Under threat of court action, Kevin Guay has come to an agreement with the state over the need to stop sediment-filled water from running off his property into the city's drinking water supply.  In Merrimack County Superior Court yesterday, attorneys for Guay and for the state agreed to a preliminary injunction that requires Guay to take "any and all legally available measures necessary" to ensure that water with sediment does not leave his property.   "We're all going to cooperate to get it done," said Guay's attorney, Brandon Giuda.  Guay had been building a single-family home on his property at 30 Villanova Drive. The Department of Environmental Services last week obtained a temporary order that stopped Guay from continuing construction because of concerns over pollution. The state said that water laden with sediment was making its way from his property to Penacook Lake, the city's drinking water supply.  At a hearing yesterday before Judge David Sullivan, Assistant Attorney General Allen Brooks said the temporary restraining order was put in place because of concerns that last week's rain would cause more runoff. He brought photos taken last week showing brown water running down Guay's property. "What happened was what we alleged would happen: significant water quality violations," Brooks said.

Giuda said Guay had instituted pollution controls and had been working with a state wetlands bureau employee to resolve the issue.  Looking at pictures provided by both the state and by Guay, Sullivan said it was obvious that Guay did have some controls. "I see one," he said. "It's ineffective, but there is a fence for erosion control."  But when Giuda argued that there was only so much Guay could do in light of the large construction site and heavy snow, Sullivan disagreed.  "There is something you can do," Sullivan said. "You just don't do it in the middle of the spring."  Ultimately, both sides agreed to the injunction after some changes in language. The injunction forbids Guay to alter the land, other than to stabilize the property. It states that Guay must hire a certified professional installer for erosion and sediment control products or a state-approved engineer to oversee the stabilization measures and to prepare a plan to permanently stabilize the property. Guay must also hire a certified wetlands scientist to prepare a plan to restore the area. The injunction will not prejudice the court in any future hearings.

Giuda said Guay has already hired an erosion professional and an engineer. He brought in pictures that showed attempts Guay has made to stop pollution, including areas that were seeded and hayed, retaining ponds, erosion control blankets, hydraullic mulch, straw wattles and multiple levels of a silt fence.  "He's been working the last month trying to contain this," Giuda told the Monitor. "But with the volume of snow, it just got away."  Sullivan said he hoped the two sides could resolve the issue and dismiss the lawsuit. If not, he said he would schedule another hearing.  Brooks said the state cannot ask for specific penalties, but the maximum penalty allowed by statute is $10,000 a day for each violation. The state says Guay is violating the state wetlands act and the water pollution act.  Guay paid a $30,000 fine in 2005 after similar complaints about the lack of erosion controls on his property.