STATE FRUSTRATED WITH SWANTON’S INACTION ON LEAKY DAM
Swanton officials say they don’t plan to fix a broken dam that environmental advocates say threatens an endangered species of fish. Meanwhile, state regulators say they’re investigating ways to correct the problem.
The dam, owned by Swanton village, has a leaky sluice gate, which means that when the reservoir’s water level sinks below a certain point, the leaking gate diverts water that would otherwise flow over the dam and sustain the fish below.
The Department of Fish and Wildlife has for four years urged Swanton managers to fix the gate, after a small section of the Missisquoi River below the dam dried out and a number of fish died.
Among those fish were stonecats, which are listed by the state of Vermont as an endangered species. Since this creature lives in only two locales in all of Vermont, conservationists fear Swanton’s leaky sluice gate further hurts a fish that has nowhere else to go.
Swanton’s town manager at first said the village can’t fix the dam.
The village, he said, entered a contract in January with a North Bennington developer who is researching whether the town can generate energy from the dam. This contract, according to Swanton Village Manager Reg Beliveau, prevents Swanton from repairing the dam.
“The project’s now in the hands of the developer,” Beliveau said early last week. “We signed the (request for proposals), so it’s not in the hands of the village anymore.”
Clean water advocate James Ehlers, of Lake Champlain International, said he doesn’t buy it.
“He’s full of (inaccuracies),” Ehlers said in response to Beliveau’s claim.
“His arrangement with a private contractor has zero bearing on their responsibility to the public trust,” Ehlers said. “I would love to see the legal opinion that substantiates his position, because it doesn’t (at all) exist.”
The developer, Bill Scully, said he’s unaware of any provision in his arrangement with Swanton village that prevents the municipality from repairing the dam.
In a subsequent conversation Friday, Beliveau said he misread the contract and that the village still retains the authority to maintain the dam.
Scully is traveling to Swanton within weeks to discuss possible repairs to the sluiceway, Beliveau said Friday.
Beliveau said he worries that closing the sluice gate leaks could prevent walleye migration. A member of one of Vermont’s fishing associations told him fish use the sluiceway as a passage, he said.
“We’ve got to be sensitive to that. If we plug it we eliminate a path for them to go upriver and spawn,” Beliveau said.
Beliveau’s characterization is contradicted by Vermont’s 2016 Lake Champlain lake sturgeon recovery plan, published by the Department of Fish and Wildlife.
The plan says the dam prevents entirely the upstream migration of not only walleye, but sturgeon, suckers, redhorse, esocids, minnows and other fish found in Lake Champlain that historically migrated up the Missisquoi River. Fish and Wildlife Commissioner Louis Porter confirmed that the Swanton Dam bars upstream migration of walleye and other fish.
The sturgeon recovery plan recommends the dam’s removal for that reason.
An investigation into the issue of dewatering below the dam was initiated recently by both the Department of Environmental Conservation and the Department of Fish and Wildlife, after water flows dropped to 100 cubic feet per second — lowering the impounded waters to a level Ehlers said could dry out fish habitat below the dam.
Ehlers said he’s frustrated that state officials seem unwilling to enforce the law, but state officials involved said they’ve been trying for years to remedy the situation.
State law gives authority to the Department of Fish and Wildlife to tear the dam down if it obstructs the free passage of fish.
Porter said he doesn’t plan to put that authority to use. He said he’s not aware of any commissioner having used the power before and that “there would be a lot of considerations to be made before anyone can exercise this authority.”
The Department of Fish and Wildlife first told Swanton in 2012 to repair the dam, after a significant fish kill caused when the leaking sluice gate diverted all the water that would have flowed over the top of the dam, said Eric Palmer, the department’s director of fisheries.
The event killed stonecats and many other species, Palmer said. The size of the fish kill brought the matter to his department’s attention, and staffers’ concerns were raised because the kill involved an endangered species, he said.
Swanton still hadn’t repaired the leaking sluice gate in 2015, when the department again contacted village managers and somewhat more forcefully requested their assistance.
“Last year we sent a letter to (Beliveau) and said, ‘You’re kind of on notice, you need to fix (the dam), and if you don’t and there’s another fish kill, there might be fines and penalties,’” Palmer said.
The department has received nothing from Swanton indicating the village intends to correct the problem, Palmer said.
The most obvious way Swanton might run afoul of the law is contained in the state’s threatened and endangered species legislation, Palmer said. Under that section of law, violators receive fines and penalties after they’ve killed threatened and endangered organisms.
But other legal avenues may exist as well, and they may allow enforcement to proceed even before more fish die, said the director of the Department of Environmental Conservation’s enforcement division, Kim Greenwood.
The enforcement division is seeking legal redress because Vermont’s rivers are protected as a public trust, Greenwood said. “That means you can use it to an extent that doesn’t impact it,” she said. “You can take water out of the river, but not to a point that it impacts fisheries or recreation.”
Despite that obligation, Greenwood said state regulators still aren’t sure under what legal authority they might compel Swanton to fix the leaking dam.
It’s not clear who is obliged to maintain adequate water flow, she said. Given that the investigation started just days ago, she said, “It’s far too soon to say we can’t do anything.”
Beliveau said he doesn’t know how much it would cost to fix the sluice gate, but Palmer said it should be reasonably straightforward and likely not cost more than $100,000.
Some form of dam has been in place in that location since the 1700s, Beliveau said, and Swanton officials hear frequently from critics of the dam who’d like to see it gone.
He said the agencies he’s spoken with at the state indicated they’d pay to tear the dam down but said “emphatically no” when he sought money to repair it.
The village is being unfairly criticized for the dam’s poor repair, Beliveau said.
“Swanton is part of the river, it’s part of the lake,” he said. “There’s nothing we want to do more than preserve our lake and natural resources here.”