A few weeks ago I attended a conference in Washington, DC that brought together environmental groups from all over the country. In speaking with my colleagues, I was reminded of how this country is a patchwork quilt: each of us brought a unique set of challenges, a strong independent sense of identity, and solutions to regional challenges – solutions that are sometimes adopted at the national level. This certainly is true of New England.

Over the last year, two events have emphasized the importance of interregional coordination. In the process, they have reminded me of New England’s long history of regional cooperation to advance nation leading clean energy projects, and of the way in which those have been adopted on the national stage.

The first of these issues is FERC Order 1,000 – a significant reform to the Federal Energy Regulatory Commission’s position on “electric transmission planning and cost allocation requirements for public utility transmission providers” issued in June of 2010. That Order, and material explaining it, can be found on the FERC website. The new rules announced in that Order mandate that utilities operating wholesale electricity systems across the country engage in a process of regional planning. Here in New England, we have been doing that for as long, if not longer, than anywhere else in the country, so that part of the order will prompt new regional innovations largely elsewhere in the country. Another part of the order instructs regional operators of the electric grid to consider the public policy mandates of the states in their region in the planning they do for their part of the grid. The New England states have a variety of innovative policies intended to bring about a clean energy future. How our regional grid operator accounts for those in its planning is very likely to break ground for the rest of the country.

Similarly, the recent breakthrough settlement agreement by the Patrick Administration in the proposed merger between NStar and Northeast Utilities also reminded me of the need for regional coordination. Consider the scale of the proposed utility: As The Boston Globe reported, “the proposed $17.5 billion merger… would create the largest utility in the region, [and serve] nearly 3.5 million electric and gas customers from Westport, Conn., to Pittsburg, N.H., near the Canadian border.”

With a reach extending from southern Connecticut to Northern New Hampshire by way of Boston, the resulting utility has obligations under a variety of critical state policies intended to protect the environment and build a resilient clean energy economy. The right to operate as a state-sanctioned monopoly is conditioned on the utility meeting those obligations. The initial terms of the proposed merger did not meet those requirements; the merger as revised by the settlement, as my colleague Sue Reid said, “ensures that this powerful new utility will be in lockstep with Massachusetts’ nation-leading clean energy policies and propel the state forward instead of backwards in implementing them.”

This cases highlight the need for advocacy groups to be able to field their teams  on a scale and in a manner that that rises to the challenge of the moment. The NU/NStar merger required us to play on a regional scale; FERC Order 1,000 provides a chance to use the federally regulated planning process to advance critical state policies that are designed to build a cleaner and thriving New England. The challenges we face, and the institutions we engage (like utilities), are large and extend across our region and beyond, not respecting traditional boundaries. CLF must meet this challenge with size, scale, intentions, goals, and strategies that are appropriately sized to meet those challenges.

Given New England’s strong tradition of leadership on energy and environmental issues, I have confidence we have the tools required. However, as my conversations in DC emphasized, what is appropriate here in New England is not appropriate for every region.

Given the differences between the various regions of the country, and various areas within those regions, I wonder: To what extent can we successfully plot a common future? These questions are as relevant within New England as between regions.

Driving south from Acadia National Park in Maine or Hanover, New Hampshire, or east from Springfield, MA and Hartford, CT the scenery changes, the weather warms and the population becomes more dense. Though each place is in New England, each feels very different – and, if you ask someone on the street, chances are they’ll tell you just how unique and independent their town or city is. The same is true as you travel north from Atlanta or NYC to Boston, or east from Chicago or San Francisco. Within New England, as within our country, our differences can be easier to see than our shared future, but it is the latter that requires our attention.

More and more, we have the tools. That puts us in a good position to work together, town by town, region by region, for a thriving New England, and a thriving country.

With Northern Pass and other new transmission projects on the horizon, CLF and other leading New Hampshire environmental organizations are presenting a special free webinar on what it really means for New England to import more hydroelectric power from Canada.

The webinar will be next Friday, March 9, 2012, 2:30 to 4pm EST. Click here to register. All you’ll need is a computer and an Internet connection. Please join us, and spread the word to friends, family, and colleagues. The webinar is sponsored by CLF and our friends at the Appalachian Mountain Club, Conservation New Hampshire, The Nature Conservancy in New Hampshire, and the Society for the Protection of New Hampshire Forests (SPNHF). 

