Burying our garbage in landfills is a waste of resources, but it’s also a convenient way to get rid of stuff we don’t need or want. If there were clear alternatives to trashing our resources, would we use them? The Massachusetts Department of Environmental Protection (DEP) believes the answer is yes.

The DEP has finalized new rules that provide a permitting pathway for operations that process source separated materials – stuff like food waste or recyclable plastics that are not mixed with other wastes in the general trash stream. Source separated materials are distinguished from “waste”, so qualifying facilities will not be permitted as solid waste facilities. Previously a facility that sought to collect discarded material for recycling or some other reuse was considered a solid waste facility. This created barriers to the productive use of materials like food waste. The new regulations are a good step toward better management of our discarded materials.

Under the new rules, finalized November 23, DEP has created three size-based categories:

1. Small facilities (no permit required)
2. General permit facilities (certain activities permitted by-right)
3. Facilities that will require a new Recycling, Composting, and Conversion (RCC) permit

The good news is that these rules create a permitting pathway for anaerobic digestion (AD) facilities. AD is a process in which organic material, like food waste, is processed in an airtight container to create a gas similar to natural gas (high in methane). AD facilities can use the gas to fuel energy generators to create electricity and heat that can be used onsite or sold in the energy market.

AD facilities, if properly sited and appropriately operated, offer a win-win by managing food waste and generating a renewable gas for energy production. Rather than putting our food waste into a landfill where it does more harm than good, the energy in the food can be efficiency recovered for productive use.

“But what about composting?” you may be asking. DEP’s goals, as stated in the current draft Solid Waste Master Plan, include diverting 350,000 tons of organic waste per year from landfills. Some of this will be accomplished by AD facilities, but some diversion will be accomplished by composting. The new rules clarify which operations are permitted by DEP and which are permitted by the Department of Agricultural Resources (DAR).

Whether we create high quality fertilizers and soil amendments through composting, or energy and fertilizer through AD, we will be diverting organic material from landfill disposal. DEP’s new rules are a step in the right direction to better manage our resources for economic advantage and environmental gain.

This spring, clean energy is sprouting up all over Massachusetts. The Commonwealth is now in a terrific position to further solidify its promising trajectory and show the nation how it’s done – so long as we take a few critical actions.

By necessity, CLF and others continue to play serious defense. This includes directly confronting the region’s dirty and uneconomic coal plants, and partnering with local advocates to fend off new power generation facilities that would increase air pollution. This work continues to be an essential part of what we do.

But equally important is our work to advance clean energy solutions. This work is about “keeping the lights on” while reducing the pollution that contributes to climate change and worsens asthma attacks and other health impacts. In the wake of some energizing recent events, let’s take a moment to reflect on the progress we’re making in Massachusetts on the clean energy solutions side of the equation and what we need to do to keep it up.

Governor Patrick Fires Up the Troops

In a rousing and inspired clean energy address before over 200 clean energy leaders last week, Governor Patrick touted Massachusetts’s long list of recent clean energy achievements. It’s an impressive list, including a suite of forward-looking clean energy laws enacted in 2008: the aptly named MA Green Communities Act, Global Warming Solutions Act, and Green Jobs Act. These policies not only are reducing power plant pollution, they also helped spur the clean energy sector to become one of the few bright spots in the recent recession – with more than 60,000 new clean energy jobs in MA alone. At a time when families are struggling, this is indisputably good news.

Particularly inspiring was the Governor’s connecting of clean energy dots: as he noted, we can replace all of Massachusetts’ remaining dirty and uneconomic coal-fired power plants with clean offshore wind. This isn’t pie-in-the-sky futuristic thinking. We already have the tools we need to get the job done. With further contributions from other renewable energy resources, we can redirect the billions of dirty fossil fuel dollars Massachusetts currently sends out of state and instead re-power the Commonwealth with clean alternatives that promote local jobs and improve public health.

Reinforcing that everyone can and should be part of the solution, Boston Bruin Andrew Ference joined the Governor in touting the Massachusetts green revolution. Ference leads by example: he conserves energy by riding a bike, walking or taking the “T” to get around, recycling and composting. All of these simple and healthy alternatives reduce energy waste and associated energy impacts. And the Commonwealth must continue to bring the same dedication and ferocity to the fight for clean energy as Ference does to the rink.

