Army Corps Lacks Wetlands Jurisdiction At Railroad Site

By Andrew Gorosko

After inspecting site conditions at the Housatonic Railroad Company’s rail terminal at 30 Hawleyville Road (Route 25) on January 15, the US Army Corps of Engineers (USACE) has determined that it lacks wetlands protection jurisdiction over the railroad’s past earthen filling on the northern section of its property because that filling did not occur in wetlands.

The railroad performed that filling in connection with its controversial proposal to expand its solid waste handling activities on its property.

Barbara Newman, USACE’s project manager on the railroad matter, said this week that USACE officials’ site visit to the 13.3-acre railroad property confirmed that technical information that the railroad had provided to USACE on the location of wetlands is accurate information. “It’s a valid [wetlands] delineation,” she said.

“There has been no fill placed in these wetlands,” she said. “We have no involvement in the project… We don’t need to get involved,” she said.

Ms Newman noted that the earthen filling that the railroad has done on its land, however, is immediately next to wetlands. “That’s right on the border,” she said.

USACE sought technical information from the railroad last October after learning of its earthen filling at its property. USACE may have wetlands jurisdiction in such cases when the earthen filling occurs directly in wetlands.

The town had requested that USACE visit the railroad site to determine whether it had wetlands jurisdiction. The organization is a federal public engineering, design, and construction management agency.

Because USACE does not have wetlands jurisdiction, the town’s Inland Wetlands Commission (IWC) would be the agency reviewing wetlands protection issues, according to Ms Newman.

Unlike USACE, which only has regulatory power for wetlands, the town IWC’s jurisdiction covers wetlands and the 100-foot-wide area next to wetlands, which is known as the “upland review area.”

George Benson, town director of planning and land use, said January 21 that the town had referred the wetlands issue to USACE because the town wanted the railroad’s project viewed from every possible regulatory perspective.

Rob Sibley, town deputy director of planning and land use, said the IWC will continue its wetlands review of the railroad application. Mr Sibley said he awaits a letter from USACE formally informing the town of its findings.

In a January 8 letter to the town, state Attorney General Richard Blumenthal stressed his support of the IWC’s having the legal jurisdiction to review the railroad’s wetlands application.

Following the January 13 closure of a wetlands protection public hearing, IWC members are considering the railroad’s wetlands application. That session was the third IWC meeting at which the firm described how it would improve physical conditions at the site.

IWC members are expected to discuss and act on the railroad’s wetlands application at an upcoming session. The applicant of record for the wetlands permit is Newtown Transload, LLC, a firm that would work as a contractor for the railroad’s proposed expanded waste handling operations.

The railroad performed the extensive earthen filling on a spur of land on the northern section of its property in connection with its controversial proposal to expand its solid waste handling at its rail terminal. The railroad proposes significantly increasing the tonnage and also expanding the range of solid waste that it transfers from heavy trucks onto railcars for shipment by rail for disposal at out-of-state landfills.

When Congress approved the Clean Railroads Act of 2008, it required that the health and safety aspects of solid waste handling by railroads be subject to regulation by the state Department of Environmental Protection (DEP). Previously, railroads had been subject only to federal regulation. The railroad’s application marks the first time that the DEP has reviewed such a waste handling proposal under the terms of the Clean Railroads Act.

The town government and an ad hoc citizens group known as the Hawleyville Environmental Advocacy Team (HEAT) oppose the railroad’s expanded waste handling proposal. Town government opposition and the citizens group’s opposition has focused on several issues, including the potential for surface water pollution and groundwater pollution due to expanded waste operations. Other issues include increased truck traffic, increased noise, and additional blowing dust in the area.