Act 250 permit for Chester water tank restricts gravel extraction plan

By Shawn Cunningham
© 2017 Telegraph Publishing LLC

On Friday, the District #2 Environmental Commission issued a permit to allow Chester to build a water tank and transmission line on 139 acres of land east of Green Mountain Union High School.

But the Act 250 permit seems likely to make further development on the site – including gravel extraction – more difficult by limiting its size and location.

While the permit will let the construction of the tank and water line begin, it has placed more strict limitations on disturbing deer wintering area than those agreed to between the town and Vermont’s Fish & Wildlife Department.

Chester had spent last spring and much of last summer negotiating with the agency to reach an agreement to preserve deer wintering area and fix an existing violation.

On Aug. 30, the Chester Select Board approved a settlement that would have it reclaim an area excavated after Tropical Storm Irene that was not reclaimed by the previous owner. The settlement also limited the area that could be disturbed in the future to up to 8 acres.

At that meeting, Select Board member Arne Jonynas asked Naomi Johnson, an engineer with Dufresne Group, which  has been involved in the project since the beginning, if the agreement would wrap up the permitting process.

Johnson told the board that “all indications” pointed to it being accepted as a minor amendment that would not require a hearing.

“So they’re waiting for this, for the final part of the whole puzzle to come together for the tank?” asked Jonynas.

“Yes,” said Johnson.

But rather than approving the plan with a minor amendment, the District Commission decided to take a closer look and held a hearing with a site visit on Oct. 7. Commissioners were specifically concerned with the destruction of deer wintering area that occurred during the Irene excavation and the further bisecting of the area by a 900-foot long road leading to the tank.

In the end, the commission decided to allow the tank and the road and up to 5 acres of further development with the proviso that those acres must be “compact” and “fully contiguous” with the areas already disturbed.

That comes as a blow to Town Manager David Pisha’s 20-year plan to extract from an oblong shaped 5 acre site several hundred feet to the east of the Irene extraction and then a 3-acre site connecting those two sites.

Asked to comment on the stricter language and the town’s plan to deal with it, Pisha said he could not say anything on the subject until he speaks with town attorney Jim Carroll. As of Tuesday at the close of business Pisha had not.

Throughout the run up to the September town wide vote on the water project, Pisha and  engineer Naomi Johnson had repeatedly said that the Act 250 permit process would be simpler for a municipal project like the water tank,  and it appears that no one saw this result coming.

“I don’t see why they would do that,” said Pisha on Tuesday morning, “two people worked for eight months to come to an agreement. Fish & Wildlife was happy, the town was happy.”

Johnson looked at the permit from a different perspective. “I am the towns water system engineer” Johnson told The Telegraph  on Tuesday, “and from that viewpoint, there were no restrictions imposed on construction of those improvements  beyond what was negotiated with Fish & Wildlife.” Johnson said the discussion of other development including gravel extraction came up because the agency was aware of the property’s history and the town’s publicly discussed plans. Johnson also said  she was surprised at how long the Act 250 process took.

In addition to gravel extraction, the development limitations also call into question a number of other uses that had been discussed during the planning of the project including a possible site for a town garage, hiking trails, timber resources, ecological enhancements and even a subdivision of housing lots.

The commission made it clear in the permit that any other development would require a separate application and be “fully reviewed by the District Commission.” The commission also noted that future development may be subject to rule 34(e) known as “Stowe Club Highlands Analysis” for the case from which it became a legal precedent.

The rule governs whether a previously imposed permit condition may be amended. It was under this analysis that an earlier Act 250 commission rejected that quarry that the previous owners – Mike and Amy O’Neil – proposed back in 2006.

In addition, other restrictions were placed on logging, plowing the new road to the water tank and public access every year between Dec. 15 and April 15.

The commission’s decision could be appealed to the state’s environmental court, which would put the project on hold, probably for months.

At the Dec. 21 Select Board meeting, Pisha said he was concerned that the permit would not come before the end of December since contract prices had been extended to then, after which the job would need to be rebid, and that could mean higher costs.

On Tuesday, Johnson said that the bids for the construction that the town had received last year are still valid and construction could go forward or the contractors could be asked to extend prices to give the town time to appeal.

An appeal would also be likely to add substantially to the cost of the project.