Toughest environmentalist around Andrew Ference May 30, 2012

Cape Wind Hearings Reflect Major Shift

Further evidence of the clean energy revolution in Massachusetts came through a series of Department of Public Utilities (DPU) public hearings in May. The hearings provided opportunities for the public to comment on a 15-year contract for the sale of some of the Cape Wind offshore wind energy project’s output to NSTAR electric. Even at the hearing on Cape Cod, where some opposition long has simmered, Cape Wind supporters vastly outnumbered opponents. The shift more strongly in favor of clean energy was palpable. Dozens of people lined up, often waiting for hours to say that they are willing to pay a modest premium for clean energy from Cape Wind.

One notable dynamic that was not reflected in media reports: an overwhelming number of young people and parents spoke in support of purchasing Cape Wind’s clean power. It’s about choosing a thriving future.

Massachusetts is on a roll. But we cannot afford to stall out just as we’re on the crest of the clean energy wave. Here’s what we need to do now:

• Enact MA Green Communities Act Part II. The 2008 MA Green Communities Act has been a resounding success, propelling Massachusetts to the head of the nation with respect to reducing energy waste, saving Massachusetts hundreds of millions of dollars (and counting), and giving a much-needed boost to the deployment of clean, locally available renewable energy sources such as wind and solar. But some of the Act’s modest programs soon will be maxed out. Fortunately, the MA Senate recently took action through Senate Bill 2214 to build upon the 2008 Act’s key renewable energy programs. Now, we look to the MA House of Representatives to take action to advance these key clean energy measures to the Governor’s desk by July 31.

• Fully implement the Massachusetts Global Warming Solutions Act, including the adoption of regulations to reduce greenhouse gas emissions. The 2008 Global Warming Solutions Act requires Massachusetts DEP to adopt regulations to keep Massachusetts on track to meet its clean energy and climate objectives. Among other advantages, such regulations will provide clear signals to the burgeoning market for clean energy alternatives, and will ensure that global warming pollution is reduced gradually over time. Despite the law’s clear mandate, DEP blew the January 1, 2012 deadline for adopting these critically important regulations. To ensure MA stays on track to meet its 2020 target, it’s essential that DEP take action to adopt smart, effective regulations without further delay.

• Get Cape Wind over the finish wire. More than a decade in the permitting and environmental review process, this project is primed to go forward and begin delivering huge amounts of clean power. CLF will continue to advocate before the Massachusetts DPU for approval of a 15-year contract for Cape Wind to deliver 27.5% of its output to NSTAR Electric customers.

There’s no question that Massachusetts has made tremendous progress on clean energy in the past few years. But as the Governor wisely noted in his clean energy address last week, “winners don’t stand still.” So, Massachusetts, let’s keep moving!

Creative Commons image courtesy of BenandAsho on Flickr

We throw away a lot of food. Sometimes the scraps are inedible, like banana peels. Sometimes we forget about things in the refrigerator until we notice the smell. And sometimes our eyes are just bigger than our stomachs. Regardless of the reason, a lot of food scraps end up in our trash and ultimately the landfill. This is a wasted opportunity to realize environmental and economic benefits by using food scraps to improve soil health and generate renewable energy.

By diverting food scraps to other uses, such as generating energy and creating compost, we avoid the need to expand landfills in the state or transport waste long distances to out-of-state facilities. When food scraps and other organic matter decompose in landfills, they produce methane gas, a potent contributor to climate change. So diverting food scraps from landfills also helps us meet the state’s aggressive greenhouse-gas emission reduction goals.

To realize these benefits, the Massachusetts Department of Environmental Protection (DEP) is supporting public and private investment in a new kind of infrastructure for managing organic materials. But for this new infrastructure to succeed, DEP and the project developers that will build and operate this infrastructure need to convince the public that food scraps are not garbage, but something else entirely.

The DEP is currently working on an action plan for managing Massachusetts’s organic waste. The state needs a plan, because it has set lofty goals to divert organic material from landfill disposal to be used in other processes. The state’s draft Solid Waste Master Plan calls for diverting 35% of food waste, estimated to be about 350,000 tons of material per year. This goal is echoed by the Clean Energy Results Program, which sets a further goal of 50 megawatts of installed capacity of renewable energy from aerobic and anaerobic digestion facilities by 2020. And let’s not forget the proposal to ban commercial food waste from Massachusetts landfills in 2014. These are great goals, because diverting organic material out of the solid waste stream provides opportunities for economic development that can improve the environmental impacts of solid waste management, and now DEP is developing the plan to make sure we get there.

