CLF Bringing Suit to Address Stormwater in Rhode Island

Mar 12, 2015 by  | Bio |  Leave a Comment

A few weeks ago, CLF initiated a lawsuit that seeks to require EPA to do its job under the Clean Water Act and clean up stormwater pollution in Rhode Island. This lawsuit has the potential to be a very big deal.

What is stormwater pollution?

When heavy rain falls and snow melts, water runs across paved surfaces, picks up nasty pollutants like oil, feces, and heavy metals, and eventually flows into Rhode Island’s ponds and rivers, the Narragansett Bay, and the Atlantic Ocean. Rhode Island is densely populated, has a lot of paved surfaces – about 12% of the state, in fact – and there’s not a spot in this tiny, coastal state that’s far from water. This means that there’s a lot of polluted runoff flowing into a lot of water bodies in Rhode Island. Because of stormwater pollution, many of Rhode Island’s ponds and rivers are not fit for swimming, fishing, or even serving as wildlife habitat.


Mashapaug Pond is so polluted that it’s closed to fishing and swimming. CLF’s suit is a critical step in helping restore the ailing pond to health.

That sounds bad.

It is! And it’s worse some places than others. For example, stormwater pollution causes algae growth in Providence’s Mashapaug Pond, choking aquatic life and – because of highly toxic blue-green algae – making the pond unfit for human contact.

On Aquidneck Island, stormwater pollution causes high bacteria levels in Bailey’s Brook. The polluted water from the Brook flows through North Easton Pond and South Easton Pond and ends up at Newport’s very popular First Beach. As a result, the water at First Beach is rarely clean and the state Department of Health must close the beach several times each year during the busy summer season. These situations aren’t unique; other water bodies near Mashapaug Pond and on Aquidneck Island suffer similar harm as a result of stormwater pollution.

How do we know all this?

In legally required studies and analyses, Rhode Island’s Department of Environmental Management (DEM) has documented just how stormwater is harming Mashapaug Pond, Bailey’s Brook, North Easton Pond, and other nearby water bodies. In particular, DEM has concluded that these water bodies have been damaged by stormwater runoff from heavily paved commercial and industrial properties. EPA has formally approved each of these DEM studies after careful consideration.

So what’s the lawsuit all about?

When EPA approved the DEM studies for Mashapaug Pond, Bailey’s Brook, North Easton Pond, and other nearby water bodies, it legally determined that stormwater runoff from commercial and industrial properties was harming these water bodies. Under the Clean Water Act, this kind of determination means that these commercial and industrial dischargers must apply for permits for their stormwater discharges. And under EPA’s own Clean Water Act regulations, the agency must notify the dischargers that they need permits.

EPA hasn’t done this. CLF is suing to make sure EPA does its job.

That all sounds kind of abstract.

CLF’s success in this case will result in major and very tangible benefits. When commercial and industrial stormwater dischargers enter the Clean Water Act’s permit program, they have to take steps to clean up their stormwater discharges. In Rhode Island, this stormwater permitting program is managed – and managed well – by DEM. CLF’s lawsuit would likely result in hundreds of new dischargers entering the stormwater permitting program.

This means much less pollution flowing into water bodies like Mashapaug Pond, Bailey’s Brook, and North Easton Pond. The long-term result will be swimmable, fishable waters that provide suitable habitat for wildlife. And that would be a very big deal.


For more background information please see Conservation Law Foundation’s briefing on stormwater pollution in New England, “Closing the Clean Water Gap: Protecting our Waterways by Making All Polluters Pay.”

You Say ‘Food Waste,’ I Say ‘Renewable Energy’: New DEP Regs Create Pathway for Anaerobic Digestion

Jan 11, 2013 by  | Bio |  1 Comment »

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.

Proposed Upper Blackstone Delays: Unnecessary & Damaging

Dec 7, 2011 by  | Bio |  Leave a Comment

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.

Following Concerns Raised by CLF, Maine DEP Commissioner Darryl Brown Resigns

May 10, 2011 by  | Bio |  Leave a Comment

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.

ME Attorney General Denies Request to Issue Opinion on Commisioner Brown

Apr 8, 2011 by  | Bio |  Leave a Comment

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.

CLF Calls for ME Attorney General to Determine Eligibility of DEP Commissioner Darryl Brown

Apr 6, 2011 by  | Bio |  Leave a Comment

ME DEP Commissioner Darryl Brown (Photo credit:

CLF is once again calling for increased transparency from the LePage Administration, this time with regard to whether or not Darryl Brown, who was confirmed by the Senate last month as Governor LePage’s appointment to be commissioner of Maine’s Department of Environmental Protection (DEP), is eligible to stay in his current position according to State and federal law.

Brown is the founder and remains the sole shareholder of an engineering and land-use planning firm that assists developers and industry obtain permits from the DEP and EPA.   At his confirmation hearing in January, Brown said that between 25 and 35 percent of his firm’s work involved DEP permitting.  Under state law, (38 MRSA $ 341-A(3)(B)), anyone who has received at least 10 percent of their income in the last two years directly or indirectly from projects permitted under the Clean Water Act are not eligible to serve as DEP commissioner.

The question of Mr. Brown’s eligibility to serve as Commissioner was first raised by former CLF staff attorney Steve Hinchman on behalf of the Androscoggin River Alliance in a February 7 petition filed with the EPA under a CWA provision that is similar, although not as broad, as the Maine statute.  Importantly though, both provisions use the same 10 percent threshold test.  EPA has requested that Mr. Brown provide information by April 15 to determine whether that threshold has been crossed.  Maine’s Attorney General and the Governor’s office have refused to say whether they have even met to discuss the situation, never mind how they intend to resolve it.  As an independent Constitutional officer, CLF has called upon the Attorney General’s office to provide a formal opinion as to how the law applies to Commissioner Brown and whether he has crossed the 10 percent threshold in the last two years, a call formally echoed by the House Democrats on April 5.

CLF will continue to push for a fair and speedy resolution of the issue, whatever that resolution might be.  CLF is not pushing this issue in order to disqualify Commissioner Brown nor to make a statement as to his performance as Commissioner.  Rather, we’re pushing to make sure that the law is interpreted and applied correctly.

It is possible that even though 25-35 percent of Brown’s was related to DEP permitting work but only 10 percent of his work was related to Clean Water Act permits.  But there will be no confidence in such a conclusion until a transparent and thorough analysis is conducted by the lawyers for all of Maine’s people, the Attorney General.