Courtesy of the city of Rutland
Combination Pond is one of two impoundments along Moon Brook in Rutland.
By Adam Federman, VTDigger.org
RUTLAND—A federal judge has given the city of Rutland and the EPA two more weeks to resolve a long-running dispute over the restoration of Moon Brook, an impaired stream that winds its way through the city before joining Otter Creek.
Both parties asked the judge for more time to draft a proposal, City Attorney Charles Romeo said Friday. The case has already been stayed twice. A new deadline for proposals has been set for July 29.
The EPA contends that stormwater runoff is largely responsible for the brook’s inability to meet water quality standards—hence its impaired status—and the agency has told the City to make changes to its stormwater system at an estimated cost of $45 million. But based on an earlier court ruling in Virginia, the City says the EPA is not authorized to regulate stormwater because it is not classified as a pollutant under the Clean Water Act.
Rutland sued the EPA in February 2015, arguing that it set maximum daily pollution limits for the brook illegally or in error.
The City blames elevated temperatures in the stream—largely a result of two impoundments, Combination and Piedmont ponds—and not stormwater runoff as the primary culprit for the brook’s condition. Re-engineering the ponds, the City argues, would effectively rehabilitate the stream.
Public Works Commissioner Jeff Wennberg said that even if the City invested the $45 million, it wouldn’t meet water quality standards set by the state’s Agency of Natural Resources.
“The parties are and have been working collaboratively, and I think everyone continues to be cautiously optimistic about finding a workable solution,” said David Cooper, an attorney representing the City.
The status of Moon Brook is one of several costly and complex water-related issues the City faces. The City has committed $100 million to replace its aging water and sewer pipes, some of which predate the Civil War. It must also address pollution concerns resulting from combined sewer overflows during extreme rainstorms.
In 2013 the City reached an agreement with the Agency of Natural Resources whereby a third party would conduct a review of Moon Brook to determine why it wasn’t meeting state water quality standards. The ANR first identified Moon Brook as an impaired waterway in 1992.
According to Wennberg, the report’s conclusions surprised everyone: both stormwater runoff and elevated temperatures were factors contributing to the river’s impairment. Since then the City and state have been working together to find a solution.
“I don’t think there’s any daylight between the agency and the city,” said Wennberg.
The associate general counsel for the Department of Environmental Conservation, Matt Chapman, said, “We’re trying to find creative solutions in order to address the city’s concern while still adhering to state water quality objectives.”
But the City and state are limited in what they can do until the lawsuit against the EPA is resolved. Wennberg said the EPA needs to support what the City and state want to do to resolve the issues surrounding Moon Brook.
A court filing by U.S. Attorney Eric Miller on Friday the EPA and Rutland “have been negotiating in good faith on a proposal” but “have yet to reach agreement.”
Meanwhile the City has been purchasing abandoned lots in an effort to mitigate stormwater runoff by creating storage reservoirs that would hold excess water during heavy rain. It also recently acquired Combination Pond, the larger of the two impoundments, and has requested proposals to re-engineer it. Temperature data kept by the City have shown that the stream meets state water quality standards above Combination Pond but not below it.
The re-engineering proposal for the pond must restore downstream temperatures so they can support aquatic life. It must also allow fish to move freely through the stream’s lower reaches. Meeting these two criteria could require dramatically reducing the overall size of the pond, a popular local fishing hole with several large homes near the shoreline.
According to the Request for Proposals, “A critical component of this project is to inform stakeholders … of the need for modification of the stream/ponds system and to solicit, evaluate and incorporate the stakeholders’ desires for preserved or enhanced values and uses once the modifications are completed.” The deadline for proposals is July 26.
