The Appeals Court’s recent decision in Conservation Commission of Brockton v. Department of Environmental Protection presents a relatively rare instance where local and state regulators disagree about the administration of a statute under which they both have responsibilities.  The statute is the Wetlands Protection Act (WPA).power plant  Under the WPA, a local conservation commission is the initial permitting authority, subject to the superseding authority of the state Department of Environmental Protection (DEP). 

The case concerns an application by Brockton Power Company, LLC (Brockton Power) to build a 350-megawatt power plant within 100 feet of bordering vegetated wetlands on the Salisbury Plain River.  As part of its operation, Brockton Power will purchase 1.9 million gallons per day (gpd) of treated effluent from the Brockton Advanced Wastewater Reclamation Facility (Brockton Water).  If not sold to Brockton Power, this effluent would be discharged to the river (as it is presently) pursuant to a surface water discharge permit issued jointly by DEP and the U.S. Environmental Protection Agency.  If sold to Brockton Power, only 0.3 million gpd will be returned to the river.  The remaining 1.6 million gpd would be dispersed to the air as steam.  As noted by the Appeals Court, the loss of 1.6 million gpd of clean effluent discharge to the river “is a matter of potential consequence.”

Brockton Power filed an application for a wetlands permit with the Brockton Conservation Commission, but only because the plant would be built within the so-called buffer zone that extends 100 feet from the wetlands. The application did not address the purchase of treated effluent from Brockton Water or the impact on the river of reducing the effluent discharge by 1.6 million gpd.  The Conservation Commission denied the application. The reasons for denial included Brockton Power’s failure to address this impact. 

Brockton Power obtained a superseding order of conditions from DEP which overturned the Commission’s decision.  DEP reasoned that (a) the use of effluent was not an alteration of a wetland if Brockton Water stayed within the effluent limits of its discharge permit; and (b) Brockton Water, not Brockton Power, was responsible for the impact (if any) of reducing effluent discharge by 1.6 million.  DEP’s adjudicatory branch agreed, as did the Superior Court and the Appeals Court.  The question was whether the purchase of effluent by Brockton Power was “work” in, or “alteration”  of, a wetland within the meaning of the WPA.  DEP and the courts responded by determining that, insofar as there is an alteration, the supplier of the effluent (Brockton Water) and not the purchaser (Brockton Power) is responsible.

On one level, this makes sense.  Brockton Water is the entity deciding to divert 1.9 million gpd of permitted discharge to Brockton Power.  On another level, however, the case is baffling.  For one thing, neither the Appeals Court nor DEP accounts for the 0.3 million gpd that Brockton Power will discharge into the river after buying 1.9 million gpd from Brockton Water.  This, in and of itself, is a potential direct alteration of wetlands that may be enough to force Brockton Power to consider all of the effects of its use of the 1.9 million gpd it gets from Brockton Water.  Likewise, it’s reasonable to inquire whether some portion of the 1.6 million gpd dispersed as steam will find its way directly back into the river (and if so, what if any potential contaminants are in the steam).  The decision that Brockton Water – not Brockton Power – is fully responsible for all impacts arising from this purchase seems too simple an answer to the complex questions raised.