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STORMWATER STATUS UPDATE

The newest development in the ongoing stormwater discharge saga is a critical new decision, which was handed down by the State of Vermont Water Resources Board on October 14, 2004. The central issue is whether stormwater discharges into five stormwater-impaired streams [Potash, Englesby, Morehouse, Centennial and Bartlett Brooks] contribute to violations of the Vermont Water Quality Standards and therefore require National Pollutant Discharge Elimination System (NPDES) permits. The decision holds that federal permits are required in this situation, except for any de minimis discharges. If this decision is not appealed, or if the decision is upheld on appeal, it would undermine the new statute and the attempts of the State legislature to address the stormwater permit problem as to impaired waterways. The added requirement of a federal discharge permit for individual homeowners and homeowners association would add to the burden already imposed by the State requirements. The Vermont Agency of Natural Resources have indicated that they will appeal this decision and we are waiting to find out more information on this as it becomes available.

When dealing with an expired stormwater discharge permit, the first step would be to determine if a stormwater discharge permit was required. For a purchaser or a record owner of property, the first call could be to the Association contact to determine whether your development has a permit or not. They should be able to give you a status at this time. If not, your attorney can assist you in determining what the status of the permit is in the development.

If there is an expired permit, a determination needs to be made as to whether the waterway is impaired or not. If the property discharges to a non-impaired waterway, the Association may make a Permit Application under a General Permit 3-9010. The criteria require that evidence be provided that the system required under the original permit was constructed and that it is properly functioning. Permits in this category should be issued at this time and should be recorded in the Land Records.

If the property discharges into an impaired waterway, there is a legislative remedy available at this time. On July 1, 2004 Act 140 went into effect. This legislation affords limited protection to property owners under the provisions of 27 VSA Section 613. In order to preserve the protections, a property owner must comply with two requirements: 1. File with the Secretary of Natural Resources a "Notice of Deferral of Permit." 2. Record a "Notice - Effect of Issuance of General Permit on Deferral of Stormwater Discharge Permit Pursuant to 27 VSA 613. The transition period ends on September 30, 2007. After this date, the property will be subject to all applicable requirements of the water quality remediation plan, TMDL, or watershed improvement permit established under Chapter 47 of Title 10. In other words, it will need to comply with all stormwater regulations. This new statute is a temporary fix to the stormwater issue that seems to postpone the enforcement of violations until September 30, 2007. It is impossible at this time for you to determine the costs, which may be required to comply with the Watershed Improvement Permit once it becomes available. We note that if the current system is substantially deteriorated than it is likely that the costs of compliance in 2007 may be substantial.

For more information, the Vermont Department of Environmental Conservation, Water Quality Division, Stormwater Section web site contains valuable information and their address is www.vtwaterquality.org.

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