The Vermont Agency of Natural Resources and Rutland have finally agreed to disagree over why a small waterway that snakes through the city hasn’t been able support brook trout for more than 20 years.
At stake is the destruction of a popular local pond, $20 million in potential stormwater cleanup costs and the potential re-establishment of native trout in Moon Brook.
The state says Moon Brook is so polluted from stormwater runoff from parking areas and streets in Rutland that the microinvertebrates the fish rely on as a major food source can’t survive. The city of Rutland says the problem is not pollution, but artificially warm temperatures. Officials say Combination Pond warms up the water that flows into Moon Brook and harms the ecosystem.
In 2004, state scientists who studied the waterway said Moon Brook failed to meet water quality standards because of runoff from roads, parking lots and buildings. The city appealed to the Vermont Environmental Court.
The fight reached a fever pitch last December when the agency designated Moon Brook as a “stormwater impaired” waterway under the Clean Water Act. Shortly after the state determined that Rutland would be responsible for cleaning up stormwater pollution, the city sued, again. (Five communities in Chittenden County are home to designated “MS4” waterways and consequently must invest in expensive stormwater cleanup projects to ameliorate pollution flowing into Lake Champlain under Environmental Protection Act requirements.)
In a settlement that was reached last week — the latest iteration of a nine-year battle over Moon Brook — the agency and city officials will hire an independent scientist who will be charged with figuring out why the waterway can’t support brook trout. While the review takes place, the city will not be required to comply with the Clean Water Act designation regulations, according to a statement from Rutland officials.
Both sides say the independent analysis and changes to the brook ecosystem, which will take at least three years to complete, is major progress. The expert will be selected and paid for jointly by the two parties.
Rutland Mayor Chris Louras is pleased with the settlement. “This agreement establishes a process by which ANR and the City can present their evidence to an independent third party expert, who will review the facts and issue a report,” Louras said in a statement. “While neither side will be bound by the conclusions of the independent expert, ANR’s willingness to reconsider their 2004 determination represents significant progress from the city’s perspective.”
David Mears, the commissioner of the Vermont Department of Environmental Conservation, says he was relieved the state was able to reach a settlement with the city.
“The ramifications are broader than Moon Brook, which is why I’m glad able to resolve this,” Mears said in an interview. “I was concerned we’d be stuck in litigation.” The commissioner said he realized the city’s concerns are specific to Moon Brook, and “if we could find a path forward to find a facilitated conversation around the science” about the source of impairment the two sides could make progress.
“We know the ponds are part of the problem, and by reaching an agreement that allows the city to move forward with that piece of puzzle,” Mears said.
The settlement is no guarantee, however, that a legal contest won’t be reignited. That’s because the state and the city of Rutland have reserved the right to reject the expert’s determination, and if that happens, both sides could end up in court, again. In a press release, Rutland officials say the city will suspend its legal challenge “but reserves all rights to pursue legal remedies in the future, should the third party report fail to resolve the dispute.”
Jeff Wennberg, commissioner of Public Works for the city, and former commissioner of the Vermont Department of Environmental Conservation, maintains the state has “misdiagnosed the problem” and the new Clean Water Act designation puts a “whole host of responsibilities on the municipality.”
“No amount of money spent on stormwater is going to fix problems with the warm water from ponds,” Wennberg said in an interview. “We insist it’s caused by the higher temperatures. We don’t want to spend $20 million to mitigate flows when it is, in our view, entirely pointless from the standpoint of restoring water quality standards. It won’t work.”
Wennberg also says the state has used criteria for “the wrong fish and bugs.” “Our feeling is those bugs and fish have never been there,” he said.
The first step Rutland must take to prove that warmer water is the cause of fish depopulation is to remove the dam on Combination Pond, which will cause the temperature of the water in Moon Brook to drop. The dam removal is slated for 2017. Piedmont Pond dam may also need to be removed. ANR has pledged to support the dam removal effort, which city officials say is likely to spark public outcry.
Anthony Iarrapino, a lawyer with the Conservation Law Foundation, which is an interested party, says the dam removal will help, but the agreement kicks the can (i.e. the stormwater pollution issue) down the road. CLF successfully challenged language in ANR’s permit for Rutland that gave the city 20 years to act on a cleanup plan. In a settlement, CLF pressed for public notification of the plan, which will be written by city officials. According to state officials, the compliance schedule for the MS4 permit is “as soon as possible, but no later than 20 years.”
The problem with the state’s settlement with the city, Iarrapino says, is that “the scientists at ANR always accounted for the [impact of the] dams” in their analysis of Moon Brook.
“I do think it’s a difficult precedent to set, having a municipality that’s had plenty of opportunity before now to do the right thing on its own just fight aggressively [in the courts] and buy itself more time,” Iarrapino said.
Mears says Rutland has host of challenges around reducing phosphorous pollution. The city has “stormwater problems, regardless of how Moon Brook is classified,” Mears says.
“Rutland is like any city, it has a lot of parking lots,” Mears said, that are part of the downtown area and big box stores along a strip that contribute to stream impairments.
“At some point in the very near future, the city will have to deal with those issues,” he said.
A number of communities in Vermont could be faced with implementing new pollution controls under the Clean Water Act. The Environmental Protection Agency has told the state it must significantly lower its total maximum daily load of phosphorous pollution into Lake Champlain in order to restore the health of the largest body of freshwater in the Northeast.
A recently released report estimated that reducing phosphorous in Lake Champlain would cost $150 million a year for the next decade. Mears said the sticker shock reaction to the report has lingered, but he believes state and local communities can solve the problem together with a significantly smaller investment by focussing on the primary causes of the pollution, including steep sloped farms with poor soils and highly eroded, steep dirt roads located near streams.
“When you get more specific, a few tens of millions of dollars, if used strategically, could front-end a lot of the investment and show quick results,” Mears said.
Correction: We incorrectly stated that Rutland’s MS4 permit compliance schedule is 10 years. STate officials say the compliance schedule in the MS4 permit continues to be as soon as possible, but no later than 20 years.