[R]UTLAND — The city and the EPA have agreed on a five-year timeline to resolve their differences over how to rehabilitate Moon Brook.
In a joint motion filed Friday, both parties asked the U.S. District Court in Burlington to issue a five-year stay in the case. During that time the city and the Agency of Natural Resources will work to reduce temperatures in the stream, one of the factors that has contributed to its degradation. The ANR first designated Moon Brook an impaired waterway in 1992.
Rutland sued the EPA in February 2015, arguing that it set maximum daily pollution limits for the brook illegally or in error. The EPA argues that stormwater runoff is the primary cause of the river’s impaired status.
The motion stipulates that Rutland and the ANR will develop a plan to mitigate temperature levels — known as a thermal total maximum daily load, or TMDL — while assessing projects to address stormwater runoff.
According to the motion, “If Rutland’s efforts to reduce elevated temperatures in the stream effectively address — or even make substantial improvements to — the stream’s impairment, the impetus underlying this lawsuit may no longer exist. The need for this litigation could be obviated.”
The city contends that elevated temperatures in the stream — largely a result of two impoundments, Combination and Piedmont ponds — and not stormwater runoff are the primary cause of Moon Brook’s inability to meet state water quality standards. The city also argues that the cost of making improvements to meet the EPA’s stormwater guidelines would be close to $45 million in public and private infrastructure investment.
David Cooper, the attorney for the city, declined to comment.
A third-party review of Moon Brook in 2013 found that both elevated temperatures and stormwater runoff were contributing to its failure to meet standards.
In January 2013 a district court in Virginia ruled that the EPA does not have the authority to regulate stormwater under the Clean Water Act because stormwater is not classified as a pollutant. Rutland cited this case in its lawsuit.
In the joint motion, the EPA argues that stormwater is still a principal stressor but that “implementing measures to mitigate elevated temperatures will benefit the brook.”
One of those measures requires the city to reduce water temperatures in certain sections of the river primarily at the outflow of the two ponds. The city and the Agency of Natural Resources have been working on temperature limits since the third-party review in 2013.
The thermal TMDL must get EPA approval. According to the motion, development and implementation of the thermal limits will take about five years. The EPA says the thermal TMDL “will complement but not replace the stormwater TMDL.”
The Justice Department’s Environment and Natural Resources Division also declined to comment for this story.
Last week the deadline for bids to re-engineer Combination and Piedmont ponds passed. According to Rutland Public Works Commissioner Jeff Wennberg, the city received three solid proposals and is reviewing them. He hopes to make a recommendation to the Board of Aldermen in two weeks.
Any thermal mitigation effort will have to address elevated temperatures in Combination Pond, a popular fishing hole with several homes near the shoreline. The third-party report found significant warming of water discharged from the pond that had a negative effect on downstream reaches. Possible measures to reduce the water temperature include dam removal, redirection of the stream around or under the pond, or construction of a bypass channel.
If the ponds can be re-engineered within a couple of years, the city likely will see improvements in the river’s health by the end of the five-year window, Wennberg said.
“Ideally not only would we be able to see an improvement in temperature levels but also ideally some improvement in the biological health of the stream,” Wennberg said.
According to the motion, parties would provide six-month status updates, and either party may move to lift the stay at any time. U.S. District Judge William Sessions needs to review the motion before issuing a decision.
