In determining whether the Court should approve the application and the issuance of a discharge permit for this project, it is useful to keep in mind the statutory requirements for 1264(e)(1) provides:
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.
The Applicant's EPSC Plan is lacking in sufficient detail to show that the proposed BMPs will successfully prevent degradation of the waters on the Project site. There is insufficient baseline information on the receiving streams, and there is no monitoring of the receiving waters during construction to ensure compliance with the VWQS. Accordingly, the presumption that the project complies with the VWQS does not apply. Since no presumption of compliance with the VWQS applies, the Applicant has the burden of production as well as persuasion to demonstrate that the project will comply with the VWQS. The Applicant has failed to meet that burden, and the Appellants have shown that the project is likely to result in violations of the VWQS.
The Court should either deny the permit outright for failure of the EPSC Plan to ensure the protection of the receiving waters on the Project site. There is simply too high a risk of failure of the BMPs to protect the water quality and the uses of the receiving waters. In the alternative, in light of the many deficiencies the Court should remand it to ANR for
1) meaningful baseline data that provides information on the quality and characteristics of the streams and the existing uses including the brook trout;
2) the submission by the Applicant of complete plans that show the complete stormwater management system in sufficient detail that the impacts on the streams and wetlands can easily been seen;
3) a careful review by ANR that ensures that the proposed stormwater management system will actually work to protect the receiving waters on the site and prevent violations of the VWQS and, if is not fully protective to deny the application; and
4) should a permit be issued, to require continuous monitoring during the entire period of construction of the turbidity, pH, temperature, stream flow, and existing uses, including aquatic biota (including fish) and aquatic biota habitat.