Lowe's, environmentalists spar on stormwater at Vt. high court
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By JOHN ZICCONI Vermont Press Bureau - Published: October 7, 2005
MONTPELIER — Vermont's contentious stormwater battle took center stage before the state Supreme Court on Thursday as Lowe's Home Centers and environmentalists squared off over whether the national retailer can restart construction in South Burlington.
Although arguments were technical — does Lowe's need a general or individually tailored state construction permit? — the court's decision will decide whether the big box store can resume construction in 2006 or potentially be delayed for years.
"The practical issue is time," said Christopher Roy, attorney for Lowe's.
The chain began building in South Burlington in May 2004 but ceased construction three months later when its construction permit was terminated by the Water Resources Board. Thursday's court proceedings could reverse the termination.
Lowe's has both a general and individually tailored construction permit from the Agency of Natural Resources that allows it to discharge potentially polluted stormwater into an already impaired tributary of Lake Champlain.
The individual permit, however, is on appeal to the Vermont Environmental Court.
That appeal process could take a year or longer, Roy said, and whatever decision the Environmental Court makes likely will be appealed to the Vermont Supreme Court.
A final determination could be as much as five years away, he said.
But if the high court decides an individual permit is not necessary — a ruling that is expected sometime next year — Lowe's could begin construction immediately without implementing any of the pollution safeguards that environmentalists seek.
The court's ruling likely will set a precedent for how all developers needing stormwater discharge permits into impaired waterways must proceed.
Stormwater-impaired waterways exist in Chittenden, Rutland, Franklin, Windham and Washington counties.
If Lowe's "wins this case they have a permit to build and a permit to discharge into Potash Brook," said Sandra Levine, an attorney with the Conservation Law Foundation, an environmental group opposing the retailer's permits.
Potash Brook is one of 17 waterways that do not meet state water quality standards because of contaminated stormwater.
CLF believes developers should not be able to discharge stormwater into an already polluted stream unless they can prove the development will not contribute to the problem.
The state Water Resources Board concluded the construction of Lowe's will add additional pollutants to Potash Brook, but ANR granted the company a permit anyway, said Christopher Kilian, a CLF attorney.
Stormwater is rain or snowmelt that runs off hard surfaces like roads, parking lots and roofs. The runoff often contains oil, grease, phosphorus, bacteria and other pollutants dangerous to humans and wildlife.
"The Environmental Protection Agency called it a toxic brew," Kilian said.
Lowe's "does not want to clean it up," he said. "We want to clean it up. That is what this all comes down to."
CLF is fighting Lowe's on several fronts. The environmental group in court is challenging not only the retailer's construction permits, but also the permit that allows it to discharge stormwater after it opens for business
Roy acknowledged that during construction Lowe's could contribute additional pollutants to Potash Brook. But any additional pollution will be temporary with no lasting effect, he said.
Once construction is complete, the store's permanent stormwater system will not add additional pollution to the brook and may actually improve its water quality, he said.
"The question is whether we will be allowed to construct a stormwater facility that will allow Lowe's to clean up runoff from the site," Roy said. "You can't use the water quality rules to prevent the construction of the very facility that will make improvements."
Contact John Zicconi at john.zicconi @rutlandherald.com.
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