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BILL AS PASSED HOUSE AND SENATE 2007-2008

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H.873

AN ACT RELATING TO THE CLEANUP OF LAKE CHAMPLAIN AND OTHER STATE WATERS

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  Vermont’s surface waters are vital assets that provide the citizens of the state clean water, recreation, and economic opportunity.

(2)  Preserving and protecting the water quality of the surface waters of Vermont is necessary to preserve the quality of life for the citizens of Vermont.

(3)  Lake Champlain does not comply with the Vermont water quality standards and has been designated by the state as impaired due to phosphorus.

(4)  The federal Clean Water Act requires Vermont to develop a plan, known as a total maximum daily load (TMDL) plan, for the cleanup of Lake Champlain.

(5)  Through adoption of the Lake Champlain TMDL and through implementation of the Clean and Clear Action Plan, Vermont has committed to the restoration of the water quality of Lake Champlain.

(6)  Since 2004, a total of nearly $65 million in state and federal funds has been made available to support the Clean and Clear Action Plan.

(7)  Despite Vermont’s financial commitment to the cleanup of Lake Champlain, the independent performance audit of the Clean and Clear Action Plan concluded that there have been no significant reductions in phosphorus loads to Lake Champlain, and there has been an actual increase in phosphorus loads during implementation of the Clean and Clear Action Plan.

(8)  The audit of the Clean and Clear Action Plan also concluded that there is a lack of coordination between programs funded under Clean and Clear, that there are no requirements for programs funded under Clean and Clear, that few of the programs funded by Clean and Clear track or measure phosphorus reduction related to the programs, that there is a general absence of any quantification of phosphorus reduction under the programs funded by Clean and Clear, and that there is a lack of a clear objective for the Clean and Clear Program as a whole.

(9)  Implementation of the Lake Champlain TMDL also lacks an accurate measure for quantifying phosphorus reduction and has failed to date to reduce phosphorus loads in Lake Champlain as a whole.

(10)  Vermont should reassert its commitment to the preservation of the water quality of the state and to the cleanup of Lake Champlain by requiring the development of a comprehensive plan to implement aggressively the Lake Champlain TMDL and to improve coordination of the Clean and Clear Action Plan.

Sec. 2.  Sec. 5 of No. 43 of the Acts of 2007 is amended to read:

Sec. 5.  10 V.S.A. chapter 47, subchapter 6 is added to read:

Subchapter 6.  Lake Champlain Water Quality

§ 1385.  THE LAKE CHAMPLAIN TOTAL MAXIMUM DAILY LOAD

               PLAN

(a)(1)  The secretary of natural resources shall reopen the total maximum daily load (TMDL) plan for Lake Champlain as it pertains to the waters of Vermont in order to:

(A)  Adopt a new hydrologic base year to reflect the average phosphorus load discharged to Lake Champlain between 1993 and 2004;

(B)  Allocate point source and non-point source load reductions on a subwatershed basis; and

(C)  Ensure that the total annual phosphorus discharged by all wastewater treatment facilities in the aggregate does not exceed the total phosphorus load discharged to Lake Champlain by all wastewater treatment facilities in the aggregate in 2006 and to adjust aggregate total phosphorus load allocations to Lake Champlain accordingly; and

(D)  Amend pollutant load allocations within the TMDL so as to reduce point source and non-point source load allocations in order to reasonably assure that the TMDL meets the Vermont water quality standards.

(2)  The amended TMDL shall be submitted to the U.S. Environmental Protection Agency as required by 33 U.S.C. § 303.

(b)  In addition to the requirements of subsection (a) of this section, the secretary of natural resources shall amend the Vermont-specific implementation plan of the Lake Champlain TMDL to include a strategy for identifying and targeting critical source areas for non-point source pollution in each subwatershed.  For the purposes of this subsection, “critical source area” means an area in a watershed with high potential to release phosphorus to surface or subsurface runoff to waters of the state.

(c)  In amending the TMDL for Lake Champlain under subsection (a) of this section and in amending the Vermont-specific implementation plan of the Lake Champlain TMDL under subsection (b) of this section section 1386 of this title, the secretary of natural resources shall comply with the public participation requirements of 40 C.F.R. § 130.7(c)(1)(ii). 

