Progress Report Why I Give Five Questions For... Around CLF CLF Negotiates a More Sustainable M. Robin Barone N. Jonathan Peress Future for Biomass Energy in Massachusetts

CONSERVATION MATTERS THE JOURNAL OF THE CONSERVATION LAW FOUNDATION | www.clf.org

COVER STORY

CLEAN WATER IN CRISIS:

CLF PUSHES EPA TO CONTROL DEVASTATING NUTRIENT POLLUTION

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FALL 2 0 1 0 COVER STORY

CRACKING DOWN ON NUTRIENT POLLUTION CLF Fights to Bring ’s Coastal Waters Back to Life

“We are identifying serious water pollution problems and strategically addressing them with solutions that influence federal clean water policy and result in broad, programmatic change administered through the EPA.”

— Chris Kilian, Director, Clean Water & Healthy Forests

oxic algae. Shorelines strewn with rotting fish. These aren’t the images that come to mind when T most people think of Cape Cod — but they’re snapshots of what the Cape is quickly becoming, as years of unmitigated water pollution take their toll on the area’s legendary waterways.

Cape Cod’s waters contain excessive levels of nitrogen, a problem known as nutrient pollution. Resulting from untreated waste- water that flows into nearby waterways, the excess nitrogen causes toxic algae blooms to grow, eelgrass beds to degenerate, and macro algae to increase, threatening plants and marine life and leading to “fish kills,” Excess nitrogen in the water that don’t remove enough nitrogen from the periodic loss of fish and other species. produces toxic algae blooms wastewater before discharging it back into Eventually, those areas become “dead that can lead to fish kills. the Cape’s waterways. In 1978, officials zones” — uninhabitable by any life at all. developed a wastewater management plan to mitigate nitrogen pollution, which Nutrient pollution runs rampant in wa- has not been updated since. terways throughout New England and the nation. The EPA has been slow to address CLF got involved in spring 2009. After a the issue or establish strict enough pollu- year and a half of community meetings tion control requirements to maintain the and discussions, CLF had raised awareness water quality standards dictated by the of the issue among local officials and town federal Clean Water Act. Without sufficient residents, but the cleanup wasn’t any enforcement of these laws, polluters farther along. won’t grasp the urgency of the problem or be compelled to fix it. Last month, CLF took legal action to pres- sure the EPA to step up and hold towns On Cape Cod, officials have known about accountable for reducing pollution to meet the pollution problem for over 30 years. water quality standards dictated by the The pollution is caused by septic systems Clean Water Act. CLF also pushed the EPA

Conservation Matters Fall 2010 IN VERMONT, PHOSPHORUS IS THE CULPRIT: LAKE CHAMPLAIN

Over a decade ago, CLF identified nutrient sources (ANR) took steps to solve the problem treatment plants, improved regulation of pollution as a pressing issue that would have by developing a cleanup plan, or Total Maxi- farm pollution and comprehensive permitting devastating consequences for New England’s mum Daily Load (TMDL), that established the programs to control contaminated runoff from waterbodies. One of the first waterways maximum amount of phosphorus that can be big-box store parking lots, roadways and other where CLF chose to combat the problem present in the lake while still meeting water infrastructure. was Vermont’s Lake Champlain. quality standards. However, CLF found that the TMDL was based on inaccurate and incomplete As a result of a 2008 CLF lawsuit, in April 2010, Lake Champlain is inundated with phosphorus, data that overestimated how much phosphorus the EPA agreed to consider current pollution nitrogen’s freshwater equivalent, which could be safely discharged, dooming the lake data to determine whether and how to is caused by contaminated stormwater to further degradation. strengthen the TMDL. Last month, the federal runoff from industrial-scale farms and court upheld EPA’s decision when ANR officials inadequately-treated wastewater from In response, CLF pursued many of the pollut- tried to block the settlement in court and keep sewage treatment facilities. ers who were and continue to be responsible, the flawed plan in place. CLF will continue to winning precedent-setting cases resulting in stand its ground against polluters and work to- In 2002, the Vermont Agency of Natural Re- stricter pollution limits for several wastewater ward our vision for a cleaner Lake Champlain.