A scene along the Romaine River from Seeking the Current (copyright Chercher le Courant)

The idea is to provide an accessible summary of the environmental and energy implications of imports, including the often-overlooked impacts of the new hydropower developments in Canada that will supply the power. One of the key questions is what new imports will really mean for the climate, and I’ll explain the findings of a recent report commissioned by CLF on the greenhouse gas emissions of hydropower. As we’ve often pointed out, whether and how to import more hydropower from Canada is a critical issue for the entire region’s energy future. And it’s not just about New Hampshire and Northern Pass — just last week, the developer of the Champlain Hudson project in New York announced that it is moving forward with a revised proposal for an underwater and underground transmisssion line between Canada and New York City that will have the support of state officials, municipal governments, and environmental groups.

During the webinar, you’ll hear from me, and also from Tom Irwin, CLF Vice-President and CLF-NH Director; Ken Kimball, AMC Director of Research; and Will Abbott, SPNHF Vice President for Policy and Land Management.

The webinar will feature a special guest appearance by Québecois filmmaker Nicolas Boisclair, who will be in New Hampshire this month for a series of screenings of his documentary film, Seeking the Current, which shines an unsparing light on Hydro-Québec and its ongoing $8 billion hydropower project on the Romaine River. We’ve put all the details on the screenings (and the webinar too) at this link.

For more information about Northern Pass, sign-up for our monthly newsletter Northern Pass Wire, visit CLF’s Northern Pass Information Center (http://www.clf.org/northern-pass), and take a look at our prior Northern Pass posts on CLF Scoop.

Photo courtesy of Derek Keats @ flickr. Creative Commons.

Gulf of Maine cod, the lifeline of our inshore fishing fleet up and down the coast of New England, is in a biological crisis. That is why I wrote today to the Honorable John Bryson, Secretary of the U.S. Department of Commerce, calling for federal fisheries disaster relief and interim emergency action. You can read a copy of the letter here, or scroll down to read it below this post.

My letter follows the latest scientific data – data that shows that cod stocks are much more heavily depleted than earlier assessments had indicated. According to the 2011 assessment, based on an improved scientific model, three additional years of survey data and more accurate weights-at-age estimates, Gulf of Maine the spawning cod estimates fell to 12,561 metric tons from 33,877 metric tons in 2008.

In the case of Gulf of Maine cod, the numbers are so close to the bone that a couple thousand metric tons of cod landed either way could spell the difference between a rebounding fishery and a total collapse. Given the economic importance of Gulf of Maine cod to coastal fishermen, what would the appropriate risk be?

Indications are that the National Marine Fisheries Service (NMFS) will set a quota of 6,700 metric tons (mt) for the 2012 fishing year that begins May 1. At this level the risk of the spawning population dropping below critical thresholds is greater than 31%. Drop the catch levels to 4,000mt and the risk drops to less than 10%. Still a risk but a safer bet. That is why as I said in my letter, “Conservation Law Foundation (CLF) recommends a one year 4,000mt catch level for the fishing year which starts May 1, 2012. While that level of catch is  2,700mt less than the lowest level proposed by the New England Fishery Management Council, it still presents a significant risk of further stock declines.”

Setting the catch levels too high on May 1, 2012 creates substantial risk that the whole fishery may have to be closed in the future. This isn’t sheer speculation; when Newfoundland’s northern cod fishery – a close cousin of our Gulf of Maine cod – collapsed in the early nineties, the fishery has had to be closed for decades to allow the cod stocks to rebuild.

As I said in my letter, at 4,000mt, “the estimated gross revenue losses at that catch level are $4,677,000. Importantly, an estimated sixty-six percent of those losses will fall on the smaller, inshore fleet (see attachment), a group that is already operating close to or below the economic break-even point and won’t have alternative fishing options in many cases.” Given this, I asked Secretary Bryson to “set up a disaster relief fund available to all active groundfish companies that would provide some relief for any demonstrated losses that they experience until GOM cod stocks can be rebuilt.”

The livelihoods of New England’s coastal fishermen hang in the balance with the Gulf of Maine cod. A three-part solution is required to protect these fishermen and the fish they depend upon.

• First, NMFS should limit the risk of further long-term damage to the fishery by setting the quota at no higher than 4,000 metric tons for the 2012 fishing year. That will buy some time to do further analysis to inform catch limits for 2013 as the nature and extent of the crisis becomes better understood.
• Second, NMFS should allocate those fish to the boats most economically dependent on Gulf of Maine cod, and restrict large trip boats from fishing for them.
• Third, federal and state authorities should declare an economic fishery disaster and make funds available to assist the coastal fishermen who will suffer significant financial losses under any proposed scenario and look towards broader economic assistance for affected coastal communities.

