The Battle of Potash Brook

Anyone wishing to explore the many obstacles to responsible development in Vermont should focus on the decision of the Water Resources Board on the permit for the proposed Lowe's Home Improvement Center.

Lowe's, a very successful North Carolina based chain, proposes to build a large building materials store as a tenant of the existing Hannaford's supermarket in South Burlington. Replacing a mostly vegetated area (once filled with interstate construction dirt) with a big box store and a paved parking lot means that most of the stormwater falling on the site will wind up in nearby Potash Brook. Mindful of Vermont's environmental sensibilities, Lowe's plan contains a state of the art stormwater management system, involving drainage and a constructed wetland.

Lowe's needs modest amendments to Hannaford's 1995 stormwater permit, which was obtained long before Lowe's entered the picture. The co-applicants ran into a buzzsaw of opposition before the Water Resources Board. It came from the Boston-based Conservation Law Foundation, later joined by the Vermont Natural Resources Council. The CLF - in whose interest has never been made clear - has for years sent its high-powered lawyer corps into action to litigate "for the environment" against all sorts of proposed developments, with little concern for the economic benefits for people.

The CLF's argument is this: The state classifies Potash Brook as an "impaired" waterway. The downstream Shelburne Bay does not meet current Vermont Water Quality Standards. CLF describes the brook as resembling a "sewage lagoon" (ANR, the Agency of Natural Resources, says that its aquatic biota aren't judged to be sufficiently flourishing.) Lowe's will admittedly cause stormwater containing road salt and oilpan drippings to enter Potash Brook.

ANR granted Lowe's a permit based on stormwater management regulations requiring "best management practices", but the agency neglected to consider the effect of the discharges on the overall water quality in Shelburne Bay. There is no effective plan in place for improving water quality in Shelburne Bay. Therefore, claims CLF, zero additional stormwater can be allowed to flow into Potash Brook if it would contain substances that already cause that waterway to be classified as "impaired."

The legal issues are complex, involving the meaning and application of several different statutes. The practical fact is that unlike point source pollution, which issues from pipes that can readily be controlled, stormwater runoff is everywhere. ANR is satisfied if a new project like Lowe's installs state of the art technology to minimize any adverse environmental impact. But it is exceedingly difficult to devise and enforce a stormwater management plan that allocates allowable discharges among thousands of properties in a watershed, including homes, stores, factories, farms, schools, and churches that may have been in existence for a century or more.

CLF is indignant that ANR has yet to implement such a plan against "business". It has gone so far as to brand ANR as "a rogue agency". It has demanded that ANR crack down on long standing developments like University Mall, K-Mart Plaza, and businesses on San Remo Drive.

Significantly, CLF defines the water quality villain as "the commercial real estate industry". CLF did not choose to bring suit against scores of Champlain Valley farms, whose runoff (from manure, fertilizer, and pesticides) is an important contributor to Lake Champlain's water quality problem. (The legislature thoughtfully exempted farms from stormwater discharge regulations so long as they are following "best management practices" devised by the very farm-friendly Department of Agriculture.) CLF is funded to oppose development, not farmers.

On June 26 the Water Resources Board, over the objections of both Lowe's and ANR, bought the CLF's argument. The Board denied the permit, and on August 30 refused to reconsider its action. Ironically, the denial forbids what would be the most modern and effective stormwater management system in the Potash Brook watershed. Scores of existing properties have no stormwater management system at all.

Ironically, though CLF deplores the alleged vices of "sprawl", the proposed growth at the already urbanized Shelburne Road location is the opposite of "sprawl". If CLF kills off Lowe's, developers may start looking at places that have few stormwater runoff problems, miles away from the Lake and from existing urban development.

The next legislature should revise the law to make it crystal clear that while ANR should accelerate its efforts to improve the water quality of the Lake, new developments like Lowe's will be permitted if they incorporate the kind of advanced stormwater management that Lowe's was happy to agree to install. The CLF should be given one less opportunity to shut down responsible economic growth.

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September 2001