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Court Hears Appeals To Sewage Plant Permits Allowing More Phosphorus Into Lake Champlain

Environmental Court Judge Thomas Durkin listens as Conservation Law Foundation lawyer Elena Mihaly argues Monday that the court should reject nine sewage treatment plant permits.
John Dillon
/
VPR
Environmental Court Judge Thomas Durkin listens as Conservation Law Foundation lawyer Elena Mihaly argues Monday that the court should reject nine sewage treatment plant permits.

A Vermont environmental court judge expressed concerns for the health of Lake Champlain on Monday as he heard an environmental group challenge state permits that would allow more pollution to be released into the lake.

The state defended the permits in court, saying they allow pollution limits sanctioned by the U.S. Environmental Protection Agency.

The Conservation Law Foundation has appealed the permits for sewage treatment plants in the Lake Champlain watershed. The permits would ultimately allow more dissolved phosphorus to be released from those plants, even though the lake is overloaded with phosphorus – a nutrient that fuels toxic algae blooms in the big lake.

CLF lawyer Elena Mihaly argued that the state should not allow more phosphorus from treatment plants, because the lake is not recovering from years of pollution.

“Fish kills are a more frequent occurrence. Property owners along the shore — businesses and homeowners — are seeing their property values plummet because of the lake problems,” Mihaly said. “And that’s what brings us here today, is a situation where the agency has confoundedly authorized nine wastewater permits that allow 7,000 additional pounds of phosphorus to enter into a lake that cannot handle more phosphorus.”

Environmental Court Judge Thomas Durkin is hearing the appeals. Turning to Mihaly, Durkin seemed to agree that the lake is in crisis.

“I want to thank you for the overview you began your argument with, because that’s a very serious concern that the court shares as well,” Durkin said.

Sewage treatment plants account for about 5 percent of phosphorus in the lake, compared to non-point sources such as agriculture, sediment from dirt roads and stormwater runoff.

The state argues that phosphorus reductions required under a 2016 cleanup plan approved by the EPA will ultimately make the lake cleaner. These include cutting phosphorus from farm fields and treating runoff from city streets. The cleanup plan is called a TMDL – total maximum daily load – and it sets phosphorus limits by pollution source.

Laura Murphy, representing the Vermont Agency of Natural Resources, said that if these measures don’t work as planned, the state will revisit what’s allowed under the sewage plant permits.

“So there’s an accountability framework in the TMDL for just this purpose,” Murphy said. “Under the accountability framework there are certain milestones the state needs to achieve. If and when the state does not make adequate progress on those milestones, EPA says, in the TMDL, we’ll look at ratcheting down the wasteload allocations.”

Chris Kilian, vice president for strategic litigation at CLF, has advocated for more progress in cleaning up Lake Champlain for most of his career. He told the court that allowing more pollution into a water body that’s already polluted is unlawful.  And he argued that other programs to reduce phosphorus have yet to work.

“The notion that the first thing that we would do in legal authorization and permitting out of ANR to clean up Lake Champlain is issue wastewater treatment plan permits that allow thousands of pounds of additional phosphorus to go directly into the lake, before any of the other programs are even adopted or funded or conceived of, seems like it’s fundamentally backwards to me,” Kilian said.

The state has asked Durkin to dismiss the appeals; the judge said he’ll need some time to weigh the arguments. But in the meantime, Durkin invited the two sides to sit down and talk about a possible resolution, outside of the courtroom.

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