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SEP 16- SEP 24, 2014

Army Corps Responds to Reporter Story Spotlighting Regulatory Lapses

By James Hufnagel

September 16, 2014

A bulldozer dams off a section of the Niagara River in the Niagara Falls State Park without the necessary federal permits, a direct violation of the Clean Water Act. The Army Corps of Engineers looked the other way, even after a formal complaint was filed with them.

The Buffalo office of the US Army Corps of Engineers last week responded by email (see sidebar) to stories in this newspaper exposing an egregious violation of the federal Clean Water Act by New York State Parks and its contractor, Scott Lawn Yard of Sanborn, NY, committed while implementing Gov. Andrew Cuomo's Niagara Falls State Park "Landscape Improvements" plan, and the Army Corps' lack of enforcement response to the incident.

While "restoring" Three Sisters Islands during the summer and early fall of 2012, the construction crew bulldozed an earthen dam over a section of the Niagara River in order to construct a temporary access road without obtaining federal permits required by law.

Buffalo District Army Corps Chief of Water Management Paul Yu gave the Reporter his assurance that he would personally look into the matter at a Sept. 3, 2014 meeting of the International Niagara Board of Control in Niagara Falls.

After discovering how badly his agency dropped the ball (assuming he looked into the matter at all), however, he opted to back off and leave it to a subordinate to generate a stock response, much as they did a little over a year ago after our initial complaint.

The possible penalties for Clean Water Act violations as perpetrated by State Parks and Scott in their rush to complete the leveling, paving and fencing-off of Three Sisters, range from a maximum fine of $37,500 per day the violation is taking place up to prison time if the act is considered particularly malicious, deliberate or repeated.

A Memorandum of Agreement between the Army Corps and the Environmental Protection Agency states that "No after-the-fact permit application shall be accepted until resolution has been reached through an appropriate enforcement response... e.g., until all administrative, legal and/or corrective action has been completed."

Of course, in this case, the "appropriate enforcement response", in the estimation of the local Army Corps, to this serious violation committed by a fellow government bureaucracy, was none at all.


Except, as it states in the email, to begin "coordination" and "ensure compliance" and then, after the project is completed, issue an after-the-fact permit.

Also on Sept. 3, the very same day Yu was solicitously taking down our contact information, it was announced that Center Street Woods Development of Dighton, Mass. is to be fined $4,000 for a construction site that "did not have coverage for stormwater discharge".

Was Center Street given an opportunity to first "cooperate fully with the USACE to ensure that the project was constructed and completed in accordance with applicable federal law" before being cited and fined? It doesn't appear so.

Also last week it was announced that four independent Buffalo, NY gas stations are to be fined a total of $287,100 for failing to monitor underground storage tanks, even though no actual groundwater contamination was demonstrated.

The violations included ranged from failure to "conduct annual line tightness tests" or "properly cap off two temporarily closed underground storage tanks."

Nobody likes the idea of potentially-leaking subsurface gas tanks, but it has to be asked, were these stations given an opportunity to tighten their lines or cap their tanks before being subjected to crushing fines by the government for violating the Clean Water Act?

Probably not, since as struggling small businesses in New York State, they don't merit the same special consideration that State Parks does.

Earlier this year, Barberry Homes, Inc. of Framingham, Mass. was hit with a $3,000 fine for "failure to follow permit requirements for erosion controls (slopes were not stabilized within required timeframes)". Perhaps if that small general contractor had finished constructing that single-family home a little faster, it could've wiggled out of embarrassing penalties like State Parks did.

The Army Corps web site lists an after-the-fact permit granted State Parks and Scott Lawn Yard on April, 29, 2013, titled "Three Sisters Islands Rehabilitation", a strange choice of words given the conversion of the formerly scenic natural area into something resembling a suburban backyard patio.

The investigation was closed with the final determination "Verified Without Special Conditions", apparently the Army Corps' version of the British expression "Well done, carry on!"

Despite the repeated justifications of the Army Corps, it's pretty clear what took place here. One government bureaucracy looked the other way while another willfully violated the law on behalf of the politicians and their corporate patrons.

Further, the Boundary Waters Treaty of 1909 between the US and Canada states that "This International Joint Commission shall have jurisdiction over and shall pass upon all cases involving the use or obstruction or diversion of the waters with respect to... This Treaty...,"

Since the IJC hadn't "passed upon" the Niagara River "obstruction" at Three Sisters, it can reasonably be assumed that the State Parks action was in violation of that century-old international agreement.





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