Pilot Project Based on Leggett’s Proposed Contracting Method for Stormwater Management Caused Fish Kill in Potomac

The contractor Soltesz was fined by the county for releasing sediment from a pond into a nearby creek

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The incident happened at the U-shaped pond circled by Bethesda Beat at the golf course TPC Potomac at Avenel Farm. The Rock Run tributary is just to its south.

The contractor for a Montgomery County pilot project to test a new method for awarding contracts for stormwater management projects improperly drained a Potomac pond, resulting in the death of more than two dozen fish and a significant amount of sediment being released into the Rock Run tributary.

The county described the incident in an internal memo obtained by Bethesda Beat, which county spokesman Patrick Lacefield later confirmed was accurate.

The incident happened Jan. 11 when the Rockville-based contractor Soltesz Inc. used “unauthorized and improper methods” to drain a pond at TPC Potomac at Avenel Farm. Soltesz drained about 90 percent of the water from the three-and-a-half-acre pond into Rock Run, causing the deaths of at least 20 to 30 fish and two turtles and adding from 4 to 38 inches of sediment to the stream, according to the memo.

The county notified the state about the incident and state environment inspectors “investigated the site for fish kill and illicit sediment discharge,” according to the memo. State investigators wrote in an email to county officials about the incident that given the time between when the discharge happened and when they were able to investigate it Jan. 22 the actual number of fish killed was likely to be much higher given that the pond had an estimated couple thousand fish in it. Investigators found animals feeding on the dead fish—including largemouth bass, bluegills and sunfish—when they visited the scene. They determined the pond’s water level dropped by about 20 feet.

The county’s $2.3 million contract required Soltesz to design and install a “sediment control forebay” in the pond, according to Lacefield. The forebay is intended to trap sediment in the pond and prevent it from being released into the nearby stream.

Stormwater management projects often are designed to filter or settle sediment and pollutants from water runoff to prevent them from flowing into rivers and the Chesapeake Bay.

An example of a small sediment forebay. Via Massachusetts Clean Water

The Avenel project is one of three “pay-for-performance” projects the county is testing to see if they can be more cost effective than the current contracting method used by the county Department of Environmental Protection. The two other pilot projects have not yet entered construction, according to Lacefield.

County Executive Ike Leggett has recommended the department switch to using a method similar to the pay-for-performance method, but with additional county oversight and public outreach, so the county can use one contractor to largely handle new stormwater management projects. The county is mandated by the state to treat a specific number of acres of impervious surface.

Lacefield wrote in an email that Soltesz paid $1,000 in fines leveled by the county after the incident. He wrote the project is a good example of pay-for-performance contracting “despite some shortcomings.”

The county didn’t notify the community about the sediment discharge and fish kill because it didn’t result in any health or safety concerns, according to Lacefield.

“The violators have been cited and the environmental impact has been remedied,” Lacefield wrote.

Soltesz President and CEO Jim Soltesz wrote in a statement sent to Bethesda Beat on Friday that the incident was the result of a problem with the pond’s original valve system, which didn’t operate properly. After the pond was drained, Soltesz handled the required stream cleanup under the supervision of county and state environment officials, according to the statement.

The company “assumed full responsibility” to pay for a replacement valve and the cleanup, the statement said. “Although not legally required to purchase a new valve for the project, Soltesz is paying the entire expense as a gesture of good will,” the statement said. “The new valve should be installed as soon as weather permits, most likely in the next two weeks.”

Soltesz wrote the project “will insure successful stormwater management to the Avenel community for years to come.”

The project treated runoff from about 65 acres of impervious surface, according to Soltesz.

The county has struggled to meet state requirements to treat runoff. In 2010, the state issued what is called an MS4 Permit requiring the county to treat runoff from about 3,800 acres of impervious surface—such as roads, driveways and roofs. The county failed to meet the requirement in five years as mandated and entered into a consent decree with the state. The county expects to complete the requirement later this year.

Leggett has said part of the problem in meeting the permit’s treatment requirement was the current contracting method for projects, in which the county employs a different contractor for each step of a project, including its design, construction and maintenance. This method has required the department to assign numerous staff members to oversee a variety of contractors working on dozens of different projects.

