Mismanagement has led to the current Cape Cod water pollution crisis.

A recent federal court decision in Conservation Law Foundation’s and Buzzards Bay Coalition’s lawsuit against EPA addressing nitrogen pollution in Cape Cod bays has major implications for the way local water pollution control projects are funded in the Commonwealth.

The impact of nutrient pollution on the streams and bays of Cape Cod was identified as a looming problem in the 1978 Areawide Wastewater Management Plan written by a predecessor to the Cape Cod Commission. Despite the Plan’s requirement of annual updates, it sat untouched for over thirty years as the looming threat of nutrient pollution became a present crisis. Spurred by a lawsuit filed by CLF and the Buzzards Bay Coalition in 2011, the 1978 Plan is finally being updated by the Cape Cod Commission.

The importance of the current planning process’s successful completion was thrown into stark relief on August 23, when Senior Judge Mark L. Wolf of the United States District Court of Massachusetts ordered that a central claim in CLF’s and BBC’s 2011 Areawide Wastewater Management Plan lawsuit could go forward.

The lawsuit contends that EPA’s annual approvals of loans and grants for local projects from the State Revolving Fund – a pool of federal and state funds dedicated to reducing water pollution—must be consistent with applicable Areawide Wastewater Management Plans. The claim states that it is not possible for EPA to make funding decisions based on the present Plan because its 35-year-old recommendations are no longer relevant to solving current water quality problems.

Judge Wolf’s order held that EPA must determine every year that Massachusetts is only providing water pollution control funding to those projects that are consistent with a current management plan for a particular area. Congress required this annual review in order to assure that water pollution control projects are planned, funded, and implemented based on an up-to-date understanding of local water pollution problems. The Judge’s ruling stemmed from the fact that the Cape Cod plan is so outdated that money is being spent haphazardly, rather than funding projects that will address the current problems.  The rampant and continuing pollution in Cape Cod’s bays is a result of this inconsistency.

Studies have indicated that the total cost of cleaning up the polluted bays will range from $3-6 billion.  In FY2012 alone, the State Revolving Fund provided $164.7 million for clean water projects in communities across the state, according the 2012 Annual Report prepared by the Commonwealth.

To get that money flowing to projects that will be effective in controlling Cape Cod water pollution, it is imperative that Areawide Plan be updated. As the Court opinion states, “If EPA determines that the state is not complying with the SRF provisions …, the agency must cease to provide SRF funding, unless the state rectifies its actions and complies with the statute.”  The real world implications of this order are clear and significant—the future of money for local governments disbursed under the State Revolving Fund program depends on an updated and approved Areawide Plan.

The Cape Cod Commission is currently in the process of gathering stakeholder input for the Plan update. If you’re a Cape resident, check out the meeting schedule, or sign up to participate in the next round of their online public engagement tool. This stakeholder process, scheduled to be complete this December, will form the basis of the Commission’s new draft Plan.

President Obama nominated Gina McCarthy to head the EPA, which was confirmed by the Senate.

Good policy and good action by government is dependent on having good people in charge.

Down in Washington we now have proof that even in the age of grid-lock and partisan warfare a competent, professional and effective leader can rise to a critical position in our government to lead and manage the crucial energy and climate transition underway.

That proof came last month when Massachusetts native (and resident) Gina McCarthy was sworn in as Administrator of the U.S. Environmental Protection Agency after a record-setting delay.

Many members of the CLF staff have years of experience working with Gina during her long career in Massachusetts state government and then her successful run as Commissioner of the Connecticut Department of Environmental Protection.

There are a few hallmarks of Gina’s work and method of operation that are particularly notable and important.

First, she brings a deep respect and appreciation for the importance of public participation. Many of us at CLF have seen the “McCarthy Principle” that “In general, the more people who are involved in making a decision and the more information the decision-makers have the better the decision will be” in action.

Second, she is totally (and sometimes brutally) honest.  I can remember Gina cutting to the end of a negotiation by bluntly reviewing a list of items under discussion: “you will get 1, 3, 5 and 9 but I can’t deliver on 2 and 8, although I wish I could, and 4 and 6 are a bad idea.”  Her legendary charm and sense of humor are essential to making this style work.