to adequately permit and regulate the dis- occasion enough sulfur gas to force an have to overcome some considerable charge of human wastewater from septic entire neighborhood to evacuate. obstacles in order to get there. In Cape systems, which have been ignored by the Cod, for example, continued sprawl EPA in violation of the Clean Water Act. The EPA issued a permit in 2008 that sig- and population growth exacerbate the nificantly reduced the amount of nitrogen situation, leaving many wondering just SETTING A PRECEDENT that could be discharged into the Upper how many people the Cape’s current Blackstone over the vehement objections wastewater infrastructure can support. Across the state, CLF advocates are of the District, which had argued for no ni- Additionally, towns must agree that clean tackling nitrogen pollution in another trogen control at all. CLF, meanwhile, had water is a priority and that solving the major waterway. The Upper Blackstone argued that the controls should be even problem is imperative — a task much Water Pollution Abatement District, which stricter. In spring 2010, the EPA upheld the easier said than done. originates near Worcester, MA, is the permit, maintaining the original pollution largest point source into Rhode Island’s control standards for the Upper Black- Once the decision is made to push forward, Narragansett Bay. The Upper Blackstone’s stone. CLF is continuing to push the EPA however, some financial assistance is nitrogen-laden discharge flows into the to set the highest possible bar for nitrogen available. In Massachusetts, for instance, bay, contributing to a vast dead zone that pollution technology that must be imple- towns can get low-interest loans for water forms every August. The pollution can mented in order for the Upper Blackstone pollution abatement projects, after devel- prompt fish kills that leave scores of to comply with the Clean Water Act. oping a wastewater management plan. rotting fish on shore, releasing on one Once resolved, the Upper Blackstone However, no solution is more costly than will be an important test case that could the price of doing nothing, and that’s the set a precedent for dealing with nitrogen point CLF continues to drive home. issues in New England and other regions throughout the . One recent development may set the stage for future regulation of polluted In , CLF is pushing for the waterways. Maryland’s Chesapeake Bay implementation of stricter nitrogen pol- has long suffered from nutrient pol- lution limits with regard to the Great Bay lution. In May 2010, the EPA agreed to Estuary. Like the Upper Blackstone, the unprecedented cleanup efforts to protect estuary is suffering from debilitating ni- and restore the bay — a part of which trogen pollution from nearby Portsmouth was to regulate wastewater treatment and Exeter wastewater treatment plants. plants that discharge into the bay. CLF is pushing for the same commitment from A BALANCING ACT the EPA on the Cape and for waterways throughout New England — and eventu- Untreated wastewater flowing Municipalities know that the problem ally the nation. into waterways can cause must be solved, and soon — but they’ll nutrient pollution. PAGE / 3 PROGRESS REPORT

CLF NEGOTIATES A MORE SUSTAINABLE FUTURE for Biomass Energy in Massachusetts

“In the last couple of years, we’ve learned a whole lot more about what is meant by sustainable biomass, and the issues are far more complex than policymakers and the environmental community had previously under- stood. Science is just now catching up with efforts to deploy biomass energy on the ground.”

