Ripley No Title
| Jurisdiction | Vermont,United States |
| Citation | Vol. 2001 No. 12 |
| Publication year | 2001 |
December 2001. Ripley No Title
Barbara G. Ripley, Esq.
On June 29, 2001, the Water Resources Board issued a highly controversial deci-sion in the matter of Lowes-Hannaford.(fn1) As with many momentous decisions in the law, the facts of this case are not particu-larly unique, but its implications are sig-nificant for water law in Vermont.
The Agency of Natural Resources (ANR) issued a stormwater discharge per-mit to Hannaford Brothers Company and Lowes Home Centers, Inc. (Lowes) on December 12, 2000. The permit covered stormwater runoff from the proposed Lowes-Hannaford shopping center in South Burlington into Potash Brook and to Lake Champlain through a tributary. Initially issued to Hannaford in 1995, the permit was due to expire. A renewal and amendment application was filed to add the Lowes Home Center to the project. The permit was appealed to the Water Resources Board by the Conservation Law Foundation on January 11, 2001.
The Board issued a Prehearing Conference Report and Order on February 16, 2001. The Board posed the following question that lies at the heart of the appeal and the Board's decision:
Can the new measurable and detectable stormwater discharge be permitted into the receiving waters which currently do not meet the requirements of the Vermont Water Quality Standards and have been listed as Water Quality Limited Segments on the Environmental Protection Agency approved 1998 State of Vermont List of Targeted and Impaired Waters?(fn2)
If the answer to this question is yes, then the Board would reach the following ques-tion: "If the permit can lawfully be issued, what limitations must be included in the permit to adequately control the dis-charge."(fn3)
Thus, does the law require stormwater to be treated the same as a discharge from a pipe, that is, as a point source discharge? The Conservation Law Foundation (CLF) contended that the answer is "yes," a dis-charge is a discharge and new discharges into impaired waters are not allowed unless within the parameters of a "Total Maximum Daily Load" (TMDL). The Agency of Natural Resources (ANR) and Lowes said "no" - state law clearly pro-vided that stormwater discharges; were not intended to be treated the same as point source discharges, therefore a TMDL is not required before a stormwater permit can be issued for runoff into impaired waters.
Stormwater laws and regulations are found in or authorized by the Clean Water Act(fn4) and the Vermont State Water Pollution Control Act.(fn5) The Lowes deci-sion was determined pursuant to state law, although federal provisions and terms also appear. The state Water Quality Standards and the ANR's Stormwater Procedures and Waste Allocation Process also control the decision. Although Federal law may have a more direct role to play, the parties agreed that the questions could be decided pursuant to state law.
Title 10, Section 1263 (a) of the Vermont Statutes requires anyone who intends to discharge waste into the waters of Vermont to get a permit. A permit shall be issued if ANR determines that the dis-charge will not reduce the quality of the receiving waters below their established classification.(fn6)
Section 1264 (a) provides that "the runoff of stormwater that is collected and discharged to the waters of the state and may be deleterious to the surrounding waters shall be subject to the provisions of this chapter."(fn7) However, when enacted in 1981, this section also required the Secretary to develop a plan for the man-agement of stormwater, recognizing that it is different from the discharge of sanitary and industrial wastes because of the influ-ence of natural events upon it. Section 1264 was significantly amended in 1999, requiring the ANR to develop a...
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