State Agency Pulls Back On Environmental Protections For Black Gum Swamp

Mar 21, 2017

In a move that has drawn criticism from an environmental watchdog, officials in the administration of Gov. Phil Scott have withdrawn a petition that would have ensured heightened protections for a 28-acre wetland in southeast Vermont.

Audio for this story will be posted.

Efforts to protect an area known as the Black Gum Swamp in Vernon began in 2015, when the Agency of Natural Resources, under the administration of then-Gov. Peter Shumlin, initiated a process to re-classify the swamp as a Class I wetland.

It’s the state’s most stringent regulatory designation for wetlands, and would have prohibited almost any human disturbance in the protected zone, and created a 300-foot buffer around the swamp.

In late January, however, shortly before a legislative vote that would have made the designation official, the Agency of Natural Resources withdrew the petition. Jen Duggan, general counsel for the Agency of Natural Resources, says concerns from municipal officials in Vernon prompted the withdrawal. Vernon maintains a town forest with a trail system that directly abuts the Black Gum Swamp.

“We had received several concerns from town of Vernon about what kind of impacts that Class I designation would have on both their ability to build and maintain trails in those areas and also what the impacts to forestry activities would be,” Duggan says.

Duggan says the agency intends to re-submit the Class I wetlands petition once it resolves those concerns. And she says the reasons for withdrawing the Black Gum petition were driven in part to make sure other important wetlands could get Class I designations in a timely manner.

The vote by the Legislative Committee on Administrative Rules that would have finalized the Class I designation for the Black Gum Swamp also included heightened protections for three other wetlands. Rather than hold up a vote on those designations, Duggan says the agency decided to pull the Vernon wetland from the list and proceed with it at a later date.

"We had received several concerns from town of Vernon about what kind of impacts that Class I designation would have on both their ability to build and maintain trails ... and also what the impacts to forestry activities would be." — Jen Duggan, Agency of Natural Resources

“The agency stands by the actual determination that the criteria is met for designation of Class I [for the Black Gum Swamp],” Duggan says. “We always want to ensure we’ve done sufficient outreach to those stakeholders that are going to be impacted by any decisions.”

Jon Groveman, the water program director at the Vermont Natural Resources Council, says the process to designate the Black Gum Swamp as a Class I wetland has been going on for close to two years now. He says it’s “baffling” that it took until this late in the process for the concerns to surface.

“It still baffles me that it took until [the Legislative Committee on Administrative Rules vote] for these concerns to come to light, and to be so significant that they needed to scrap a year and a half to two years of work,” Groveman says.

Groveman says he’s also concerned about whether the agency will in fact resubmit the petition.

“We’re still in limbo, is kind of what I hear the agency saying,” Groveman says.

Asked by VPR Tuesday whether the agency could guarantee the resubmission of the petition, Duggan said the agency “intends” to pursue reclassification in the future, but that she “can’t say with certainty that the agency is definitely going to do it, or it will do it on a certain timeframe.”

Groveman says he’s also concerned about lack of government transparency over how the agency arrived at its decision. The Vermont Natural Resources Council recently requested records at the Agency of Natural related to the decision to withdraw the petition.

“I still think there are significant questions as to why this happened at all, and why it happened when it did.” — Jon Groveman, Vermont Natural Resources Council water program director

The agency withheld 33 documents, saying they’re exempt from the public records act under the attorney-client privilege exemption.

Thirteen of those withheld documents consist of communications between the agency and officials in Vernon.

“Just knowing there were these 13 communications with the town, back and forth, at the end of the process … it raises questions,” Groveman says. “I still think there are significant questions as to why this happened at all, and why it happened when it did.”

Michelle Pong, the town administrator in Vernon, says town officials have met with the Agency of Natural Resources since the petition was withdrawn, and that the outstanding issues have been resolved. Pong says the primary concerns dealt with the 300-foot buffer zone, and whether it would impede Vernon’s ability to maintain a trail network in portions of the town forest that fall within that buffer zone.

"There wasn't a lot of opposition to the spirit of the rule, it was more an issue of needing more clarification on what that meant and what restrictions that put on the town." — Michelle Pong, Vernon town administrator

“So there wasn’t a lot of opposition to the spirit of the rule, it was more an issue of needing more clarification on what that meant and what restrictions that put on the town,” Pong says.

Pong says the town also had concerns about whether it would assume liability for any damage that was done to the wetland once the Class I designation took effect. Pong says the state’s decision to withdraw the petition, and delay implementation, has delivered the comfort Vernon needs to move forward with the Class I designation.

“The state has come down and worked very closely with the trail committee that was set up recently, and the recreation department that manages the forest,” Pong says. “Thanks to the delay that happened and being able to work together, they’ve come to an agreement about where trails can be … They were able to complete mapping and get those details worked out before this rule went into effect.”

Groveman says even under the best of circumstances, it could still be some time before the Black Gum Swamp gets the protections that agency scientists say it deserves. The Agency of Natural Resources will have to begin the Class I designation from scratch, if it does resubmit the petition. Groveman says that process can take many months.

The Vermont Natural Resources Council has appealed the agency’s decision to withhold records related to the decision. Duggan says the agency will respond to that appeal Wednesday.