Town Reviews Its Wetlands Authority Over Railroads

By Andrew Gorosko

Town land use officials are awaiting legal advice from the town’s attorneys concerning the wetlands enforcement implications of a recent federal law on the regulation of railroads, according to town Land Use Agency Director George Benson.

The 2008 Clean Railroads Act that was approved by Congress last fall provides some oversight to state environmental agencies regarding the health and safety aspects of railroad activities.

As such, the state Department of Environmental Protection (DEP) is reviewing the health and safety implications of the Housatonic Railroad Company’s permit application to greatly increase the amount of solid waste that it handles at its Shepaug Terminal at 30 Hawleyville Road (Route 25) in Hawleyville. The railroad wants DEP permission to increase the amount of solid waste that it transfers from heavy trucks onto railcars from 450 tons daily to 2,000 tons daily. Such solid waste is shipped out by rail for disposal at out-of-state landfills.

Until the federal railroad law was approved last fall, only the federal government had jurisdiction over railroad activities.

Mr Benson said that a notice of wetlands violations that the town had issued against the railroad in 2007 still remains in force. However, the town’s jurisdiction to enforce that violation remains unclear.

The wetlands violations involve the possible filling of wetlands, posing possible problems with stormwater runoff, he said.

While it appears that the town cannot enforce a wetlands violation against the railroad on railroad property due to a lack of jurisdiction, if the railroad were to clearly commit a wetlands violation on other property adjacent to the railroad’s property, the town would have enforcement authority, he said.

The town, however, has not proved that any such encroachment has occurred, he said.

The railroad owns 13.3 acres in Hawleyville, amid a wetland area.

Mr Benson said he visited the railroad property this week to check on conditions there. “We’re monitoring it,” he said.

“This is new ground for us…It is a legal issue…It is a very complex legal issue…We have to be sure we’re right legally,” he said of the recent federal law’s implications for wetlands enforcement.

The railroad’s proposal to greatly expand its solid waste handling activities at the Shepaug Terminal has caused the railroad’s alleged wetlands violations to reemerge as an issue, he said.

“It’s all new stuff. We’re still working on it. People just have to have patience,” he said of the implications of the recent federal law on the regulation of railroads.

Besides solid waste handling, the rail terminal is used for the transfer and storage of building materials, including lumber. The terminal at 30 Hawleyville Road has operated since 1995. It has handled solid waste since 2004.

After being informed in June 2007 by mail by town Conservation Official Rob Sibley that the railroad was in violation of town wetlands regulations, F. Colin Pease, who is the railroad’s vice president for special projects, responded by mail that railroads are exempt from local wetlands enforcement and the requirement to obtain wetlands permits.

Mr Pease, however, stated that railroad would voluntarily cooperate with the town concerning a possible erosion problem at its property.

In an ensuing October 15, 2007 letter, Mr Sibley stated that the railroad had done dumping in wetlands and in adjacent regulated areas on its property and adjacent properties.

Mr Pease said on June 11 that the 2008 Clean Railroads Act does not grant local wetlands agencies the authority to regulate railroad property.

“We are very careful to stay on our property and continue to stay on our property,” he said of the railroad’s activities.

The Housatonic Railroad is sensitive to environmental issues and will continue to cooperate with the town on such maters, he said.