Failing to take the right action for Gulf of Maine cod at this critical junction may well be failing the region’s fishing future. Fast and effective management steps have to be taken to head off that possibility.

—

A copy of the letter I sent to Secretary Bryson can be found below or as a .pdf here.

February 21, 2012
The Honorable John Bryson
Secretary
U.S. Department of Commerce
14th and Constitution Avenue NW
Washington, DC 20230

RE: Gulf of Maine Cod Federal Fisheries Disaster Relief & Interim Emergency Action

Dear Secretary Bryson:

We are writing to you now to support the earlier requests by Governor Deval Patrick for federal fisheries disaster relief pursuant to section 312(a) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). The new scientific assessments for Gulf of Maine cod (GOM cod) stocks document that the economic situation in the region is significantly more dire than previously thought. Immediate and aggressive action is needed to avoid any risk of creating a long-lasting biological crisis with GOM cod with widespread, crippling economic implications.

As a result of the recent science assessment, GOM cod catch levels will have to be drastically cut back on May 1, 2012. Even at low catch levels, there still will be a significant risk that the spawning stock levels could decline below the lowest level ever observed. In the words of one of the New England Council’s scientists who has extensively studied the complete commercial collapse of the northern cod stocks in the early 1990’s off Newfoundland, “the similarities [between the two situations] are a bit frightening.” Dr. J.-J. Maguire (email to SSC members and others 1/25/12). Following that collapse, Newfoundland’s cod stock has been largely closed to fishing for decades.

The recent GOM cod reassessment was a unique and highly unusual set of events that was beyond anyone’s control. The scientists exercised their best professional judgment in performing the original assessment in 2008, the managers strictly followed the scientific harvest level advice, and the fishermen appear to have stayed within their prescribed quota limits. And yet, the future of GOM cod is now at an unforeseen but significant risk. These circumstances meet all the criteria in the National Marine Fisheries Service’s disaster relief policy guidance: there is a fishery resource disaster as defined by the MSA; it was caused by events beyond human control; and there will be significant economic impacts stemming from this disaster.

Economic analysis indicates that single-year gross revenue losses for the commercial fleet from current revenue levels could range from  $1,354,000 to $14,620,000, depending on the catch level that is set. Conservation Law Foundation (CLF) recommends a one year 4,000mt catch level for the fishing year which starts May 1, 2012. While that level of catch is 2,700 metric tons less than the lowest level proposed by the New England Fishery Management Council, it still presents a significant 10% probability of further spawning stock declines.

The estimated gross revenue losses at that catch level are $4,677,000. Importantly, an estimated sixty-six percent of those losses will fall on the smaller, inshore fleet (see attachment), a group that is already operating close to or below the economic break-even point and won’t have alternative fishing options in many cases. We ask that you set up a disaster relief fund available to all active groundfish companies that would provide some relief for any demonstrated losses of net revenues that they experience until GOM cod stocks can be rebuilt.

Without relief from the crushing economic circumstances many coastal boat owners are facing, , managers are being tempted to take risks in setting the short-term quotas too high, potentially imperiling the fishery for decades. A further commercial collapse of GOM cod stocks would cripple many of New England’s fishing communities that are wholly dependent on cod. The indirect losses in the maritime support industries multiply those potential direct costs many times. Economic disaster assistance can greatly reduce the pressure on managers to allow short-term overharvesting as the region transitions to a sustainable fishery. Moreover, in addition to direct disaster relief, we encourage you to implement the suggestions of the Commerce Department Economic Development Administration’s recent evaluation of certain New England ports and provide necessary aid and technical assistance for the economic transition of these communities.

CLF supports the New England Council’s emergency action request and the general approach that the National Marine Fisheries Service (NMFS) has proposed in taking interim emergency action to respond to this unexpected and troubling new development. As mentioned above, however, we feel strongly that the quota should be set no higher than 4,000mt. And we have called for the imposition of a series of management measures that would direct the majority of the limited cod quota to the boats that are most dependent on cod. In support of this, we have provided NMFS with a position paper on this issue, which we are also attaching to this letter. Thank you for your careful consideration of the management and economic assistance measures we propose. We look forward to your response and your agency’s further efforts to work towards solutions that help all of New England’s coastal communities weather this tough economic crisis and to thrive in the future.

Sincerely,
Peter Shelley
Vice President

Keeping the spotlight on administrative agencies is often the best way to ensure that they perform as intended and in the best interests of the people. It’s not sexy and it doesn’t make for good headlines, but it’s true – as we at CLF saw this Valentine’s day.

