Dispute Persists: Is Tan Brook A Perennial Or Intermittent Stream?

The following article is reposted from Councilor Dorothy Pam’s (District 3) newsletter, PAMOGRAM.

Over the summer I have attended a number of meetings where residents of the northern part of our currently named District 4B have put their considerable wits together to protect the natural environmental features of brooks, wetlands, and trees that make this a beautiful, cool, and historic neighborhood. Galvanized into action by developer Barry Roberts’ plan to build many units of housing in the midst of a wetland that surrounds the perennial Tan Brook, they seek to protect the wetlands and trees which absorb so much of the brook’s water. And, as many residents know, the Tan Brook regularly flows into the streets, yards, and basements, increasingly so since the erection of the tall buildings on the east side of North Pleasant Street.

Untold hours of detailed work has been done on this project over the summer by Shirley Griffin (Beston Street), a former wetlands consultant  who heads the neighbors group that retained a lawyer, with the help of Marty Jamison who collects the money to pay the lawyer; and Paige Wilder who has been researching and filing a separate suit for the Fearing-Sunset Neighborhood Association, with legal assists from Sharon Waldman (both of Fearing Street).

Many residents who live in the Tan Brook’s influence area are writing witness statements for these suits. In what follows, I include some materials provided by Barbara Pearson (Paige Street) who has walked every available inch of the Tan Brook and knows its ways; Marilyn Smith (Allen Street) whose son played in and around the brook, and Edwin Gentzler (Fearing Street), a long time neighbor of former resident, Warren Averill, Agriculture/ Forestry Professor at UMass, whom Edwin observed cultivating and nurturing a variety of trees from the region and abroad.

---

1. The first discussion below is written by Barbara Pearson with help from Shirley Griffin’s precise statement of the actions taken.

The Tan Brook, Asset and Concern
The Tan Brook is a mixed blessing for its neighbors.  It emerges at McClellan Street with a pleasant babbling sound from the culvert that has carried it on and off through town from the little lake next to Wildwood Cemetery.  It mostly “daylights” from McClellan to the UMass pond, (but goes underground to avoid streets and parking lots).  Once it can spread itself out on campus, it also goes aloft in a number of lovely fountains.  After its moment in the sun, another culvert delivers it to the swamps to the west of Mullins Center, and the brook eventually joins the Mill River.   

Town officials bemoan its level of pollution as a principal conduit of runoff from surrounding streets. Neighbors over the years have sometimes commented on an oily smell emanating from it.  Still, it has been a welcome aquatic playground for a couple of generations of children whose yards border it.  The little movable child-sized bridge across it can still be seen in Freddy Manning’s backyard at the corner of Fearing and Nutting.  At the end of Beston Street, Gabor Lukacs has built a wooden bridge to cross it, providing access to the woods that connect Beston and Triangle Streets.  Barbara Pearson reports she felt a little like Alice, finding herself in a tiny wonderland between asphalt destinations. Until recently, a stone firepit made a bench next to one of the older, deep-barked trees and was a favorite hangout for teenagers.  (Now, the trees sport “No Trespassing” signs.)

The meandering brook is prone to flooding after a rain, especially after it has wound its way around Michelle Hosp’s yard (on Fearing) and needs to fit back into the culvert to cross under the road.  In one recent storm, UMass geoscientist Christine Hatch’s measuring devices recorded a one-meter rise in less than 15 minutes (in banks of about a foot in most places). The resulting flood was featured with a photo in the May 27, 2022 Daily Hampshire Gazette.

Debbi Friedlander, whose Beston backyard is crossed by the brook, shared this short video from August 26, 2022 around 2 pm during a rain, showing it behind her house as a rushing river.

Steps could and should  be taken to help Tan Brook function better as a wetland so it could act as a defense against erosion and flooding.  Wetlands are also known to help sequester carbon and reduce pollution, to say nothing of their unique assets as animal habitats.  That is why the protections afforded by the state Wetlands Protection Regulations, 310 C33MR 10 and the local Amherst Wetlands Protection Bylaw are so important. The area bordering the brook cannot accommodate added impervious surfaces, and if it is to help retain water, it cannot afford to lose any more trees in its nearby vegetation. But as Edwin Gentzler has witnessed, it already has.

Concern
May 2021.  52 Fearing LLC is formed and joins seven connecting parcels of land that have frontage on both N. Pleasant Street (facing Kendrick Park) and Fearing Street. Tan Brook flows through two of the western-most parcels, and its frequent floods send water onto other parts of the parcel as well.  In addition, there is significant run-off that flows downhill from the N. Pleasant side. 

 June 2021.  Before development of these lots can be contemplated, delineation of the areas specifically protected under the wetlands regulations is required.  Therefore, wetlands consultant SWCA (on behalf of the LLC including developer Barry Roberts) was asked to identify areas protected under the state Wetlands Protection Regulations, 310 CMR 10, and the local Amherst Wetlands Protection Bylaw.  They submitted an application to mark the boundaries of Bordering Vegetated Wetlands (BVW) and the bank of the Tan Brook wetland resource areas: an Abbreviated Notice of Resource Area Delineation (or ANRAD).

