Advocates Fear Scott Administration Is Weakening Landmark Water Quality Law

Jan 17, 2018

Environmental advocates say the Scott administration is trying to dismantle key provisions in a 2015 law that set out rigorous new water quality standards across Vermont.

Passage of the Vermont Clean Water Act in 2015 was, in the words of one advocate, a “groundbreaking and fundamental” development in what had been a years-long push for stricter pollution reduction standards.

Rebekah Weber, with the Conversation Law Foundation, says for the first time ever, elected officials had decided to reach back in time, and ask “existing development, existing pavement, to treat stormwater.”

The regulations dealing with stormwater runoff in Vermont have only been around for the past 15 years or so. That means everything constructed before 2003 — large parking lots, for instance — was in some instances inflicting an outsized ecological toll on the watersheds in which they were built.

Stormwater is an important consideration in the water quality universe — runoff from impervious surfaces accounts for as much as 20 percent of the pollution problem in places like Lake Champlain, or Lake Carmi — which is why environmental advocates spent years trying to get these so-called legacy projects to comply with modern-day standards.

Ricker Pond is at the base of this crumbling road, seen in September 2015. At the time, the town of Groton was working on reshaping the crown and putting in stone-lined ditches to filter sediment-laden runoff from making its way into the water.
Credit Kathleen Masterson / VPR

Under the Vermont Clean Water Act, according to Jon Groveman, with the Vermont Natural Resources Council, people who own three or more acres of impervious surface would finally have to come into regulatory compliance, no matter when the development was built.

“So this is a really key part of the law, because it tried to go back and fix some of those older problems,” Groveman says.

The allegation now, according to Groveman, Weber and others: “The Agency of Natural Resources, the Scott administration is proposing … to seriously backtrack on those provisions.”

Why advocates are concerned

Before the state can require legacy sites to institute sounder stormwater controls, it needs to create a permit spelling out the precise standards by which those sites will have to abide.

The Clean Water Act called on the Agency of Natural Resources to deliver that permit by Jan. 1, 2018. Instead of meeting the deadline, Secretary of Natural Resources Julie Moore has asked lawmakers for a one-year extension.

Groveman says the state’s ability to meet its clean water goals hinges on the timely application of new statutory requirements. A year-long delay, he says, slows that timeline.

“People are going to sit back, they’re not going to take any action. They’re going to wait,” Groveman says. “They’re going to hope, well maybe this will never happen.”

Advocates say the Scott administration is also trying to lower the pollution-reduction standards that those legacy development projects have to meet.

The debate can get mired in the technical weeds very quickly, but one detail here is important: Right now, Vermont’s stormwater rules call for the owners of large, impervious surfaces — think of the parking lot example again — to find a way to contain the first inch of rainfall.

The idea is to hold the water in one place, like a retention pond, or a rain garden, long enough for the pollutants to get absorbed by the soil, instead of flushing into streams, rivers, and ultimately lakes.

Secretary of Natural Resources Julie Moore, however, is asking lawmakers for the latitude to require containment of only the first half inch of rainfall.

That’s problematic, according to Weber, “because all of the analysis that has gone into our plan to meet our water quality standards for Lake Champlain requires the agency to use the current standard, the current higher standard,” Weber says.

The Scott administration has angered advocates with another proposed revision to the Clean Water Act, and that is to postpone remediation of any three-acre-or-larger legacy sites in the Connecticut River basin.

Moore says the federal Environmental Protection Agency is in the process of developing a pollution-reduction plan for the Long Island Sound, a body of water impacted by flows from the Connecticut River.

The state should wait to move forward with projects in the Connecticut River basin, Moore says, until it has clearer guidance on standards that basin will be held to.

The state says they should wait on any three-acre or larger plans involving the Connecticut River, seen here in 2013, until the Environmental Protection Agency makes a decision on the Long Island Sound, which will impact the river.
Credit DenisTangneyJr / iStock

The problem with that approach, Groveman says, is that “we have no idea when that could be.”

“It could be 20 years from now — it could be never,” Groveman says. “To say we’re going to wait on that whole universe of legacy stormwater problems, to my mind, it’s questionable whether or not we’ll ever bring them in … and deal with those stormwater problems.”

Further, Groveman says, the state Clean Water Act didn’t contemplate what’s happening in the Long Island Sound. And he says, “That’s not an accident.”

“The compromise was for these larger areas of pavement. We wanted to bring them in and modernize them and control many of these areas for the first time, control the stormwater there to get all the water quality benefits,” Groveman says.

Postponing all of that work, perhaps indefinitely, according to him, would constitute “a reworking completely of Act 64.”

Head of Natural Resources defends the administration's approach

As for missing the Jan. 1 deadline to issue the permit, Moore says it won’t result in the problems that advocates fear.

She says the permit itself might have been due this year, but nobody has to come into compliance with that permit until 2023, at the very earliest. Moore says taking a little more time to get the permit right won’t impact that timeline.

“It doesn’t change the time frame for the harder work, which is to actually develop the engineering, control stormwater from these sites, for us to review the engineering plans,” Moore says.

As for the treatment standards to which those impervious surfaces will be held, Moore says there’s good reason to consider revising the one-inch threshold that’s in place now.

“There is research that’s been done by U.S. EPA that shows you can treat a far smaller volume of water and actually get the phosphorus removal we’d need to achieve our water quality goals,” Moore says.

