MIDDLEBURY — The Army Corps of Engineers has launched an investigation into the town of Middlebury’s remediation work in the Middlebury River after Tropical Storm Irene. A letter by the Corps dated Sept. 23 notified Town Manager Bill Finger that the town may have violated federal law.
The letter arrived only days before the Vermont Agency of Natural Resources issued a new set of procedures towns must follow when alerting waterways.
This all comes as officials in Vermont towns struggle in the wake of Irene-induced flooding to balance the requirements of environmental regulations vs. the need to repair infrastructure before the winter. In Lincoln, for instance, the town removed stone from the New Haven River without authorization (see story here).
Lincoln digs in river for materials to repair roads
Middlebury officials are going to cooperate with the Corps and are working on a response to the letter, Finger said.
“Although you may have applied for or have received state or local permits, work within our jurisdiction without a Corps permit is a violation of federal law,” reads the letter sent to Finger. “We have no record that you have obtained a Corps of Engineers permit for (the) placement of dredged and fill material (within 2,700 feet of the river), and therefore, it appears you may be in violation of federal law.”
But the town was under the impression that it conducted work that had achieved proper authorization and permitting — a process that was just modified last week. Finger explained that the federal government issued the state a “General Permit” to conduct work in areas that were under Corps jurisdiction.
“This permit authorizes State of Vermont sponsored or authorized restoration projects of aquatic resource ecosystems whose natural functions have been destroyed or impaired by flooding back to pre-storm channels and conditions,” reads the General Permit.
“Our stance is that we were doing the work as proposed and as authorized by the state,” said Finger.
What was authorized, however, isn’t particularly clear because all authorizations after Irene were made verbally by river engineer Chris Brunelle of the state Agency of Natural Resources. One of just four or five ANR river engineers working in the wake of Tropical Storm Irene flooding, Brunelle was not available to comment as the Independent went to press.
After more than 50 local residents attended a Middlebury selectboard meeting last month to protest river dredging, the state issued a review of the work. Department of Environmental Conservation (DEC) Commissioner David Mears told the Independent that the work moved 0.12 miles downstream from where it was verbally authorized.
Such verbal authorizations that were issued immediately following Irene-induced flooding have created confusion for many towns and residents across the state. At the same time, these measures also helped local governments make necessary repairs in a timely fashion.
Moving into what the ANR has deemed “a new phase of recovery,” the agency has issued a fresh set of procedures authorizing stream alterations.
Meanwhile, Middlebury selectboard Chairman John Tenny questioned the state’s clarity. He isn’t quite sure what the state wants from the town.
“We don’t know which way to turn at this time, and we don’t know what authority we have,” he said.
The new procedures move away from verbal authorizations, ANR Secretary Deb Markowitz said.
“We’re asking folks in this new phase to provide what they’re intending to do in writing, so that our river engineers can look at it and make changes in writing, so there’s a clear written paper trail as to what is allowed,” she said.
Both ANR and the towns will be required to keep documentation on record, in part to ensure that reconstruction aid from the Federal Emergency Management Agency (FEMA) is forthcoming.
“The towns absolutely need a record of (river work) otherwise they won’t be eligible for FEMA,” Markowitz said. “These are absolutely public records. We also emphasize that for non-emergency work, you still need to go through the (regular) permitting process. We were finding that in some parts of the state people were taking the opportunity to do work they had long wanted to do.”
Chris Kilian, Vermont director of the Conservation Law Foundation, has a different take on ANR’s new procedures.
“ANR needs to get back to implementing state and federal law in a way that protects due process and that’s done through ordinary permitting and permit review not through policy statements,” he said. “What’s out there is brand new in response to Irene and (Vermont has) had long-standing regulatory programs on the books that are defined in statutes and in regulations duly adopted … I think that our laws that are on the books do a good job and I don’t think there is any particular need to modify state policy.”
The expedited procedures do away with some things that normally would protect the public’s interest, like engineering studies, public notice and comment periods, which Markowitz said were important to Vermont’s environmental governance. But she added that the state needs this extra leniency to make necessary infrastructure repairs in time for the winter.
“Ordinarily if somebody wants to get in the river to do work there’s a whole public process involved in the permitting application and this (new policy) really diverges (from that),” she said. “The law does give us flexibility in times like this. If we did go through the whole public process we’d be putting a lot of individuals and a lot of infrastructure at risk.
“Right now there’s a lot of work that still needs to happen before snow flies.”
As for the town of Middlebury and the East Middlebury residents, Tenny and Finger said that a special selectboard meeting would likely be held in East Middlebury later this month to explore future options for the Middlebury River.
“There’s no simple solution,” Finger said about the remediation work that the town has agreed to do in the wake of public and state scrutiny over their previous activity in the river.
“We’ll have a process,” he said, “probably a fairly long process dealing with the residents, the (permitting authorities) and other interested parties like (the Vermont Department of) Fish and Wildlife.”
Reporter Andrew Stein is at firstname.lastname@example.org.