EPA says planning commissioner broke law

Posted: Thursday, October 17, 2002

Juneau Planning Commissioner Jody Vick violated the federal Clean Water Act by placing fill in tidelands near his Douglas home this summer without federal permits, officials said.

Vick also failed to get a required city grading permit, according to city officials.

But Vick said he just was trying to stabilize a run-down bank of dirt and rock on Gastineau Channel and beautify an area along First Street for public use. He said he didn't realize he needed permits for the work.

"I would have bet my life that I didn't need a permit for what we were doing," Vick said.

The U.S. Environmental Protection Agency issued a compliance order for Vick on Oct. 11 that requires him to undo the work and restore the site.

"All we've told him is he needed a permit, doesn't have one, has to undo what he did, and has to go through the process like everyone else," said Chris Meade, an environmental scientist with the EPA office in Juneau.

Vick faces fines of up to $27,500 a day and administrative penalties of up to $11,000 a day counting from when the work was done in June and July, EPA officials said. Typically, penalties are reduced, Meade said. In setting penalties, the EPA considers the violation's seriousness, the economic benefit from the violation and the economic impact of a penalty on the violator.

Vick and neighbor Ammon C. McDole own a narrow strip of land between First Street and Gastineau Channel. The city placed rock along the bank in 1985 after a severe storm in late 1984 washed away part of the road.

Vick and McDole planned to stabilize the bank for about 400 feet, landscape their property between the road and the bank, and build stairs down the rock face to the beach - all for public use.

"It improves our property," McDole said. "It improves the neighborhood. It improves everybody's property."

Vick said the bank was falling apart under the lash of storms. Water would flow between the rocks and pull out the fine soil, and the rocks themselves were pulled by waves onto the beach.

The plan was to temporarily remove the city's rock face, add fill to the bank, place fabric over it, replace the rocks and add larger rocks to the face, Vick said. Part of the work, all on Vick's property, was done in three days in late June and early July.

But the EPA compliance order said Vick needed a permit from the U.S. Army Corps of Engineers to place fill below the high tide line, which in Juneau is designated at 20.8 feet above sea level.

The EPA said Vick also needed a Corps permit to place the rocks below the mean high water line, which in Gastineau Channel is 15.4 feet above sea level.

Vick said the rocks were only temporarily below that line and would have been moved back in place against the bank if authorities had allowed the work to continue.

The Corps gave Vick a notice of violation on July 19 for placing fill in tidelands without a permit. Vick said he already had stopped work because a machine operator wasn't available.

"The only problem was lack of permits," said Terry Brenner, chief regulatory engineer for the city. "We probably would have approved a lot of this work if he had come in originally with a plan and done it in accordance with Corps permits."

Vick should have submitted to the city a detailed plan for the work, copies of necessary federal permits, and the agreement of all the landowners, which included the city because it owns the tidelands and a right of way, Brenner said.

If the city approved the plan, it would have issued a grading permit and inspected the work. The city likely would have required a bond to ensure that a rock wall was rebuilt along the bank, because the city's wall along a road was being moved, Brenner said.

The city's usual enforcement action against a person who doesn't obtain a grading permit before doing the work is to double the fee, Brenner said. A fee to place 1,000 cubic yards of fill, for example, is $194.50.

"Our penalties for this aren't very great," he said.

Vick said he didn't think he needed a city grading permit because he wouldn't have met a threshold in the city code of moving 50 cubic yards of fill on any of the lots involved. The property is broken up into several lots.

But the city viewed it as one project that included many lots, Brenner said.

In all, it would involve about 600 cubic yards of fill, Vick said.

K Koski, chairman of the city's Wetlands Review Board, said the project is the type the Corps or the city sometimes asks the board to review.

"Particularly since (Vick) is on the Planning Commission, I would have thought he would have remembered the Corps and other agencies in town," Koski said. "It should have been done. The Planning Commission and the Assembly need to be very cognizant of all the rules and be a model for the rest of the community."

The Corps sometimes lets people apply for permits after the fact. But because Vick had received other Corps permits in the past and was familiar with the laws, and because the site was so noticeable, the Corps didn't give Vick that option, Richardson said.

McDole said the Corps and EPA should apply the rules with common sense and allow them to apply for permits and continue the work, rather than undoing it.

"It doesn't make any sense to take it out," he said. "The bank and the road will be a lot more stable than it is now."

Vick said he will comply with the EPA order and probably apply for the required Corps permits so the originally planned work can be done next summer. Because the Corps doesn't allow fill to be placed in wetlands unless something is being built, Vick said he may build two gazebos and a walkway for public use on the site.

"Make it nice," he said. "Make it real pretty."

Eric Fry can be reached at efry@juneauempire.com.

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