As I detailed a few months ago in two blogs (Malpractice post , Patricia Aho post) and in Maine’s newspapers (Sun Journal article), outside the glare of the spotlight the Maine DEP deliberately waived Maine’s rights under the Clean Water Act to control and mitigate the water quality impacts to Flagstaff Lake of the hydropower project owned by Florida Power & Light. We challenged that decision (Aho Letter) and sought to hold the DEP accountable.

We also turned our focus, and spotlight, to a similar situation pending at Brassua Lake. (Brassua letter 1-24-12, Brassua letter 2-13-12). For those who have been been there, Brassua Lake is situated in the northern county of Somerset. It sits to the west of Moosehead Lake, to which its connected by the Moose River.

At Brassau, we were specifically concerned with the water quality certification (WQC), on two accounts:

1. First, in 2004, the Maine Board of Environmental Protection (BEP) found that the original WQC was not legally sufficient. We asked Commissioner Aho of the Maine DEP to clarify whether it was or was not sufficient.
2. Secondly, as I wrote, “another FPL Energy hydropower project, Brassua Storage Project, raises similar concerns to those previously raised by the Department about the Flagstaff Storage Project, concerns still shared by the EPA and many stakeholders. A WQC application for the Brassua project has been filed, withdrawn and re-filed for a number of years now. Most recently, that application was withdrawn and re-filed on March 24, 2011, requiring a decision by March 24, 2012.”

We asked Commissioner Aho to advise as to whether the Department intends to waive its rights under the Clean Water Act for the Brassua WQC as it did for the Flagstaff Storage Project and the basis for such a waiver.

Our efforts were rewarded on Valentine’s Day when the DEP confirmed that rather than waive Maine’s right, the dam owner was forced to withdraw its application and refile it, starting the clock over and maintaining Maine’s rights to control its water quality standards (FPL Letter).

We plan to keep the spotlight on DEP and the LePage administration, to acknowledge and thank them when they do right by Maine’s environment and to expose and hold them accountable when they do wrong.

Earlier this week the Maine Department of Environmental Protection made a formal determination that Maine would benefit from an expansion of the state-owned Juniper Ridge Landfill located in Old Town. In doing so, it cut in half what the State and Juniper’s private manager Casella Waste Systems Inc.’s subsidiary NEWSME had asked for, authorizing an expansion that would increase capacity of the landfill by up to 9.35 million cubic yards, thereby adding ten-plus years of capacity. By cutting the proposal down to size, the DEP sent the clear message that it doesn’t want Maine to continue to be the dumping ground for New England’s waste. That relatively conservative approach is a good start but more work needs to be done to define the role of Juniper and other landfills and to fully address other flaws in Maine’s waste management system.

CLF opposed the Juniper expansion largely because an approval of the 20 years of landfill capacity proposed would have amounted to a surrender to the forces that are keeping Maine’s recycling rate down, limiting our reuse of waste as compost or for other beneficial purposes and driving (literally) Maine and out-of state waste to be disposed of in Juniper and other landfills in the state. So did this decision have the State only half capitulating to Casella and its waste partners?

The answer to that question is complicated and it is still too early to know for certain, but some things are clear at this point. There is no doubt that this decision indicates that the Maine DEP is willing to continue to make landfills a centerpiece of its waste management regime. However, that does not necessarily mean that it intends for Juniper and other landfills to be the option of first resort for our trash. Indeed, the DEP decision justifies its reduction in the expansion size by citing to the potential negative impacts that a fully expanded Juniper Ridge would have had on initiatives to encourage waste reduction, reuse and recycling. To its credit, DEP also implies that it will seek to eliminate disincentives in the tipping fees charged by Juniper that have the effect of making landfill disposal less costly than processing or composting waste as well as to limit the practice of disposing of massive quantities of construction and demolition debris processing residues at Juniper. DEP should be encouraged to aggressively pursue these efforts.

There are also positive indications in the DEP decision that it would like to change the 10-year solid waste status quo in Maine. The Department’s findings seem to encourage statutory changes that would limit the landfilling of waste from other states by redefining what is considered out-of-state waste. It also gives implied support for a statutory waste fee structure that would serve as an incentive to limit imported waste and to increase our beneficial reuse and recycling of garbage. Finally, DEP uses its authority in this decision to place some specific limitations on the manner in which Juniper in managed, by limiting the amount of both unprocessed waste and construction and demolition debris that can be disposed of each year at Juniper and by requiring audits designed to keep Casella honest and operating more for the benefit of Mainers than its own bottom line. These are needed improvements.

