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Political and Environmental Interactions on the Oxbow.tifPolitical and Environmental Interactions on the Northampton Oxbow Kenneth Briggs- Bamford Pol. Sci. 396 Fall 1981 Statement of Objectives Introduction 1 I. Early Political Problems 3 II. The Problem Prompting this Study 4 III. Relevent Agencies 5 IV. Great Pond or Connecticut River? 6 V. Current Uses 9 VI. Current Environmentalv. Conflicts and Problems 11 VII. Public Safety 13 VIII. Harbormasters for Inland' Waters 15 IX. Political Inaction 16 X. Solutions and Impediments 18 XI. Conclusion Appendixes Maps Diagrams Footnotes References Table of Contents 20 22 26 30 32 34 Statement of Objectives In this study I have attempted to pin down certain facts. At the beginning I anticipated no trouble but in asking various authorities I began to worry. Nobody could answer some .of my questions. I was faced with an unwillingness to take re- sponsibility and uncontrolled delegated authority on the part of agencies at the state and local level. The following are the questions I have tried to answer with this study: 1. What is an oxbow? 2. What is the history of the Northampton Oxbow? 3. What are its current and projected uses? 4. What are its use conflicts? 5. What state /local agency has licensing jurisdiction on the Oxbow? 6. What state /local agency has regulatory jurisdiction? 7. Is the Oxbow part of the Connecticut River legally and physically? 8. What is a great pond and what is the Oxbow's nature as such? 9. What is the Federal government's role on the Oxbow? 10. Is there a common sense solution to the Oxbow's problems and if so will it be accepted by all con- cerned agencies? i•i Quite often the answers were clearly spelled out in the law but in reality the law has been ignored or sidestepped. When relevent laws and solutions have been pointed out to vari- ous agencies no action was taken. I have suggested several pos- sible reasons for this. It is my hope that this study may get certain agencies pointed in the right direction. iii Introduction In February and March of 1840 the Connecticut River was choked with ice. The annual spring flooding brought down more than in previous years. As a consequence it flooded much of Northampton and Hadley. The ice piled way up., causing the water level to rise. Finally the river cut a new channel across the neck on the Hadley side. The river roared through, dropping six or eight feet very rapidly. (During the flood and subse- quent release both the Northampton and Sunderland bridges were taken out.) A,300 acre island was created. The River had formed a new oxbow (see river change from map 3 to map 4). An oxbow is a result of the natural effects of a river's current to get to the ocean quicker. A current tries to g straight, changing the course of the river as it does.' In doing so it erodes the outside banking of a curve and deposits silt on the inside banking. This process is known as meandering and is a continual process.in a flatland river such as the.Connecticut. Its results are exacerbated by the spring and fall flooding. Meandering is what creates loops and curves in a river's course. When a new channel is cut between the narrow neck of two meander loops a neck cutoff results. T he two old channels are slowly filled with alluvium and sealed at each end, isolating the old channel loop .into an oxbow lake (see diagram 1). 1 The Connecticut is a fairly old river, going back to pre- glacial times. Five thousand years ago it became the major outlet to a vast glacial lake now called Lake Hitchcock. This 2 lake extended from what is now Middletown, Connecticut to Lyme, New Hampshire. Since the initial outpouring from Lake Hitchcock, the Connecticut has created many oxbows. The Northampton Oxbow lies within the borders of East- hampton and Northampton, both of Hampshire County. The Mill River Division and the Manhan River flow into the Oxbow (see map 1). Geologically the Oxbow is no longer part of the Connecticut as one end of it is completely separated from the river. The area of the Oxbow is a little over 200 acres. It varies in depth due to fluctuation of the river caused by the Holyoke dam. All oxbows eventually fill up with silt and become solid land. Just a little to the west of the 1840 oxbow are Ned's Dick and Halbert's Pond. There are even older oxbows. The Northampton Oxbow is expected to fill in within 650 years if left alone. The Oxbow is crossed by route 91 which cuts it in two (for a general view of the Oxbow, please see map 1). I. Early Political Problems This perpetual shifting of the river's course has cre- ated various political problems. The oxbow of 1840 was no ex- ception. In 1840 rivers were often main lines of communication between inland folks and the sea. Trains had not yet been utilized. People who lived along the Connecticut related more to Hartford and Saybrook than Boston. River traffic was heavy as far up the river as Bellows Falls, Vermont. The new river channel cut off Easthampton's access to the river and hence the Atlantic. In addition many conflicting claims were held to the land created by the Oxbow. Eventually arbitraters from 3 Northampton, Hadley and Easthampton solved the problems. A cor- ridor of land extending to Mount Tom Junction was transferred from Northampton to Easthampton. (Some of the land is now owned by Arcadia Wildlife Sanctuary.) Hockanum Meadows, the "island" created by the oxbow was transferred from Hadley to Northampton. While all this was going on the city of Northampton declared a day of Thanksgiving as it was now three miles closer to the Atlantic. Problems left unsolved were these with no solution. Many people complained that the view from Mount Tom was now in- ferior to what it had been. Visitors to either Mount Tom or Mount Holyoke can today see if the view is indeed impaired. 