H.779,
an act relating to the water quality of state surface waters, which included
the Water Quality Remediation, Implementation, and Funding Report, was
incorporated into Senate Bill 202 and was passed by the Senate on March 23. The
bill was further amended and was passed by the House on April 27. The amended bill went back to the Senate
where the House amendments were concurred with on May 2. It was signed by
the Governor on May 14 and is now law. S.202, which became Act 138 with the
Governor’s signature, is a long (72 pages) and extremely complex piece of
legislation that affects many aspects of water quality management in Vermont. We will break it down into several
sections over the next several weeks.
The
first part of Act 138 addresses issues that arose in the aftermath of the
statewide flooding that occurred as a result of Tropical Storm Irene last
August. Act 138 modifies existing state requirements,
establishes new requirements, and provides towns with assistance to ensure compliance
with National Flood Insurance Program (NFIP) requirements for the regulation of
development and to ensure eligibility for flood insurance under the NFIP. It requires ANR to conduct training programs and
develop permit programs to regulate stream alterations, stormwater discharges,
and repairs and maintenance to stormwater infrastructure during emergencies
such as flooding.
Act
138 also addresses assessing the sensitivity of rivers to flooding, requires river
corridor mapping and recommendations for best management practices, and
requires technical and financial planning assistance for towns to reduce the risk of harm
to life, property, or infrastructure in floodplains, river corridor protection
areas and flood hazard areas.
In
Act 138 the general assembly agreed that: All
waters of the state are at risk of pollution or impairment. Our lakes, ponds, and rivers are
further compromised because of last year’s flooding. Under state and federal law, the state is required to prevent
impairment or degradation of its waters. The ability to respond to
multiple state and federal water quality requirements is going to require
significant funding and the state does not currently have the money to respond
to the demands of protecting water quality and to repair those waterbodies that
need attention. The development of a statewide
mechanism, such as a statewide clean water utility, is necessary to address regulatory
demands and to prioritize investment in water quality projects throughout the state
so that the protection and improvement of water quality is achieved in the most
cost-effective manner.
In
order to identify how the state should respond to existing and future demands
to remediate and protect state surface waters, Act 138 requires that the
secretary of natural resources (ANR) submit a report on or before December 15, 2012 to the house committee on fish, wildlife and water resources; the house and
senate committees on natural resources and energy; the house and senate committees on agriculture; and the
house and senate committees on transportation with recommendations on how to
remediate or improve the water quality of the state’s surface waters, how to
implement remediation or improvement of water quality, and how to fund the
remediation or improvement of water quality.
The report must address
the following issues:
1. How should state
and local water quality remediation and conservation efforts be paid for? A recommendation for funding sources or
a funding mechanism(s) for ongoing water quality efforts in the state must be
included in the report. The report
must address whether to
implement a statewide assessment or fee, such as a clean water utility fee, an
impervious surface fee, a Clean Water Act certification fee, impact fees, or
other fees or charges.
2. How should water
quality programs and funds be designed and administered? The
report must recommend whether a statewide “clean water utility” should be
established, whether the utility should be run by an existing agency of state
government (such as ANR or the Natural Resources Board), or is more suitable
for an independent, nongovernmental organization to implement (perhaps using a
model similar to that employed by Efficiency Vermont). If the clean water
utility is to be administered by an independent, nongovernmental organization,
the report needs to address how this organization should be established and
administered. The report must also
address whether water quality programs could be effectively implemented through
regional water quality utilities or similar mechanisms already authorized under
24 V.S.A. chapters 105 and 121.
3. How should
the funds be allocated? Should a
science-based system that focuses on high risk areas be used? Should funds be made available for the
development of municipal or regional water quality utilities? How can funds be distributed to make
sure all regions in Vermont are treated in an equitable way? Should additional priority points be
awarded to certain water quality projects eligible for funding from the special
environmental revolving fund under 24 V.S.A. chapter 120?
4. The report
also needs to address agricultural water quality. ANR must consult with the secretary of agriculture, food and
markets and the agricultural community to figure out how to regulate
agricultural runoff and how to implement water quality standards for
agricultural operations. Are
additional requirements, standards, technical assistance, or financial
assistance needed to increase compliance with AAPs (accepted agricultural
practices)? Should all small
farms, or just a subset of small farms, be required to have nutrient management
plans or apply nutrients at a more stringent soil loss tolerance than currently
required?
5. Stormwater
needs to be taken into consideration.
How should stormwater runoff be regulated to meet Vermont Water Quality
Standards? Are
additional
requirements, standards, technical assistance, or financial assistance
necessary to improve the management of stormwater
runoff in the state?
6. How should
the state work toward protecting and restoring lake shorelands? How should the state regulate
activities within shorelands of lakes?
Should the state enact statewide regulation for these activities? Should there be site-specific criteria for
these sensitive areas?
7. How should
the state respond to and remediate nutrient pollution from critical source
areas? The report needs to address
how to identify critical source areas, including the Lake Champlain Basin; propose a process and provide
a cost estimate for developing site-specific implementation plans to reduce discharges
from critical source areas; and explain how basin planning will be used in such
a process.
8. How should
the state prioritize its response to these water quality concerns? How should the state prioritize funding
and water quality personnel so that individual water quality issues are
addressed and remediated?
9. How will the
recommendations or plans included in the report be implemented? ANR must consult with interested
parties within the legislature and across the state that are relevant to the
completion of this report. Meetings
with interested parties must be warned by posting a meeting notice to ANR’s website
no later than seven days before the meeting.
The report
required by Act 138, which is to be presented to the legislature on or before
December 15, 2012, may include recommended draft legislation.
Act 138 also transfers rulemaking
authority from the Natural Resources Board’s Water Resources Panel to ANR for the
following:
Wetlands
Rules for the identification, classification and protection of significant wetlands
Rules
for the Classification of Waters of the State
Water
Quality Standards and related declaratory rulings
Rules
Regulating Use of Public Waters
Rules
Regulating Surface Water Levels of Public Waters
Rules
implementing the Management of Lakes and Ponds Program (Shoreline Encroachment Program)
Next blog
entry: More detail on the transfer
of Natural Resources Board/Water Resources Panel rulemaking authority to ANR
