By LOUIS PORTER Vermont Press Bureau - Published: March 14, 2010
MONTPELIER – It's complicated, has been going on for years and is, at times, extremely arcane. But the dispute between the state and the Conservation Law Foundation over the regulation of phosphorous pollution in Lake Champlain is also one of the most important environmental battles in Vermont. Its outcome will matter to anyone who swims or boats on the lake or just lives in its watershed – and that's the majority of Vermonters.
The environmental organization, which has offices in Montpelier, recently won a round. The Environmental Protection Agency said it may reconsider its previous approval of the plan for cleaning up Lake Champlain, with the implication that it may be judged not rigorous enough.
This week, CLF hopes to win another when the Vermont Supreme Court hears arguments in a case brought by the environmental group over whether Montpelier's wastewater treatment plant permit should be thrown out because it allows the plant to send too much phosphorous down the Winooski River. The state's Environmental Court agreed with CLF, but the matter is before Vermont's top court on appeal.
Those developments could speed the process of tightening the pollution controls for Lake Champlain. But the current cleanup plan expires in a few years, so the amount of phosphorous pollution allowed from wastewater plants, from storm water drains and from farms likely will be reduced in the next few years in any case, meaning more work and more money to clean up the waterways that feed the lake.
Like many freshwater bodies of water, Lake Champlain is unable to handle as much phosphorous – essentially fertilizer – as it receives. That means massive blooms of algae and other water plants that can make swimming unpleasant, when it is even allowed, and fishing and boating difficult. But reducing phosphorous coming from human and animal waste from farm fields, from runoff and from wastewater treatment plants is difficult and can be expensive.
CLF has been challenging the adequacy of the "total maximum daily load," or TMDL, cleanup rules for years. Those rules allocate the total amount of phosphorus allowed into the lake among different types of sources.
The group has argued that the plan, approved in 2002, does not accurately measure pollution in some cases, and does not take some important factors into account – including the effect of climate change and increased rainfall.
Gov. James Douglas and the state's Agency of Natural Resources have countered that Vermont has taken the cleanup of the lake seriously – close to $100 million has been spent according to Douglas' estimate – and that more emphasis on wastewater treatment plants only distracts from the larger but much more difficult to evaluate effort on "non-point" sources of phosphorous like farms. Non-point sources essentially are those where pollutants don't flow from a pipe.
The one thing that seems clear is that the lake overall does not have less phosphorous in it – although administration officials say holding the line is an accomplishment in itself. For instance, the 2008 State of the Lake report records phosphorous levels at 13 spots around the lake. Nine were listed as not changing, while four were listed as getting worse. But none of those spots was listed as improving.
And the state-approved Lake Champlain 2009 Action Plan noted that "immediate in-lake water quality improvements have been elusive" even while "substantial public investment … occurred and is evident throughout the basin."
Legally the dispute has been as spread out as the 60 wastewater treatment plants from southern Vermont to St. Albans that drain into the lake. There have been legislative skirmishes, like back in 2007 when lawmakers, urged by CLF, agreed to reopen the cleanup plan and likely make the rules tougher. But a year later – worried about what such a change would do to cities and towns that build and run plants and encouraged by municipal officials including Rutland Mayor Chris Louras — they reversed that decision.
"My concern is that it would either be imposed on us as an unfunded mandate or we would be stuck in a lawsuit trying to determine who pays," Louras said at the time.
So the battlefield shifted to the courts, with the conservation group challenging the TMDL overall in federal court – prompting that recent boost from the EPA saying it would reconsider the pollution plan – and simultaneously challenging the permits of individual wastewater plants in state court.
It is the farthest advanced of those state cases – the one dealing with Montpelier – that will be argued before the Vermont Supreme Court this week when the justices hold their longer-than-normal hourlong hearing on the matter at Vermont Law School.
Permits under fire
In 2007, the city of Montpelier applied for a new permit for its wastewater plant, which discharges treated water into the Winooski River and on down into the "main lake" portion of Lake Champlain. That portion is not as badly overloaded with phosphorous as other parts of the lake, such as St. Albans Bay and the southern tip. But it still receives nearly double the amount of phosphorous it should when all sources are included.
The new Montpelier permit, issued in 2008, allowed the city to roughly triple the amount of phosphorous it releases, and that violates the laws governing water pollution, according to the Conservation Law Foundation's argument.
The state's Environmental Court agreed; the city and the Agency of Natural Resources then appealed.
The state's lawyers argue that the agency fulfilled its legal requirements when it issued the permit. Just because the lake receives too much phosphorous does not mean that no wastewater plant can increase its load – just that the overall amount of phosphorous going into the lake must be reduced when all sources are included.
If the state's top court agrees with CLF, the implications go beyond the fact that Montpelier's wastewater permit would have to be reconsidered (although that might prove significant for the city). It could mean that the permits for many wastewater plants across the state would be much more subject to challenge when they come up for renewal. And that could affect not only the state, but cities and towns across the western half of Vermont.
"They will have to demonstrate they are not contributing to the phosphorous load in the lake. It would not be easy to do," said Catherine Gjessing, an attorney for the Agency of Natural Resources.
Losing before the Vermont justices could also mean a change in the agency's approach to Lake Champlain cleanup, with more attention and money going to wastewater plants.
But can the state afford to have the lake keep receiving as much phosphorous as it is?
Conservation Law Foundation attorney Anthony Iarrapino doesn't think so.
"We can't afford to take the hit to our tourist economy and to our 'green' brand by having a lake that is getting more and more polluted," he said.
In any case, the cost of reducing phosphorous pollution is in some cases overestimated, he said.
As a permit issue, the matter is primarily between CLF and the state even though it centers on Montpelier's wastewater plant, City Manager William Fraser said Friday.
The Montpelier case is one tributary of the larger disagreement between the Conservation Law Foundation (along with the EPA) and the state.
Douglas and his administration have long argued that the attention should be given primarily to "non-point" sources of pollution, even if the results are more difficult to measure, rather than to sewage plants.
Jonathan Wood, secretary of the Agency of Natural Resources, said the state has pursued the right path in realizing that upgrading wastewater plants is a more expensive way of dealing with the pollution of the lake per ton of phosphorous removed.
"I think we have been doing the right thing," he said.
Douglas pointed out last week that Vermont and Quebec have just renewed an agreement to remove pollution from the lake.
And, although some "total maximum daily load" plans around the country set tighter standards, Vermont is taking its plan the most seriously when measured by "the financial commitment to get the job done," Douglas said.
But Chris Kilian, the head of the Conservation Law Foundation in Vermont, said it cannot be a choice of wastewater plants or farm programs or storm water runoff rules.
"We have to do it all," he said. The state has not pursued federal money that could have improved the operation of those plants, worried about the precedent tighter standards would set even when municipalities have agreed, he said.
"It's a complete shell game," he said of the state's approach.
Todd Bailey of the Vermont League of Conservation Voters agreed.
"It's revealing that Gov. Douglas is measuring the success of his program by the amount of taxpayer money spent as opposed to by how successful it has been at cleaning Vermont's waters," he said. "He could have reduced the tax burden on all Vermonters by holding polluters accountable and having them pay for cleaning up the lake."
Whatever the ultimate mechanism – a lawsuit, EPA action or a rewrite of the cleanup plan when it expires in 2013 — it appears likely that the rules around pollution of Lake Champlain will be tightened.
"It certainly looks that way based on all of the different actions," Wood said.
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