The plan aims to ensure that organic “waste” isn’t wasted in a landfill. It calls for a few things:

• Gathering better and more current information about sources of food waste,
• Providing funding and technical assistance to work out the logistics of separating food waste from the actual trash, and
• Working with haulers to move this material to appropriate processing facilities.

There are also provisions for funding and technical assistance to facilitate the construction of additional processing infrastructure, like anaerobic digestion (AD) facilities, and to develop good markets for the resulting products.

Organics diversion presents an economic opportunity for cash-strapped municipalities to save money through reduced trash fees. It also allows developers – municipal or private – to generate revenue by using “waste” organics as inputs for marketable products like compost and other soil amendments and as a source of clean, renewable heat and electricity. At a time when municipal budgets are facing historic shortfalls and municipalities are seeking means of both cutting costs and creating revenue, this is surely a good thing.

DEP’s draft action plan is a progressive, proactive approach to organics management, but it’s missing something very important. It provides much-needed support and direction for people and organizations that are already proponents of better organic material management and will help project proponents navigate the technical and regulatory processes to achieve success. But what about the majority of people who likely have no idea that the DEP is interested in doing something dramatically different with organic waste?

This action plan and DEP efforts to date on this issue do little to address the very real need for public engagement and outreach to help citizens and businesses understand the good reasons for organics diversion. These include:

• Mitigating greenhouse gas emissions through improved methane utilization;
• Generating renewable energy from anaerobic digestion; and
• Producing nutrient-rich soil amendments through composting.

The intersection of waste management and energy development is more complex than either of these individual business sectors taken on their own. For instance, energy facilities such as anaerobic digesters, which use “waste” materials as inputs to generate energy, face the siting hurdles typically encountered by both energy and waste facilities. Public concerns with other renewable energy technologies, such as wind and solar, have emerged relatively recently, but communities and individuals have been fighting against landfills and transfer stations for a very long time.

Today, forward-thinking people and businesses are beginning to talk about “materials management” rather than “waste management,” and those on the inside know what we mean by that. But most people don’t currently make the distinction, especially when the materials in question are leftover food and other organics that can rot. In the case of a proposed anaerobic digestion facility, the result is often a contested siting process. While AD proponents see facilities that will produce clean energy and environmentally beneficial soil products, opponents are concerned about siting waste incinerators, trash transfer stations, and toxic sludge.

The DEP, along with other state agencies such as the Department of Agriculture and Department of Energy Resources, is pushing to change the way “waste” materials are managed in Massachusetts. This is a good thing for economic development and the environmental performance of our materials-based economy. However, many people will not readily accept the subtle changes in regulatory definitions that distinguish separated materials from mixed solid waste. With these changes, materials that formerly had to be permitted as solid waste (trash) and processed at a permitted solid waste facility are no longer legally considered trash, so they can be processed at a composting or AD facility without a solid waste permit. I’m very happy this distinction is being made for organic material, but I know that many other people will consider this just another form of garbage disposal.

An action plan to encourage better organic materials management through diversion to composting and digestion needs to include significant resources to engage stakeholders around the Commonwealth to have open and honest conversations about the wide-ranging benefits, the potential pitfalls, and what everyone needs to know to avoid problems.

There is no reason to continue to dump organic material into landfills and many reasons to get everyone on board with using this material to generate more economic value and more environmental benefits for Massachusetts. But we can’t just “dot the i’s and cross the t’s” on the permit applications; we have to engage with people and navigate the changes in a collaborative and productive way. Diverting organic material from landfills can lead to a host of economic, environmental, and community benefits, but anyone who thinks changing the system will be as easy as selecting a site, telling the neighbors about the benefits, and awaiting approval and praise is in for a rude awakening. CLF Ventures looks forward to working with communities and project proponents to engage in open, clear discussions of the real impacts and benefits of organics management facilities so that all stakeholders share the same understanding of the issues and speak with the same terminology.

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.

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

After weeks of debate regarding Darryl Brown’s eligibility to serve as the commissioner of Maine’s Department of Environmental Protection, on April 27 Attorney General William Schneider issued a letter stating that Brown was likely unqualified to serve in the position under Maine law. Following that announcement, Brown resigned.

