On Feb. 18, the City of Rutland, Vt., filed a complaint requesting that the U.S. District Court for the District of Vermont vacate a flow-based total maximum daily load (TMDL) for biological impairments in Moon Brook. The TMDL regulates the amount of stormwater entering Moon Brook using flow as a surrogate for sediment. Flow-based TMDLs were the subject of a 2013 Federal court ruling in Virginia where the court decided that the U.S. Environmental Protection Agency (EPA) exceeded its authority in the Accotink Creek TMDL. Additionally, in late 2014, EPA released a TMDL memorandum that removed language on the use of flow as a surrogate.

In addition to challenging EPA’s overall approval of the TMDL due to administrative and technical deficiencies, the City of Rutland also writes that the Moon Brook TMDL is illegal based on the Accotink Creek ruling. The city points out that flow is not a pollutant and is not regulated as such within the Clean Water Act. If it has to comply with the TMDL, Rutland estimates that it will have to spend $20 million in additional public infrastructure investment as well as $25 million for managing existing privately owned stormwater discharges.

About 60% of Rutland’s stormwater collection system is combined. Rutland objected to the 303(d) listing and additionally maintains that the principal cause of the Moon Brook impairment is not urban stormwater.