9, 2011 that the failure to act on the application in a timely manner was due to reorganization efforts and changed assignments at best completely uninformed and at worst deliberately false.

Even more troubling is the conclusion one can logically draw that after you met with the FPL and its attorney, you made the decision to not act on the application and thereby waive the State’s rights to certify whether the Flagstaff Storage Project’s new license meets our water quality standards.  While the Department is legally authorized to make such a decision under the Clean Water Act, the manner in which this decision was made, particularly after the State had invested significant resources over the last 7 years in defending the right to determine when a project does or does not meet our water quality standards, and the subsequent response by the Department when the waiver came to light, is unacceptable.

We feel strongly that the documents we have seen to date support our conclusion.  If, however, we have not reviewed all of the relevant documents or there are other facts we are not aware of, we would be most interested in meeting with you to discuss them.  If we are wrong and this was indeed a case of a blown deadline, then the Department should be aggressively acting to ensure that FERC condition the license for the Flagstaff Storage Project to ensure that Maine’s water quality standards are met and instituting procedures to prevent such failures in the future.  If our current understanding of the situation does not change, we believe that at a minimum you should clarify that the Department decision to waive its rights to determine if the Flagstaff Storage Project met Maine’s water quality standards was in fact intentional and should include an apology to the stakeholders who were counting on the State to exercise its rights under the Clean Water Act.

Respectfully,
Sean Mahoney
Vice President and Director
CLF Maine

cc: Peter J. Carney

Courtesy of Putneypucs @ flickr. Creative Commons

In talking with guests at CLF’s holiday party last week, I was reminded of something simple and powerful: In this movement, we’re all leaders.

Helping New England thrive is a group effort.  It’s also CLF’s vision. To make it happen we work with  our colleagues, our allies, and our friends – many of whom were present at the party.

These guests included elected officials, heads of state and government officials, business and nonprofit CEOs – even an international delegation. CLF staff and alumni were there. Board members, families and friends joined us.  And also many dedicated people who help New England thrive by doing their part – sometimes small but always heartfelt – every day, week or month.

Talking with many present, I was reminded of what I have often thought: To succeed, we need each other.

I was also reminded of the story of an 8 year old girl with courage and a voice, but struggling against acute asthma. At a hearing for a proposed project in western MA that would aggravate her asthma and further threaten her community, she was sitting with my colleague Sue Reid, vp and director, CLF Massachusetts. She had in her hand a one page handwritten statement she was prepared to deliver that said, among other things, “It’s not fair!” After the committee spoke, she turned to Sue and said: “This really isn’t fair!”

She was right. We have followed her lead, and are working hard for fairness and justice for her community. We all should learn from her, and be inspired by her. She is a leader in our movement.

Reflecting on our holiday season, this message seems appropriate: we are sustained by the work of our allies and friends. In this movement, it does take a village. And everyone truly is a leader.

To all those who have worked with us, to our donors, sponsors, and allies, and to our friends and family, thank you. Without your leadership, we couldn’t do what we do.

May have you have a wonderful Holiday season.

There are some things that you cannot capture adequately in words alone. The impact of nutrient pollution on fresh water bodies like Lake Champlain is one.

A nutrient overload fuels a toxic algae bloom on the surface of Mississquoi Bay making the water unsafe for swimming and unpleasant to be around.

Photo by Lake Champlain Lakekeeper Louis Porter

That is why the Emmy-award winning film “Bloom: The Plight of Lake Champlain” was such an important development in the effort to raise awareness of the Lake’s problems and the urgent need for action. Christopher Kilian, Director of CLF’s Vermont office and its regional Clean Waters and Healthy Forest program, was featured in that documentary, which was narrated by Academy Award-winning actor Chris Cooper. You can watch a clip with Chris Kilian from the first Bloom here.

Tonight marks the premiere of the Bloom sequels–a series of three related short programs also narrated by Chris Cooper under the title “The Emergence of Ecological Design.” Each film focuses on one of the major causes of pollution to the Lake—agricultural discharges, urban runoff (aka stormwater), and sewage treatment—and highlights emerging solutions for each.  Because CLF’s Clean Water and Healthy Forest program is driving solutions to all of those problems, CLF clean water advocate Anthony Iarrapino (that’s me) appears in all three.

