Decision Misses Key Opportunity to Protect Pristine Streams

On August 9, 2005 the Water Resources Board (Board) issued a setback to the designation of sixty-six waters on the Green Mountain National Forest Service (GMNF) as Outstanding Resource Waters (ORW). VNRC and Conservation Law Foundation (CLF), along with individual citizens, filed a Petition with the Board seeking protection for certain headwater streams, lakes and ponds, and wetlands on the GMNF. An ORW designation would have required that water quality be maintained and protected in the individual waters and their tributaries.

The waters that VNRC sought to protect are some of the most pristine waters in the State of Vermont. The candidate waters represent an extensive portion of ecologically intact headwaters on the National Forest. There are no wastewater treatment plants, no industrial point sources of water pollution or other discharges, and no significant agricultural non-point source pollution.

Stream monitoring data shows a pattern of high water quality in the candidate waters. The waters serve many important functions including source protection areas for municipal drinking water, habitat for wildlife, including rare and threatened species, rare and irreplaceable natural areas, and valuable fish habitat.

In a disappointing decision, the Board declined to designate the candidate waters as ORW. While the Board found that a significant number of the candidate waters deserved to be designated, the Board instead suggested that VNRC initiate an amended petition to designate ORW through a rulemaking. “This will take an enormous amount of resources to accomplish,” said Jamey Fidel, legal counsel for VNRC.

“We have been working on the petition for three years and we believe the Board could have made ORW designations based on the information we provided,” added Fidel. The Board seemed hesitant to move forward with designation without additional information pertaining to privately owned lands within the candidate waters on National Forest. However, the maps provided to the Board delineating the candidate waters show that many of the waters do not include inholdings.

VNRC is currently weighing its options for responding to the ruling. On the bright side, VNRC successfully argued that the test for designating ORW in the state should include broad categories of water quality values and not narrow mathematical criteria as argued by the Vermont Agency of Natural Resources (ANR). As explained by the Board, the ANR’s test would have placed “the legal process for designating ORW’s in a vice that renders the process too narrow to have any use.”

While the decision still leaves hope for future ORW designation in Vermont, the immediate impact is there are still only four recognized Outstanding Resource Waters in the State. “There are many waters that deserve ORW designation in Vermont, and if we can’t accomplish this level of protection now in the pristine remote headwater stretches of our National Forest as a threshold, we have a long road ahead,” added Fidel.