§ 1386.  IMPLEMENTATION PLAN FOR THE LAKE CHAMPLAIN

               TOTAL MAXIMUM DAILY LOAD PLAN

(a)  On or before January 15, 2010, the secretary of natural resources shall issue a revised Vermont-specific implementation plan for the Lake Champlain TMDL.  Beginning January 15, 2013, and every four years thereafter, the secretary of natural resources shall amend and update the Vermont-specific implementation plan for the Lake Champlain TMDL.  Prior to issuing, amending, or updating the implementation plan, the secretary shall consult with the agency of agriculture, food and markets, all statewide environmental organizations that express an interest in the plan, the Vermont League of Cities and Towns, all business organizations that express an interest in the plan, the University of Vermont Rubenstein ecosystem science laboratory, and other interested parties.  The implementation plan shall include a comprehensive strategy for implementing the Lake Champlain total maximum daily load (TMDL) plan and for the remediation of Lake Champlain.  The implementation plan shall be issued as a document separate from the Lake Champlain TMDL.  The implementation plan shall:

(1)  Include or reference the elements set forth in 40 C.F.R. § 130.6(c) for water quality management plans;

(2)  Comply with the requirements of section 1258 of this title and administer a permit program to manage discharges to Lake Champlain consistent with the federal Clean Water Act;

(3)  Develop a process for identifying critical source areas for non-point source pollution in each subwatershed.  As used in this subdivision, “critical source area” means an area in a watershed with high potential for the release, discharge, or runoff of phosphorus to the waters of the state;

(4)  Develop site-specific plans to reduce point source and non-point source load discharges in critical source areas identified under subdivision (3) of this subsection;

(5)  Develop a method for identifying and prioritizing on public and private land pollution control projects with the potential to provide the greatest water quality benefits to Lake Champlain;

(6)  Develop a method of accounting for changes in phosphorus loading to Lake Champlain due to implementation of the TMDL and other factors;

(7)  Develop phosphorus reduction targets related to phosphorus reduction for each water quality program and for each segment of Lake Champlain, including benchmarks for phosphorus reduction that shall be achieved.  The implementation plan shall explain the methodology used to develop phosphorus reduction targets under this subdivision;

(8)  Establish a method for the coordination and collaboration of water quality programs within the state;

(9)  Develop a method for offering incentives or disincentives to wastewater treatment plants for maintaining the 2006 levels of phosphorus discharge to Lake Champlain;

(10)  Develop a method of offering incentives or disincentives for reducing the phosphorus contribution of stormwater discharges within the Lake Champlain basin.

(b)  In amending the Vermont-specific implementation plan of the Lake Champlain TMDL under this section, the secretary of natural resources shall comply with the public participation requirements of 40 C.F.R. § 130.7(c)(1)(ii). 

(c)  On or before January 15, 2010, the secretary of natural resources shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources, and the house and senate committees on agriculture with a summary of the contents of and the process leading to the adoption under subsection (a) of this section of the implementation plan for the Lake Champlain TMDL.  On or before January 15, 2013, and every four years thereafter, the secretary shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources, and the house and senate committees on agriculture with the amendments or revisions to the implementation plan for the Lake Champlain TMDL required by subsection (a) of this section.  Prior to issuing a report required by this subsection, the secretary shall hold at least three public hearings in the Lake Champlain watershed to describe the amendments and revisions to the implementation plan for the Lake Champlain TMDL.  The secretary shall prepare a responsiveness summary for each public hearing.  Beginning January 15, 2013, a report required by this subsection shall include:

(1)  An assessment of the implementation plan for the Lake Champlain TMDL based on available data, including an evaluation of the efficacy of the implementation plan;

(2)  An assessment of the hydrologic base period used to determine the phosphorus-loading capacities for the Lake Champlain TMDL based on available data, including an evaluation of the adequacy of the hydrologic base period for the TMDL;

(3)  Recommendations, if any, for amending the implementation plan or reopening the Lake Champlain TMDL.

(d)  Beginning February 1, 2009 and annually thereafter, the secretary shall submit to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture a clean and clear program summary reporting on activities and measures of progress for each program supported by funding under the Clean and Clear Action Plan. 

Sec. 3.  Sec. 4 of No. 43 of the Acts of 2007 is amended to read:

Sec. 4.  AGENCY OF NATURAL RESOURCES REPORT ON

             IMPLEMENTATION OF STORMWATER TMDLS

(a)  Beginning January 15, 2008, and every two years thereafter, the agency of natural resources shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture regarding agency progress in establishing and implementing the total maximum daily load (TMDL) plan for Lake Champlain.  Beginning January 15, 2009, and every two years thereafter, the agency of natural resources shall report to the house committee on fish, wildlife and water resources and the senate committee on natural resources and energy regarding agency progress in establishing and implementing the TMDLs for the stormwater-impaired waters of the state.  Prior to issuing the reports required under this section, the agency of natural resources shall hold a public hearing in the Lake Champlain watershed and each watershed of a stormwater-impaired water for which a permit has been issued implementing a total maximum daily load.  The reports required by this section shall include:

(1)  An assessment of the implementation plan for the TMDL based on available data, including an evaluation of the efficacy of the implementation plan;

(2)  An assessment of the hydrologic targets of the TMDL based on available data, including an evaluation of the adequacy of the hydrologic targets of the TMDL;

(3)  Recommendations, if any, for amending an implementation plan or reopening a TMDL.

