VNRC opposes proposed usage rule for Great Hosmer Pond

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VNRC opposes proposed usage rule for Great Hosmer Pond

Wed, 10/04/2017 - 11:21am -- tim

Vermont Business Magazine The Vermont Natural Resources Council (VNRC) announced their opposition to the draft proposed Vermont Use of Public Waters (VUPW) Rule for Great Hosmer Pond in Craftsbury and Albany VT. In a letter to the Department of Environmental Conservation (DEC), VNRC requested the immediate withdrawal of the VUPW rule based on significant concerns regarding the proposed rule’s legality.

“VNRC has a long history of working to ensure that Vermont’s public trust waters are properly managed,” said Jon Groveman, VNRC policy and water program director. “As former executive director of the Water Resources Board, I am very concerned that DEC is not implementing the VUPW program consistent with the rules and the precedent set for managing use conflicts.”

The DEC proposal to restrict the non-motorized use of rowing in favor of motorized use is in direct conflict with Vermont law that prohibits high speed motor boating within 200 feet of a shoreline. In a draft memorandum to the Vermont Secretary of the Agency of Transportation and the Vermont Commissioner of the Department of Motor Vehicles, the Vermont Secretary of the Agency of Natural Resources, Julie Moore, wrote: “[F]rom a policy perspective, ANR is concerned about codifying in rule specific times when high speed boating is more likely to occur without also giving boaters a means of legally traversing the length of the pond. Without an amendment to the 200-foot safety zone, it is likely that violations of the safety zone in the narrows will continue to occur, creating additional tensions between conflicting users, particularly between high speed boaters, and those opposed to the allowance of high speed boats on the pond.” ANR consequently sought to overturn a safety requirement to accommodate high speed uses on Great a Hosmer, a very narrow body of water, thus imperiling the safety of all others on the pond. 

In addition to safety and legal concerns over the proposed usage rule, there could be economic ramifications. Craftsbury Outdoor Center is an economic bright spot in the Northeast Kingdom, providing both jobs in the outdoor recreation sector and recreational opportunities for area residents.

“Given the Scott administration’s focus on building a strong outdoor recreation economy in Vermont, we’re surprised ANR would promote motorized use of the pond in a manner that has the potential to put Vermonters and our natural resources at risk,” stated VNRC Executive Director Brian Shupe. 

A group of citizens who recently formed the Friends of Great Hosmer to promote safe enjoyment of the pond by all users welcomed VNRC’s participation in the rule-making process. "The DEC's proposed rule is not just illegal, it's completely unnecessary and will hurt our community" said Gina Campoli, a member of the Friends organizing committee. "Motor boats and non-motorized users like scullers and paddlers would have no problem sharing the lake if the state would enforce existing safety laws.  The rule takes aim at the Craftsbury Outdoor Center’s rowing programs while not recognizing the potential negative effects on all other Hosmer Pond users."

To view the full letter sent to DEC Commissioner Emily Boedecker see below or visit http://bit.ly/GHP_VUPW.

October 4, 2017

Emily Boedecker
Commissioner
Vermont Department of Environmental Conservation
1 National Life Drive
Main Building, 2nd Floor
Montpelier, VT 05620-3520

Re: Proposed Rule for Great Hosmer Pond

Via E-mail

Dear Commissioner Boedecker:

Introduction
The Vermont Natural Resources Council (VNRC) is writing to express significant concerns
about the legality of the Department of Environmental Conservation’s (DEC) draft proposed rule
for Great Hosmer Pond. VNRC is intervening in this matter as an organization with a long
history of working to ensure that Vermont’s public trust waters are properly managed in
accordance with applicable laws. In addition, VNRC’s comments are made on behalf of our
members that use and enjoy Great Hosmer Pond, including many individuals who comprise the
Friends of Great Hosmer Pond. Based on the legal issues raised below, VNRC requests that DEC
withdraw its draft proposed rule for Great Hosmer Pond.