— Sue Reid, Senior Attorney

BACKGROUND those two extremes, there exists a whole policy to convince the opponents to drop spectrum of types of biomass, some of the ballot initiative. The Global Warming Solutions Act of 2008 which are ultimately beneficial to the envi- mandates that Massachusetts cut its ronment and others that may cause more PROGRESS! greenhouse gas emissions at least 80 harm than good—but no clear regulatory CLF’s tenacious advocacy, grounded in a percent below 1990 levels by 2050. Biomass framework exists by which to evaluate growing body of relevant science and facilities currently are eligible for incen- their respective environmental impacts. bolstered by vocal grassroots involvement, tives under the state’s mandate to include A “yes” vote in November 2010 would paved the way for better policy on biomass more clean, renewable fuel sources in its have removed all types of biomass from in Massachusetts. The directive calls for electricity mix. However, there is a debate the state’s Renewable Portfolio Standard new biomass regulations that will provide raging about what types of biomass should (RPS), effectively throwing the good out renewable energy incentives only to re- be treated as “clean” energy. In 2009, with the bad. sponsible biomass projects that meet biomass opponents launched a ballot certain greenhouse gas emissions limits initiative geared toward ending subsidies CLF IN ACTION and forest sustainability standards. More- for all biomass electric power generation. CLF, with the support of several other over, environmentally responsible projects Meanwhile, the state funded a comprehen- environmental organizations, met with the that use anaerobic digestion can continue sive study, known as the “Manomet Study,” leading proponents of the biomass ballot to move forward consistent with existing to better understand the impacts of bio- initiative in the spring of 2010. Working rules. Finally, the directive states that mass on the environment, including with these stakeholders, CLF negotiated contaminated construction and demolition on GHG emissions. compromise legislation to include only debris is not an eligible biomass fuel under THE PROBLEM responsible biomass projects in the RPS. the RPS. As CLF worked to advance the bill through The Manomet Study revealed that certain the legislature, Massachusetts Energy NEXT STEPS types of biomass, such as harvesting and and Environmental Affairs Secretary Ian Regulations based on Secretary Bowles’ burning whole trees to generate electric- Bowles issued a new directive on biomass biomass policy directive and public ity, can actually produce more greenhouse policy which closely reflects the legislation comments will be drafted this fall and gases than coal. Other types, such as CLF negotiated and is a logical outgrowth finalized by December 31, 2010. anaerobic digestion, are known to help of the Manomet Study. The directive in- reduce greenhouse gases. In between cluded sufficient changes to the existing

[ GLOSSARY ]

WHERE CLF believes that sustainable bioenergy can play an important role BIOMASS ELECTRICITY / electricity produced in the energy future of New England and that biomass policy should using renewable organic material, such as tree CLF be guided by the best available science. CLF opposes the burning tops and limbs, for fuel. STANDS of contaminated construction and demolition debris because of the detrimental effects on human health and the environment. ANAEROBIC DIGESTION / a method of pro- ducing energy from methane and other gases released from organic waste.

Conservation Matters Fall 2010 WHY I GIVE TO CLF…

“As the parents of five children, my husband and I have always felt very strongly about passing on our love of the outdoors. Now that our two oldest have children of their own, it’s become even more important to us to ensure that some part of the en- vironment is maintained so that our grandchildren will be able to continue doing the activities that we’ve always enjoyed as a family. CLF is uniquely poised to help safeguard the New England region. If I couldn’t count on myself going forward to support CLF, I would lose any optimism that I have about the future of the planet. In times like these, we have to rely on institutions like CLF.

We are members of the CLF Champions Club be- cause we’ve both served as presidents of non-profit organizations and know how important it is to have a steady stream of charitable giving. By having our donation taken out monthly via credit card, we know that CLF will get a regular contribution without our having to think about it.”

M. Robin Barone Newbury, VT

Board of Trustees member. Vermont Advisory Board member. Graduate and professor, Vermont Law School. Practicing mediator. Mother to five. Member of CLF’s Champions Club.

Robin with her husband, Sydney Lea Photo courtesy of A. Jordan Lea

{ JOINING THE CLF CHAMPIONS CLUB }

Contact us today to learn more Join the CLF Champions Club, our • Enables us to plan better for about giving to CLF. monthly giving program, and protect New the future. England’s environment all year long. Your Timothy Harwood, • Gives us the flexibility to address support will provide dependable funds to Vice President for Development hot button issues. solve the most significant environmental [email protected] • Helps us to forecast future resources. 617. 850. 1738 challenges facing New England. Plant the www.clf.org/donate seeds for a greener tomorrow by joining • Allows us to be where we are most the CLF Champions Club today! needed across the region.

PAGE / 5 FIVE QUESTIONS FOR...

