Murky Waters: Who's Writing Vermont's Clean Water Regulations? | Environment | Seven Days | Vermont's Independent Voice

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Murky Waters: Who's Writing Vermont's Clean Water Regulations?


Published March 21, 2018 at 10:00 a.m.
Updated March 26, 2019 at 8:19 p.m.

  • Tim Newcomb

Staff experts at Vermont's Agency of Natural Resources spent months last year devising new rules to reduce polluted runoff from large rooftops and parking lots. A 2015 state law had ordered the agency to finish the regulation by January 1.

But when staffers at ANR's Department of Environmental Conservation sent their draft to Natural Resources Secretary Julie Moore in late October, she proposed an overhaul that critics in the environmental community say would weaken those rules.

"I learned today that the administration would like us to consider revising our proposed approach," wrote DEC stormwater program manager Padraic Monks, who drafted the regulation, in a November 9 email. "As such, I think it may be a while before we are ready to move forward."

More than four months later, well after the deadline, the agency still hasn't released a draft of the rules for public comment.

Records obtained by Seven Days show that the policy was changed despite questions raised by the agency's own experts but with regular involvement by the staff of Gov. Phil Scott. His office briefed business interests on the U-turn while leaving environmental groups and agency staffers in the dark.

Environmental lobbyists say the missed deadlines and policy turnabout are hurting Vermont's water-quality efforts and show something is amiss within the agency.

But Moore insists that political pressure from the governor's office or private interests has played no role in the agency's shifting approach. A water-quality engineer, the secretary said she was the one who changed the agency's plans, based on her own expertise.

This is the second time Moore has cited her technical knowledge as the reason for disobeying a legislative mandate. After her agency declined to provide a long-term plan for water-quality funding in November, as lawmakers had ordered, she said she was guided by her own assessment — not political pressure.

On January 3, Moore asked lawmakers to pass legislation that would ratify her approach to the runoff rules, which would apply to developed properties with more than three acres of roofs and parking lots. Her proposal would save private developers — allies of the governor — a bundle of money.

The rules drafted by Monks and his staff would have required those developers to install costly retrofits. Such retrofits would bring existing developments in line with modern water-quality standards by providing enough stormwater treatment to handle up to an inch of rainfall a day. In Moore's testimony to lawmakers, she said the projects could cost up to $50,000 per acre.

As an alternative, Moore told lawmakers, developers should be allowed to treat less water if they use measures specifically targeted at removing phosphorus — the primary pollutant of Lake Champlain and other bodies of water. With that strategy, Moore said, businesses could meet the state's environmental goals while spending less money.

The agency's revised proposal surprised the Conservation Law Foundation, which has fought for stronger rules. CLF's Vermont director, Chris Kilian, said Moore's plan would weaken pollution controls.

"Julie Moore knows better," Kilian said. "She is a professional in this realm."

The emails obtained by Seven Days show ANR's water-quality staffers were unaware of the changes Moore discussed with lawmakers.

On January 4, Monks' boss, Mary Borg, sent a curt email to her own bosses, DEC Commissioner Emily Boedecker and Deputy Commissioner Rebecca Ellis.

"We just learned that testimony was given on the 3-acre permit yesterday," wrote Borg, the deputy director of DEC's Watershed Management Division. "Without us knowing the positions being taken and testimony given, it is possible that a bill will be passed that we will not be able to administer. While administrations come and go, the Division will be expected to comply with any new statutory requirements for years to come."

In an interview, Monks confirmed that the regulations he drafted stalled out once they reached Moore but said he wasn't sure who caused the slowdown.

"The secretary had it, and then I believe the administration saw it, and then there were questions and concerns," Monks said, referring to the governor's staff. "I don't have a sense of to what extent her perspective is influenced by her bosses."

The new regulation has been in the works since 2015, when the legislature passed and then-governor Peter Shumlin signed Act 64, the Vermont Clean Water Act. Environmental experts outside ANR describe Moore's idea as a complete reversal of the agency's approach to clean-water efforts, which under the Shumlin administration were essentially: more, bigger, sooner.

Deb Markowitz, who served as ANR secretary under Shumlin, said it's no surprise that the regulations agency staffers were preparing before Moore's intervention were seen as aggressive.

"These are very challenging new rules," Markowitz said in an interview last week. "It was not easy policy at the time, and you might remember how controversial it was."

But Markowitz says the state's plans were "appropriately aggressive" given the pollution-reduction targets handed down by the federal Environmental Protection Agency for Lake Champlain.

"It's not surprising that there would be a push to roll back the requirements now," she said. "The question we should be asking is whether we're going to be able to achieve the [pollution-reduction] goals with the changes they're proposing."

