Vermont Environmental Court Report (July 2009)

The Environmental Court has published several opinions since our last update. We've discussed the Court's ruling in the Montpelier waste water discharge permit case in a prior post. Other recent opinions include:

• In re: R.L Vallee, Inc PUD, Docket Nos. 100-5-07 Vtec, 101-5-08 (Vt. Envtl. Ct. June 12, 2009) (Wright, J.) (Findings of Fact, Conclusions of Law, and Final Order approving residential planned unit development under relevant provisions of the South Burlington Zoning Ordinance; order addressed and dismissed questions raised by Appellant concerning project's compliance with zoning criteria related to planned unit development, setbacks, grading and erosion, fire protection, visual compatibility, scale, open space, traffic, parking and pedestrian safety, conformity with town plan, and site plans);
  
  
• NE Kingdom Community Action, Inc., Docket Nos. 123-6-07 Vtec, 128-6-07 Vtec, 152-7-07 Vtec (Vt. Envtl. Ct. June 16, 2009) (Durkin, J.) (Findings of Fact, Conclusions of Law, and Final Order approving construction of educational center under provisions of the Newport Zoning Ordinance; order addressed and dismissed questions concerning compliance with criteria related to permitted and conditional uses and site plan review, including traffic impacts, visual impacts, impacts to the character of the area, and drainage impacts);
  
  
• King Garage Construction Permit, Docket No. 202-9-08 (Vt. Envtl. Ct. July 9, 2009) (Durkin, J.) (Order on summary judgment motions, approving zoning permit for single-family garage; order addresses issues related to interpretation and application of setback requirements, accessory uses, and conditional uses, and also considers scope of environmental court's jurisdiction to address issues not presented in application or considered by development review board);
  
  
• Waitsfield Water Supply Source Permit, Docket No. 134-7-08 Vtec (Vt. Envtl. Ct. July 14, 2009) (Durkin, J.) (Entry Order on summary judgment motions, granting Town's motion for summary judgment and affirming water supply source permit; court concluded that it did not have jurisdictional authority to adjudicate issues raised in appeal).
  

Vermont Receives $8.8 Million in ARRA Funding for Energy Efficiency and Renewable Energy Projects

The Department of Energy announced on Tuesday that the state of Vermont will receive approximately $8.8 million in recovery funds for energy efficiency and renewable energy work in the state. The award was part of a package of $54 million allocated to four states under the American Recovery and Reinvestment Act.

According to the DOE press release,

the state of Vermont will use its Recovery Act allocation to fund incentives to advance renewable energy and energy efficiency measures across the state in the public, private, and residential sectors. The state will increase the development and deployment of cost-effective and environmentally sustainable electric power resources by offering grants and loans to residents, businesses, non-profits, government, and farms to help them install such renewable energy systems as solar, wind and geothermal.

The state also will establish a revolving loan and/or small grant program for public-serving non-profit or government institutions—including K-12 school districts, colleges, and universities—to implement energy efficiency measures or renewable energy projects.

In addition, Vermont will use SEP Recovery Act funds to install thermal solar renewable energy systems for heating and/or hot water to low-income residences. This effort will allow the state to continue to expand the weatherization program and realize greater energy savings.

After demonstrating successful implementation of its plan, the state will receive almost $11 million in additional funding, for a total of nearly $22 million.

ANR Secretary Wood Appoints New DEC Commissioner and Deputy Secretary

The AP is reporting that Jonathan Wood - the Secretary of the Vermont Agency of Natural Resources - has selected a new commissioner for the Department of Environmental Conservation (DEC) and has promoted his communications director to the deputy secretary position:

Vermont Natural Resources Secretary Jonathan Wood has promoted two agency managers to become commissioner of the Department of Environmental Conservation as well as deputy secretary of the Agency of Natural Resources.

Justin Johnson, who has served as deputy DEC commissioner, was named commissioner on Thursday.

Sabina Haskell, the Natural Resources Agency's communications director, moved up to deputy secretary.

Former Agency Commissioner John Sayles resigned in March to take another job with the state as did former DEC Commissioner Laura Pelosi in May.

Montpelier waste water treatment plant permit case: update

The Burlington Free Press reports that the State of Vermont filed a motion with Judge Durkin seeking permission to take an interlocutory appeal.