4 II. The Problem Prompting this Study The root of this' investigation into the environmental and political interactions of the Oxbow was created in March of 1981 when the Oxbow Water Ski Club filed a notice of intent with the Northampton Conservation Commission for the purpose of con- structing a ski jump in the Oxbow. This is required by the Massachusetts Wetland Protection Act, chapter 131 -40. On March 16, the Commission granted the permit and issued an order of condition. Under this order any person who is aggrieved by the order, owns'abutting land, or ten residentsof the town can ap- peal the decision to the Department of Environmental Quality En- gineering (DEQE). Both the Arcadia Sanctuary and a ten resident committee did appeal. DEQE upheld the permit. As a concession the Commission added some more conditions. The question of who owned or controlled the Oxbow was also raised. Nobody knew the answer. During subsequent public hearings and meetings no an- swer came to light. On December 16 the Army Corps of Engineers held a hearing on this issue in Springfield. The Corps issued a permit which suggested that regulations be imposed by the city of Northampton. Two conflicts have arisen from this issue: one is of licensing jurisdiction (re: the actual construction of the ski jump); the other is of regulation (re: boats using the Oxbow) 5 III. Relevent Agencies A list of agencies which might have control or jurisdic- tion on either conflict is long with federal, state, county and city /town concerns involved. The Corps and the Coast Guard have licensing and regulatory powers respectively, as the Oxbow is a navigable waterway under federal law. At the state level, DEQE and various of its sub- agencies, the Department of Environmental Management (DEM) and various of its agencies, Water Resources Commission, and its sub- agencies, the Department of Fish, Wild- life and Recreational Vehicles, and its sub agencies, as well as the Registry of Motor Vehicles and the Attorney General's Office all have a say in what goes on in the Oxbow. At the county level the District Attorney's Office has some control. At the city /town level the Board of Health, Selectmen, City Council, Mayor and Conservation Commission all could have some say if they wanted to. The state has the largest measure of control, or at least the most agencies involved (see diagram 2). IV. Great Pond or Connecticut River? Much of the confusion among the many agencies could be sorted out if the Oxbow was to be considered a great pond in- stead of part of the Connecticut River. Geologically the Oxbow is not part of the river; it is a tributary. However construc- tion and development are regulated under both conditions. Massa- chusetts law, chapter 91 sec. 35, defines great ponds as "ponds containing in their natural state more than ten acres." This has also been held to include man -made ponds ten acres or larger. Great ponds go back to 1649. The state holds these ponds and the soil under them in trust for the public. The original purpose was to provide public hunting and fishing rights. There may not be any private ownership of any great pond. The legislature has general authority to exercise control over great ponds. This is not an empty power. Many court cases have backed this up. If it wishes, the legislature may even infringe on public rights with respect to great ponds: Weinstein v. Lake Peral Park, Inc., 347 Mass 91 (1964) held that any encroachment or use of a great pond adverse to the public interest is a public nuisance and must be abated. By Common- wealth v. Weatherhead, 110 Mass 175, the state may restrict pub- lic rights and delegate its authority to lesser agencies. Chap- ter 91, sec. 19 states that "except as authorized by the General Court and as provided by this chapter, no structure shall be built or extended or obstruction or encroachment made in, 6 7 over, or upon the waters of a great pond." Chapter 91 sec. 20 provides that such work will be supervised by DEQE. In addition sections one through ten of this chapter give general care and supervision of the Connecticut River to DEQE also. Under Chap- ter 91 sec 12 they may "license and proscribe terms for the con- struction or extension of a dam, road, bridge or other structure, or the filling of land in, over, or upon the water below the high water mark of the Connecticut River. "Any work done on the river not sanctioned by the General Court or DEQE is a public nuisance and subject to action from the state Attorney General or the local District Attorney. Permits for both categories are revocable at the discretion of the legisla- ture and shall expire after five years. The state has delegated licensing control of both great ponds and the Connecticut to DEQE, but other agencies also claim some authority. Some of these have had responsibility delegated to them by DEQE while others have simply claimed authority with no legal (or tested) backing. This fragmentation of powers creates problems examined in this study. The Massachusetts Water Resource Commission and the Division of Water Pollution Control treat the Oxbow as part of the Mill and Manham Rivers. 