Waitsfield is one of only two towns in the entire state where the federal government is threatening enforcement action for post-Irene river work.
The Army Corps of Engineers is questioning work that the town of Waitsfield did on the west bank of the Mad River upstream of the covered bridge, and is also questioning work done on the Otter Creek in Middlebury, according to Marty Abair, senior project manager for the Army Corps in Vermont.
In Waitsfield, Abair said that Army Corps’ scrutiny came as a result of a riverbank stabilization permit application for funding and approval that the town had previously submitted.
“Waitsfield applied for a permit to do what they did and went in and did it without a permit,” Abair said.
The town of Waitsfield disagrees that the work that was performed was unauthorized. Immediately following the flood, Waitsfield officials met with Agency of Natural Resources stream alterations engineer Patrick Ross. Ross specified what could and should happen in the Mad River upstream (and downstream of the covered bridge).
Ross was authorized to okay work in waters over which the Army Corps has jurisdiction through a “general” permit that exists for emergencies. The town had received an Army Corps letter a month ago that warned of a possible notice of violation. Then last month, the town received a follow-up letter requesting answers to a series of questions about the work that was done in the river.
The select board, at an emergency meeting this week, was initially at odds over how to respond to the letter and subsequent request for information. Some board members felt strongly that the town relied upon the state for permission and technical advice on what to do following the flooding and hence the town should simply tell the federal agency that an ANR permit was granted and was sufficient.
Board chair Kate Williams reported that the town attorney recommended answering the questions as the feds were not looking for punitive action. Rather, she said, they are seeking the information needed to get the work that was done permitted after the fact.
Some suggested requested a meeting with the Agency of Natural Resources, the governor and the Army Corps. Other board members suggested simply responding to the first two questions in the letter and also convening a meeting of the Agency of Natural Resources and the Army Corps of Engineers to work out the jurisdictional issues.
Board member Charlie Hosford said he felt the state should be the town’s “co-defendant” in responding to the feds, and board member Sal Spinosa said that was not a case of “defendants.
“The town is being singled out for punishment. We’re the whipping boys. The Army Corps gets to do this to us when they should take up their enforcement action with the state. Why isn’t the state getting enforcement letters? The feds are using that bank as an entry point because we asked for an expedited approval for our project,” Hosford said.
Jim Despres of Kingsbury Construction, which performed the work in the river, asked whether the town had discussed the Army Corps letter with the ANR and Williams told him the town’s attorney had talked to the ANR as well as the attorney for the ANR and added that, according to the attorney, “there are things that need to get pushed forward.”
“I agree that you need to respond, but I think you need to respond to the Corps with some guns at your back,” Despres said.
Ultimately, the board decided to answer two of the questions and initiate a meeting with the various parties. The first two questions ask:
- Have you performed any work, or authorized any work to be performed in areas under Corps of Engineers jurisdiction as described on the attached fact sheet? If so, please respond to questions 2-12. You should be aware of the requirements of the law as explained in this letter, and you should ensure that you obtain all required permits. . . Future unauthorized work may be considered a willful violation.
- Do you have a Corps permit for the work? If not please answer questions 3-13.
Board members, after much discussion, decided to respond to the letter by answering questions one and two in the affirmative, i.e., yes the town did have Army Corps permission through the state’s ability to grant the federal “general” permit.
While Abair said that her intent was not to fine or sanction Waitsfield, she said she wanted to make sure the town’s permit now matches the work that was done. She acknowledged that the state had the authority to grant “general” permits in emergency situations but said the work she saw being done along the Mad River banks through the Bridge Street Marketplace was proactive restoration versus stabilization of the riverbank.
“The river had not jumped its banks there, and no riprap existed there before the flood. The bank has been stabilized and there was riprap along the bank. The work that was done there did not fall under the general permit category or any of the exemptions to federal regulations,” she said.
There is no riprap along the Mad River banks at the southern end of the Bridge Street Marketplace parking lot, although gravel from the river was pulled up onto those banks during the restoration work.
Abair said Waitsfield’s application for restoration of the western bank, upstream of the covered bridge, is what triggered her review and said that the application called it an emergency and sought a fast-tracked permit.
“I see no reason that they’d not get a permit. We just want to get them legal. That’s my goal,” Abair added.