N. JONATHAN PERESS Director, Clean Energy & Climate Change

Prior to joining CLF in June 2010, Jonathan was a partner at Downs Rachlin Martin’s Environmental Practice Group in New Hampshire. He has worked extensively on electric generation and utility regulation issues in the Northeast. Jonathan began his career at the Vermont Agency of Natural Resources (ANR), where he wrote the state regulations implementing the Clean Air Act. He is based in CLF’s Concord, NH office.

How is CLF working to support initiatives and create opportunities that will allow 4New England communities to contribute Photo courtesy of Robert Barry to this effort?

CLF’s work on the regional Low Carbon Fuel Standard (LCFS) and Regional What sparked your interest in the vironmental policy. Since then, my career Greenhouse Gas Initiative (RGGI) will help environment? has focused on that symbiotic relationship. 1 to transform our archaic energy infra- My interest in environmental advocacy structure by imposing a price for carbon One of New England’s big challenges is started at a young age and was imparted emissions. We are also supporting energy reducing reliance on coal-fired power through my grandfather, an engineer and efficiency initiatives and responsible wind 3plants. How will CLF help to overcome avid fisherman on the Chesapeake Bay power projects. this problem and work towards a clean and a member of the Chesapeake Bay energy future for the region? Foundation. I vividly recall him making What is one trait you admire in your CLF speeches about proposed oil refineries on Our reliance on outdated coal-fired power colleagues, and one trait that you hope to 5contribute to the success of your fellow the tributaries of the bay. plants is problematic to public health, the environment and the needed transforma- advocates at CLF? What experiences led you to pursue a ca- tion to clean energy sources. These plants Many of CLF’s accomplishments result reer in energy and environmental policy? emit more global warming pollutants and from our advocates’ ability to lead diverse 2 cost more to operate than newer tech- In law school, I interned at EPA for Region constituencies in support of common nologies. As we enter a new era of energy 1 Counsel Walter Mugden, my first mentor strategies to achieve common goals. In infrastructure development, CLF will chal- in environmental law. My interest grew the face of Congressional inaction on cli- lenge old plants that don’t meet modern when I worked on utility restructuring mate, that ability will be key to advancing environmental standards and advance issues at ANR and became fascinated by beneficial policy and advocacy outcomes. policies to deploy newer, more efficient the intersection of energy policy and en- I hope that my experience with Clean Air technology. Act advocacy will reinforce that effort.

Conservation Matters Fall 2010 AROUND CLF RHODE ISLAND YOU SPOKE, WE LISTENED • The proposed LNG facility in Calais, • On August 20, CLF appealed the Public With four program areas in five states, keep- ME opposed by CLF continues to seek Utility Commission’s decision to ap- ing up with CLF can be a full-time job. We funding. On August 10, the company prove a power purchase agreement know our members are busy people, so we requested to postpone hearings on the between Deepwater Wind and National asked you in May to let us know how you like facility and was granted an additional Grid for a wind project in Block Island to stay informed about our work. month to find another investor. Sound on the grounds that the decision was unconstitutional. More than 200 members responded to our • On August 10, CLF Staff Attorney Jane survey. Here’s what we learned: • In August, CLF launched its “Trash West spoke at a US-PIRG event on Talk” campaign with radio station • We’re doing a good job! The majority of sustainable transportation in front WBRU-FM to educate listeners about you rated our communications very good to of City Hall in Portland, ME. the environmental impacts of waste. excellent for educating you about our work and motivating you to actively support the • The CLF-led Coalition for Transporta- MASSACHUSETTS organization. tion Choices secured legislative • On July 8, as a result of CLF advocacy, support for public transit projects • Print is still king with our members. More than 80 percent of you said that our print MA Energy and Environmental Affairs in the Providence area. Secretary Ian Bowles issued a decisive, publications are your preferred method of science-based policy directive on bio- staying informed about CLF. Still, almost half of you also read our e-communications mass energy for the state. VERMONT and visit our website.