CLF and others voiced their concerns about a potential conflict of interest that would affect Brown’s ability to continue serving in the post in the months following his appointment in February. Maine law states that anyone who has received at least 10 percent of their income over the past two years from work for clients under the Clean Water Act is ineligible to serve as DEP commissioner. Brown is the founder and sole shareholder of Main-Land Development Consultants, an engineering and land-use planning firm, and had originally stated at his confirmation hearing in January that between 25 and 35 percent of his firm’s work fell into that category, but later insisted that he did not exceed the 10 percent threshold. Schneider’s letter stated that if Brown couldn’t produce documents demonstrating that his income did not exceed the 10 percent threshold, he would be ineligible for the position. The Attorney General also made clear that any such documents submitted by Brown would be subject to Maine’s Freedom of Access Act.  Claiming that the potential release of documents could potentially hurt his business, Brown’s attorney had sought assurances that the documents would not be released.  Brown’s resignation followed shortly after the Attorney General’s letter was released.

Brown’s resignation must have been anticipated by the LePage Administration, which immediately announced that Brown would become the director of the State Planning Office, which LePage has previously indicated he intends to do away with by 2012.  Jim Brooks, currently the director of the DEP’s Bureau of Air Quality, will serve as acting DEP commissioner.

At the end of the day Wednesday, Attorney General William Schneider sent a response to the Emily Cain, Democratic minority leader, declining her request that the Attorney General prepare an opinion regarding the continued authority and eligibility of Darryl Brown to serve as Commissioner of the DEP.  The Attorney General stated that because his office was involved in the preparation of the response by Commissioner Brown to the EPA with respect to federal law and that “[a]ny final response to the EPA will be made through this office,” it was not appropriate for the AG’s office to issue a separate opinion.

It’s difficult to ascertain what the Attorney General actually is saying here.  If he is saying that the AG’s office will be independently reviewing Commissioner Brown’s response, and particularly the facts as to whether more than 10 percent of Brown’s income over the past two years was derived from work for clients under the Clean Water Act, before it goes to the EPA in order to determine compliance with Maine law, then we applaud him for finally addressing this issue.  If, as suggested in yesterday’s article in the Portland Press Herald, he is saying that the Attorney General’s office will be acting as Mr. Brown’s lawyer in responding to the petition filed with the EPA, then we strongly disagree with that course of action.  At a minimum, the Attorney General should clarify exactly what role his office will play.

It is our opinion that the proper course for the Attorney General is to conduct a detailed analysis of the facts that Mr. Brown collects and presents concerning his income sources over the last two years.  If that review indicates that he has not exceeded the 10 percent threshold, then Mr. Brown should continue with the important work of the DEP.  But if the data shows that he crossed that threshold, then Mr. Brown should resign.  In either case, a speedy and transparent resolution of this issue is paramount.

Yesterday’s Boston Globe editorial in response to Monday’s New York Times article on the Clean Water Act makes the point that Massachusetts is in a unique position because the state’s waterways are regulated under a more flexible state water act enforced by the Massachusetts Department of Environmental Protection (DEP). However, that’s not a panacea. Massachusetts must still support and enforce the terms of the federal Clean Water Act to keep pollution at bay.

While the DEP may enforce discharge permits in Massachusetts, it’s the federal Environmental Protection Agency (EPA) that has primary responsibility for issuing them. Two US Supreme Court decisions in 2001 and 2006 have undermined the authority of the EPA by calling into question what defines a waterway eligible for protection under the Clean Water Act.  The confusion over which of these waterways are legally protected has left 52% of Massachusetts’ waterways at risk for increased pollution, because EPA is no longer asserting its jurisdiction to regulate pollution flowing into them.

Congress needs to act quickly convey that the Clean Water Act applies to all waterways and must be enforced broadly and effectively.

The Clean Water Restoration Act, first introduced in Congress in April 2009, would amend the Clean Water Act to clarify that the Act applies to all US waterways as it did prior to the Supreme Court decisions. Passing the CWRA will send a message to polluters that all waterways merit equal protection under the law, and that the EPA will continue to enforce the terms of the CWA to prevent further environmental damage.

If we want clean waterways, not just for Massachusetts but throughout New England, here’s our chance to make sure that the EPA has full authority to do its job right, by passing the Clean Water Restoration Act.

Support the Clean Water Restoration Act