Tonight’s premiere screening is free and open to the public starting at 7:00 p.m. at the Palace 9 Theaters in South Burlington.  If you can’t make the show on the big screen, look for Bloom: The Emergence of Ecological Design on Vermont Public Television over the coming months.  You can also buy DVDs from the producers at BrightBlue Media at their website www.bloomthemovie.org where you will find clips of the new films.

Image courtesy of eutrophication&hypoxia @ flickr. Creative Commons

Massachusetts lacks money and needs clean water. This bind – one in which the state found itself following a June report – has forced a discussion policies that are raising the hackles of Massachusetts residents.

According to a report by the Massachusetts Water Infrastructure Finance Commission released in June, Massachusetts has a statewide “funding gap” of $21 billion to pay for its drinking water and wastewater systems over the next twenty years.  The report found that cities and towns across the state are dealing with aging water and sewer systems – some from the 1800s. The cost of mere maintenance is substantial – let alone expansions of infrastructure to keep up with residential and commercial growth.

The Commission considered a variety of strategies to raise revenue, including new taxes on fertilizers or pesticides, a new bottle bill, and a statewide water surcharge. A surcharge would likely be 1 mil per gallon, or about $23 per year for the average individual. Naturally, the surcharge proposal has run into the loudest opposition.

In response, petitions are circulating for a 2012 ballot initiative which would cap water and sewer rate increases at 2.5% per year. Before rejecting rate increases, Massachusetts citizens should consider the true costs and benefits of water management systems.

Most municipal water systems combine stormwater and sewage, meaning that storms are causing sewer overflows because older systems aren’t equipped to handle large volumes. Nutrient pollution from inadequate sewage treatment creates toxic algae blooms, shuts down beaches, and disrupts ecosystems and tourism. The solutions to these problems may not be cheap, but they’re desperately needed. Until we manage wastewater and stormwater effectively, we aren’t paying the true costs of the infrastructure that delivers clean water to our homes and businesses.

Recognizing this need for massive investment in our nation’s infrastructure, the Obama administration proposed a “national infrastructure bank” over the past few months. The proposal would help local governments finance infrastructure projects like roads, bridges, and sewer systems. The bill passed the U.S. Senate with bipartisan support, but does not appear to have the same level of support in the House of Representatives. So states like Massachusetts may need to act on their own to ensure that municipalities have the resources they need to protect the public from sewer overflows and antiquated wastewater treatment systems.

Unless we want to face an uncertain future, our cities need the capability to repair, maintain, and enlarge their water and sewer systems when necessary. They also need capital to invest in green infrastructure projects like permeable pavement, rain gardens, and green roofs, which absorb and filter rainwater and decrease the amount of water pouring into sewer systems.  Green infrastructure projects ultimately save cities money in the long run by reducing sewer inputs and thereby reducing the need for old-fashioned (“grey”) infrastructure like underground tanks and tunnels. Meanwhile, communities enjoy the benefits of new green space, carbon-mitigating wetlands, and Cities like Philadelphia and New York are already investing extensively in green stormwater management techniques, and anticipating millions in savings.  (The Philadelphia Water Department has estimated that its new stormwater policies have diverted a quarter billion gallons of water from the sewer system, saving the city $170 million.)

Let’s stay tuned for the Commission’s final recommendations for Massachusetts, and consider all the options for financing our infrastructure needs in an equitable and manageable way.

On November 15, 2011, CLF led a coalition of 14 other environmental groups in sending a letter to the United States Environmental Protection Agency that called for swift implementation of permit controls at a Massachusetts facility that is discharging directly into the Blackstone River.

The coalition letter was written in response to a July 20, 2011 letter sent by the Massachusetts’s Department of Environmental Protection in which the MADEP asked EPA to consider delaying the installation of new permit controls at the Upper Blackstone Water Pollution Abatement District (UBWPAD). MADEP argued that the delay would allow for further study of the river before we ask the UBWPAD to install costly new controls. CLF and the other signatories to the letter argued that any additional delay will further degrade the water quality of the Blackstone, and will also be  contrary to the permit requirements established by the Clean Water Act. A copy of the letter can be found here.

Every day, the UBWPAD discharges as much as 56 million gallons of wastewater into the Blackstone River. This is not the time, or the place, for delay. We’ve studied the river to death.  Now we have to begin protecting it.