Third, Gina is not afraid of complicated subject matter.  Her engagement of climate policy, transportation and the electricity systems display a willingness to delve into the details, trust experts and tackle tough and thorny issues.

Gina, in her time in state government in Massachusetts and Connecticut, and during her time in Washington, has not gotten everything right. I can tick off almost as many examples of CLF squaring off in agency proceedings or in court to oppose efforts she has championed as I can list examples when we stood with her and her agency.  But it has always been clear that she has been listening, thinking and doing all she could to move her agency in the right direction to protect the public health, the environment and to build thriving communities and she has done it as honestly and as openly as she could.  And isn’t that what matters?

Staff Attorney Ivy Frignoca helps plant vegetation along Long Creek

On July 20, many volunteers including CLF Attorney Ivy Frignoca helped plant vegetation along a tributary of Long Creek which winds through South Portland, Maine, and eventually empties into Casco Bay. The planting was part of the Long Creek Restoration Project, a collaborative 10 year plan to reverse the impacts of years of stormwater pollution to Long Creek. The creek runs through the Maine Mall and surrounding industrial/commercial area where it receives runoff from impervious areas like rooftops, roads and parking lots. This runoff carries heavy metals and other toxins into the creek, and has killed brook trout and other species that once lived there.

In 2008, CLF petitioned the Environmental Protection Agency (EPA) and asked it to issue a permit requiring area businesses to clean up the pollution. EPA issued the permit. Landowners and other stakeholders then banded together to form the Long Creek Restoration Partnership. To learn more about that effort, read this archived article from the Portland Press Herald.

The partnership is 3 years into its 10 year management plan and has put in place plantings, filters, and other items that have already reduced runoff from 30% of the land subject to the permit. Water quality testing is showing promising improvement and more projects are planned for the next several years! This year expect to see plantings in road medians and in 2015, trees added to the Maine Mall Parking lot.

My colleagues in CLF’s Rhode Island office have been doing some important work that deserves attention this legislative session. Two of their efforts stand out: opposing the governor’s attempt to create special legislation to import power from Hydro-Quebec, and opposing the Rhode Island House leadership’s attempt to create a state Commerce Department that would take over permitting functions from the Department of Environmental Management and Coastal Resources Management Council.

Rhode Island State House, courtesy of Mr. Ducke @ Flickr

You’ve likely read more here (or here, or here) about Hydro-Quebec. The company, which (unsurprisingly, given the name) produces power from large-scale hydroelectric dams located throughout the Canadian province of Quebec, has been making a strong push to sell this power to states throughout New England. Hydroelectric power might not be so bad on its own, but Hydro-Quebec has some serious issues. Not least of these is that the most prominent proposal for transmitting additional power from Quebec to New England is a proposed transmission project through New Hampshire – the Northern Pass – that is being developed by New Hampshire’s dirtiest utility and is, in its current form, a deeply flawed proposal that may not provide meaningful environmental benefits. And, also distressingly, Hydro-Quebec has sought special legislation in each of the states it has been courting.

Here in Rhode Island, the governor has been pushing one such piece of special legislation; CLF Staff Attorney Jerry Elmer has been pushing back. The governor’s bill would require National Grid (Rhode Island’s only major electric utility) to solicit proposals and then enter into a long-term contract for a large-scale, 150-megawatt hydroelectric project. This requirement would not only displace but likely eliminate local, small-scale renewable projects that the current long-term contracting statute was designed to benefit. At the same time, it would likely drive up energy costs, sending Rhode Island dollars to Canada. And, again, importing more power from Quebec through this mechanism seems calculated to advance the poorly conceived Northern Pass project in New Hampshire. As Jerry told the House Committee on Environment and Natural Resources, it is rare that environmental organizations, energy utilities, existing renewable and conventional power plant owners, and ratepayer advocates unite so seamlessly and forcefully as they have in opposition to the large hydropower bill. And the representatives from these diverse interests all recognized Jerry’s leadership, frequently introducing their own testimony with the phrase, “As Mr. Elmer said …” – certainly a sign of effective advocacy.

Meanwhile, Rhode Island House leadership has been touting an “Economic Development Package” of bills designed to enhance the business climate in Rhode Island. Unfortunately, one of these bills would move DEM’s permitting functions and all CRMC programs and functions to a newly created “Executive Office of Commerce.”  The purpose of these moves would be to ensure that environmental permitting delays do not hold up business development.