• On June 24, CLF filed a federal suit • On July 21, CLF filed a supplemental • You read Conservation Matters. Whether against Salem Harbor Station coal-fired petition again requesting that the EPA you read it cover to cover or just for your power plant in Salem, MA for repeatedly take control of regulating water quality local news, the majority of you reported that you read CM regularly. We will violating smokestack emissions limits. in the state. The current program, run by the Vermont Agency of Natural Re- endeavor each quarter to bring you the stories that connect with you. We hope you • CLF’s Boston office welcomed Samantha sources, has failed to reduce pollution like the new design and will continue to be in the state’s waterways, including Caravello as Program Assistant for the loyal readers. Ocean Conservation Program and Eliza- Lake Champlain. beth Scott as Individual Giving Manager. Thank you to everyone who took the time to • CLF Clean Water & Healthy Forests Pro- fill out our survey. We hope you’ll continue to gram Director Chris Kilian was invited to let us know how we’re doing. Drop us a line NEW HAMPSHIRE participate in a national dialogue hosted by mail or online at [email protected]. We love • On June 13, New Hampshire Advocacy by River Network on effective stormwa- to hear from you! Center Director Tom Irwin’s op-ed on nu- ter pollution control and water-oriented — Karen Wood, trient pollution in the Great Bay Estuary low-impact development. Director of Communications was published in the Portsmouth Herald. For more news, visit clf.org.

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CONSERVATION

MATTERS THE JOURNAL OF THE CONSERVATION LAW FOUNDATION | VOLUME VI, NO. 2 | FALL 2010 | ISSN 1521-9941

LETTER FROM THE PRESIDENT John Kassel President Dear CLF Friends, my new role as CLF’s chief messenger, I Michael B. Moskow Chair, Board of Trustees questioned whether our communications Paula W. Gold, Esq. Back in May, many are in line with where our organization is Vice Chair, Board of Trustees

of you responded headed. Are they engaging? Authentic? John M. Teal, Ph.D to a survey about Inclusive? This redesigned CM is the first Vice Chair, Board of Trustees our communica- output of a major effort to more clearly Eugene H. Clapp Treasurer, Board of Trustees tions (see page 7), articulate CLF’s mission — one we hope Thaleia T. Schlesinger including Conser- will both deepen our relationship with Secretary, Board of Trustees

vation Matters. I you, our current members, and bring Daniel Amory, Esq. was pleased to see that our readership new people to us. Over the next several Chair, Maine Board is robust — even in this era of informa- months, you will see a new look in our John B. French, Esq. Chair, Massachusetts Board tion overload. So, why redesign CM? CLF print and digital communications and Martin L. Gross, Esq. has nearly 45 years of history behind it: some new language in how we talk about Chair, New Hampshire Board a long track record of protecting New ourselves. We hope you see yourselves in Louise Durfee, Esq. England’s environment for the benefit of the continuing story of CLF and will help Chair, Rhode Island Board Maximilian W. Kempner, Esq. all people. With each passing decade, the us spread the word. Chair, Vermont Board problems facing our region have gotten

more complex and require more innova- Best, CLF Maine / 47 Portland Street, Suite 4 Portland, ME 04101 tive, more nuanced solutions. Today’s CLF P: 207.210.6439 is still tough and tenacious, but we are, CLF Massachusetts / 62 Summer Street by necessity, more creative, more nimble Boston, MA 02110 P: 617.350.0990 and more collaborative in our approach John Kassel CLF New Hampshire / 27 North Main Street than 20, 30 or 40 years ago. Last year, in President Concord, NH 03301 P: 603.225.3060

CLF Rhode Island / 55 Dorrance Street Providence, RI 02903 P: 401.351.1102 Editor: Claire Morgenstern Copyright ©2010 Graphic Design by Captains of Industry CONSERVATION LAW FOUNDATION CLF Vermont / 15 East State Street, Suite 4 Cover Photo: West Falmouth Harbor, courtesy of Korrin Petersen Printed on 100% post-consumer content recycled paper Montpelier, VT 05602 www.clf.org with soy-based inks. P: 802.223.5992