DEC Calls Little Lake a Wetland , then Reverses Decision after LSCCF, Others Push Back

The LSCCF’s plans to do a dredging project in the northwest part of Little Lake got a temporary setback when Perry Thomas, manager of DEC’s Lakes and Ponds Division, made the shocking announcement at a recent meeting that the entire Little Lake area, over 100 acres of lake, had been newly designated as wetlands under the wetlands protection act.

The opposition to this decision from the LSCCF, the Lake St. Catherine Association, the Wells Select Board, and local residents came quickly and forcefully.  What criteria and what data were used to make this decision?  Why weren’t those involved in monitoring the lake consulted?   How would this affect dredging and other restoration projects?  How badly will this erode property values?   What does this mean for the future of the lake?

LSCCF mounted an immediate appeal to DEC for explanations and any pertinent data, and also reached out to Senators Kevin Mullin, Brian  Collamore,  and Peg Flory, and  Representative Robin Chesnut-Tangerman  and others, asking for support.  It wasn’t long before it became clear that the DEC had used erroneous data in making the decision.  With the help of those governmental agents and one of Vermont’s legal counsels, the decision was reversed within a few days. LSCCF and LSCA received a message from legal counsel that “…the wetlands division was reversing its decision on the designation of Little Lake as a wetland. It will remain a surface water.”   Following that, the Director of the Watershed Management Division reported, “The Watershed Management Division appreciates the shared vision of the Wells Select Board, Lake St. Catherine Conservation Fund, and Lake St. Catherine Association of restoring Little Lake to allow for the recreational uses that it supported through most of the twentieth century. We will work to support this goal…”

To see the whole story…  see below….

LSCCF has been planning to implement its permit to conduct a dredging project in the northwest portion of Little Lake.  Things were progressing well until an unexpected decision by the Vermont DEC put a stop to those plans and threatened the very future of Little Lake.  Here’s what happened.

The Bomb Gets Dropped

Perry Thomas, manager of Vermont DEC’s Lakes and Ponds Program announced at a Friday, October 21 meeting of Wells and Poultney citizens and board members from the LSCCF, the Wells Select Board, and the LSCA that the entire Little Lake area, over 100 acres of lake, had now been designated as wetlands under the wetlands protection act.

The Response

This announcement was received very negatively by the citizens of Wells and Poultney and the select board representatives present.  Dr. Thomas circulated a wetlands pamphlet and provided little explanation or data as to this dramatic decision.  The impacts on home values, tax base and accustomed use of the lake were raised by residents.  Dr. Thomas was asked why the wetlands staff responsible were not present to explain their decision.  She simply said they were invited but had declined to attend.  Dr. Thomas asked if there were data to refute the wetlands designation, and numerous citizens gave examples of boating, swimming and water skiing activities on Little Lake just a few years ago.  There are both maps and photographic evidence that Little Lake is indeed a lake and not a wetland over recorded history.

Following this meeting, several participants spoke with our House Representative Robin Chesnut-Tangerman.  Robin agreed to raise this issue with David Deen, chair of the House environment committee.  DEC’s extreme implementation of the wetlands legislation and the resulting regulation would be a danger to the local tax base, to existing lake restoration projects, and to the economy of the state. It was clear that state staff members had made these decisions without access to accurate data, public review and consideration of economic impacts.

Taking further action the following Monday, LSCCF president Bill Steinmetz then wrote to Laura Lapierre, DEC Wetlands Program Manager with copies to other members of DEC as well as legislators and senators.  Citing LSCCF’s currently held permits and ongoing projects, he asked for details about a “wetlands review,” which Perry Thomas now called a requirement to proceed under the new wetlands designation.  He further asked Lapierre to “explain your process and your legal basis for defining the possible need for a wetlands program review.  Please indicate what class of wetlands we are potentially affecting, when this class of wetlands was determined, the basis for that determination, including the relevant studies and data.”

The letter also conveyed that the Wells Select Board had asked him to strongly encourage her to provide a presentation in Wells, explaining wetlands regulations and the Wetlands Inventory Map currently available online.

The response came from Zapata Courage, DEC’s district wetlands ecologist, asking for details and illustrations regarding the LSCCF’s dredging project for DEC’s review.

It had become clear at this point that the state’s decision to designate Little Lake as a wetland was based on its assessment of the shallowness of the lake; their standard for defining a wetland was a depth of 2 meters (about 6.5 feet).  After receiving DEC’s depth map from Perry Thomas, Steinmetz responded to her, pointing out several incorrect measurements.  In fact there were numerous locations at 6.5 feet and quite a few over 9 feet in depth, and her own staff had already confirmed these measurements.  The message also refuted her erroneous assessment of the history of the lake with maps and other data.  Photos from the 1980’s showed clear water right off people’s docks where swimming was enjoyable.  He wrote, “We believe the apparent designation of Little Lake as a wetland is a mistake scientifically, historically and economically.  Is anyone in state government considering what this designation of wetlands will do to our lake front properties values, our tax base and our town’s economy?  These important factors must be considered in any final designation.”

