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Events
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On March 15, 2002, VJEL held its third annual spring symposium on "The Current Controversy Regarding TMDLs: Contemporary Perspectives."
Welcome and Introductions
L. Kinvin Wroth, Dean of Vermont Law School
Patrick Parenteau, Professor of Law, Vermont Law School and Faculty Advisor of the Vermont Journal of Environmental Law
Daronda Combs, Environmental Events Editor, Vermont Journal of Environmental Law
Panel Discussion, General TMDL Presentation (Mar. 15, 2002).
Eric Huber, Attorney, Earthjustice, Denver, Colorado
Professor Jim May, Director of the Environmental Law Clinic, Widener University School of Law
This panel offered a more in-depth look at what total maximum daily loads (TMDLs) are, what they do, and how they are implemented. The panel will also serve as an informative session for attorneys receiving CLE (Continuing Legal Education) credit who do not have a background in this area of the law. Eric Huber and Jim May will speak on the state of the law on implementation of TMDLs (i.e. how they are used to achieve water quality standards) with or without changes in the regulations, and the status of the current regulations under the Bush administration. Section 303(d) of the Clean Water Act requires each State to determine the total amount of any pollutant each impaired stream within its borders can handle. If the pollutants in a particular waterbody rise above the TMDL, then each polluter along the watercourse will be held liable for their contribution. TMDLs are the only mechanism to reduce non-point source pollution. Non-point source pollution is water pollution that does not come from a definitive source, or to use legal language - does not come from a 'discrete conveyance.' A non-point source traditionally comes in one of two forms: storm-water runoff, or agricultural runoff. Here in Vermont, almost all of our water pollution comes from non-point source pollution. Just before leaving office, President Clinton established a new rule that would have pushed States to implement the TMDL provision in the Clean Water Act, as well as make more stringent enforcement requirements. In July 2001, for economic reasons, President Bush asked the EPA to set aside the TMDL rule. The statutory language only requires States to update their impaired waters list "from time to time." The Clinton rule made it mandatory to list all waters within 8 years, and update every 3 years. With the revocation of the Clinton rule, most states no longer implement a TMDL program.
Panel Discussion, Effects of TMDL Regulation on Agriculture: Addressing the role of TMDLs in state Non-Point Source Management Programs, and how this effects water pollution from agricultural activities (Mar. 15, 2002).
Eric Huber, Attorney, Earthjustice, Denver, Colorado
Phil Benedict, Director, Plant Industry, Vermont Department of Agriculture
Currently, farms that do not qualify as a CAFO (concentrated animal feeding operation) do not require a Clean Water Act permit to discharge farm runoff into local streams. This means all pesticides, herbicides, animal waste, or sediment from erosion is discharged into abutting waterways with no repercussions. Section 303(d) of the Clean Water Act would hold these farms liable for whatever pollutant they allow to run into abutting waters if the pollutant level in the water is above the established TMDL. If implemented, many farms in Vermont and New England will have to install new technology to treat runoff before it leaves the property and enters local waters.
Ann Powers, Keynote Speech, TMDLs and Pollutant Trading (Mar. 15, 2002).
Ann Powers is an Associate Professor of Law at the Pace University School of Law. Professor Powers is a faculty member of the Center for Environmental Legal Studies where she teaches a range of environmental courses, focusing particularly on water quality, toxics, wetland protection and coastal issues. Until joining the Center in 1995, she was vice president and general counsel of the Chesapeake Bay Foundation, a major regional non-profit environmental organization, where she supervised the Foundationšs legal work and its pollution control advocacy program. Professor Powers also served as a senior trial attorney in the Environmental Enforcement Section of the U.S. Department of Justice, handling both civil and criminal cases, and as an Assistant United States Attorney for the District of Columbia. Professor Powers has testified on numerous occasions before the United States Senate and House of Representatives, and state legislatures and commissions. She is on the National Research Councilšs Board on Environmental Studies and Toxicology, is a member of the World Conservation Unionšs (IUCN) Commission on Environmental Law, and is a director of the Pace Environmental Litigation Clinic, the Coast Alliance and Save the Sound. She clerked for the Honorable Thomas A. Flannery, U.S. District Judge.
Afternoon Session
Discussion, Coastal TMDL Issues (Mar. 15, 2002).
Professor Jim May is the Director of the Environmental Law Clinic at Widener University School of Law.
While TMDLs only are applicable to inland waters, the effect of inland water quality bears heavily on the prosperity of the coast. For example, if an inland waterway has above normal levels of phosphorous (a traditional fertilizer), the effect that could have on the coastal environment is significant. Phosphorous pollution is the leading cause of algal blooms in estuaries and coastal deltas. Estuarine fish kills, microorganism depletion, and overall depletion of estuarine life such as filter fish, oysters, and crabs have been linked to inland water toxicity.
Roundtable Debate, Vermont Water Resources Board's Decision Regarding Lowes Home Centers' application to the Agency of Natural Resources for a Storm Water Runoff Permit and the Environmental and Economic Effects of the Decision (Mar. 15, 2002).
Patrick Parenteau, Moderator, Professor of Law, Vermont Law School
Scott Johnstone, Secretary of the Vermont Agency of Natural Resources
Chris Kilian, Attorney, Conservation Law Foundation
Dale Rocheleau, Attorney representing the Greater Burlington Industrial Corporation (GBIC) (Downs Rachlin Martin)
Jeff Nelson, Hydrogeologist, Lowes Home Centers (Pioneer Environmental Associates)
Ann Williams, EPA Region I, Federal Perspective
In order to open a business in Vermont, you must apply to the Vermont Agency of Natural Resources for a storm-water permit. The permit details how you will handle runoff from your construction site and eventual parking lot from snow and rain. Lowes Home Centers and Hannaford Foods applied to the Agency of Natural Resources for such a storm-water permit. The Agency denied the permits. This decision threatened the future of new industry wishing to move into Vermont. The Vermont Water Resources Board was asked to hear an appeal from Lowes and Hannaford Foods. Initially, the Agency's decision was upheld on a procedural aspect. The companies appealed. On January 18, 2002, the Vermont Water Resources Board decided that Lowes and Hannaford Foods had established they met the criteria for a storm-water permit. The Board overturned the Agency's decision, and Lowes and Hannaford received their permit. However, the Board's decision was not unanimous, leaving open the possibility of future denials of storm-water permit appeals.
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