Citizens To Protect Berlin Pond 452 Brookfield Road Berlin VT, 05602 January 31, 2014 Leslie Welts, Esq. Watershed Management Division Department of Natural Conservation 1 National Life Drive, Main 2 Montpelier, VT 05602-3522 Re: Petition for Adoption of Rule Change to Prohibit Recreational Use of the Surface Water of Berlin Pond and Return Berlin Pond to Normal use as Prior to January 1, 1993. Dear Attorney Welts: Pursuant to 10 V.S.A. § 1424, 3 V.S.A. § 833, the Vermont Use of Public Water rule I and the Vermont Natural Resources Board Rules of Procedure, as applicable through the Vermont Agency of Natural Resources Department of Environmental Conservation Interim Procedures for Evaluating Petitions to Adopt, Amend, or Repeal Surface Water and Wetlands Rules, we hereby file this Petition to Amend Use of Public Lake-Specific Rules pertaining to Berlin Pond in the Town of Berlin to prohibit recreational use of the surface water of Berlin Pond, including use of all watercraft, with or without internal combustion motors, fishing from shore, or from the surface of ice, swimming, paddle boarding, wading or building any access on shore that could at a later time encourage such use. Section 15 of the Vermont Natural Resources Board Rules of Procedure (2006), as adopted by the Interim Procedure for Evaluating Petitions to Adopt, Amend or Repeal Surface Water and Wetland Rule, signed on January 30, 2013 by David K Mears, Commissioner of the Department of Environmental Conservation, requires that petitions for rulemaking contain certain enumerated information. The following numbers and headings track Section 15 of the referenced NRB Rules of Procedure. Detailed statement of the statutory authority under which the petition is filed Pursuant to 10 V.S.A. § 1424, as adopted in Act No. 138 of the 2012 Legislature session and effective 14 May 2012, the Secretary of Agency of Natural Resources has the authority to establish rules to regulate the use of public waters in the state. In making such rules, the secretary shall consider, among other factors, “the predominant use of the waters prior to regulation.” The Legislature recognized that such rule making is not necessarily a “cookie cutter” exercise, noting that subsection (c) of § 1424 provides: “The secretary shall attempt to manage the public waters so that the various uses may be enjoyed in a reasonable manner, in the best interests of all the citizens of the state. To the extent possible, the secretary shall provide for all normal uses. (Italics added). It should be noted that normal use (“… Rules, sect. 5.2”) prior to 1993, was a pond whose surface water was protected from all human access. During this time, and up to 2012, the perimeter road was a source of peaceful, relaxing enjoyment of what has become a very rare thing in our culture: a wetland area undisturbed by human encroachment for a long period of time, where plants and wildlife were allowed to flourish and thousands of people each year could see nature that was unavailable anywhere else accessible. Also during this time, there was no shortage of nearby bodies of water easily accessible for the forms of recreation not permitted on Berlin Pond. Chapter 11 under Title 29, § 401 provides that “lakes and ponds which are public waters and lands lying thereunder are a public trust, and it is the policy of the states that these waters and lands shall be managed to serve the public good....” Public good is defined as “that which shall be for the greatest benefit of the people of Vermont.” There are far more citizens per year who have enjoyed the peace of undisturbed nature than those per year who enjoy the newly permitted recreational access. It is the purpose of this petition to show that the greater public good lies in returning Berlin Pond to the protection it enjoyed prior to May 2012. Page 2 Petition for Rule Change on the Surface Water for Berlin Pond, Berlin, Vermont Submitted by Citizens to Protect Berlin Pond January 31, 2014 Page 3 TABLE OF CONTENTS I. Petition request for rule changes 5 II. Berlin Pond Description and History 6 III. Effects of Active Recreation Use as of May 2012 8 IV. Reasons for Rule Change 9 V. Closing 24 ADDITIONAL DOCUMENTATION 1. Wachusett Reservoir Watershed 2011 Public Access Update Plan (MA) 26 2. Turbidity Technical Review (OR) 177 3. Aquatic Invasive Species – Zebra Mussel (VT) 269 4. Berlin Watershed Conservation Plan (VT) 275 5. An Essay By Mikhail Gorbachev (former USSR) 314 6. Water, Water, Nowhere, Tom Walsh (ME) 318 7. Depth Map & Intake of Berlin Pond (VT) 320 8. Maps of Berlin Pond (VT) a. Conserved Land Map 321 b. Rare, Threatened and Endangered Species Map 322 c. Significant Natural Communities Map 323 d. Surface Drinking Water Source Protection Area Map 324 