At a hearing before the House Finance Committee, CLF Vice President Tricia Jedele pointed out the many reasons this proposed bill makes no sense whether viewed through the prism of policy or law. (You can view her testimony here, beginning midway through minute 162.) The bill ignores the reasons for permitting delays under the current regime: some delays are the result of the severe staff cutbacks DEM has suffered in the last several years; others are perfectly justified as a way to protect Rhode Island’s greatest asset – its natural resources – against exploitation. Moving permitting functions to a new Executive Office of Commerce would not restore DEM staff or better prevent exploitation.  Moreover, the bill suggests a tension between business and environment, even though a robust business climate and a clean, healthy environment can peacefully coexist under an adequate permitting regime. Perhaps most importantly, though, the bill could throw Rhode Island’s environmental permitting programs into total disarray. Many permitting programs are founded on authority delegated to the state by EPA under a host of federal environmental laws. These programs are subject to EPA oversight, and tinkering with them could easily result in EPA’s withdrawing approval and taking over permitting functions itself. Needless to say, this is not the goal of the commerce bill. Instead, Tricia told the Finance Committee, a simple solution would be to leave DEM and CRMC’s functions alone, to staff them adequately, and to add staffers to the new Department of Commerce who can help guide businesses through the permitting process. This argument was well-received, and CLF now has the opportunity to work with the House to reform the bill.

Again, my colleagues have been too busy doing this work to call attention to it, but I think it’s important to take a moment to recognize just how valuable they are to Rhode Island and its environment.

While harm from climate change becomes more apparent every day, EPA is dragging its feet in setting much-needed limitations on greenhouse gas emissions from new power plants. This failure is a plain violation of the Clean Air Act. So CLF recently took the first step to spur EPA into action. Working with attorneys at Clean Air Task Force, we let EPA know that if it does not act, we will sue.

Kite on Marconi Beach, courtesy of EandJsFilmCrew @ Flickr. Recent extreme weather caused significant damage at Cape Cod’s Marconi Beach.

The Clean Air Act requires EPA to issue regulations limiting emissions of air pollutants that may “endanger public health or welfare.” We know well that greenhouse gases drive climate change and therefore endanger public health and welfare in many ways: droughts pose risks to our food supply; sea level rise increases flooding of vulnerable communities; and extreme weather events threaten to wash coastal infrastructure out to sea. Nevertheless, during the early and mid-2000s, EPA all but ignored greenhouse gases. Many states and environmental groups (including CLF) sued to make EPA do something.

First, we argued, greenhouse gases are air pollutants subject to EPA regulation. Second, we said, EPA had to decide one way or the other whether greenhouse gases were dangerous; if so, the Clean Air Act imposes an absolute duty on EPA to regulate them. In a fine opinion by now-retired Justice Stevens, the Supreme Court agreed with us: greenhouse gases are pollutants subject to EPA regulation, and EPA had to decide whether they are dangerous. Two years later, EPA decided that greenhouse gases do, in fact, pose a danger to public health. This means EPA is required by law to regulate them.

After all that, EPA did begin to regulate greenhouse gases. However, it did not limit emissions from the single largest category of greenhouse gas polluters – power plants – which account for nearly 40% of the nation’s carbon dioxide emissions. If any polluters need robust regulation, power plants do. Finally, after more pushing from CLF and other environmental organizations, EPA published proposed standards for greenhouse gas emissions by power plants.

Under the Clean Air Act, these proposed standards started a clock – EPA had one year to issue final rules. Instead, EPA announced on Day 364 that the final rules would be delayed indefinitely. This delay is both illegal and wrong. EPA now has sixty days to fix its error and issue final rules that seriously address the most pressing problem of our time.

If it does not, CLF and Clean Air Task Force will turn to federal court to compel EPA to act.

Residents of Newmarket, New Hampshire went to the polls on Tuesday and sent a powerful message: that clean water is essential, and that we need to make needed investments to support it.

Up for vote yesterday was a warrant article to fund the $14 million construction of a major upgrade to the town’s sewage treatment plant. The result? More than 80 percent of voters approved the measure, making Newmarket a leading community in the efforts to improve the health of the Great Bay estuary.