* * *


Sec. 4.  AGENCY OF NATURAL RESOURCES STORMWATER TMDL

             SCHEDULE

(a)  On or before October 1, 2008, the secretary of natural resources shall submit to each municipality in which a stormwater-impaired water is located and to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture a schedule for the issuance of the implementation plans for the total maximum daily load (TMDL) plans that the U.S. Environmental Protection Agency (EPA) has approved for the

stormwater-impaired waters of the state.  The schedule shall include the proposed dates on which the implementation plan for each EPA‑approved stormwater TMDL will be issued and a summary of the potential alternatives for each implementation plan, including the funding options for each alternative.

(b)  The report required under subsection (a) of this section shall also include a schedule for the submission of the remaining stormwater TMDLs to EPA for approval.

Sec. 5.  10 V.S.A. § 1264 is amended to read:

§ 1264.  STORMWATER MANAGEMENT

* * *

(e)(1)  Except as otherwise may be provided in subsection (f) of this section, the secretary shall, for new stormwater discharges, require a permit for discharge of, regulated stormwater runoff consistent with, at a minimum, the 2002 stormwater management manual.  The secretary may issue, condition, modify, revoke, or deny discharge permits for regulated stormwater runoff, as necessary to assure achievement of the goals of the program and compliance with state law and the federal Clean Water Act.  The permit shall specify the use of best management practices to control regulated stormwater runoff.  The permit shall require as a condition of approval, proper operation, and maintenance of any stormwater management facility and submittal by the permittee of an annual inspection report on the operation, maintenance and condition of the stormwater management system.  The permit shall contain additional conditions, requirements, and restrictions as the secretary deems necessary to achieve and maintain compliance with the water quality standards, including but not limited to requirements concerning recording, reporting, and monitoring the effects on receiving waters due to operation and maintenance of stormwater management facilities.

* * *

(i)  A residential subdivision may transfer a pretransition stormwater discharge permit or a stormwater discharge permit implementing a total maximum daily load plan to a municipality, provided that the municipality assumes responsibility for the permitting of the stormwater system that serves the residential subdivision.  For the purposes of this section:

(1)  “Pretransition stormwater discharge permit” means any permit issued by the secretary of natural resources pursuant to this section on or before June 30, 2004 for a discharge of stormwater.

(2)  “Residential subdivision” means land identified and demarcated by recorded plat or other device that a municipality has authorized to be used primarily for residential construction.

Sec. 6.  27 V.S.A. § 614 is added to read:

§ 614.  TRANSFER OF STORMWATER DISCHARGE PERMITS TO A

             MUNICIPALITY

(a)  The failure of the residential subdivision to obtain, renew, or comply with the terms of a pretransition stormwater discharge permit shall not create an encumbrance on record title to real property within the residential subdivision or affect marketability of title of real property within the residential subdivision, provided that:

(1)  The residential subdivision transfers a pretransition stormwater permit to a municipality according to the requirements of subsection 1264(i) of Title 10;

(2)  Property owners within the residential subdivision record in the land records:

(A)  The deed or other legal document of conveyance of the stormwater system to the utility; and

(B)  A notice indicating that the stormwater utility has assumed responsibility for the permitting of the stormwater system located in the residential subdivision.

(b)  The definitions found in section 1264 of Title 10 and subsection 613(a) of this title apply to this section unless otherwise indicated.  For the purposes of this section, “residential subdivision” means land identified and demarcated by recorded plat or other device that a municipality has authorized to be used primarily for residential construction.

Sec. 7.  24 V.S.A. § 4753 is amended to read:

§ 4753.  REVOLVING LOAN FUNDS; AUTHORITY TO SPEND; REPORT

(a)  There is hereby established a series of special funds to be known as:

(1)  The Vermont environmental protection agency (EPA) pollution control revolving fund which shall be used to provide loans to municipalities, state agencies, and the Vermont housing finance agency, for planning sewage systems and sewage treatment or disposal plants as defined in subdivisions 3501(6) and 3601(3) of this title, for constructing publicly-owned publicly owned sewage systems and sewage treatment or disposal plants as defined in subdivisions 3501(6) and 3601(3) of this title, for planning or construction of certain privately-owned privately owned wastewater systems, and for implementing related management programs.