8 This is true to a point. As shown on Map 1 both the Mill River Diversion (of 1939 and the Manhan flow into the Oxbow. This point becomes relevent when it is seen that the DWPC is a sub agency of DEQE. The Division of Waterways, also a sub agency of DEQE, maintains that the Oxbow is part of the Connecticut River. As of this time the Division of Waterways seems to have the final word although I can find no evidence as to why. The importance as to what the Oxbow is legally is quite simple. If it is classified as a great pond, the city of Northampton may institute certain controls over it. These con- trols range from public safety to horsepower restrictions and speed limitation on motorboats. The city would like to have this control for the future. On the question of the classification of the Oxbow, DEQE itself is unwilling to take an official stand. On one day I would be told it was a great pond while next day Mr. Iantosia had no idea. Could this really be? They are supposed to be familiar with both Massachusetts law and maps. Simple common sense applied to both would dictate that the Oxbow be declared a great pond. Simple common sense does not appear to be a high point for DEQE. V. Current Uses 9 The water of the Oxbow is currently used mainly for recreation, a nonconsumptive use. Some water is drawn for ir- rigation purposes but this amount is negligible. In years past the Oxbow was the end of the world's longest log drive. Pine, spruce and hemlock were boomed there to be cut up at the Mount Tom Sawmill; the last log drive was in 1939. Today the main at- traction is the Oxbow MarinA owned and operated by Raymond Duda. There is also a state maintained public boat launch near where the Oxbow flows into the Connecticut. Mr. Duda stands to make a lot of money if the ski jump is put in. On the other side is Arcadia Wildlife Sanctuary, which stands to lose land if the jump is to be put in where originally stipulated. Most of the rest of the surrounding land is farmed or wooded, although de- velopment and agriculture have reduced the floodplain vegetation to a narrow band between ten and twenty yards wide. Adjacent to Arcadia is the Connecticut River Watershed Council, another prime mover in the anti -jump campaign. There is an inherent conflict between power boating and wildlife sanctuaries. The demand for water based recreational facilities is increasing in this area, despite the high costs of boats and fuel. At the same time there is pressure from environ- mental and conservational groups to preserve some waterways. These demands and pressure are clashing on the Oxbow. The Pi- oneer Valley is unusual in that it is a major center for both organized recreation and environmental groups. Historically the motorboat lobby has had a mere vociferous say on use of the Ox- bow. Much of this has come form the Ox Bow Marina. Regulation would seem to be needed to resolve this conflict. 10 to anybody who has ever watched boats on the Oxbow. Even .a 11 VI. Current Environmental v. Conflicts and Problems' Powerboats do cause problems particularly when used in an unstable area like the Oxbow. Its banking is subject t severe erosion. There has been a noticable loss of farmland in the last twenty years. It has simply fallen into the water. The Oxbow is a breeding ground for shad and blueblack herring, both commercially valuable fish. The Oxbow is a lake and there- fore naturally entrophic. Increased shoreline development, some of which is caused by the marina and its boats, may hasten the process causing the lake to fill in faster than it should. Powerboats are not the sole cause of erosion in the Oxbow. The dams owned by North East Utilities are a major cause. In par ticular the obsolete dam 1n Holyoke is a major problem. When its boards go out it lowers the water level quickly. Also when Northfield Mountain empties the water level is raised quickly. Ironically one possible reason why state agencies claim the Ox- bow is part of theConnecticut is that it is illegal to lower the water level if any great pond without legislative authority. This has been held to be a public nuisance by Potter v. Howe 141 Mass 357. Theoretically every time the Holyoke dam goes out NEU is subject to a fine under chapter 91, sec. 19a. Representatives of a local motorboat association, Rec- reation on Water, maintain that boats do not cause erosion and that increased boat traffic will not have an effect on,fish 12 species. The obvious falsity of this first claim is obvious 12 small wash creates erosion and many of the motorboats which use the Oxbow create huge washes. As to the second "Increased ski traffic would increase oil and gas pollution, bank erosion and tur7idity of the water. The fisheries of the Oxbow could be deleteriously affected by all three. In addition to the pre- viously mentioned shad and herring, the Oxbow also supports many gamefish such as northern pike, bass and perch. The Oxbow sup- ports the largest population of northern pike in Massachusetts. In general, the Oxbow is much more productive than is the river. VII. Public Safety Mr. Duda, claims that boaters will regulate themselves, and that there is no need for limitation on watercraft. He, of course, would take this stand as he owns a marina and has been relatively unrestrained in his actions. On the other hand many canoists and sailers have complained about power boater's actions. In addition there have been several fatali- 13 ties on the Oxbow in the past few years. All of these have re- sulted from alcohol and careless powerboat operation. Motor boaters have infringed on the peacefulness (and private land) of Arcadia. Between the increase in the number of canoes on the Oxbow and the increase in powerboats thee will soon exist a po- tentially dangerous situation. (Some say that the situation is already dangerous.) Obviously there is a need to regulate the Oxbow from a public safety viewpoint. There are two agencies which, on occasion, patrol the Oxbow. The Coast Guard gets up about twice a year. Law enforce- ment officials of the Registry of Motor Vehicles and the Depart- ment of Fish, Wildlife and Recreational Vehicles patrol about once a