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Board Grants VNRC’s Stormwater Petition

VNRC has won a major victory that will ensure that stormwater discharges in five watersheds in Chittenden County comply with the federal Clean Water Act. The Vermont Water Resource Board ruled in favor of VNRC’s request that all stormwater discharges into polluted waters will be covered under the federal permitting program. The decision will result in a more consistent, predictable, and effective stormwater clean-up program.

In the summer of 2003, VNRC filed a Petition with the Agency of Natural Resources (ANR) requesting that ANR designate stormwater discharges to five waterbodies in Vermont as federally regulated discharges under the Clean Water Act. ANR denied the Petition and VNRC appealed the decision to the Water Resources Board (WRB).

In its appeal, VNRC argued to the WRB that because these five streams are impaired (do not meet water quality standards), every discharge of pollutants that contributes to an impairment must be governed by a federal National Pollutant Discharge Elimination System (NPDES) permit. VNRC pointed out that in the Board’s previously issued decision on the ANR Watershed Improvement Permits (WIP), the Board itself had recognized that every discharge of stormwater into these polluted waters contributes to the impairment. (See In re Morehouse Brook, No. WQ-02-04, Findings of Fact, Conclusions of Law, and Order *June 2, 2003). Because Vermont is delegated state, VNRC further argued that it is up to ANR to regulate these discharges under the federal water pollution control program.

The WRB agreed with VNRC, ruling that federal law clearly states “that a discharger of stormwater must obtain an NPDES permit if EPA or a delegated state determines that the discharge contributes to a violation of a water quality standard.” The WRB also ruled that “discharges of stormwater that increase the mass loading of stormwater pollutants into stormwater-impaired streams, either directly in the discharge waste stream or indirectly through additional bank scour, cause or contribute to the violations of the Vermont Water Quality Standards.” Because all discharges to these five streams are increasing the mass load of stormwater pollutants, the WRB reasoned that federal NPDES permits for these discharges are required.

The WRB decision is a landmark ruling. By all accounts, the WRB is the first tribunal in the nation to rule that stormwater discharges that contribute to water quality violations must be permitted under federal law. As a result of the WRB decision, citizens and environmental groups such as VNRC will now be able to bring enforcement actions against polluters in federal court using the citizen suit provisions of the Clean Water Act. In addition, the WRB has made it clear that new discharges of stormwater to Vermont’s stormwater polluted waters are prohibited unless cleanup plans are in place that demonstrate that these waters can handle additional pollution. The WRB decision is a major step forward for clean water in Vermont.