Environmental Judge Orders Vermont to Act on Stormwater

Environmental Court Judge Thomas Durkin last week reaffirmed his August 2008 order to the state agency to require commercial and residential property owners to obtain stormwater discharge permits for Bartlett, Centennial, Englesby, Morehouse and Potash brooks - all in urban areas.

The agency had appealed the judge's earlier ruling in the case brought by the Conservation Law Foundation.

In his most recent ruling, Judge Durkin repeated that the federal Clean Water Act does not allow the state agency discretion to decide not to regulate properties that contribute pollution to an impaired stream.

"Whatever discretion ANR might have in this matter, it does not include the ability to decide to do nothing under the CWA," Judge Durkin wrote.

The agency had argued in court that its stormwater cleanup strategy is a better approach than regulating polluters one by one in these watersheds.

Stormwater outfall for Bartlett Brook near the City of South Burlington, Vermont (Photo courtesy South Burlington)

The Conservation Law Foundation says stormwater pollution is acute in Vermont where the state has identified at least 17 watersheds, many of which feed into Lake Champlain, as being plagued by stormwater.

Stormwater runoff from developed areas contains many pollutants, such as sediment, phosphorus, pesticides, bacteria, metals, and hydrocarbons. Pollutants accumulate on impervious surfaces such as pavement and rooftops and are washed off during rain events and during snow melt.

Paved surfaces and piped drainage systems transport these pollutants from the watersheds to lakes, streams and rivers. Some of these pollutants directly affect aquatic life while others degrade the quality of the habitat.

Increased stormwater runoff from developed areas results in longer periods of higher in-stream flow rates which may destabilize stream channels and erode stream banks, releasing sediment.

In January, the ANR's Department of Environmental Conservation, which is responsible for stormwater control, produced a draft report on its progress in developing EPA-approved Total Maximum Daily Loads for Vermont’s 12 urban stormwater-impaired watersheds and in preparing water quality remediation plans for five mountain stormwater impaired watersheds.

The department is statutorily required to issue permits to implement these TMDLs and plans by January 2010, but the report says state government needs three more years to develop a plan to restore the polluted urban streams.

"It is crucial to recognize that there are no national models of TMDL implementation plans of the scale, nature and cost being demanded of the agency," the report states.

To date, the department has estimated that it will cost over $65 million to remediate the five urban watersheds - Potash, Centennial, Englesby, Morehouse, and Bartlett Brooks - which, adjusted for the rate of inflation, could be as much as $75 million by the year 2013.

In order to have any chance at successful implementation of the TMDLs, the report states, a federal funding program is critical.

"Currently, there is no federal program with sufficient resources to fund implementation of these TMDLs," according to the department's report. "Neither the state nor local communities can absorb the costs of such a program."

Warren Coleman, general counsel with the ANR, said the agency might appeal the ruling to the Vermont Supreme Court or ask the court for more time to implement the requirements of the Clean Water Act.

Copyright Environment News Service (ENS) 2009. All rights reserved.