WESTMINSTER — The state Agency of Natural Resources has cited four alleged violators for dumping “hundreds of cubic yards” of fill material over a steep embankment on land owned by the town of Westminster.
This resulted in excessive soil runoff into Newcomb Brook from a side road off the Westminster Heights Road, and just north of the new Vermont State Police barracks construction site.
Naylor and Breen Builders, Inc., of Brandon, Fitzpatrick Excavating and Trucking, LLC, Roger Farnsworth of Westminster, and the town of Westminster were named as violators in the April “Notice of Alleged Violation” (NOAV).
The washout consists of a 100-foot section of the access road that runs along a steep embankment, to the north of the construction site for the State Police barracks.
At the bottom of the steep ravine flows Newcomb Brook, where the silt run off from the fill dumped by Farnsworth can be seen to cut several feet deep by the brook, and is clearly visible at the foot of the steep pitch. Large trees hang precariously by roots barely clinging to the bank, amid clay, rip rap, and muddy soil that runs into the brook.
Town Manager Russell Hodgkins told The Commons that a resident saw the runoff into the brook and reported it to the Selectboard earlier this year, that led to a NOAV from the Agency of Natural Resources.
Hodgkins said he was unsure of when the original washout occurred, leading to repairs by Farnsworth, the adjacent landowner.
Sometime after that, Hodgkins said rain washed “hundreds of cubic yards of dirt” into the brook below the access road where the repair occurred.
The excessive runoff that caused the soil to enter the brook down the steep embankment appears to be directly related to the construction of the new State Police barracks, which is going in just south of the alleged violation.
This led to confusion over who was responsible, and whether a violation occurred.
According to the NOAV, the violation took place when the washout was repaired and much of the fill ended up in Newcomb Brook by Farnsworth, who, according to Hodgkins, took it upon himself to mitigate the washout thinking it was his right to do so.
“It was a mistake,” Hodgkins said, and recent land transfers related to the new VSP barracks added to the confusion. Hodgkins said the property boundaries - where town land ended and Farnsworth's private property began - also resulted in regulatory differences for town owned land versus private property, and a subsequent violation occurred.
“If (Farnsworth) had owned the property where the repairs took place, there would not have been a violation,” he said.
But since the town owns the property, any activity on it was regulated by ANR, resulting in a violation that now Farnsworth must mediate with the state and town to resolve and determine his responsibility.
According to Hodgkins, the confusion came in the wake of the land transfers to the state for the site of the new VSP barracks.
“Farnsworth thought it was his land,” he said.
But Hodgkins said it was actually owned by the town of Westminster, he said Farnsworth “owns adjacent land” accessed by appropriately named Farnsworth Road.
“We found what we assumed was the property line,” making the case that “Farnsworth (had been) dumping illegally on our land.”
When the washout occurred, “Roger had taken full responsibility to mitigate,” the damage, Hodgkins said.
“He hired an engineer,” whose design failed to comply with State regulations, because it was actually town not private property.
The town manager explained that the washout damage occurred when water from the state property and a retention pond, and washed over the embankment onto Westminster town land.
Farnsworth, allegedly thinking it was his right as a contiguous landowner to mitigate the access road washout, took steps and hired an engineer for repairs. But the land belonged to the town.
Subsequently, according to Hodgkins, Farnsworth had some disagreements with the mediation with the state Department of Environmental Control (DEC) following the NOAV.
Nevertheless, Hodgkins assured that all parties involved are, “trying not only to mitigate this problem, but to negotiate a permanent solution to runoff in the event of future storms.”
While the case is still open, ANR has declined to comment, and Farnsworth's phone appeared disconnected.
Robert Rea, State Director of Facilities and Operations, said that the state is cooperating with the DEC with mitigation plans from the VSP barracks site, even though the state-owned facility was also not cited in the violation.
Because of its contiguous location, and the possibility that the runoff from the construction site was in part responsible for the washout, “We want to be good neighbors,” he said, and the State is fully cooperating with the DEC in finding the best permanent solution.
But when DEC became involved, “Farnsworth disagreed with his mediation,” Rea said.
Willing to accept it at first, “After the fact, he did not want to take responsibility for what he felt was caused by the state's new building,” of the VSP barracks.
Rea said that while the state of Vermont was not listed in the violation, but admitted that, “the water from our site overflowed during a(n undetermined) storm event, and washed over from the site (and down the embankment), and apparently it did occur while under construction.”
Property lines are still at the heart of who is responsible.
“We own our property which is well marked; and then there is a section that is in question that is owned by the town where the violations occurred,” Rea explained.
Hodkgins said, “There would not have been a violation had the Ssate followed (proper protocol and) their stormwater permit been in place.”
Hodgkins explained with a state facility, “They were supposed to retain the water in their stormwater permit.” The water should be “treated on site and put back into soil.”
But the state-contracted engineer made a rather large mistake in soil evaluation, both Rea and Hodgkins admitted, and did not think the soil makeup required a permit for a detention pond, and designed a retention pond, instead.
This did not control the flow of water enough, and likely contributed to the washout of Farnsworth Road.
The state permit for a detention pond instead of a retention pond, which treats it and slows discharge water down, equalizing the flow out of the pond, is in the works.
At present, Rea said, “We are within days” of stabilizing the area with the necessary culverts and materials. However, Rea said he has not seen the final DEC permit for their detention pond mitigation.