Legal Deficiencies with Great Hosmer Rule
VNRC has identified a number of legal deficiencies with the draft amendment to the Vermont
Use of Public Waters (VUPW) Rules regarding Great Hosmer Pond. Most of these deficiencies
are based in DEC’s failure to follow the VUPW Rules. My analysis of the draft Great Hosmer
Pond VUPW rule is informed by the fact that I was the Executive Director of the former Water
Resources Board (WRB), which administered the VUPW Rules before the WRB was eliminated
by the Vermont Legislature in 2004. I am very concerned that DEC is not implementing the
VUPW program consistent with the rules and the precedent set by the WRB for managing use
conflicts that were developed over the almost 30 years that the WRB was responsible for the
program.

The following are legal issues with the draft proposed rule:
1. VNRC questions ANR’s authority to propose a VUPW rule on its own motion without
the filing of a petition. The VUPW Rules establish the petition process for a citizen or
group of citizens in Vermont to request that state government address use conflicts on
lakes, ponds and reservoirs. VNRC is not aware of the WRB ever proposing a
comprehensive VUPW rule governing uses on a waterbody on its own without a citizen
petition.1 As described below, one reason for this is likely that a significant amount of
information must be presented to develop a complete Petition under the VUPW Rules.
By taking on the responsibility of proposing a VUPW rule, the DEC has also taken on
the burden of meeting the petition requirements for proposing a VUPW rule. DEC’s
draft Great Hosmer Pond VUPW rule fails the meet the basic requirements for filing a
VUPW petition.
2. Even if DEC has the authority to propose a VUPW rule on its own motion, DEC must
follow the requirements for proposing use restrictions on lakes, ponds and reservoirs set
forth in the VUPW Rules. Nothing in Vermont statutes or the VUPW Rules indicates
that DEC is exempt from following the substantive or procedural requirements for the
regulation of uses on Vermont waters.
3. The VUPW Rules require that ANR consider the following factors: “the size and flow of
navigable waters, the predominant use of adjacent lands, the depth of the water, the
predominant use of waters prior to regulation, the uses for which the water is adaptable,
the availability of fishing, boating and bathing facilities, and the scenic beauty and
recreational uses of the area.” Vt. Admin. Code 16-5-102:2.2(a), VUPW Rules § 2.2 (a);
see also 10 V.S.A § 1424(b). VNRC has reviewed the record of the proposed draft rule
on DEC’s website and the records DEC has provided to VNRC in response to our
request to access documents related to this matter. VNRC has not been able to identify
that DEC has gathered and analyzed any of the information required by VUPW Rules §
2.2 (a). To the contrary, a review of the documents provided to VNRC indicates that
DEC has essentially taken suggestions proposed by individuals seeking to limit rowing
on Great Hosmer Pond, and is putting those suggestions forward without providing any
basis for the draft rule as embodied in the factors set forth in VUPW Rules § 2.2 (a).
DEC’s failure to produce the information set forth in VUPW Rules § 2.2 (a) makes the
proposed rule contrary to law (it does not meet the requirements of the VUPW rules)
and arbitrary.2
4. Under VUPW Rules § 2.1 (a), unless “public safety or emergency situations require
otherwise, or for other good cause,” the initial public meeting regarding a proposed rule
affecting summer recreation must be held during the months of June through September.
Accordingly, unless DEC identifies safety issues, and emergency or good cause, the
process to consider a proposed rule on Great Hosmer Pond cannot begin until June of
2018 or it would be contrary to law.
5. The VUPW Rules clearly state that the petitioner has the burden of persuasion to prove
that a use restriction on a given waterway is warranted. VUPW Rules § 3.7.
Accordingly, absent a petition, DEC has taken on the burden to prove that restricting
rowing meets the requirements of the VUPW Rules and appropriately balances uses on a
public trust water. VNRC argues that meeting this burden is of particular importance in
this case because this represents the first time that VNRC is aware of the state of
Vermont proposing to restrict the use of non-motorized boating in favor of motorized
boating.
6. The UPW rules require that DEC “identify all normal uses affected by the petition and
include a statement as to why the petition complies with Section 2 [of the VUPW Rules]
and applicable statutory requirements.” VUPW Rules § 3.7(b)(1). As noted, DEC has not
provided any analysis or data to demonstrate how the proposed rule meets the criteria of
Section 2 of the VUPW Rules. Moreover, DEC has provided no analysis of what the
“normal uses” on Great Hosmer Pond are, nor has DEC shown the proposed rule
appropriately balances these uses. Absent this information, the proposed rule put
forward by DEC is arbitrary and contrary to law.
7. DEC seems to recognize that its proposal to restrict the non-motorized use of rowing in
favor of motorized use is in conflict with state law that prohibits high speed motor
boating within 200 feet of a shoreline. In a draft memorandum to the Vermont Secretary
of the Agency of Transportation and the Vermont Commissioner of the Department of
Motor Vehicles, the Vermont Secretary of the Agency of Natural Resources wrote:
“From a policy perspective, ANR is concerned about codifying in rule specific times
when high speed boating is more likely to occur without also giving boaters a means of
legally traversing the length of the pond. Without an amendment to the 200-foot safety
zone, it is likely that violations of the safety zone in the narrows will continue to occur,
creating additional tensions between conflicting users, particularly between high speed
boaters, and those opposed to the allowance of high speed boats on the Pond.” This
statement is an admission by DEC that it is proposing to promote motorized use of the
pond in a manner that will likely create safety risks is in direct contravention of the
VUPW Rules. Moreover, DEC’s concern about the 200 foot rule demonstrates their
understanding that the Pond is unsuited for high speed motor boat use. DEC’s interest in
overturning the rule signals to the public a lack of regard for the safety of swimmers,
paddlers, and other non-motorized users.

