Supreme Court hears arguments on stormwater permit

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(Host) The Vermont Supreme Court heard arguments on Tuesday in a case that pits environmentalists against a big box development in Chittenden County. At issue is how much stormwater pollution Lowe’s Home Center can discharge into a stream that’s already polluted.

VPR’s John Dillon reports.

(Host) The proposed Lowe’s Home Center in South Burlington is the battleground that brought the issue of stormwater to the Supreme Court. Stormwater is the greasy, dirty runoff from parking lots and city streets. It’s a particular problem in Chittenden County, where several streams already fail water quality standards

In 2002, the Water Resources Board gave Lowe’s a permit for a large store in South Burlington. The board said Lowe’s could build its project and release some polluted stormwater as long as it didn’t make nearby Potash Brook any worse.

The Conservation Law Foundation appealed. CLF says the stream already fails water quality standards, and that no new pollution should be allowed from the site. That’s the argument that CLF lawyer Chris Kilian made again to the high court on Tuesday.

(Kilian) “If the board could not find a way for this permit to be issued in a manner that would reduce the pollutant load to the point that water quality standards would be met or that there wouldn’t be a contribution to the violation from this site, then it should have denied the permit.”

(Dillon) But Justice John Dooley asked if the board had simply taken a practical step to control pollution without stopping development.

(Dooley) “We can’t shut down everybody who comes anywhere near Potash Brook. Wasn’t some kind of pragmatic solution for Potash Brook needed?”
(Kilian) “I would say the good thing about Vermont law is that those pragmatic solutions are there in a manner that doesn’t require the Water Resources Board to essentially say that existing polluters have a right to continue to pollute Potash Brook and Shelburne Bay, which is what they did.”

(Dillon) Scott Juanich, the lawyer for Lowe’s, said that the permit the board issued was tougher than the one originally granted by the Agency of Natural Resources. According to Juanich, there’s already pollution coming from the 12-acre site as sediment washes into the stream. He says the development includes a treatment plan that would actually improve the situation.

(Juanich) “There is particulate discharge. There is dirt eroding into Potash Brook. That’s what this case is about. We can clean that up with the existing treatment programs that were proposed and put forward and were permitted by Lowe’s and Hannaford’s.”

(Dillon) Regardless of how the court rules on this permit, there are two other stormwater cases before the court that could affect the Lowe’s project.

For Vermont Public Radio, I’m John Dillon in Montpelier.

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