Finally, it was emphasized that the continuation of the aeration program, combined with harvesting and dredging will bring back the lake to accustomed uses of boating, fishing, and swimming, and that such restoration should be the state’s priority—paid for and executed by the state.

At this point, on October 26, Senator Kevin Mullin lent his support to the LSCCF dredging project with a letter to Bill Steinmetz, Laura Lapierre and other staff members at DEC.  He asked to be kept “in the loop” and be invited to any meetings.  He showed further concern, recalling how long LSCCF has been working to restore the lake.  He said, “The last decade has to be very frustrating…it seems like for every step forward there are two steps backward.”

About this time, Michael O’Grady, Deputy Director, Legal Office of Legislative Council, responding to a query he had received from Robin Chesnut-Tangerman, sent a letter to Elizabeth Schilling of the VT DEC, questioning whether the new wetland designation was done in violation of a rule, and also pointing out that the Little Lake was currently listed in the state as a “public water.”  He noted that he had been informed that the designation was made without consulting the local people or giving them opportunity to comment.  He also said there was concern about the impact this designation would have on the property values bordering the lake.

Since Steinmetz had received O’Grady’s messages only as forwards from Chesnut-Tangerman, he contacted O’Grady directly He wrote about four main points:

  1. The degrading impact the wetlands designation would have on local economy, noting that a petition already existed wherein people were seeking tax relief based on the wetlands designation.
  2. The failure of the wetlands designation to recognize the accustomed use of the lake and to take into account the forces that contribute to the degradation of the lake.
  3. The blatantly inaccurate depth assessment shown on state maps that were used to determine the wetlands designation.
  4. The nullifying effect that the wetlands designation would have on the current success of the ongoing work of the LSCCF in restoring the lake through aeration and other permitted activities.

Senator Mullin sent a message to Michael O’Grady, supporting the work of the LSCCF in restoring the lake.  He said, “This is a dedicated group of property owners on the lake that have been working on this for over a decade.  The state has not given them the financial support that is necessary but they keep plugging along on their own.  They are smart, hard-working people who wish to protect the lake and the environment.  The Rutland legislative delegation wants to express our support for their efforts and do anything that we can to help.”

Another Rutland County Senator, Brian Collamore,  reinforced that with, “Senator Mullin is correct.  The legislative delegation in Rutland is very concerned about the proposed designation change of the Little Lake and stands ready to assist the property owners in any way we can.  It certainly seems the process has not included them up to this point.”

 The Reversal

             The next day O’Grady followed up with this notification to the concerned parties:  “Yesterday I received a voice mail message from Matt Chapman at DEC stating that the wetlands division was reversing its decision on the designation of Little Lake as a wetland. It will remain a surface water.”       Chesnut-Tangerman responded to this notice with “This is great news! I look forward to seeing the decision in black and white.”

The Aftermath

            The following day Steinmetz wrote a letter of gratitude to all those who had helped out, noting that the delay caused by this incident would likely cause the dredging project to be re-scheduled for next spring.  He further invoked their further assistance in dealing with DEC’s recent decision to deny a permit application for more aeration zones.  He asked further that these legislators and senator seek some closure on other issues that were still unresolved.

A final DEC message came from Pete LaFlamme, Director of the Watershed Management Division.  He clarified some points about the definition of wetlands, pointing out that “most of the area of Little Lake is not designated as wetland and will continue to be managed as a lake.”  While he still spoke of some wetland restrictions, his final words were encouraging:  “The Watershed Management Division appreciates the shared vision of the Wells Select Board, Lake St. Catherine Conservation Fund, and Lake St. Catherine Association of restoring Little Lake to allow for the recreational uses that it supported through most of the twentieth century. We will work to support this goal…”

Steinmetz followed up on October 30 one more time with a note to DEC about the additional aeration zones, asking them to review their decision to refuse the application and insisting that DEC’s assessment of lake depth, the efficacy of aeration as a deepening agent, and wetlands assumptions are all inaccurate.

On November 1 he also notified the other members of the Coalition of Vermont Lakes of this whole wetlands designation problem, and cautioned them to be vigilant, and to keep accurate records of depth and vegetation so that specific data would be available to them if they should face similar unilateral decisions by DEC.

November 7, 2016 lakematters News No Comments