Stormwater: Indefensible Regulatory Excess  
By John McClaughry

"Stormwater Cleanup Stalls" was the headline on a front-page story in the Burlington Free Press (July 14). This headline sums up perhaps one of the most agonizing political and legal processes that any state has endured in recent memory.

Prodded by the Federal Clean Water Act, the state of Vermont has struggled with stormwater discharge regulation since 1985. In 2000 the Dean Administration's Water Resources Board carried out a lengthy process to adopt objective standards for dealing with stormwater "impaired" waterways. Two years later the legislature hammered out a law that promised happier and healthier aquatic biota.

Then began a grotesque carnival of bureaucratic and legal infighting. This has involved vague Federal rules, conflicting federal and state permit requirements, a surprise attack by the enviro-dominated Water Resources Board, a trip to the Supreme Court, its confused instructions to the Agency of Natural Resources, passage of a complicated new statute, abolition of the Water Resources Board, and more contentious stakeholder conferences.

And of course, never-ending litigation, brought by the Conservation Law Foundation, the enviro group that apparently has a bottomless tub of money to bring lawsuits over this issue.

Stormwater management focuses on the improvement of  "impaired" waterways. How does one tell an "impaired" waterway from a "non-impaired" waterway? For any given "impaired" waterway, how much of whose money will it take to remove the impairment? What benefits will then accrue to the public?

If Chittenden County property owners, schools, state and municipal governments, and businesses are forced to spend $42 million to manage stormwater, what measurable change will take place in the water quality of Lake Champlain? (The answer: almost certainly none).

Champlain watershed businesses have agreed to adopt "Best Management Practices" for managing stormwater to the most stringent "net-zero" standards. How much more of value could be gained by imposing stormwater utility charges on owners of impermeable driveways, parking lots, roofs, streets, and highways, that have existed for as many as a hundred years? (The likely answer: aside from financing bureaucratic battles and defending endless lawsuits, probably little to none.)

Vermont has made commendable progress in diminishing the water and air pollution level of 1970. But eliminating the last ten percent of pollution is far more expensive than eliminating the next to last ten percent, and at some point it does not make economic or environmental sense to blindly press on to the magic 100%.

Vermont's environmental movement has been unwilling to say "well done" when 90% or 95% or 98% of the task has been completed. All too often it relentlessly pushes on regardless of costs.

The Conservation Law Foundation's litigation campaign is based on its recognition that perpetual stormwater lawsuits are the hammer that allows its lawyers to stop growth altogether.

If you need a stormwater permit for your housing project, store or factory, but you can't get one because the whole issue is enwrapped in an impenetrable regulatory tangle, then you can't show clear title to the land in question. No clear title, no mortgage, no financing, no development. CLF has you over the barrel!

So what's the solution? The state should regulate against identifiable, not merely theoretical or infinitesimal environmental threats. It should require new commercial development to conform to Best Management Practices. It should levy stormwater taxes on people only to pay for improvements that are demonstrably cost-effective - that is, provide some valuable benefit to human beings. And as for the pre-2000 residential, church, school, transportation and small commercial contributions to stormwater, forget about it.

Vermonters can be proud of the enormous progress they have made in remedying harmful pollution. But with stormwater, at least, we are now at the point of indefensible regulatory excess. It's time we humans decide that we have beggared ourselves enough for the purported benefit of the mayflies, larva, snails and minnows - and the Conservation Law Foundation.
 

John McClaughry is President of the Ethan Allen Institute.