The litigation deciding where the permit limits for nitrogen and phosphorous discharges at the UPWPAD should be set will be decided by the United States Court of Appeals for the First Circuit before the summer of 2012.  Oral argument is set for this coming January. Stay tuned for an update – we’ll provide you one here on CLF Scoop.

Rotten eggs and black mayonnaise – sights and smells that, to the dread of many, are becoming increasingly common across Cape Cod. Over the 30 years, increased development and insufficient wastewater treatment systems have degraded the quality of Cape Cod’s waters. CLF, in association with Buzzards Bay Coalition, are working to clean up the Cape – work that was recently covered by David Abel in The Boston Globe.

The eggs and mayonnaise (a description David used to open his piece) are but two signs of a growing body of evidence, both visible and disturbing, of degraded water quality. While visitors and residents depend upon Cape Cod’s pristine waterways – suitable for swimming, conducive to ocean life – instead they find ponds and bays that, in warm months, can be covered in a film of algae, while the water itself turns an opaque copper color.

This degradation is the consequence of too much nitrogen, the result of improperly treated  wastewater, primarily from the Cape’s preponderance of septic tanks. In the Cape’s loose, sandy soils, wastewater moves quickly through the ground, and iscarried into the bays and estuaries before it can be adequately filtered. The region’s economy, ecology, recreation and beauty have all suffered as a consequence – and will suffer more if stakeholders continue to delay action on a clean up plan.

In September, our staff at CLF, together with Buzzards Bay Coalition, filed a federal lawsuit against the US Environmental Protection Agency. Our claim: that the EPA failed to fulfill its responsibilities to oversee a regional water quality plan as required by the Clean Water Act. This lawsuit was CLF’s second showing EPA’s failure to address the Cape’s nitrogen pollution problem. The first, concerning point sources, was filed in August, 2010, and can be found here.

Why is this so important? The regional plan under question has not been updated since 1978, despite predictions at the time about the environmental risks of unchecked nitrogen pollution. Today, the consequences of decades of inaction are clear: badly degraded waterways, with mounting costs for solutions and little time left to ponder them while the region’s ecology and economy hang in the balance..

The answer, CLF argues, is a legally enforceable, coordinated blueprint to clean up the Cape. “It’s our firm belief that a coordinated regional approach is necessary – not individual towns trying to solve the problems on their own,” says Christopher Kilian, a senior attorney at the Conservation Law Foundation as quoted in The Boston Globe article.

The approach EPA will ultimately take is the subject of ongoing negotiations between CLF and the Buzzards Bay Coalition, EPA and Barnstable County officials. A report to the Court is due December 6th. Stay tuned.

For more on CLF’s efforts on cleaning up the Cape, read our release on our recent lawsuit, filed with the Buzzards Bay Coalition.

You can also find out more at the website of the Buzzards Bay Coalition.

All of those who love the peace and quiet, clean water, clean air, and abundant wildlife in the Vermont back-country are applauding the decision by Vermont Agency of Natural Resources officials to reverse course on an agency rule that would have allowed ATV clubs to crisscross and fragment Vermont state lands with ATV trails.  This decision should help protect state forests and wildlife preserves from often-destructive, high-impact motorized activity and maintain Vermont’s longstanding tradition of sound public land management.

ATVs are powerful machines that can churn up sensitive wetlands, destroy wildlife habitat, and create noise, air, and water pollution in sensitive forest environments

Since the previous administration of Governor James Douglas moved forward with this flawed rule that would have opened all state lands to ATV trail construction, CLF has been working with a coalition of organizations and concerned citizens to prevent the rule from taking effect.  CLF offered testimony that helped sway a legislative committee to unanimously object to the rule.  When the Douglas Administration moved forward with the rule over legislative objection, CLF filed a lawsuit challenging the rule’s validity.  In the Agency’s press release announcing the decision to abandon the ATV rule, Secretary Markowitz specifically referenced CLF’s lawsuit as a factor in the decision not to move forward:

“Markowitz said ‘in 2009, [Vermont's] Legislative Committee on Administrative Rules voted unanimously to object to the ATV rule. They strongly believed that ANR did not have the power to adopt the regulation. Because we cannot point to clear authority to adopt this rule, the regulation is vulnerable to legal attack, with little likelihood of prevailing in court.’ The rule has been challenged in the Washington County Superior Court by the Conservation Law Foundation (CLF). Markowitz states, ‘it does not make sense to try to defend the ATV rule in court given that LCAR has already determined that no authority to adopt the rule exists.’ 