(2)  The Vermont pollution control revolving fund which shall be used to provide loans to municipalities, state agencies, and the Vermont housing finance agency, for planning pollution control facilities, for constructing publicly-owned publicly owned pollution control facilities, and for constructing certain privately-owned privately owned wastewater systems and potable water supply systems.

* * *

(8)  The Vermont stormwater management fund which shall be used to provide grants and loans to municipalities, pursuant to rules proposed by the agency of natural resources and enacted by the general assembly, for planning, designing, engineering, constructing, repairing, or improving infrastructure necessary to protect the waters of the state from the adverse impacts of untreated stormwater runoff.  Funds may also be used to plan and establish a process for managing stormwater within or among municipalities.

* * *

(d)  Funds from the Vermont environmental protection agency pollution control fund and the Vermont pollution control revolving fund, established by subdivisions (a)(1) and (2) of this section, may be awarded for:

(1)  the refurbishment or construction of a new or an enlarged wastewater treatment plant with a resulting total capacity of 250,000 gallons or more per day in accordance with the provisions of this chapter and section 1626a of Title 10; or

(2)  the construction of stormwater management facilities as specifically or generally described in Vermont’s nonpoint source management plan, and which are necessary to remedy or prevent pollution of waters of the state, provided, in any year in which the federal grant for the fund established in subdivision (a)(1) of this section does not exceed the amount available to the state in the 2002 federal appropriation, no more than 10 30 percent of that year’s federal and state appropriations to that fund shall be used for the purpose outlined in this subdivision.

* * *

Sec. 8.  10 V.S.A. § 1278 is amended to read:

§ 1278.  OPERATION, MANAGEMENT, AND EMERGENCY RESPONSE

               PLANS FOR POLLUTION ABATEMENT FACILITIES

(a)  Findings.  The general assembly finds that the state shall protect Vermont’s lakes, rivers, and streams from pollution by implementing programs to prevent sewage spills to Vermont waters and by requiring emergency planning to limit the damage from spills which do occur.

(b)  Planning requirement.  Effective July 1, 2007, the secretary of natural resources shall, upon renewal as part of a permit issued under section 1263 of this title, require a pollution abatement facility, as that term is defined in section 1571 of this title, to prepare and implement an operation, management, and emergency response plan for those portions of each pollution abatement facility that include the treatment facility, the sewage pumping stations, and the sewer line stream crossing. 

(c)  As of July 1, 2010, the secretary of natural resources, as part of a permit issued under section 1263 of this title, shall require a pollution abatement facility, as that term is defined in section 1571 of this title, to prepare and implement an operation, management, and emergency response plan for each permitted facility that portion of each pollution abatement facility that includes the sewage collection systems.  The requirement to develop a plan under this subsection shall be included in a permit issued under section 1263 of this title, and a plan developed under this subsection shall be subject to public review and inspection.

(d)  An operation, management, and emergency response plan shall include the following:

(1)  Identification of those elements of the facility, including collection systems that are determined to be prone to failure based on installation, age, design, or other relevant factors.

(2)  Identification of those elements of the facility identified under subdivision (1) of this subsection which, if one or more failed, would result in a significant release of untreated or partially treated sewage to surface waters of the state.

(3)  A requirement that the elements identified in subdivision (2) of this subsection shall be inspected in accordance with a schedule approved by the secretary of natural resources.

(4)  An emergency contingency plan to reduce the volume of a detected spill and to mitigate the effect of such a spill on public health and the environment.

(c)(e)  The secretary of natural resources shall post publicly notice of an illegal discharge that may pose a threat to human health or the environment on its website within 24 hours of the agency’s receipt of notification of the discharge.

Sec. 9.  10 V.S.A. § 6602(2) is amended to read:

(2)  “Solid waste” means any discarded garbage, refuse, septage, sludge from a waste treatment plant, water supply plant, or pollution control facility and other discarded material including solid, liquid, semi-solid, or contained gaseous materials resulting from industrial, commercial, mining, or agricultural operations and from community activities but does not include animal manure and absorbent bedding used for soil enrichment; high carbon bulking agents used in composting; or solid or dissolved materials in industrial discharges which are point sources subject to permits under the Water Pollution Control Act, chapter 47 of this title.

Sec. 10.  COMPOSTING FACILITY REGULATORY REVIEW

(a)  The general assembly finds that composting is an important management technique necessary for the existing and future management of solid waste in Vermont and for the management of manure and agricultural wastes on farms.  The agency of natural resources, the natural resources board, and the agency of agriculture, food and markets should work together to protect the environment, assure the continued viability of composting facilities in the state, assure continued composting on farms, and assure that the goals of this section are accomplished.

