[A] leading Vermont environmental group is threatening to sue the state, saying a proposed rule limiting rowing and sculling on Craftsbury’s Great Hosmer Pond fails to meet several requirements set out in state law.
A letter by Jon Groveman, policy and water program director for environmental group Vermont Natural Resources Council, to the Department of Environmental Conservation, spells out criticisms of the rule and the process by which it was developed.
The state rule, which would bar rowers and scullers from using the pond between 1 and 4 p.m., and again between 7 p.m. and sunrise, would be the first to issue a prohibition against non-motorized boating in favor of motorboats, Groveman wrote.
Groveman formerly served as executive director of the state’s Water Resources Board, which until 2012 was charged with writing water-related rules.
Emily Boedecker, commissioner of the Department of Environmental Conservation said she would issue a response to VTDigger about the VNRC letter by email. When asked to comment on the letter, Boedecker said she could do so only through email. Boedecker had not responded to questions four hours later, when this story was published.
Boedecker said previously that she intended by the end of September to file the proposed rule with the Interagency Committee on Administrative Rules, but Hosmer Pond is not currently on the committee’s schedule.
The proposed rule is supposed to originate with Vermonters who identify an issue that needs fixing and petition to have a rule made — not with state officials, Groveman said.
The petition is supposed to be accompanied by an analysis justifying the rule, Groveman said. None of that information has been provided, he said.
“There’s been no information except for anecdotal information and stories from people, and that’s not enough” to justify a rule limiting use of public waters of the state, Groveman said.
Other citizens have already asked DEC to withdraw the rule, and DEC continues to move forward with it anyway, Groveman said.
“This is not how this process is supposed to go,” he said. “The agency is not following the rules, and it doesn’t have the right information.
“Given all the controversy it’s caused, and the fact that it’s illegal, they need to draw back,” Groveman said. “If they go forward, we’re just putting [DEC] on notice: this is legally flawed.”
The proposed rule is unusual in several regards, Groveman wrote in his letter.
It appears to be the first comprehensive rule governing Vermont public waters that was initiated without a public petition, Groveman said.
It’s unclear whether DEC intends to serve as the rule’s petitioner. If so, the agency hasn’t filed the information petitioners are required to submit in order to begin the rulemaking process, Groveman said.
The Agency of Natural Resources, of which the DEC is a part, must by law consider an array of factors having to do with how the lake and surrounding land are used and how they might be used, and nobody appears to have done so, Groveman said.
“To the contrary,” he wrote, “a review of 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 doing so.
The proposed rules largely follow suggestions made by Chittenden County State’s Attorney Sarah George, whose family owns several camps on the pond, and who has sought to restrict scullers and rowers from the pond in her personal, and not professional, capacity.
Craftsbury Outdoors Center, a local nonprofit, uses the pond for sculling training and classes. The center’s use of the pond has limited motorboat access to Great Hosmer, George and other property owners on the lake have said.
George has said that she is one of only a handful of motorboaters who regularly use the pond, and said she’s the only person who regularly water skis on the pond.
But the pond is only 90 feet wide at its narrowest point, and is a skinny, long lake across its entirety. There is a Vermont law that states that motorboaters can’t exceed five miles per hour when they’re within 200 feet of the shore, and almost all of Great Hosmer Pond falls within that area, sometimes called the “shoreline protection zone.”
If they were following the law, motorboaters would be able to exceed five miles per hour only while doing circles inside of two small areas on either end of the lake. Waterskiing adults require speeds approaching 20 mph, according to the sport’s governing body, USA Water Ski.
Motorboaters on Great Hosmer Pond regularly violate that law, Agency of Natural Resources secretary Julie Moore wrote in a draft memo to other members of Gov. Phil Scott’s administration earlier this year. But rather than enforce the law, which is the purview of the Department of Motor Vehicles, Moore’s draft letter sought to have the law changed.
Moore reasoned that motorboaters ought to be able to legally speed across the surface of the pond, and through its narrowest point, if the agency is to bar scullers and rowers.
This memo itself is an admission by the ANR, that motorboating can’t be done on Great Hosmer Pond without abridging or violating current safety rules, Groveman said. The Department of Environmental Conservation is part of ANR.
“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,” Groveman wrote.
The DEC hasn’t explained, as is required in the rulemaking process, how the proposed rules would balance these and other uses occurring on the pond, Groveman said. DEC’s failure to have taken these and several other steps required for rulemaking “makes the proposed rule contrary to law… and arbitrary,” Groveman wrote.
“If DEC adopts the rule without addressing these deficiencies, VNRC will challenge the final rule in court,” Groveman wrote.
Groveman’s letter also states that DEC can’t legally begin the formal rulemaking process before next summer.
The letter asks Boedecker to withdraw the rule from consideration.