An interlocutory appeal pursuant to V.R.A.P. 5(b)(1) is appropriate where: the ruling (1) contains controlling questions of law; (2) there is substantial ground for difference of opinion as to that controlling question of law; and (3) immediate appeal may materially advance the termination of the litigation. Judge Durkin must authorize the appeal if the case satisfies the 3 factors.

We will continue to keep you posted as this case develops.

Environmental Court vacates Montpelier Waste Water Plant's Clean Water Act Permit

The Burlington Free Press reports on Environmental Court Judge Durkin's June 30, 2009 decision granting the Conservation Law Foundation's (CLF) motion for summary judgment and vacating the Clean Water Act discharge permit for the waste water treatment facility in Montpelier. The decision could impact 60 other similar permits held by other waste water treatment facilities that must be renewed in the near future. [Disclosure: SDRS represents the City of St. Albans in the CLF appeal against the St. Albans waste water treatment facility]. The June 30th decision is the most recent in a series of Judge Durkin decisions rejecting the Agency of Natural Resource's administration of the Clean Water Act as it pertains to cleaning up Lake Champlain.

The decision has several key aspects:

1. In reviewing ANR's interpretation of the Clean Water Act regulations promulgated by the Environmental Protection Agency, but administered in Vermont by ANR, Judge Durkin determined that deference to EPA and ANR's interpretation of the Clean Water Act regulations is not warranted.
   
   
2. ANR's process to adopt a water quality effluent limitation for phosphorus for the waste water facility based solely on the total maximum daily load (TMDL) set for the main section of Lake Champlain for phosphorus violates the Clean Water Act. The facts of the case show that ANR adopted the permit without analysis of the historical discharges for the Facility, improvements that may be had through advances in technology, offset opportunities within the applicable watershed, the levels of phosphorus currently entering the watershed from other sources, or whether this particular discharge will cause or contribute to a violation of water quality standards.
   
   
3. The Clean Water Act regulations require that before issuing a permit ANR must analyze whether past TMDL assumptions have some impact upon the discharge application being considered. The facts of the Montpelier case show that ANR issued the permit without first reviewing whether the numerous assumptions contained in the Lake Champlain TMDL were still accurate.
   

What happens next is not exactly clear. The Environmental Court vacated the permit and remanded the case back to ANR. One option is that ANR can restart its review of the permit application and attempt to reissue a permit consistent with the June 30th decision. Another possibility is that Montpelier and ANR can seek to pursue an interlocutory appeal of the Environmental Court's decision to the Vermont Supreme Court.

State of Vermont Moves to Enforce Clean Water Act; 400 Properties in Chittenden County Must Obtain Stormwater Permits in 180 Days

Late last week, the State of Vermont sent notice to more than 400 property owners in Chittenden County informing them that they will be required to obtain stormwater permits within the next 180 days.

The notice stems from a decision issued by the Vermont Environmental Court in August of 2008. The Court ordered the Agency of Natural Resources (ANR) to begin enforcing provisions of the federal Clean Water Act that require permits for certain properties that discharge stormwater into waters that do not meet state water quality standards (so-called "impaired waters").

The notices went to property owners in five different watersheds in Chittenden County, each of which contain streams that are classified by the state as "impaired waters," primarily due to stormwater discharges.

The initial "residual designation" notice for each watershed is available on ANR's website:

• Bartlett Brook watershed
  
• Centennial Brook watershed
• Englesby Brook watershed
• Morehouse Brook watershed
• Potash Brook watershed
  

Other information related to the agency's residual designation - including a list of each property required to obtain permits, and maps of the identified watersheds - is also available on the agency's website.

ANR will be promulgating a "general permit" to cover this category of dischargers, and the identified property owners will be required to obtain permits from the state within 180 days. More information on the specifics of the permitting program will be available once the general permit is published.

The Burlington Free Press also has a report on the new stormwater permitting program in today's paper.

Environmental Court Wraps Up St. Albans Wal-Mart Trial

The St. Albans Messenger has two reports on the recent Environmental Court trial for the Wal-Mart proposed in St. Albans.

Several groups appealed a number of permits issued to the project developer J.L.D. Properties, including the subdivision permit issued by the St. Albans Town Development Review Board, the site plan and conditional use permits issued by the town, the original Act 250 permit and the amended Act 250 permit. Last Wednesday, the Environmental Court took testimony on the potential economic impacts of the Project. On Thursday and Friday, the Court heard testimony on traffic impacts and the potential impact on agricultural soils. The proceedings concluded on Friday. The Judge will issue a ruling following the parties' submission of post-hearing briefs.