Group criticizes lack of Vt. stormwater plan
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By Louis Porter Vermont Press Bureau - Published: November 9, 2005
MONTPELIER — Vermont is more than a decade late in regulating stormwater runoff from industrial sites as required by federal law, according to an environmental group.
The Conservation Law Foundation also claims the state is improperly denying access to public records on the issue under the federal Clean Water Act.
The legislation, which went into effect in 1990, requires states to have a general permit under which stormwater runoff from industrial sites are regulated.
Although Vermont was days away from implementing such a program in 2002, it still does not exist, said Anthony Iarrapino, staff attorney with CLF in Montpelier. Vermont may be the last state in the country without such a program, he said.
"That is absolutely true," said Jeffrey Wennberg, commissioner of the Department of Environmental Conservation. "Vermont is one of the last states to begin regulating what is called the multi-sector general permit."
But CLF should know the reason for that, Wennberg said. In 2002 the state's Water Resources Board supported a CLF appeal that overturned the state's approach to stormwater regulation, he said, and the agency has been working to redesign its program and review more than 1,700 expired stormwater discharge permits which came to light because of the case ever since.
"We have made enormous progress in the last two years," he said.
"The decision was made to put it on hold," Wennberg said of the general permit program. "We didn't have the technical people, we didn't have the lawyers and we didn't have the money" to do both.
The decision to delay the implementation of the general permit was well known to legislators, the federal Environmental Protection Agency and CLF, Wennberg said. The draft version of the new general permit will be released in December, he added.
But the general permit is vitally important, Iarrapino said, because it is how the state will monitor and regulate stormwater draining from many sites across the state.
Runoff from those sites can put sediment, oil and other pollutants into streams and other waterways. CLF estimates between 2,000 and 2,500 sites will be affected, while Wennberg estimates the number is about 1,500.
"The problem is they haven't done the permitting," Iarrapino said.
In the meantime, the case may decide an issue of public access to internal government documents.
Many Agency of Natural Resources documents relating to the general permit issue were not turned over to CLF because there is a "deliberative process privilege" exemption to the Freedom of Information Act, according to Scot Kline, general counsel for the agency. Kline heard and denied CLF's appeal of the records request decision.
"It essentially protects the deliberative process of the agency in this case," Kline said, that the privilege is based on common law established by cases decided in Vermont and federal courts.
Iarrapino disputes that idea.
"The deliberative process exemption has not yet been recognized by the Vermont Supreme Court. It is a creature of federal law," he said. "It is completely out of step with the tradition of open government in Vermont."
Secretary of State Deborah Markowitz said Iarrapino may be right.
"I don't know of a privilege like this in Vermont law," she said.
Such an exemption may be an expansion of executive privilege, which is limited to the governor, Markowitz said.
"I do not believe executive privilege is meant to go down deep into an agency's decision making," she said. "In fact, if you take a look at the public records law you can see the Legislature wanted records concerning the formulation of policy to be public except in narrow circumstances."
"The public records law exists to ensure that government is accountable to the people," she said. "Records are open unless there is a very clear provision in the law that allows those records to be closed. This places a very high burden on the agency to show they have the right to close records."
But Kline points to a Washington Superior Court decision, the court in which CLF may bring an appeal of the agency's decision.
The decision says, "The Vermont Supreme Court has never addressed the recognition of the deliberative process privilege. Generally the deliberative process privilege allows the government … to withhold from public access information of an advisory or deliberative natures that relates to the governmental decision or policy-making process."
Iarrapino is not convinced.
"We are definitely appealing this," he said. "We would be willing to go all the way to the (Vermont) Supreme Court with this issue."
The open records law itself may need to be made clear as well, he said.
"I also anticipate that we are going to go to the Legislature with this," Iarrapino said.
Contact Louis Porter at louis.porter@rutlandherald.com.
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