State, Rutland reach agreement addressing brook’s health

By Adam Federman, VTDigger.org
RUTLAND — A settlement between Rutland City and the Agency of Natural Resources seeks to put to rest differences over the remediation of Moon Brook. The agreement signed Thursday, Oct. 6, dismisses an earlier appeal filed by the city challenging the agency’s designation of Rutland as a small municipal separate storm sewer system, or MS4.
Under those guidelines, the city argued, it would have to spend more than $40 million to comply with state and federal limits on stormwater runoff.
In 2015 the city filed a separate lawsuit against the Environmental Protection Agency claiming that under the Clean Water Act the agency did not have the authority to regulate stormwater runoff, which is not classified as a pollutant. The city argues that elevated temperatures in the brook and not runoff are the primary source of the waterway’s degraded status.
A motion to stay the federal case for another five years while the city works to improve water quality in Moon Brook is pending with U.S. District Judge William Sessions.
According to the agreement with the ANR, the motion to stay and the stipulation “work in tandem to afford the city a meaningful opportunity to determine whether (Vermont water quality standards) can be achieved in Moon Brook through implementation of thermal mitigation measures …”
However, the stipulation goes on to say that “nothing in this agreement shall be deemed to affect the viability of the federal action, nor the city’s rights with respect thereto.”
The agreement also gives the city an extended period of time to implement measures to reduce temperatures in the stream before making any major investments in stormwater remediation.
“We feel this agreement puts the state and the city on the same page,” said Commissioner of Public Works Jeff Wennberg. “It puts us in a position where we are working together toward solutions. And it puts the priority where we think it always should have been, which was to address the thermal issues first.”
The new agreement outlines steps the agency and city must take to improve water quality in Moon Brook, most of which were included in a third-party report published in 2015. The agency will submit a plan to reduce elevated temperatures in the river to the EPA by June 30.
Meanwhile the city must continue to work on modifying two impoundments along the waterway that the city says are the primary contributor to the brook’s elevated temperatures. In August the Board of Aldermen approved a bid from an engineering firm to work with landowners and the public to redesign the ponds, which could include dam removal or redirecting the brook.
Some landowners on Combination Pond, the larger of the two impoundments and a popular fishing spot, have expressed opposition to any changes beyond the planting of trees and shrubs along the shoreline. Residents near Piedmont Pond have also said they’d like to see their pond preserved.
According to Wennberg, the first public hearing on the impoundment modifications will be at Rutland High School on Oct. 24. The engineering consultant will provide an overview of the process, and the public will have an opportunity to ask questions and provide input.
According to the stipulation, if the city and residents are unable to come up with a solution, “The agency may seek injunctive relief against the owners of the impoundment requiring modification.”
The agreement largely follows the recommendations of the 2015 third-party report, which concluded that there were multiple sources contributing to the brook’s impaired status. In addition to elevated temperatures and runoff, the report said high levels of chlorides from road salt and possibly metals from a de-industrialized site in the center of the city were affecting the brook’s water quality.
The city must take measures to reduce the use of road salt in areas of the brook showing high levels of chlorides and must undertake studies of the area near Howe Center, formerly a foundry site, which is believed to be the source of metals contamination.