MONTPELIER – Frustrated by continuing lawsuits and disagreements over water protection in Vermont, the state may find itself giving back to the federal government authority for regulating water pollution.
Such a move would have a major impact on businesses, farmers and homeowners in the state, since it would put the federal Environmental Protection Agency in Boston – not state officials – in charge of issuing and administering a permit for a stormwater system, or a farm or a wastewater treatment plant. Besides review and permitting being done in Boston instead of by state environmental officials in Waterbury, it could also mean different – perhaps more rigid – standards would be put in place.
The Agency of Natural Resources is unlikely to recommend to Gov. James Douglas that he give up Clean Water Act authority, and the EPA might not accept the return of the authority – and the work – if requested. But it may become necessary if the state, environmental groups and the feds cannot reach an agreement on how to manage stormwater discharges into five streams in Chittenden County, said Jonathan Wood, secretary of the state environmental agency.
"We are frustrated with this continually getting to a legal roadblock," Wood said. "Having the federal government do this, giving it back, is one option."
Such a change would have an effect on state workers: The authority to implement the National Pollution Discharge Elimination System comes with about $1.2 million and the program employs about 22 people. However, giving up that authority would not remove all of those employees from state government: About a half-dozen would still be needed to administer state water programs, and the change would free up about $350,000 in state General Fund money as well, ANR officials said in a hearing last week before the Fish, Wildlife and Water Resources Committee of the House.
The possibility of returning Clean Water Act authority came up in response to an ongoing disagreement primarily between the agency and the Conservation Law Foundation, a regional environmental advocacy organization with an office in Montpelier.
A court decision in a case brought by the environmental group requires that the agency must begin moving to require those discharging into five streams in Chittenden County to get a federal permit, first by notifying them they are not in compliance with the law. It has not been possible to reach an agreement on how that is to be done with the EPA and the Conservation Law Foundation and the deadline is only about 30 days away, although an extension may be possible, ANR officials said.
The environmental group itself has also petitioned the feds to, on their own volition, take back the authority to administer the act.
But that is not the ideal solution, said David Mears, a lawyer with Vermont Law School's Environmental and Natural Resources Law Clinic who is working for CLF on the petition to the federal government.
The best outcome would be for the state to change – and toughen – how it administers that authority, Mears said.
But if the state does not do that then giving Clean Water Act authority back to the feds – or having them take it – should be considered.
"Conservation Law Foundation wants the Clean Water Act program to be implemented whether it is the state or the EPA," Mears said.
Stephen Reynes, a Montpelier land use lawyer who is a former member and chairman of both the House and Senate natural resources committees and was a state environmental regulator, told lawmakers those who need permits would suffer if Vermont gave up Clean Water Act authority.
"The last thing the people of Vermont need is to have a regulatory program thrown into turmoil," he said. "Good luck getting a timely permit from Boston."
The problem is that – from layoffs to cuts in funding – the state's Agency of Natural Resources is in a tough spot, he said.
"If the environment and making permit programs work are important for Vermonters, and they are, the agency needs support," Reynes said.
Even the process for giving back the Clean Water Act authority is not entirely clear. Although not every state does administer the federal water rules within its borders – New Hampshire does not, for instance – none has given that authority back after gaining it. Indeed, the statutes themselves are not entirely clear, a legislative lawyer told lawmakers.
One section of law says the governor asks for such authority from the federal government – indicating it would be a decision for the governor alone to send it back – while another section says "the state," indicating the Legislature might have a role.
The agency's reading of the law would argue it is clear.
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