Leggett’s proposal would simplify the process by enabling a contractor to submit a bid detailing how it would treat runoff from a specific number of acres of impervious surface. The latest version of his proposal would include more county oversight than the pay-for-performance pilot, according to administration officials. The chosen contractor would then be responsible for overseeing all of the projects required to treat that total number of acres and for making sure the state approves the work.

The County Council last month voted 5-4 against Leggett’s plan to shift to pay-for-performance contracting and instead opted to continue the current method of contracting while also asking the department to find more efficient and cost-effective methods to treat stormwater runoff.

Council members who voted against Leggett’s proposal said the method may result in fewer environmentally beneficial projects. That’s because a single contractor would have the ability to choose projects that call for less expensive remediation methods in order to treat a higher number of acres rather than those that might call for more expensive methods for a smaller amount of acreage, council members said. Council members also wanted the county to move forward with some of the 44 stormwater projects that have been partially designed that have been put on pause while the contracting change is being debated.

Once the county completes the current state requirements, officials expect to receive a new MS4 permit requiring the treatment of runoff from at least another 500 acres of impervious surface. Leggett wants to put the new contract awarding process in place before receiving the new state requirements.

Leggett on Friday vetoed the council’s move to block his proposal to change the contracting method. He plans to submit a supplemental budget amendment next month to fund his preferred contracting method. The council would need a 6-3 majority to override his veto and maintain the current system or implement a new contracting policy.

Council President Hans Riemer said Tuesday that he was informed about the Avenel incident from rank-and-file employees in the county’s Department of Environmental Protection, but not from the administration. He was one of five council members who voted against Leggett’s proposed contracting change. He said he hasn’t been informed of other fish kills that resulted from county-funded stormwater work in the past.

“This certainly highlights why some have been concerned about not having sufficient county involvement in the projects,” Riemer said. “We need to get a thorough review of the last eight years of projects since we embarked on this program.”

Council member George Leventhal, who supports Leggett’s proposal, said Friday he wasn’t aware of the Avenel incident, but said he didn’t believe it negated the benefits of the design-build approach being put forth by the county executive.

Environmental organizations such as Friends of Sligo Creek, Conservation Montgomery, Audubon Naturalist Society, Potomac Conservancy and Sierra Club sent Leggett a letter May 31 advising against the veto and said that public accountability may suffer if one contractor handles a significant portion of the state-mandated requirements. The groups have opposed Leggett’s proposal.

“The proposed [design-build-maintain] approach raises too many questions about the degree of transparency, public control, and citizen collaboration that it would allow or conversely, would prevent,” the letter from the organizations said.

When asked if similar fish kills or sediment discharges have been reported over the past 10 years, Lacefield responded that the county has issued violation notices to stormwater management contractors in the past to correct “a sediment control deficiency.”

“As with sediment control violations at other construction sites, the [notice of violation] is typically closed when the underlying deficiency is corrected,” Lacefield wrote. “If the situation is not corrected, or repeatedly occurs, a citation with a monetary fine can be issued.”

Four fish kills in Montgomery County were reported to the state in 2016 and a total of 149 from 1984 through 2016, according to Maryland records.

The county executive and council have already reduced the county’s six-year capital spending budget for stormwater projects by about $200 million due to an anticipated decline in the number of projects that will need to be completed to meet state requirements. The anticipated work reduction led county leaders to decide not to fill seven vacant positions in the environmental department.

The labor union UFCW Local 1994 MCGEO that represents about 7,000 county government employees has expressed concern about Leggett’s proposal. It believes the county could achieve efficiencies and savings in the stormwater project program by maintaining the current staffing levels and contracting system, and only moving forward with the most-efficient and cost-effective projects, according to a May letter from union President Gino Renne to council President Hans Riemer.

The letter also appeared to describe the Avenel incident, although the community was not named. It said the contractor made a minor modification to the pond by building a low wall in it that “provides no real environmental benefits.”

“The contractor also began work without proper permits and was cited for illegally releasing many tons of sediment into a stream and killing fish,” the letter says. “The contractor made a windfall by finding relatively cheap credit, but the environment and tax payers got almost nothing for their millions.”

Soltesz said in the statement the project was successfully completed and the company should be considered for future stormwater project work in the county.

“The unfortunate occurrence due to the defective valve was an unforeseen problem, which could not be detected on visual observation,” the statement said. “However, the required remediation response by Soltesz was timely and aggressively pursued and completed.”

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