The Vermont Agency of Natural Resources has refused environmental groups' request for a key document related to the state's ongoing water quality efforts, even after officials shared the same document with Seven Days.
ANR's top attorney launched a review of the denial after a reporter pointed out the agency’s uneven application of state law.
The document in question — a 108-page draft of Vermont’s stormwater management rules, developed last fall — is full of dry, technical jargon. But to environmental advocates, it promises answers. The finalized rules were due by the end of 2017, but the agency missed its deadline.
Instead, ANR Secretary Julie Moore came to lawmakers at the beginning of the year with a different proposal for managing runoff from large parking lots and other properties containing three or more acres of developed land.
That announcement surprised environmentalists, who expected the state to adhere mostly to an advisory document on runoff rules that was released last July, according to Rebekah Weber, the Lake Champlain lakekeeper for the Conservation Law Foundation.
"A whole new standard being put forth was not something that we thought the agency was going to do,” said Weber.
Now the CLF, the Lake Champlain Committee and the Vermont Natural Resources Council are trying to find out what ANR had in the works and why officials haven’t released the new rules.
“It was our understanding that in the fall, the draft rule was pretty much complete,” said Jared Carpenter, the water protection advocate for the Lake Champlain Committee. He acknowledged that minor edits are part of the process, but his concern is that "wholesale changes are going to be made to the draft rule."
When CLF asked for records related to the new rules on December 15, the state refused to release the draft or even a redacted version. Weber said officials told CLF that the document was not a public record because it was protected by attorney-client privilege.
Another request, filed jointly by the Lake Champlain Committee and the VNRC, got the same response. Officials said the document was only shared internally, among top officials and state attorneys, so it was protected by attorney-client privilege.
Carpenter said the state’s refusal to share the document leaves unanswered questions about how the state is — or isn’t — working toward its commitments on water quality.
“If the Agency is considering going back and reexamining the science behind this, that’s one thing,” he said. “If they’re considering going back and revising a rule for purely political reasons, that’s something completely different.”
Being able to see the draft rule, according to Weber and Carpenter, will allow advocates to examine what changed and then vet the science behind that change.
“I think the main point is that the science hasn’t changed since October 2017, and so if there’s been major changes from this draft rule to the one we are expecting now to see sometime this year, it begs the question: Why?” Weber said.
In an effort to better understand the decision by ANR officials, Seven Days filed a records request January 22 for all correspondence related to the development of the new rule. In response, the state released more than 500 documents. Among them was an email with the 108-page draft rule attached.
Officials haven’t fully explained why ANR refused to give the draft to the environmental groups. In response to an inquiry, general counsel Jennifer Duggan said the agency would investigate its decision to withhold the document.
“There are several drafts of the stormwater rule, some of which are exempt under the attorney-client privilege,” she said. “I will be reviewing the Agency’s response to the records request submitted by [CLF, LCC and VNRC] and following up with them directly to ensure the Agency has released all non-exempt responsive records.”
Carpenter said the request he filed with VNRC was broadly phrased to ensure that the state released any drafts that could be made public, and Weber asked for the document by title after learning that Seven Days received a copy. Both of those requests were denied.
But after Seven Days inquired about the discrepancy, an agency official emailed Carpenter to notify him that the denial was under review. Carpenter said he had not appealed the denial or otherwise requested that the agency reconsider.