The Clinic has been working with the Vermont Natural Resources Council to clean up polluted waterways at a four-season ski resort in northern Vermont. Along with co-counsel from VNRC, the Clinic represented VNRC in an appeal of three stormwater discharge permits issued to Jay Peak Resort by Vermont’s Department of Environmental Conservation. These permits included a Clean Water Act NPDES permit that was problematic because it lacked adequate protective measures and increased the sediment pollution into the area’s streams, even though those streams had failed to meet water quality standards for at least a decade.

In 2004, DEC had found that two of the streams - Jay Branch and Tributary 9 of Jay Branch - were “impaired” by sediment pollution, meaning the streams failed to meet state water quality standards for aquatic life support. According to DEC, the initial impairment of the Jay Branch was attributed to Jay Peak’s failure to comply with Vermont construction and erosion control permits and operational stormwater permits. In 2014, an additional stream, Tributary 3 of South Mountain Branch, was identified as impaired.

Over the past several years, various Water Quality Remediation Plans were approved by DEC to improve water quality. Despite the plans, the streams remain impaired. Excess sediment poses many environmental hazards to waterways. Sediment entering streams can directly cause a harmful alteration or destruction of habitats of fish or other aquatic organisms, and can reduce productivity of aquatic plants. In addition, sediment serves as a vehicle for transport of chemicals and nutrients that diminish water quality.

Our May 2014 appeal of the discharge permits to the Environmental Division of Vermont Superior Court initiated nine months of settlement negotiations during which the parties worked to develop a plan to improve water quality and protect the streams. On February 20, 2015, the Environmental Division issued an order approving the settlement agreement. The agreement requires, for the first time, that the area’s streams meet water quality standards by a date certain before Jay Peak can begin significant new development projects. The agreement also sets forth detailed stream remediation and monitoring requirements, as well as an enforceable schedule for compliance with water quality standards. We hope this agreement will be a benchmark if and when future permits are issued to ski resorts in Vermont.

Selected Pleadings

Statement of Questions for Appeal (June 2014)

Environmental Division Consent and Judgment Order (February 2015)