CLF knows that this important victory is not the end of the struggle to protect our public lands from being overrun with ATVs. The ATV clubs are well-organized and well-funded by manufacturers who push hard to open up public lands to ATV use so that they can expand the recreational market for these gas-guzzling machines.  Agency officials are also hinting that some limited access might be granted in the future. With your support, we will keep working to keep our forests free of the pollution and habitat fragmentation that ATVs bring in their wake.

In their rush to exploit recovery efforts from Tropical Storm Irene, ideologues who perpetually fight against regulation and science and who posture as the defenders of traditional “Yankee” values are forgetting two important rock-ribbed principles.

The first is frugality. There has been a lot of loose talk about how much money was supposedly saved by largely ignoring environmental review and permitting as bulldozers, excavators and dump trucks rushed into rivers across Vermont in dozens of places. Understandably, given the dire situation facing the state at the time, these claims are based on initial, back-of-the-envelope cost estimates made with little or no analysis. However, using those alleged savings to argue for a change in policy is irresponsible as a matter of policy, and discourteous to basic math.

The accounting trick the deregulation folks are trying to pull off ignores the near-term and future public and private costs that Vermonters will inevitably incur and in some cases are already incurring to fix the problems caused by hasty “restoration” that did more harm than good. The overall restoration effort was extraordinary, and the state’s road system has been rebuilt quickly. But as any old hill farmer can tell you, a quick repair is rarely the last fix you need, and haste, even when necessary, makes waste.

Camp Brook in Bethel is a prime example where "restoration" work done hastily in the throw-the-law-and-science-out-the-window free-for-all that followed Tropical Storm Irene is now being redone, at additional cost to taxpayers, to minimize new flooding risks caused by the hasty Post-Irene stream alteration

The second Yankee principle ignored by those who don’t want to let modern understandings of river physics, science-based laws and common sense stand in the way of their crusade against regulation is that we don’t solve our problems by pushing them on to our neighbors.

One of the purposes of the science-based river alteration regulations that have evolved in Vermont during the last few decades is to minimize and prevent flooding altogether rather than simply transfer problems onto neighboring properties. Mining gravel from the stream next to your house might prevent – for a time – your fields from flooding. But it increases the likelihood of your neighbor’s house getting washed away. Striking the balance calls for smart regulation such as Vermont has developed. To do river work right, is to do right by your neighbors.

And, although some would not have it so, those principles of true frugality, quality workmanship, and true community remain in Vermont, and must be restored along with our roads, homes, and towns.

Take for example the case of Camp Brook in hard-hit Bethel.  As reported in Sunday’s Times Argus and Rutland Herald (sorry I can’t link to the story it is behind a paywall), the bulldozers are back in the river.  But this time scientists from the U.S. Fish and Wildlife Service, Vermont Agency of Natural Resources, and volunteers from nonprofit White River Partnership are guiding their work closely.  You see, the bulldozers are there trying to fix the mess (likely made with the best of intentions) that the early recovery efforts made of the Brook; a mess that, according to the news report, actually increased the risk of flash flooding and threatens upstream and downstream bridges along Rt. 12 with erosion around their abutments and more intense flows from a river artificially straightened after Irene.  Here is an excerpt that sums up the status of the Brook as a result of the rush job:

“[N]o one in the excavators really knew what the brook had looked like before.  The valley was flattened.  Berms stood mid-slope.  Where the lawn had once been, the river now braided over dirt and rocks, with no banks to direct its flow.  There were no boulders or even large rocks to add burbles to its sound or prevent flash flooding.”

After weeks of careful remediation, the new science-guided effort is restoring Camp Brook to a healthy functioning stream with natural structures that will help prevent future flooding and restore habitat for fish.  Even though it’s buried in the back pages of the paper, it’s good news for people who care about protecting property and maintaining healthy streams.  It’s bad news for the deregulation crowd because it directly contradicts the claim that we can save money by gutting environmental regulations that require recovery work to be done carefully in a manner that is consistent with science-based state and federal laws. In the long run it is cheaper for us and for those downstream to do a job right the first time lest we keep having to relearn the lesson that haste makes waste.