e, Uncommon Species and Other Features Map 325 f. VSWI – Mapped Wetlands Map 326 9. Homeland Security Directive (Federal) 327 10. Status of Birds on Berlin Pond 333 11. Ponds and Lakes near Berlin Pond 342 Page 4 Petition for Rule Change on the Surface Water for Berlin Pond, Berlin, Vermont I. Petition Request for Rule Change Vermont Natural Resources Board Water Resources Panel / Vermont Use of Public Waters Rules that this petition seeks to change. This petition seeks to return Berlin Pond to “normal use” (5.2 Normal Use: Any lawful use of any specific body of public water that has occurred on a retular, frequent and consistent basis prior to January 1, 1993.) By including in Appendix A the following: Berlin Pond, Berlin VT The following are prohibited on Berlin Pond: a. The use of all vessels and machines, regardless of how they are propelled. b. Swimming, wading, paddle boarding, or any activity that places humans or domestic animals in contact with the surface water or on the ice. c. Fishing, including fishing from boats, ice, or from shore. d. Hunting and shooting. e. The construction of any access to the pond from the shore. Rules that encourage the above inclusion. 2.2. Rule 2.2 states that consideration will be given to, among other things, the predominant use of the adjacent lands, as well as the predominant use of the waters prior to regulation. In addition, the availability of fishing, boating and bathing facilities, (poor at Berlin Pond, easily available nearby), and the scenic beauty and recreational uses of the area. 2.3 Rule 2.3 states that in the evaluation of uses will include fish and wildlife habitat, wildlife observation (the petition will discuss Berlin Pond's myriad bird species and the numbers of birders attracted to the Pond), the enjoyment of aesthetic values, quiet solitude of the water body.... Page 5 Definitions Surface Water: the water in Berlin Pond in any natural form, including liquid and frozen. Protection Prior to May 2012: any use of Berlin Pond surface water, including boating, swimming, fishing, skating, walking etc. was prohibited. Perimeter Road: the road that surrounds the main body of water that constitutes Berlin Pond; Brookfield Road on the west, Mirror Lake Road on the south, Paine Turnpike South on the north and east. It is about 5 miles in length. Active Recreation. Recreation that uses the shoreline and/or surface water of Berlin Pond. Passive Recreation.. Recreation that involves running, walking or cycling on the perimeter road but does not involve any activity on the shoreline or on the surface water. II. The Pond Geographical Description of Berlin Pond (See included maps). The perimeter road defines a Berlin Pond residential area. This is an unpaved class 3 road which serves as an access road to the residents on it and those residents on Paine Turnpike South residing south of the pond. Approximately 4.5 miles south, it connects with Highway 64. Historical Records of Pond Use The purpose of the pond has been to provide drinking water to the City of Montpelier, part of the town of Berlin including the Central Vermont Medical Center, and it has been known and used for its aesthetics by walkers, runners and cyclists. In 1870 it was determined that the Winooski River, because of pollution, was no longer acceptable for Page 6 providing drinking water and the Montpelier Charter was amended by the Legislature to purchase the right to take water from Berlin Pond. On October 7, 1884, Montpelier drew the first pond water for residential and commercial use. Conscious from the beginning of the need to insure clean drinking water, in 1894 the City of Montpelier requested the State Board of Health to examine the conditions of Berlin Pond water and concluded that the pond was “constantly in danger of pollution and could at any time bring disaster to the city. It was at that time the city was asked to protect the pond or build a filtration plant to purify the water.” Authorities diligently protected the pond water and between 1909 and 1910 several people were arrested for either fishing or swimming. All those who challenged their arrest lost their case in court. During this era there were a number of camps around the pond for people to enjoy the beauty of the pond and its surroundings in the summer months but this enjoyment could not include any recreation on the water. Scientific Data for Berlin Pond Berlin Pond, a 360 acre body of water, consists of two parts, commonly known as the upper and lower pond. Its deepest part is 57 feet, average depth 25 feet and shoreline 5 miles in circumference. Much of the immediate bottom consists of loose silt/mud which is easily disturbed (as noted by officials working on the drinking water intake) creating noticeable turbidity.