RICHMOND — The meter is running, and the state Department of Conservation and Recreation now is on the hook for more than $20,000 in ticketed fines issued weekly by the town’s Conservation Commission.
The standoff continues over what the local commissioners consider a botched woodland trail project up the western slope of Lenox Mountain. The town contends that the state agency violated the Berkshire Scenic Mountain Act, adopted by Richmond, protecting slopes above 1,400 feet. The DCR insists that the replacement of the wooded trail with a gravel roadway to access the summit was an emergency project to replace deteriorated power lines and relocate some of them underground.
At last week’s monthly Conservation Commission remote meeting, enforcement agent Shepley Evans reported that he had communicated with DCR officials and two contractors hired for last June’s work, suggesting that an appearance at the public session would be useful.
“But DCR didn’t want to come to a public meeting,” Evans said. “They wanted a private conversation. We said, ‘That’s not appropriate; if you want to talk to the commission, come to the meeting.’ But, they’re not here.”
Evans also noted that the issue has been referred to Central Berkshire District Court Clerk-Magistrate Christopher Speranzo in Pittsfield. But, Evans said he was told that no hearings are being scheduled for now “on a matter like this, and no one knows when they will start scheduling hearings again.”
“So, the beat goes on,” Evans said. “I’m seeing evidence of cracks in the armor, and I bet the pressure is building.”
Commission member Harley Keisch suggested that the DCR “should be our partners in this, they shouldn’t be our adversaries. The whole thing started with them not being compliant with the process, and the meeting they offered is just another example of being outside the process everyone has to go through that wants to do a project in the Scenic Mountain area.”
Under a provision of the state’s general laws, the Berkshire Scenic Mountain Act, adopted by individual towns in the county, was prepared by the Conservation Commission and accepted at Richmond’s annual town meeting in April 1976. It was mapped, updated and approved by the Select Board in October 2000 and then by the state’s Department of Environmental Management in April 2001.
The law regulates “removal, filling, excavation, clearing of vegetation or other alteration of land within mountain regions designated by the town which is likely to have a significant adverse effect on watershed resources or natural scenic qualities because of the pollution or diminution of ground or surface water supply, public or private; erosion; flooding; substantial changes in topographic features; or substantial destruction of vegetation.”
Projects in the Scenic Mountain Act must be preapproved by the Richmond Conservation Commission, according to the town’s adoption of the law.
Beginning in early November, the commission began issuing daily $100 fines against the DCR and two of its contractors after the state agency failed to submit a restoration plan for the affected woodland trail and hillside. Some of the forested land is owned by Mass Audubon’s Pleasant Valley Sanctuary. The state has an easement dating to the 1950s allowing it to access and upgrade emergency communications equipment atop the mountain.
On Jan. 8, DCR Deputy Chief Engineer Jeffrey Parenti emailed the commission, requesting a private meeting to discuss whether the Scenic Mountain Act applied to the work done on the trail, as the commission contends, and to review possible restoration of the utility corridor along the mountainside this spring.
Evans responded that his enforcement order issued Nov. 6 had required a plan for “complete site remediation and restoration by a licensed professional” to be submitted by Jan. 6.
As the enforcement agent, he pointed out that, lacking any plan to address the alleged violations of the Scenic Mountain Act, he has been instructed to continue issuing citations fining the state agency and its two contractors assigned to the project in June.
The DCR and its contractors — Dagle Electrical Construction of Wilmington and Colonial Contracting and Excavating of Ashburnham — contend that their work on the trail was exempt from the law because the project was needed to upgrade the utility lines leading to the communications tower at the summit.
But, the Richmond commission asserted that the project was not exempt, since it has the sole authority to grant an exemption, specifically because a new gravel road was constructed to access the summit. The commission also stated that the Scenic Mountain Act does not include provisions authorizing emergency repairs.
State DCR spokesperson Olivia Dorrance has told The Eagle that the emergency maintenance project to place portions of the power lines underground and also to restore crucial utility poles and power lines was completed “anticipating a potential emergency such as storms and forest fires. By completing the work, the electric line and utility poles are in better condition, reducing the risk of falling high-voltage lines sparking a forest fire.”
“DCR has a long-standing familiarity with the Berkshire Scenic Mountains Act,” she added. According to Dorrance, the agency “does not consider the emergency project to be subject to the statute” because it involved the maintenance, repair, reconstruction and replacement of a “lawfully located and constructed structure.”
The Richmond Conservation Commission disputed the emergency designation since the DCR’s planning for the upgrade started months before the work began and thus was not an emergency. In any case, exemptions can only be evaluated and granted by the Conservation Commission, Chairman Ronald Veillette said.