Montpelier officials unhappy with Berlin Pond ruling


MONTPELIER -- The state has decided not ban fishermen, paddlers and swimmers from the waters of Berlin Pond, the Department of Environmental Conservation announced Thursday.

After months of deliberation, DEC upheld a petition submitted by the city of Montpelier to ban motorized vehicles and boats but permitted other recreational use of Montpelier's water source.

The issue arose after a May 2012 Vermont Supreme Court decision allowed the 256-acre pond to be reopened to public access after years of being off-limits.

Last spring, the group Citizens to Protect Berlin Pond submitted a separate petition pushing to prohibit recreational use of every kind. DEC denied that request.

"We looked at the capacity of the Montpelier drinking water system and found that they have a state-of-the-art system that can easily handle the kind of contaminants associated with kayakers, or canoeing, bacteria, anything else associated with humans being in contact with water," said David Mears, commissioner of the Department of Environmental Conservation. "It's really not an issue."

About 40 percent of Vermonters drink water from a source where public access is permitted, according to Tim Raymond, of the Drinking Water and Groundwater Protection Division of the DEC. Close to 20,000 residents from Montpelier and parts of Berlin consume water from Berlin Pond, said Rep Warren Kitzmiller, D-Montpelier.

Mears and his family live in Montpelier and drink the water from Berlin Pond, he said. Mears said his friends and neighbors gave him plenty of feedback, and "I may have lost a few dinner invitations as a consequence of this," he said with a smile.

The rulemaking process will begin immediately, and will take up to a year, he said. During that time, there will be opportunities for public input and, eventually, for an appeal to be filed.

At a news conference at ANR headquarters Thursday, several members of Citizens to Protect Berlin Pond arrived with "Protect Berlin Pond" pins and expressed their disappointment with the decision. Petroleum contamination, zebra mussels and coliform bacteria are among the contamination concerns voiced by the group. A rally is scheduled to be held on the Statehouse lawn on Saturday.

Pushback to the decision has come from all sides.

Kitzmiller said he will investigate legislative options to protect the drinking water next session.

"There has never been an instance in the world ever where human interaction has improved the body of water," he said. "A lot of their decision seems to rely on laws that relies on no effective enforcement."

No one can expect a game warden to constantly be patrolling the pond to look out for accidental oil spills or an illegal boater, Kitzmiller said

The risks, agreed Montpelier Mayor John Hollar, do seem to outweigh the benefits.

The city "wholeheartedly" supported the petition filed by the citizens' group, Hollar said. He called the city's own filing asking for the ban on motorized vehicles "a pragmatic response."

"We believe it was likely the best we were going to get and that turned out to be true. We do believe that the agency should have gone further," he said.

In alignment with Montpelier's request, the DEC ruling banned all gas-powered ice-augers or power tools, vehicles such as snowmobiles, ATVs, trucks and all motorized boats. The city's water treatment system can remove contaminants associated with petroleum products, Mears said, but they could still pose a risk for the system.

The DEC ruling didn't meet all the Montpelier's requests. Mears and his team of experts did not ban ice shanties or explicitly ban the use of petroleum as the city had asked, saying: "These rules aren't in place to ban any particular product."

"One of the great pleasures of this job is to be in a position where people care so deeply about these resources, about gems like Berlin Pond," Mears said. "And so it was a challenging decision in the sense that I know what motivated the citizens to file a petition and the city to file theirs was deep concerns about the safety of the city's drinking water and the natural beauty and aesthetics and usage that we've grown accustomed to in Berlin Pond."

He said DEC does not anticipate any problems.

"Of course, if all of a sudden if we started seeing a trend toward an increase in contaminant levels, we would step back and reevaluate," Mears said.

In City of Montpelier v. Barnett, the state's highest court ruled that the pond falls within state, not city, jurisdiction. The decision added that the ruling did not mean that recreational use could not be banned or regulated.

"We conclude only that valid regulation would require action by the State - either by direct regulation or by delegating such power to the City - and this has not yet occurred," the ruling stated.

Before the decision, recreational use of all kinds was prohibited.

A group of concerned residents formed the Citizens to Protect Berlin Pond group soon after the court ruling.

"Our goal is to return Berlin Pond to the full protection it enjoyed for more than a century," reads a statement on the group's website. "This protection has historically ensured a safe, clean, and sustainable water supply for Vermont capitol city and its environs."

Although DEC says its studies have shown that recreational use will not pose a risk for Montpelier residents, Hollar said he's seen conflicting reports from scientists.

His conclusion is better safe than sorry.

"It's a measurable risk and there seems to be very minimal gain," Hollar said. "The fact is, historically, it has been left alone, and restricted in terms of human access. I don't think it's caused anyone any great difficulty."


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