The Amherst Town Conservation Commission opened a hearing on SWCA’s application on June 21, 2021. The SWCA plan did not accord with the Commission’s (and neighbors’) characterization of the property, so the Commission solicited Peer Review Reports from another wetland consultant, who also disputed SWCA’s boundaries of Bordering Vegetated Wetlands (BVW) and the Bank (of Tan Brook). A particular focus of both the Conservation Commission and the neighbors was whether the Tan Brook was “intermittent” or “perennial,” a distinction that would affect the level of protection the regulations require for it.   

Disagreement over this designation is somewhat understandable, as it has been designated differently for different projects in the past.  In the collective memory of the neighbors going back many years, Tan Brook has always been flowing—steadily, not intermittently—and flooding relatively often.  However, there are technical specifications, concerning for example the size of the watershed, which could override our visual impression. To confuse the matter further, there appears to be a typo on the relevant USGS map, making us need to infer its location.   

November 2021.  In an effort to resolve the issue, Erin Jacque, Amherst’s Wetlands Administrator, reanalyzed the Tan Brook watershed and noted errors made by SWCA.  Her new analysis demonstrated clearly that Tan Brook was indeed perennial.  The peer reviewer agreed, and the Conservation Commission adopted her analysis.  On November 15, 2021 the town issued its decision (Order of Resource Area Delineation, or ORAD) that the plans submitted by Roberts’ and his consultant were not accurate. That same day, Roberts appealed the Commission’s decision to the regional office of the Department of Environmental Protection (DEP), requesting a Superseding Order of Resource Area Delineation (SORAD).  SWCA also made some amendments to the plan, the last of which was dated April 22, 2022. 

June 16, 2022.  Despite the efforts within the Town, DEP issued a SORAD that agreed with the SWCA and the developers that Tan Brook was intermittent.

August Appeals.  Soon thereafter, three appeals of DEP’s SORAD were submitted: by the Amherst Conservation Commission itself and two residents’ groups, one represented by Paige Wilder and the other by Shirley Griffin whose group hired a lawyer to represent them. An adjudicatory hearing has been set for November, 2022, to be held in Springfield before an administrative judge.  Prior to the adjudicatory hearing, the DEP requires the parties to the appeal to attempt to reach agreement on what issues they can. According to Paige Wilder, the first problem was ascertaining who were the “parties to the appeal” as state offices gave conflicting information. 

At this point, the resident groups have been meeting to discuss the appeals and the attempts to reach an agreement.  When and if they reach some agreement, they report to DEP at a Pre-Hearing Conference, which is currently set for mid-September 2022.  This is where we are now.

2.  TAN BROOK:  A WITNESS STATEMENT
My name is Marilyn Schwinn Smith.I have lived at 14 Allen Street since September 1991. Over the course of the 31 years, I have lived in the neighborhood containing Tan Brook, I have never seen it run dry. Though my property does not abut the brook, I have ample opportunity to observe it. 

Residing in a neighborhood sandwiched between town center and UMass, I am a walker, restricting my driving to lengthy commutes. My husband and I regularly walk the neighborhood, invariably stopping to check the brook where it passes under Fearing Street, often crossing the street for a better view. When visiting a classmate then living at 60 Fearing, my son enjoyed following the brook southward until it emerged at McClellan Street. As a former doctoral student at UMass, I was also drawn to the view of the brook before it passes under the parking lot on its journey to the UMass pond.

Water is compelling, as the popularity of beach-front housing attests. So is the water running perennially in the secluded Tan Brook.

As a recent NYT article documents, cities and town throughout the U.S. are rediscovering and rehabilitating their small waterways, in respect to both their potential as oases and as protection against environmental degradation. Commenting on the recent failure of the water treatment plant in Jackson, MS, city councilman Brian Grizzel is quoted: “We build more subdivisions, we build more businesses, and each time we build, that changes how water flows to where it’s supposed to” (NYT, A10, Sept. 2, 2022). This rather mundane and obvious observation gets to the heart of the issue regarding the classification as intermittent or perennial of Tan Brook and the consequences to our neighborhood and to Amherst’s town center. Classification of Tan Brook as intermittent threatens to allow development of the wetlands through which the brook flows.

The construction of Kendrick Place, 2014-2015, was immediately followed by severe flooding of my unfinished basement. I formed a bucket brigade with my sons to ferry out almost 1 foot of water. 

When the tax assessment of our house was raised significantly, I requested an abatement. The representative from the Assessor’s Office took one look at the basement, she looked no further; our assessment was reduced.

Our house, constructed at the beginning of the 20th century, unlike all the other houses in the neighborhood, did not have a sump pump. It had never needed one before the appearance of Kendrick Place, which clearly altered the flow of water running beneath it. After the basement flooding, we had a sump pump installed. When it proved insufficient, we had a larger, more powerful pump and drainage system installed.

As documented, the Tan Brook is already given to flooding. The kind of torrential rain that occurred on August 26, bringing the brook to the verge of Fearing Street, is likely to become a greater than a less frequent occurrence. I have no doubt that if Tan Brook is classified as intermittent and the threatened development of its adjacent wetlands occur, disruption of water flow will follow. Development of the wetlands will entail the loss of its trees, further exacerbating the problem: where will all the water go, if not into the trees?

Amherst has a number of protected wetlands, but this is no reason to destroy a unique habitat currently protecting the town center.