Conclusion
As set forth above, there are clear and significant legal deficiencies with the draft VUPW rule for
Great Hosmer Pond proposed by DEC. If DEC proceeds to move the draft rule forward into the
rulemaking process, VNRC will, at a minimum, continue to raise these objections throughout the
rulemaking process. Moreover, if DEC adopts the rule without addressing these deficiencies,
VNRC will challenge the final rule in court.
As former Executive Director of the WRB, I am extremely concerned about the manner in which
DEC is implementing the VUPW program. The WRB developed the VUPW Rules and program
to be a petition driven process that relied on people who use and live near the Vermont waters in
question to gather the information necessary to create a complete petition. As a result, conflicts
were often resolved, and almost always ameliorated, by the fact that petitioners were required to
collect data, interact with other water users, and craft a thoughtful proposal.
By proposing a rule on its own, without the benefit of the petition process, DEC has not only
failed to meet the minimum requirements of the UPW rules, but has also exacerbated an already
difficult situation on Great Hosmer Pond. Accordingly, VNRC reiterates our request that DEC
withdraw the draft Great Hosmer VUPW rule.

Please contact me if you have any questions.

Sincerely,
Jon Groveman
VNRC Policy and Water Program Director

cc: Gina Campoli
Judy Davis

1 In at least one case, the WRB found that it does not have the authority to initiate rulemaking in the absence of a
petition, In re Lake Raponda (Wilmington) No. UPW 72-07, Memorandum (Apr. 7, 1976).

2 The WRB rejected petitions that failed to include the information required by the UPW rules. See In re Lake
Bomoseen (Castleton, Hubbardton), No. UPW 91-02, Memorandum (May 13, 1991) (Board cannot act based on
limited information in petition; memorandum states requirements); In re St. Albans Bay Mooring Management Zone
(St. Albans; Lake Champlain), Unnumbered, Letter (May 17, 1988) (Board cannot act based on limited information
in petition); and In re Cole Pond (Jamaica), No. UPW 87-05, Letter (Oct. 7, 1987) (Board cannot respond to
“generalized concerns” expressed in petition; statute contemplates that petitioners will identify a specific regulation
that it seeks Board to adopt).

Source: VNRC. 10.4.2017

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