SERIOUS VIOLATION OF ENVIRONMENTAL LAW CORRECTED THANKS TO THE COALITION
Visitors to Stony Creek Valley or Second Mountain Hawk Watch via Cold Spring Road may have noticed a newly bulldozed "road" heading west from Cold Spring Road along the top of Second Mountain. This is a fire break cleared by Fort Indiantown Gap in the Fall of 2006. The break is roughly one hundred feet wide and approximately seven miles long, representing clearing about 84 acres of land. The fire break trends along the property line between the Gap and the State Game Lands, at times straddling the boundary and at others entirely on one or the other property.
(Officials at the Gap reported that they plan to replace the boundary markers in the future; we hope the Game Commission sees that it is done).
Gap officials acknowledge that substantial earthmoving occurred on State Game Lands in the Stony Creek watershed and stated that the Game Commission was aware of this project. In fact they stated that the Department of Conservation and Natural Resources (DCNR—the agency sharing responsibility with the Game Commission for protecting Stony Valley) had asked for the clearing because the existing fire break was so overgrown that when a fire started on Gap property last spring (which we had earlier reported was due to the Gap ignoring high fire danger conditions and using tracers during training), it did not stop the fire from spreading into Stony Creek Valley. The result of that negligence was over a hundred acres of Game Lands charred.
The Coalition became concerned about this large construction project when we discovered that the Gap had not applied for the necessary permit under the federal Clean Water Act and the state Clean Streams Law. Specifically, section 102.5 of the state environmental regulations (Pa. Code Title 25) requires anyone proposing an earth disturbance activity of over five acres to apply for and obtain an "NPDES Permit for Stormwater Discharges Associated with Construction Activities" prior to starting the project. (The NPDES Program is a national program established under the Clean Water Act. In Pennsylvania, it is administered by the state DEP.) When questioned about this by our members, Gap officials said that they didn’t think any permits were necessary.
Once we confirmed that no permit had been obtained, we brought the situation to the attention of the Lebanon County Conservation District, which is in charge of the construction activity permitting program in the county. At that point, the story changed. Now, the fire break was called a "road" and the 84 acres of bulldozing (including the toppling of many trees) was called "road maintenance." However, even if that story were true, the regulations require that road maintenance over 25 acres requires an E&S Control Permit (a somewhat simpler one than the NPDES Permit discussed above), which the Gap had also not obtained.
The Conservation District officer reported that after viewing the site, he "chastised" Gap officials for doing the project without a permit. However, he did not take any further action, apparently because he thought that the Gap had done a responsible job of erosion control on the project. (It is not clear how much of the seven mile-long project was actually inspected by the Conservation District officer. Some of our members reported seeing areas with some obvious soil erosion.)
Not satisfied with these changing stories and alarmed by the lack of concern about compliance with the environmental laws by virtually everyone involved, we contacted the state Department of Environmental Protection, and found out that no one from the Gap, the Game Commission, DCNR, or the Conservation District had ever checked with them about this project. We promptly filed a formal complaint with DEP.
In response to our complaint, DEP officials discussed the situation with the Conservation District officer who had inspected the project and confirmed that a permit was required. However, since the damage had already been done, DEP merely directed the Gap to prepare the plans that would have been required by the NPDES Permit: an Erosion and Sedimentation Control Plan for the earthmoving itself, and a post-construction, long term erosion management plan to avoid future problems with sediment runoff into Stony Creek.
We understand that once compliance was demanded, the Gap responded promptly and delivered an acceptable set of plans to the Conservation District within a couple weeks of receiving the order. Since these plans are essentially what the permit would require, the technical lack of a permit is not important; it is the protection of the environment that is of concern to us and the plans seem to be adequate to provide that protection.
However, this situation raises some questions:
1. Why didn’t the Game Commission ask to see the permit, or at least remind the Gap that the permit was required? The same questions can be asked of DCNR. Both agencies have a duty to protect Stony Creek Valley. You would think that if someone bulldozed a seven mile long stretch of public land, the people in charge of protecting that land would take an interest in whether the environmental laws were observed. Yet, it was left up to private citizens to determine what environmental laws applied and then to see that the law was complied with.
2. Why didn’t Gap officials know about the permitting program? Given the number of major earthmoving activities that they have conducted over the years, most of which required the same permit, it’s hard to believe that they are not aware of it. It’s certainly not an obscure program. Each week the Pennsylvania Bulletin reports issuance of dozens of construction activity permits to small land developers. If these small private firms can comply with the law, why can’t the Department of Military and Veterans Affairs? The regulations are clear, and DEP is always willing to answer questions about a particular project. If Gap officials ignored the law in the High Quality watershed of Stony Creek, we wonder what work it has done in the Manada Creek watershed on its property without permits?
One thing is clear from this episode: the Stony Creek Valley Coalition is the only group, public or private, that is taking a responsible and conscientious attitude toward protecting this valuable wilderness and wild river and seeing that the environmental laws are obeyed. Before Fort Indiantown Gap is given even temporary control over any part of this valuable wilderness area, it should demonstrate at least some rudimentary understanding of the environmental laws that apply here.
The Game Commission's lack of concern about the Gap's incursions into the Valley indicates that they do not take their role as caretaker's of the Wild & Scenic River corridor seriously.