So despite the DEP’s decision to allow NEWSME to pursue an expansion of Juniper Ridge, there is some reason for hope in addressing the many remaining issues on the solid waste to-do list of the DEP, the Legislature and the Governor. At a minimum, the list contained in the DEP’s decision should be expanded to include: a meaningful increase in fees charged by the state for waste disposal at any landfill to fund recycling programs and disincent land disposal; re-establish and invigorate municipal recycling programs that create jobs, save towns money and reduce our waste; and, establish caps on the amount of solid waste that can be disposed of annually in Maine landfills to limit disposal and avoid the importation of waste by our waste to energy facilities, the residues of which fill our landfills. These actions would sufficiently counterbalance an expansion of Juniper Ridge to ensure that it is only one piece of a larger and more forward thinking strategy.

In the mid-1990’s a Vermont ski area executive told me this joke.

“How do you make a small fortune in the ski industry in New England?” he asked.

“Start with a large one.”

He was talking about the challenges he faced then, which seemed normal at the time:  limited water for snowmaking, labor shortages, skyrocketing costs of doing business, aging baby boomer population, and inconsistent (though generally reliable) snowfall. The snow sports industry now faces a much more fundamental challenge: a shrinking winter.

But for a recent cold snap, a light dusting on MLK day, and a destructive storm in October, our winter here in New England has been largely without snow. The temperature has been high – in many instances, far higher than normal.

Consider recent temperature trends as reported by @JustinNOAA – the Twitter feed by NOAA’s Communications Director. On Friday, December 9^th, he Tweeted: “NOAA: 971 hi-temp records broken (744) or tied (227) so far this January.” The day before broke “336 hi-temp records in 21 states.”

Rising temperatures are a death knell for falling snow. On the final day of 2011, only 22% of the lower 48 had snow. Today, New England remains largely untouched by snow. A glance at NOAA’s snow depth map shows most of New England with 4 or less inches of snow. This was true of my New Year’s hike with my brother and his dog up Camel’s Hump. As the background of the photo shows, there was little snow across the surrounding Green Mountains.

With so little snow, New England is suffering. While ski mountains have been making snow (and areas like Sugarloaf and Stowe are reporting recent snow fall), other outdoor recreationists are suffering. Some seasons haven’t even started yet, weeks if not months into their normal season.

Snowmobilers, for instance, are facing one hell of a tough time. With so little snow in most of New England, they’ve been prevented from riding over familiar terrain. Ice fishermen, too, are facing lakes and ponds that, by this time of year are usually covered in a thick layer of ice by mid December. Today, many that are usually frozen by now remain open bodies of water.

The effects of this extends beyond our enjoyment to our economy. According to a story on NPR, reported by Maine Public Broadcasting, the unseasonably warm winter has meant millions of dollars in lost revenue for sporting good stores, lodging, and recreation. One store in the story has reported a decline in sales by around 50%.

Competitive cross-country and downhill skiers suffered, too. They’ve have had their race schedule reshuffled due to rain last week. According to the US Ski Team development coach Bryan Fish, quoted in the Boston Globe, “We’ve had the same challenges on the World Cup. It is always a challenge in a sport that relies on the climate.”

That is precisely the problem. People are drawn to New England to live, work and play for its climate: its warm summers, stunning falls and picture perfect winter landscapes, suitable for a wide range of outdoor activities. Walk down the halls of our states offices and you’ll see signs of that passion right here at home: people wearing ski vests, pictures of people snow shoeing, cabins nestled into densely fallen snow. If our climate changes – which the IPCC and others have repeatedly demonstrated it will – then New England will be a very different region than the one we all have come to know and to love.

That’s why I ask you to help us protect our New England winters. Help us protect the places where we enjoy ourselves.

To do just that, I suggest a few things:

1)      Help us transition away from inefficient, 20^th century energy to clean energy of the 21^st century. As a recent EPA report showed, power plants account for 72% of greenhouse gases – by far the largest contributor to global warming in the U.S. Here at CLF, we’re pushing for a coal free New England by 2020.

2)      Also according to the EPA, transportation accounts for the second largest portion of greenhouse gasses. Ride your bike, walk, or take public transportation to work, to do your errands or your other daily tasks. It makes a big difference.

3)      Support both national and regional or local environmental organizations. As I wrote in a NY Times letter to the editor recently, local environmental organizations “have known for years what the nationals are only now realizing: we’ve got to engage people closer to where they live.” Support local, effective environmental organizations who are creating lasting solutions in your area.