Last December, Newmarket’s City Council voted unanimously to become the first New Hampshire Seacoast community to accept stringent reductions in nitrogen pollution from a sewage treatment plant. It has long been recognized that nitrogen from sewage treatment plants is a major, controllable source of the pollution that’s causing the decline of the Great Bay estuary.

Now, thanks to the wisdom of its voters, Newmarket can begin the upgrade of its existing sewage treatment plant – a facility in desperate need of an overhaul. First built in 1965 and last updated in 1985, it has become increasingly difficult – and costly – to maintain the facility. Under the terms of Newmarket’s agreement with EPA, the town now has five years to complete the project. Additional improvements may be required in later years. The town must also develop a comprehensive plan to reduce the impacts from polluted stormwater.

In accepting their final permit and working with EPA – rather than taking the path of endless, costly litigation currently being pursued by Portsmouth, Dover and Rochester – Newmarket town officials chose to be an important part of the solution for the Great Bay estuary. Now, Newmarket voters have taken the next critical step, confirming the town’s willingness to lead in solving our water pollution problems.

Newmarket’s positive vote sends a powerful signal that the people of the Seacoast care about protecting the health of our waters. Municipal officials in Portsmouth, Dover and Rochester need to hear this message, and need to end their ongoing tactics designed to delay needed protections for our estuary – delays that the Great Bay estuary simply can’t afford.

Newmarket voters are to be thanked and congratulated for taking this important, much needed step toward protecting the Lamprey River, Great Bay, and the estuary as a whole, now and for future generations.

For more information about the Great Bay-Piscataqua Waterkeeper and my work to protect the Great Bay estuary, visit: http://www.clf.org/great-bay-waterkeeper/. You can also follow me on Facebook and Twitter.

We are delighted by the news that Gina McCarthy has been nominated as Administrator the U.S. Environmental Protection Agency (EPA). Over the course of the last two decades the staff of Conservation Law Foundation has worked productively with Gina in her various roles in Massachusetts state government, during her tenure as the Commissioner of the Connecticut Department of Environmental Protection and, most recently, as Deputy EPA Administrator for Air and Radiation.

Gina is a fierce advocate for the health and welfare of our children and families. She was instrumental in the creation of the landmark nation and world-leading efforts to rein in mercury and toxics use and pollution in Massachusetts and across New England.

Gina is both a hard-nosed negotiator and a sympathetic ear always willing to listen to criticism and learn from just about anyone. Indeed, the “McCarthy Principle” of crafting regulations can best be summarized in her own words: “In nearly all cases the more people are involved in making a decision, the better the decision will be.”

Her engagement, over the years, on nearly every conceivable environmental issue, ranging from the transportation system of Greater Boston, holding her own state transportation agencies to account for their obligation to help clean up our air, to the clean-up of contaminated groundwater at the Massachusetts Military Reservation on Cape Cod to her powerful leadership in crafting the Regional Greenhouse Gas Initiative, has prepared her well for the breathtaking scope of issues that land on the EPA Administrator’s desk.

Her sincerity, humor, willingness to admit error, flashes of caustic (and often self-deprecating) wit are all qualities that disarm those who approach her, and help explain the deep loyalty of those who have worked with her directly.

At the end of the day, Gina is at heart still the same person who once served as a municipal public health agent, worrying about the families of one town in Massachusetts. But that person now has deep and essential knowledge about the complex worlds of energy, environmental and climate policy and a broad set of tools essential to meeting the powerful challenges that EPA faces in the 21st Century.”

. . . And she is wicked smart and a wicked big Red Sox fan.

In the aftermath of the storm called Sandy, there have been weekly calls for the federal government and for states to address how our country might adapt in response to a changing climate. A recent Government Accounting Office report, a petition to FEMA with which CLF has been involved, and the launch of a new Northeast regional web-based climate resource, all illustrate different aspects of this challenge.

