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VNRC Legal Counsel Jon Groveman’s Comments on the White River Basin Plan

  • The White River Basin Plan (WRBP) is the first of 17 basin plans that the Agency of Natural Resources must update by 2006. To protect Vermont’s magnificent lakes and streams, it is vital that the recommendations for classifying the waters are done properly and that good precedent is set for the classification of waters in Vermont’s 16 other basins.
  • Presently, Vermont has 3 classes of waters: A(1), A(2), and B. A(1) are ecological waters; A(2) are public water supplies; and B are all other waters. The proposed rule before the WRB for the first time would create sub-classifications for Vermont’s Class B waters. The sub-classifications are B1 or WMT1, B2 or WMT2, and B3 or WMT3, with B1 (WMT1) being the most protective and B3 (WMT3) being the least protective classification.
  • The rulemaking petition filed by ANR and the WRBP is very candid that ANR relied heavily on local land use goals in framing its classification recommendations. While the criteria for classification appropriately require the WRB to consider municipal plans in setting a classification, it appears that ANR has given an inappropriate amount of weight to this factor. This can be the only explanation for why ANR has proposed lower classifications than some of the waters in the White River Basin currently achieve.
  • Moreover, ANR states in the plan that it encourages other groups to petition to have high quality waters designated as A1, B1 or Outstanding Resources Waters. By taking this approach, ANR has abdicated its decision making authority and has failed to meet its obligation to manage the waters of the state in accordance with existing and reasonably attainable and desirable water quality management goals.
  • Conformance with municipal plans is only one of ten factors listed in Vermont statute that must be considered when a water is classified. See 10 VSA § 1253(e). Moreover, the statute requires the WRB to consider municipal, regional and state plans when setting a classification. ANR’s petition fails to indicate how it weighed plans for future land use in local plans and bylaws against provisions in regional and state plans and the Clean Water Act.
  • ANR appears to have given far less weight regional and state plans and to the environmental criteria for classifying waters in 10 VSA § 1253(e) than it has to plans for existing and future land use. Environmental factors that ANR and the WRB is required to consider when classifying waters include existing and obtainable water qualities, existing and potential uses for waters, sources of pollution, consistency with state water quality policy, suitability of waters as habitat for fish, aquatic life and wildlife, need for and use of minimum streamflow requirements, federal requirements for classification and management of waters, and any other factors relevant to determine the maximum beneficial use and enjoyment of the waters. See 10 VSA § 1253(e).
  • The clear focus of the statutory criteria on waters quality and habitat values indicates that ANR and the WRB’s job is to set classifications that assure that existing water quality and uses will be maintained and the potential for higher water quality of waters will be maximized. ANR has clearly not taken this approach in its petition.
  • ANR has ignored its own monitoring data and has failed to classify as B1 waters that ANR’s own data indicates meets B1 criteria. Classifying waters as lower than the existing quality of the waters violates Vermont’s anti-degradation policy, which requires all waters to be managed “to protect, maintain, and improve water quality.” VWQS § 1-03(A).
  • Classifications must at a minimum represent the level of water quality actually present in the waters. The WRB should reject all of the classifications proposed by ANR that call for a lower classification than the existing quality of the water. Such action would be consistent with the Vermont Water Quality Policy, which states that Vermont must “protect and enhance the quality, character, and usefulness of its surface waters.” VWQS § 1-02(A)(1) and that Vermont must “assure the maintenance of water quality necessary to sustain existing aquatic communities.” VWQS § 1-02(A)(4).
  • The Vermont Department of Fish and Wildlife has identified certain waters in the White River Basin as high quality spawning nursery (HSN) or high quality resident waters (HR) for fish populations. Despite the fact that data indicates thee waters support high quality fish habitat, ANR is proposing to classify many of these waters as B2. All of these waters deserve at least a designation of B1 in recognition of, and in order to adequately protect, this high quality habitat. Accordingly, the WRB should reject all of the waters that contain HSN or HR that are proposed to be classified lower than B1.
  • As depicted on the chart that VNRC has prepared for the WRB, approximately 45% of the classifications proposed by ANR are inconsistent with ANR’s own data (both water quality monitoring and fish habitat data).
  • ANR has inappropriately used the B3 classification in its petition. For example, Blaisdell Brook is proposed to be classified as B3 because water is currently being drawn from the brook for a commercial water bottling operation, even though ANR’s monitoring data indicates that Blaisdell Brook meets B1 criteria downstream of the water bottling withdrawal. ANR’s position is that because of these existing impacts, the Brook should be afforded the least level of water quality protection under Vermont law. This is backwards thinking. ANR must look at obtainable water quality, not just existing water quality based on on-going impacts in proposing a classification. If all waters were classified based on their worst case impact scenario Vermont will never meet the policy in the VWQS to “protect and enhance the quality, character and usefulness of its surface waters and to assure the public health.” VWQS § 1-02(A)(1).