4)      Make yourself heard; write letters to your Senators, Congressmen and Representatives. Ask tough questions, and don’t settle for easy answers.

5)      And be sure to get outside. Plant a garden, even if it’s a small one in a city. Go for a hike, or for a bike ride. And take a friend or family member. Remind yourself and others why we need to protect our environment.

By doing all of these simple but important things, you can help us keep winter, winter.

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

It’s been a great year for CLF — and a great year on CLF Scoop. We’ve had lots of great posts by our advocates, staff and volunteers. See below for the most read 10 blog posts published in 2011.

1. Northern Pass: The 5 million ton elephant in Massachusetts’s climate plan 
By Christophe Courchesne

“The Northern Pass transmission project is being pitched by its developers as a clean energy proposal for New Hampshire. As I’ve pointed out before, Northern Pass is aregional proposal with dubious benefits in the Granite State. Unfortunately, the developers’ hollow promises have found an audience further south, in Massachusetts.”

2. RGGI results good for our climate, economy and consumers 
By N. Jonathan Peress

“If you listen to the word on street, or read the headlines, you’ll have heard that our times are hard times. Joblessness remains stubbornly high, markets remain volatile and credit is tight. Most people agree that what we need is a program to creates jobs, generates money, and reinvests each of those in our communities to make them stable, healthier and happier.”

3. My NY Times letter to editor 
By John Kassel 

“It would be hard to find “a tougher moment over the last 40 years to be a leader in the American environmental movement” only if your sole focus is the national debate. All the rest of us — at the local, state and regional levels — have known for years what the nationals are only now realizing: we’ve got to engage people closer to where they live.”

4. Countdown to Shark Week 2012
by Robin Just

“I really do love our New England sharks. But I also love to surf. And as the water temperature at my favorite break is going down, the great whites are heading south. One less thing to worry about as I struggle with frigid water, thick head-to-toe neoprene, and my own personal resolve to surf all year long.”

5. We Can Get There From Here: Maine Energy Efficiency Ballot Initiative 
by Sean Mahoney 

“Maine has a new motto: We can get there from here… As Washington has failed to advance clean energy legislation, and Governor LePage has expressed open hostility to the state’s renewable portfolio standards (RPS), I am reminded of that famous quip from Bert and I: “You can’t get they-ah from he-ah.” For Mainers concerned about Maine’s dependence on expensive, dirty fuels, and sincere in their interest in building a sustainable economy for the years to come, this quip has become a frustrating reality – a reality we can change, with your help.”

6. Love That Dirty Water: Massachusetts Lacks Money, Needs Clean Water 
By HHarnett 

“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.”

7. Would Northern Pass Swamp the Regional Market for Renewable Projects? 
By Christophe Courchesne

“With the Northern Pass project on the table, as well as other looming projects andinitiatives to increase New England’s imports of Canadian hydroelectric power, the region’s energy future is coming to a crossroads. The choice to rely on new imports will have consequences that endure for decades, so it’s critical the region use the best possible data and analysis to weigh the public costs and benefits of going down this road. To date, there have been almost no objective, professional assessments of the ramifications.”

8. CLF Negotiates Cool Solution to Get Kendall Power Plant Out of Hot Water (And To Get Hot Water Out of Kendall Power Plant)
By Peter Shelley 

“Today marks a new milestone for CLF in our efforts to clean up the lower Charles River. Concluding a five-year negotiation, involving CLF and the other key stakeholders, the EPA issued a new water quality permit for the Kendall (formerly Mirant Kendall) Power Plant, a natural gas cogeneration facility owned by GenOn Energy. The plant is located on the Cambridge side of the Longfellow Bridge.”

9. What the Keystone XL decision should mean for Northern Pass
By Christophe Courchesne 

“Last week, a major disaster for our climate and our nation’s clean energy future was averted – at least for now – when the Obama administrationannounced that it won’t consider approving the Keystone XL pipeline’s border crossing permit before it reconsiders the Keystone XL pipeline’s environmental impacts and the potential alternatives to the proposal on the table.  For all the reasons that my colleague Melissa Hoffer articulated in her post last week, the Keystone XL victory was a resounding, if limited, triumph with important lessons for environmental and climate advocates across the country as we confront, one battle at a time, the seemingly overwhelming challenge of solving the climate crisis.”

10. When it comes to river restoration, haste makes waste
by Anthony Iarrapino

“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.”