[S]tate officials have said a homemade dam in Craftsbury violates state regulations, but they’re struggling in their removal efforts because of a verbal assurance the state’s former rivers engineer is said to have given about a decade ago.
The now-retired state official told the man who built the dam in Seaver Brook that he could do so without obtaining permits, the attorney for the dam builder said recently. That permission carries the force of law, the attorney said.
Biologists from both the Agency of Natural Resources and the Department of Fish and Wildlife have said the dam needs to come down, and soon.
The agency’s top attorney has said the dam also violates multiple state laws.
“Agency staff have made several site visits to the property,” ANR general counsel Catherine Gjessing wrote June 10, 2015. “They observed that at times there is minimal flow over the dam, that a significant portion of the stream flow is diverted through a stand pipe to another location, and that the stone dam is a barrier to fish passage at any flow level and water diversion rate.”
“The dam and stream flow diversion are violations of both Fish and Wildlife statute and Department of Environmental Conservation regulations,” Gjessing wrote.
That’s not what ANR’s former river engineer, Barry Cahoon, told the man who built the dam, Conrad Masse, according to Masse’s attorney.
“If the Agency of Natural Resources were to file an enforcement action against Mr. Masse, one position we’d take is that the agency is collaterally estopped from bringing an enforcement action, because he had permission from an Agency of Natural Resources officer to put in that diversion and put in that obstruction without a permit,” said Brice Simon, an attorney with Stowe-based firm Breton & Simon PLC.
Collateral estoppel is a legal principle barring parties to a dispute from relitigating certain types of issues.
Cahoon “told Mr. Masse in no uncertain terms that he could install (the structures) without a permit,” Simon said.
The collateral estoppel defense wouldn’t work perfectly, since Cahoon didn’t set down in writing that the dam needed no permits, but Masse remembers the conversation “in vivid detail,” Simon said.
Construction on the dam took place in 2006, documents show.
Cahoon has retired, and his departure had nothing to do with the supposed verbal agreement, Gjessing said. Efforts to reach Cahoon were unsuccessful.
Gjessing said she could not confirm any such agreement took place, citing concerns over an ongoing investigation.
But an email Cahoon sent July 18, 2014, states that the 2006 dam construction merely buttressed an existing dam that had been built in the 1990s. That original dam predated state regulations that would today forbid its construction, Cahoon wrote, so the state had no authority to prohibit what Cahoon described as a “modification” in 2006. Cahoon did say in that email, however, that although the 2006 construction may not have violated state law, the resulting impediment to fish passage might.
The structures built in the stream consist of a dam and a pipe whose inlet is submerged just upstream of the dam. The pipe diverts water to several fish ponds on Masse’s property. Masse breeds fish in the ponds, Simon said, and without the diversion his fish will die. Numerous Vermont streams have been stocked with fish Masse raised in the ponds, Simon said.
Masse in the past sold the fish, but he now simply enjoys having them there, Simon said.
Masse is trying to build a fish ladder to allow fish to freely move around the structure, Simon said. Emails Simon wrote to the state say Masse recently installed a steel plate over the pipe’s intake to reduce the volume it diverts from the stream.
It’s not clear the latter measure will actually fix the problem, Gjessing told Simon in an email earlier this month.
Even when partly blocked, the pipe may still divert more water from Seaver Brook than would allow the stream to meet minimum required flow volumes, Gjessing said in the email.
Masse intends to have plans for a suitable fish ladder designed within two weeks, Simon said.
Gjessing would not say what enforcement measures the agency might take if a solution isn’t reached soon, but she did warn Simon last month that the agency is contemplating enforcement action as a result of delays on Simon’s part. Gjessing in March told Simon the agency wants an acceptable plan in place by this summer to bring the stream into compliance with state law.
Compliance will require Masse to have both a wetlands restoration plan and a stream alteration permit, Gjessing told Simon in September. As far as she knows, Masse has yet to file either document, Gjessing said Thursday.
State statute gives Fish and Wildlife Commissioner Louis Porter the authority to remove dams and other obstructions that prevent the passage of fish. Porter said he couldn’t comment on an ongoing investigation.
However, in the context of another Vermont dam, Porter said recently that no commissioner had used that power to remove a dam, to his knowledge. Porter also said his office would need to take into account any number of uncertain considerations before acting under that law’s authority.
Masse’s son, Mark Masse, originally contacted the state regarding the dam, and Simon characterized the entire dispute as stemming from a falling-out between father and son.
Mark Masse said his father is “an all right guy” with whom he has no problem. Mark Masse said he called the state after a fisherman told him the dam — which sits on Mark Masse’s property — isn’t legal. The dam blocks trout from habitat upstream that he wants to restore, Mark Masse said.
