The Chamber of Commerce

Stormwater:

By Mary Sprayregen

On April 7, Justice Marilyn Skoglund of the Vermont Supreme Court responded to several preliminary motions in the appeal of a stormwater decision by the Water Resources Board (WRB). Skoglund granted a request to stay the implementation of the WRB's Ruling pending a final decision by the Court in the matter. Justice Skoglund also denied the Agency of Natural Resource's (ANR) request to remand the matter to the WRB, noting that hearings had been held on the legal questions, and that the Board's October 14 decision turned on a series of legal determinations that would be most appropriately settled at the Supreme Court.

Fundamentally at issue in the matter is whether or not to extend the federal Clean Water Act National Pollutant Discharge Elimination System (NPDES) program to post-construction discharges from residential, municipal, and commercial properties. The discharge sources might include paved surfaces, rooftops, and ditches. Presently, those stormwater sources are not subject to the NPDES program under federal law: NPDES is reserved for industrial discharges and municipal sewer systems.

GBIC, Pomerleau Real Estate and Martin's Foods of South Burlington have taken the position in the litigation that Act 140, the stormwater bill passed nearly unanimously by last year's Legislature, is the State of Vermont's final answer on the question of how, on a system-wide basis, stormwater projects from non-industrial sources should be regulated. Act 140 is a vastly superior program for addressing the types of urban stormwater discharges that are threatening water quality in Lake Champlain. Unlike an extension of the NPDES program, which the Board confirmed would require the Department of Environmental Conservation to essentially design standards, procedures, and requirements from scratch, Act 140 is a comprehensive, carefully-calibrated state-funded incentive-based means of dealing with stormwater.

Unlike a new NPDES program, which would focus ANR's program on defining new rules and regulations, Act 140 focuses everyone's attention on addressing stormwater immediately by getting offset projects into the ground. Act 140 also requires the Agency to implement Total Maximum Daily Load (TMDL) studies for the impaired watersheds and to develop a long-term permitting system based on those findings, continuing to use development fees to fund further remediation better designed to account for the overall condition of a watershed.

As Justice Skoglund observed, “Act 140 mandates no net increase in stormwater pollution into these waterways pending its full implementation. Thereafter, Act 140 comprehensively addresses stormwater pollution and will ultimately improve the quality of the State's waters.” In requiring the Agency to implement an as-yet-undefined federal program while the appeal was pending, Skoglund went on to note that every other Agency program would suffer the loss of “institutional time, energy, intellect and attention” if the NPDES program were to be extended.
The Court's orders begin to clear the way for implementation of Act 140 during the interim period. By requiring permittees to offset any potential discharge by financing remediation projects or cleaning up existing discharges in their watersheds, the program stands to have substantial positive effects on water quality in impaired watersheds. While the individual permitting standard is “net zero”, the program as a whole is designed to achieve a “net reduction” in stormwater discharges into impaired waters, beginning today. Individuals seeking permits or information about the program are encouraged to contact Pete LaFlamme, at the Vermont Agency of Natural Resources, Stormwater Division (802.241.3765)