Summary:  Unfortunately for many fish, dams are the end of the river. It doesn’t have to be that way: Dam removal is becoming more common across the country. However, the mechanisms for initiating dam removal are not always efficient. Current dam removal mechanisms are expensive, involve many parties, and can take several years to get the job done. The Public Trust provides a means to expedite dam removal in Vermont, while simultaneously relieving small interest groups and not-for-profit organizations of footing the bill.

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By Olympia Bowker

Dams are ecological barriers—they are walls that prevent anything in the water column from moving up or down a river. Dams can be the kiss of death for fish : they trap silt and sediment, heat up stagnant water, and block fishes’ ability to swim up or downstream. These effects restrict habitat, interfere with vital life-cycle stages, and impact entire ecological communities.Dams don’t only impact critters in rivers and streams—they pose a danger to humans as well. Dams cause erosion , which eats away at the riverbanks that support homes and schools. Damming a river increases the likelihood and severity of floods by forcing water into a narrow, confined area. Vermont experiences an average of 40.10 inches of measurable precipitation a year, about a foot more than the national average of 28.15 inches. In addition, floods are the largest annual disaster cost in Vermont. Dams undoubtedly exacerbate this. In addition to erosion and flooding, dams can cause issues for recreationists on the river. Dams not only block river and stream access for kayaks and canoes, but those same recreationists can unwittingly run into submerged rebar and cement from the decaying, neglected structuresThe expense and time it takes to remove a dam makes progress slow. Only 10 obsolete or unsafe dams have been removed from Vermont  1,200 known dams in Vermont. One hundred and ninety-eight of those dams areclassified as “high hazard” or “significant hazard potential.” In addition, not all dams have been inspected. Dams that fall under the high hazard category have an elevated potential to cause damage or loss of life if the dams should fail. In 2013, 35% of inspected dams were in poor condition and ripe for failure. Even more dams are unknown and undocumented. While not all dams are useless hazards just waiting for their next victim, many are.

There are overDam removal can take years. According to the Vermont Agency of Natural Resources (“Amont, state funding specially earmarked for dam removal is minimal. Interest groups and volunteers are primarily responsible for backing the projects. For example, it cost over $120,000 to remove the NR”), dam removal projects typically take 2 ½ to 3 years for completion. Dam removal is not cheap. As of 2009, the cost of dam removal projects in Vermont ranged from $30,000 to $50,000 for the deconstruction alone. This figure doesn’t include the expense of management or project design (which can run anywhere from $10,000 to over $100,000). The ANR says, “[o]verall project costs [are] typically in the hundred thousands….” It is estimated to cost $22 million to remove all of the documented dams in poor condition. In Ver Groton Dam in Groton, Vermont. However, no funding came from the state; instead, various nonprofits footed the bill. With the exception of $10,000 from the US Fish and Wildlife Service, the following non-profit groups supplied all of the money: American Rivers, the Connecticut River Watershed Council, Green Mountain Coffee Roasters, NH Charitable Foundation, Patagonia, and Trout Unlimited  since 2008.

At best, Vermont removes 3 dams a year. Clearly, the current mechanism for dam removal in Vermont is too slow, too expensive, and the financial burden falls on the wrong shoulders. At the rate dam removal in this state is going, it will take at least 400 years to remove all known dams. That’s just not fast enough. This is where the Public Trust comes in.

The Public Trust is anancient doctrine that dates back to Roman law. The Public Trust was adopted by England, and subsequently the United States. The essence of the Public Trust is that navigable waters and the land below them are held in common by. Over time, this trust duty shifted so each state has its own version of the Public Trust. Vermont is no exception. Vermont’s Public Trust dates back to 1777 and is recorded in the state Constitution. uckily for us, Vermont’s Public Trust is alive and well. Under Vermont’s Public Trust, the state government is the trustee and has the fiduciary duty to protect the trust resources for the inhabitants of the state. In fact, in 2008 Vermont enacted a groundwater law, Vt. Stat. Ann. tit 10, § 1390(5), designating groundwater as a public trust resource. In Vermont, public trust resources must be managed for the benefit of all citizens.

It is uncontested that rivers and streams in Vermont are a Public Trust resource. Under this doctrine, citizens are promised access and enjoyment of state waters. That enjoyment can be in the form of swimming, kayaking, fishing, or simply entry. However, many dams stop Vermont citizens from exercising their right to these enjoyments. While Vermont does not have the power to remove all dams, the state does have the power to remove state and privately owned dams—especially ones that are no longer useful or maintained.

Vermont has a fiduciary duty to its citizens: a duty to remove dilapidated dams and help restore rivers and streams to their pre-colonial splendor. The Public Trust is a vehicle to accomplish this task. Vermont is not making great strides with dam removal— at the current rate, it will take over four centuries for known-in-Vermont dams to be removed. By using the Public Trust as an enforcement mechanism, Vermont citizens can expedite the process. Since the state has a fiduciary duty to Vermont citizens, the state is responsible for removing the dams— the state has to reopen access to streams and rivers. In 2012, the Vermont Supreme Court held in Montpelier v. B arnett that recreation and access to Public Trust waters is a matter of state concern, and requires a resolution at the state level. Dam removal is an issue that should be solved at the state level—not by small, financially insecure public interest groups.

Dams are a problem. Of the 1,200 known dams in Vermont, many no longer serve their original purpose. Instead, they sit. They crumble. They destroy the surrounding environment. Vermont state officials are aware. State agencies, such as the Vermont Department of Fish and Wildlife, focus on fish habitat restoration and dam removal. In fact, there is even a Vermont Dam Task Force whose job is to rehabilitate rivers through dam removal. The Vermont Dam Safety Program aims to educate dam owners on the safety risks, and hope to motivate repairs. Unfortunately, this is not enough. While Vermont tries to be proactive and successful at dam removal, the numbers show a different reality. Vermont’s current strategy for dam removal is inadequate. The current authorities charged with dam removal are underfunded and ineffective. Removing three dams a year is not progress, especially with more than 1,200 known dams in the state.

The Public Trust is a way for citizens to hold Vermont accountable and force the state to take fast action. Vermont needs to foot the bill to remove hazardous dams, and do it now— we don’t have 400 years to wait.

Olympia Bowker holds a J.D. from Vermont Law School, with dual Water and Land Use Law Certificates. She is also a Masters of Environmental Law and Policy candidate. Prior to law school, she earned a B.A. in Environmental Studies and Geography at the University of Vermont, collected plastics samples from the Northeast Pacific Garbage Patch, and worked on the Pacific Crest Trail. Olympia enjoys hiking, reading, and general adventuring.

The post The Dam(age) Stops Here: The Public Trust and Dam Removal appeared first on Vermont Journal of Environmental Law.