Clean Water Advocates Eye New Legal Path Toward Lake Champlain Clean Up

Jun 25, 2014

Clean water advocates are exerting new legal pressure on the Shumlin Administration to reduce pollution flowing into Lake Champlain. The latest maneuver aims to crack down on the commercial development that experts say has exacerbated Vermont’s water pollution problem.

Pavement or other impervious surfaces, especially vast expanses of it, tends to be bad for water quality. That’s because it’s usually displaced the soil and vegetation that would have otherwise helped filter pollutants from the stormwater flowing into creeks and streams.

"I think anybody who has seen the foul brew of polluted runoff that goes down a storm drain in a strip mall or at a car dealership or in an industrial park anytime it rains understands that we're not sending clean water through the drainage pipes that run all throughout our built environment." -Anthony Iarrapino, Conservation Law Foundation

Anthony Iarrapino, senior attorney at the Vermont office of the Conservation Law Foundation, says the state’s own research shows that commercial properties have contributed significantly to a pollution problem that has led to toxic blue-green algae blooms in Lake Champlain.

“I think anybody who has seen the foul brew of polluted runoff that goes down a storm drain in a strip mall or at a car dealership or in an industrial park anytime it rains understands that we’re not sending clean water through the drainage pipes that run all throughout our built environment,” he says.

Iarrapino says it’s time for the state do something about it. In a petition filed with the Agency of Natural Resources Wednesday, the Conservation Law Foundation directs state regulators to enforce federal clean water standards it says are now being ignored.

Specifically, CLF is asking the agency to require “commercial, industrial, and institutional” polluters to obtain National Pollutant Discharge Elimination System permits. The state of Vermont is responsible for enforcing federal Clean Water Act standards within state borders.

“The problem is the way that regulators have implemented the law over time has let commercial property owners… off the hook,” Iarrapino says. “They’ve let them have a free ride.”

The petition is the second filed by CLF in the last month. The first, submitted to the Agency of Agriculture in late May, directs regulators there to impose new pollution remediation measures on large farms. The petitions come as the state assembles a broader pollution remediation plan for Lake Champlain, where phosphorus levels are far in excess of federal limits.

Deb Markowitz, secretary of the Agency of Natural Resources, says the state absolutely has to deal with the pollution issues wrought by commercial development. She says the state already requires new developers to adopt construction practices that mitigate runoff problems.

But Markowitz says forcing existing businesses to perform the retrofits needed to ameliorate the problem is more complicated. And she says the state is in the process of developing a plan that takes into account the economic realities of business owners.

“We believe that it’s really important to bring all the stakeholders around the table so that we can understand from the business community’s perspective as well what the challenges are, and see whether or not there’s a way to address them so that we can achieve clean water but do it in a way that makes sense,” Markowitz says.

Markowitz says a public process now underway will yield a plan. But Iarrapino says the state has known for years about the issue. And he says history proves that even among well-meaning regulators, the development of a plan to deal with the problem doesn’t generally lead to a result that solves it.

“It’s one thing to have plan that says you’re going to do all these wonderful things,” Iarrapino says. “But if you don’t say where you’re going to do those wonderful things and by when, the plan isn’t worth very much.”

The Agency of Natural Resources has 90 days to respond to CLF’s petition. The federal Environmental Protection Agency is due to weigh in on the state’s pollution control efforts later this summer.

Iarrapino says the statutory mechanism cited in this latest petition is the same one invoked by CLF in the early 2000s. An ensuing court battle lasted years but eventually resulted in a victory for CLF in the Vermont Supreme Court, where, according to Iarrapino, judges ruled that the state “has both the authority and responsibility to hold identified polluters responsible.”

Iarrapino says that ruling spawned the birth of a regulatory regime that required commercial properties in parts of Chittenden County to abide by a permit process, something Iarrapino says resulted in dramatic decreases in water pollution.

Iarrapino says it’s CLF’s hope that new petition will result in similar action by the state “without another trip to the court.”