(b)  Notwithstanding 1 V.S.A. §§ 213 and 214, until July 1, 2010, no composting facility holding a permit under 10 V.S.A. chapter 159 issued after January 1, 2001 shall be required to obtain a permit or a permit amendment under 10 V.S.A. chapter 151, except that a composting facility shall be required to obtain a permit under 10 V.S.A. chapter 151 if:

(1)  development at the composting facility exceeds the scope of the composting facility’s certification under 10 V.S.A. chapter 159, and the development is not authorized by the secretary of natural resources under 10 V.S.A. chapter 159; or

(2)  there is a substantial change at the composting facility, as it exists on the effective date of this act, that would require a permit under 10 V.S.A. chapter 151, and the change is not otherwise authorized by the secretary of natural resources under chapter 10 V.S.A. chapter 159.

(c)  A composting facility that holds a certification by the agency of natural resources under 10 V.S.A. chapter 159 issued after January 1, 2001 shall be allowed to continue operations until July 1, 2010 under the terms of the composting facility’s existing certification, an amendment to the composting facility’s certification, or an interim certification.  Until July 1, 2010, such a composting facility shall not be subject to any requirement of an order under 10 V.S.A. chapter 159, 201, or 211 issued before the effective date of this act that requires the composting facility to obtain a permit under 10 V.S.A. chapter 151 or that is contrary to an authorization, certification, or requirement of the secretary under 10 V.S.A. chapter 159.

(d)  For the purposes of this section, “composting facility” shall mean a facility engaged in the controlled biological decomposition of organic matter through active management to produce, use, or sell a stable humus-rich material but shall not mean sewage or septage or materials derived from sewage or septage.

(e)  On or before July 1, 2008, the agency of natural resources shall convene a study committee to review the existing regulatory requirements for composting in the state and to recommend amendments or improvements to the existing rules governing the construction, alteration, or operation of a composting facility.  The committee shall consist of:

(1)  the secretary of natural resources or his or her designee;

(2)  the secretary of agriculture, food and markets or his or her designee;

(3)  two representatives of the composting association of Vermont, appointed by the association;

(4)  a representative of the Vermont League of Cities and Towns, appointed by the league;

(5)  a representative of an interested environmental group, appointed by the senate committee on committees;

(6)  a representative from the Vermont association of solid waste managers, appointed by the association;

(7)  the state historic preservation officer or his or her designee; and

(8)  a representative of the natural resources board, appointed by the chair of the board.

(f)  The committee shall issue a final report of its findings to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture by January 15, 2009.  The report shall include:

(1)  Recommended rules for the construction, alteration, or operation of a composting facility;

(2)  Recommendations for increasing public awareness of the benefits of composting;

(3)  Recommendations for increasing awareness within the composting community and those interested in initiating a composting operation of the existing regulations governing composting; and

(4)  The contact information of an individual or department at the agency of natural resources that can assist interested persons in understanding and complying with the agency’s regulations for composting.

Sec. 11.  ANR REPORT ON PHOSPHORUS REDUCTION INCENTIVES

On or before February 1, 2009, the agency of natural resources, as part of the report required under 10 V.S.A. § 1386(d), shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on appropriations with a status report on the development of incentives or disincentives for wastewater treatment plants to maintain the 2006 levels of phosphorus discharge to Lake Champlain.

Sec. 12.  SUNSET

Sec. 10 (composting facility regulatory review) of this act shall be repealed on July 1, 2010.  A composting facility that has been operated at any time between June 1, 1970 and July 1, 2010 and which constitutes a development pursuant to 10 V.S.A. § 6001(3)(A), including a composting facility where Act 250 jurisdiction has been formally determined, shall be subject to jurisdiction under 10 V.S.A. chapter 151 as of July 1, 2010.

Sec. 13.  EFFECTIVE DATE

(a)  This section and Secs. 1 (finding), 3 (ANR report on TMDLs), 4 (ANR stormwater TMDL schedule), 5 (transfer of pretransition stormwater permits to a municipality), 6 (transfer of pretransition stormwater permits), 7 (pollution control revolving loan fund), 8 (operation, management, and emergency response plans), 9 (definition of solid waste), 11 (ANR report on phosphorus incentives and disincentives), and 12 (sunset of composting facility review) of this act and 10 V.S.A. § 1386 (Lake Champlain TMDL implementation plan) shall take effect upon passage.

(b)  10 V.S.A. § 1385 (reopening of Lake Champlain TMDL) shall take effect July 1, 2013.

(c)  Sec. 10 (composting facility regulatory review) of this act shall take effect upon passage and shall be retroactive to June 1, 1970.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us