Every year, the GAO provides an update to Congress as part of its “High Risk” series, detailing areas of government fiscal exposure and recommending actions to mitigate those. In this year’s report, GAO has added a new area of concern: “Limiting the Federal Government’s Fiscal Exposure by Better Managing Climate Change Risks.” The major finding? “The federal government is not well organized to address the fiscal exposure presented by climate change,” even though a National Research Council paper in 2010 concluded that “increasing the nation’s ability to respond to a changing climate can be viewed as an insurance policy against climate risk.” The conclusion? “The federal government needs a strategic approach with strong leadership and the authority to manage climate change risks….” Unfortunately, in areas such as federal flood and crop insurance, technical assistance to state the local governments, and disaster aid, there has been little progress to date.

This is illustrated by a petition filed in October by the Natural Resources Defense Council and National Wildlife Federation that calls on FEMA to abide by it’s statutory responsibility to include anticipated climate change effects in its approval of each state’s Hazard Mitigation Plan, the key document that the New England states use in planning how best to avoid weather and climate risks, and be eligible for disaster relief funds. CLF has urged our state congressional delegations to request that FEMA act on the petition, which it has thus far ignored.

As New England communities seek information and resources on best practices to assess and act on our changing climate, a new tool became available this week. NOAA, working with National Wildlife Federation, EPA, and others, has just opened the Northeast Climate Database, a searchable tool to provide regionally relevant climate information. Here you can look for reports and resources specific to a state, a geography such as the ocean shore, or an issue like public health in a warming world.

CLF has long been involved in these issues. From our active involvement in assuring that New England’s climate future is accounted for in National Forest planning, to tackling coastal adaptation issues in Rhode Island, and challenging the EPA for failing to address climate change considerations in its 2008 Lake Champlain cleanup framework, CLF has always been a regional leader in climate adaptation. As CLF staff attorney Anthony Iarrapino said, “Climate change is no longer an ‘if’ or a ‘when.’” I invite you to follow CLF as we act on CLF President John Kassell’s declaration that climate change is the key issue not just for CLF, but for all of us, over the next decade.

Algae Growth in the Winnicut River, Greenland, NH; photo by Peter W.

In early January, the Town of Exeter’s Selectmen voted 5 to 0 not to appeal a permit issued by the EPA – a permit that will require a major upgrade of its sewage treatment plant. Exeter becomes the second Great Bay community to accept stringent reductions in nitrogen pollution from a sewage treatment plant, following in the footsteps of Newmarket which announced in December they would not appeal a similar permit.

Together, Exeter and Newmarket have taken an important first step toward tackling the issue of nitrogen pollution – a problem that is contributing to a decline in the health of the estuary. Sewage treatment plants are a major source of nitrogen pollution, especially dissolved inorganic nitrogen – the form of nitrogen of greatest concern. According to the Piscataqua Region Estuaries Partnership (PREP) State of Our Estuaries 2013 report, there has been a 68% average increase in this troubling form of nitrogen between 1974 and 2011. You can read PREP’s entire 2013 report here.

The most effective method for reducing nitrogen inputs to the estuary is by upgrading aging and outdated sewage treatment plants. Like Newmarket, Exeter will now begin the process of constructing a new plant that will lead to a significant reduction in nitrogen levels. You can read about Exeter’s plans here.

Unfortunately, officials from Dover and Rochester have decided it is not in their best interest for others to invest in new infrastructure designed to reduce nitrogen pollution. On December 14, they filed an appeal of Newmarket’s permit. That’s right: Dover and Rochester are appealing a permit issued to Newmarket – a permit with no bearing on their respective communities. As discussed in an op-ed written by me and other members of the Rescue Great Bay coalition, this latest legal maneuver is part of an ongoing campaign to derail needed efforts to protect the estuary. It’s time for Dover and Rochester to step aside and let communities solve the problems facing Great Bay.

In this regard, you can help the Great Bay estuary by taking action now: follow this link to urge the mayors of Rochester and Dover to drop their appeal of Newmarket’s permit and let us get on with the business of protecting our waters.

We commend Exeter and Newmarket for their actions to protect our Great Bay waters, and we urge Dover and Rochester to get out of the way and allow other communities to get on with the business of cleaning up the estuary.

For more information about the Great Bay-Piscataqua Waterkeeper and my work to protect the Great Bay estuary, visit: http://www.clf.org/great-bay-waterkeeper/. You can also follow me on Facebook and Twitter.