To Kilian, the answer is clear.

"The recent trend that [Moore has] been pursuing toward reducing the amount of water that needs to be treated — those are weakening proposals that won't assure that this pollution is properly addressed," he said. "And that's concerning."

But why would ANR seek to weaken proposals? Well, Kilian said, commercial real estate developers have a track record of crying foul.

"I think some of those influences are probably playing out in the context of what everyone was assuming would be the next step in lake cleanup," he said.

It's not uncommon for a new administration to bring a fresh approach to policymaking. The fact that state agencies are run by political appointees means that politics is built into the system. But former ANR officials said political appointees must manage communication and politics carefully so that decisions are made for the right reasons.

David Mears, who served as DEC commissioner under Shumlin, said politicians who pass along concerns raised by business leaders and other Vermonters "are doing their job and representing their constituents."

"The fact that it's being conveyed by the governor or senator so-and-so doesn't make it inappropriate," Mears said, speaking generally of the interaction of politicians with regulators.

He said the agency's job is to make sure that "at the end of the day, everyone's treated fairly. Nobody gets special treatment because they're a major donor or they have political power."

"It is important to watch how administrations play," Mears said. "And administrations and governors can get into really bad habits, where chiefs of staff ... or even governors will start to weigh in on regulatory matters."

The ANR records suggest that the governor's office was closely involved with this policy change. While CLF and agency staff didn't know about the plan Moore was bringing to lawmakers, the Vermont Chamber of Commerce got a personal briefing from Moore before her January 3 meeting with lawmakers.

Kendal Smith, a member of the governor's staff whose previous job was to lobby for the chamber, set up the briefing in a January 1 email to her successor, lobbyist Ashley Romeo-Boles.

"Ashley, can you please connect with me or Secretary Moore — preferably Secretary Moore — if you have time before Wednesday afternoon on this issue," Smith wrote. "This is something that the Governor's Office and ANR have been working hard on over the summer, and we would like to share some background and see if you have any questions."

Moore did meet with the Vermont Natural Resources Council to respond to that organization's concerns once her plan was unveiled, but no other briefings were arranged by the governor's office.

Earlier, as Moore was meeting with key lawmakers in the fall about putting her plan into legislation, a member of the governor's staff always accompanied her. Moore wrote in a November 8 email to Monks, Borg and Borg's boss, DEC Watershed Management Division Director Pete Laflamme, that the governor's office requested that she "be the only one to attend the briefings on behalf of the agency, for better or worse." In other words, ANR experts were not invited.

Brittney Wilson, Scott's deputy chief of staff and former campaign coordinator, said in an interview that her role in accompanying Moore wasn't to steer the policy but to connect the ANR secretary with lawmakers.

Moore's explanation of the policy change is that she attended a professional conference in early October and saw a presentation about runoff management in the Charles River watershed in Massachusetts. She fired off a three-sentence email to Monks from the conference, outlining in broad terms what became the agency's new approach.

"What does your gut say?" she asked Monks.

"[M]ore $, per lb of P," he replied, suggesting that her proposal would be less cost-effective: more spending per pound of phosphorus removed from stormwater runoff.

So why did Moore pursue that plan anyway?

"That was the starting place for this conversation, and it evolved from there in terms of looking at that flexibility" for developers, she said. "None of what I have been talking about with staff in the agency is in any way a response to any influence from folks outside of ANR. It literally stems from [the conference]."

Wilson said any impression that the governor's staff exerted more influence on the policy than the agency's professional staff is false.

"I don't think that's a fair characteristic [sic] at all," she said. "I think that there's merit in the policy discussion, and legislative leadership found there to be merit as well."

Moore has returned to the legislature regularly, trying to convince lawmakers to back her new plan, but with policy experts outside the agency calling her moves a step backward, it's a tough sell.

Rep. David Deen (D-Westminster), chair of the House Committee on Fish, Wildlife and Water Resources, said Moore convinced him that her scientific analysis, not politics, motivated the change.

"There was surety on the part of the secretary that this new approach was environmentally responsible," Deen said. But other lawmakers didn't share that conviction.

"There was an equal level of skepticism on the part of the advocates. So we didn't go down the new route," Deen said. The House passed its own version of the bill Moore wanted but stripped out many of her initial proposals.

"It's frustrating," Moore said of the opposition of environmental groups. While conversations about water quality in Vermont focus on long-term goals, she is focused, she said, on the most effective ways to get the job done "on the ground."

The way Markowitz sees it, at least one thing has remained true since her time running ANR.

"It's going to cost us even more in the long run if we fail to act now," she said.

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