Jon Groveman, with the Vermont Natural Resources Council, says advocates are troubled by the Scott administration's attempts to rewrite portions of the Clean Water Act.
Credit Peter Hirschfeld / VPR

The money issue is real when it comes to water quality. Under existing stormwater treatment standards, it’s going to cost several hundred million dollars for the more than 1,000 property owners affected by the new three-acre permit to come into compliance.

Lower the treatment standard to a half inch, and Moore says the state could lower those costs considerably, without substantively diminishing pollution reduction benefits.

“I think it’s an obligation on all of us to make sure that each one of those dollars is invested wisely as we drive toward those goals,” Moore says.

And as for delaying any action in the Connecticut River watershed, pending the completion of a federal pollution-reduction plan for the Long Island Sound, Moore says Vermont can’t responsibly proceed until it has a fuller sense of the regulatory requirements it will be judged against.

“We run the real risk of making investments that will be insufficient to meet those targets, or over-investing in strategies that are unnecessary to meet those targets,” Moore says.

Moore says Vermont will have to spend an estimated $2 billion over the next 20 years to meet its state and federal clean water mandates

“This is an enormous dollar proposition we have in front of Vermonters,” Moore says. “And it’s incumbent I think upon us to make sure we’re making wise, thoughtful investments of those monies.”

What the water quality scientists say

Stephanie Hurley, an assistant professor of landscape design at the University of Vermont’s Department of Plant and Soil Science, has been studying stormwater science for 15 years.

Hurley says policymakers are right to be focused on the issue of stormwater controls for legacy development sites in Vermont.

“We already have a problem, and that means we need to retrofit what’s already on the landscape,” Hurley says. “If we only target what’s coming in the future, that’s not going to deal with our current problem.”

And Hurley says the volume of water those retrofits are required to treat — i.e. the rainfall depth standard they’re held to — is a key factor in how effectively they reduce the pollution load from the build environment.

“That’s a big chunk of the overall volume going downstream, is coming off these larger sites,” Hurley says. “You can’t ignore that water. You can’t ignore the fact that it’s come into contact with oils and greases, particulate pollutants, sediments, chlorides … and various things that are washing off of parking lots.”

As policymakers lower the volume standard for retrofits, she says, they’ll likely lower the pollution reduction benefits.

“I want to see as much water held as possible before it goes downstream, and allowed to infiltrate and contact the subsurface soils whenever possible,” Hurley says.

James Houle is program director of the University of New Hampshire’s Stormwater Center, and authored one of the scientific documents that Julie Moore is relying on to make her case for reducing the rainfall depth standard.

The Winooski River, in the summer of 2015.
Credit Angela Evancie / VPR File

Houle’s “performance analysis” looked at two stormwater retrofits, one that treated only the first tenth of an inch of rain fall, the other a little less than a quarter inch.

Houle says he was “very surprised” at how effectively the projects reduced the flow of certain pollutants.

“The study really revealed that the penalty for so-called under-sizing a system was not as great as we believed it would be,” Houle says. “It means that there’s a lot of benefit for doing what you can where you can how you can.”

So does that mean Vermont can get away with holding legacy sites to a lower volume standard? Here’s how Houle answers that question:

“Managing stormwater is relatively recent science, and the way I look at it is, we can benefit from implementation, whatever that implementation is,” Houle says. “I would be less likely to promote one sizing criteria over another, and more likely to say, ‘We have a major problem that we’ve swept under the rug for decades, and it’s time that we start to implement. And however you want to get to implementation, I think I’m fine with for now.”

The legislative debate

The Scott administration has set out to change three key elements of the Clean Water Act:

  • delay arrival of the three-acre permit
  • change the water volume standard those permits will be held to
  • and postpone enforcement of the new requirements on any projects in the Connecticut River watershed, pending finalization of federal rules governing the Long Island Sound.

Moore says she needs legislative approval for all three.

Westminster Rep. David Deen, the chairman of the House Committee on Natural Resources, does not seem in a giving mood.

“[The permit] was supposed to be on the street January 2018. It’s not there. It’s not in place,” Deen says. “They do not have the tools in place to manage and mitigate the stormwater runoff from these legacy properties. That’s the real concern.”

Deen says the Clean Water Act only works if the executive branch is willing to enforce it. Allowing such a significant deadline to go unmet, Deen says, could set a dangerous precedent for the future.

“Is this a free-fall situation where in fact the agency can get the permit when they feel like getting the permit out? Or just not get the permit out?” Deen says. “If the Legislature does not assert itself in this situation, what’s that mean? The agency could continue to ignore this indefinitely.”

On the issue of reduced water volume standards for legacy sites, Deen says Moore already has the authority to try to institute that policy. If Moore wants to rewrite the stormwater rules, then he says her office can unilaterally reopen the rulemaking process.

“Those authorities and powers already reside within the agency,” Deen says. “They can just do this.”

Finally, as to the fate of the hundreds of projects in the Connecticut River watershed, Deen says Moore’s rationale rings hollow. Deen says the federal government is already enforcing pollution standards in the Long Island Sound, and that he doesn’t see any reason Vermont should delay critical water quality projects here.

The draft legislative language the Scott administration has asked for to delay Connecticut River projects, according to Deen, “will probably disappear.”