week during the summer. In reality nobody regulates powerboat useage. Here again the great pond issue comes up. If the Oxbow is held to be part of the Connecticut it is up to the Director of Motorboats, within the RMV, to establish, and en- force, speed limits or any other regulations pertaining to the operation of vessels. However, if it is a great pond, under Chapter 131, sec. 45, the town or city within which most of the pond lies, Northampton, may "impose speed limits, limit horse- power, prohobit internal combustion engines, ban water skiing and other high speed uses" and can limit or designate these regulations to certain areas at certain times. All of these restrictions are subject to the Director of Marine and Recrea- 14 tional Vehicles, within RMV and DE &W. Northampton would like to be able to institute some regulations for public safety. However town by -laws with respect to boating on great ponds have been held to be legal, despite lack of approval of the director. In Town of Sharon v. Segal 373 NE 2d. 233 (1978• the Massachusetts Court of Appeals found room -for town by -laws to prohibit operation of boats under certain conditions, without said approval. This was in response to a by -law adopted by the town in an effort to make a lake safer for other users. It is the only case of this kind but it has not been overturned. Per- haps the Justices have noticed the fragmentation of powers and lack of efficiency within state agencies delegated such roles and were trying to give impetus to towns to develop and enforce their own regulations. Great pond legislation allows them to do so. The person or office which administers such regulations is the harbormaster. This position may be filled by the Chief of Police, the City Council, or a specific person may be appointed as such. The title may sound incongruous over 150 miles from the sea but the actual duties are not. 15 VIII. Harbormasters for Inland Waters Chapter 91, sec. 10 states that harbormasters have charge of regulation and restrictions within their jurisdic- tions. The jurisdiction is delineated by the town while the regulation and restrictions are decided on by the harbormaster in conjunction with the town meeting or City Council. This can be seen' in every coastal town in the state but the position is rate inland, despite the amount of boating that is done on in- land lakes and rivers. Many people are ignorant of a harbor- master's duties, perhaps this is due to the title and its as- sociation with the coast. Frank Fournier, chairman of North- ampton's Waterways Commission thinks that harbormasters charge for dockage and that's about it. He is also of the erroneous opinion that "there has never been a serious injury or problem" and that "the.position would be a waste of time." Maybe this is just his powerboat bias coming out. It looks as if certain types of users of the Oxbow wantoeither controls of effective enforcement of them. A city appointed harbormaster could al- most be a self supporting position if done "right. With the ever increasing boat traffic on the Oxbow one would not be such a bad idea. 16 IX. Political Inaction All of this information on great ponds, the Connecticut River, harbormasters and public safety was offered to the city's Conservation Commission and Planning Department back in June 1981. Despite saying that a degree of control was desired, no real action was taken on -the issue. There are several probable reasons for this; all are political. The Connecticut River Watershed Council, Arcadia and Jim Brooks (a mayoral candidate in the 1981 election) are all influential environmental-conser- vational voices. They have a good amount of clout in local en vironmental affairs. Mr. Brooks, an outspoken proponent of re- cycling and canoeing, lost his bid for election by a slim margin so he does not lack for popular support. The CRWC recently spent a lot of money in buying riverfront acreage and Elwell Island and donating the land to the city. Arcadia is a major landowner, part of Massachusetts Audobon, and its director, Judy Hubley, is .very respected in the area. Arcadia and CRWC often work together.. They and Jim Brooks have been the primary forces for regulation. By paying lip service to the idea of regulating the Ox- bow the city may have taken away a potential issue from Brooks. There are a lot of canoeists in Northampton. The city was not in a position to tell CRWC to get lost when it was in the process of receiving land from the organization. It seems that city of- ficials do not want to offend Judy Hubley. She can make a lot of noise and Arcadia is popular with a lot of people. Another 17 possible reason why the Conservation Commission did not act was that the information was presented by a college student, not a lawyer or an engineer. Without seeming disrespectful, as they are a very well intentioned group, many of them are also ama- teurs. One does not have to be a lawyer to do legal research or to talk to people. It is ironic that on 16 December 1981 the Corps issued a permit to the Ski Club and suggested that the city adopt the harbormaster route. Maybe this will get some action. The advantage of the harbormaster is that it could be a self supporting position, to a degree, and that enforcement would be under one agency. The system works in many towns. Even if it does cost the city money or step on a few toes, if it saves one life the expense is justified. There is no reason it could not work in Northampton. 18 X. Solutions and Impediments Both motorboaters and canoeists have the same public right to use the Oxbow. There is no reason to exclude one or the other. One solution would be to restrict powerboats to a marked channel running through the deepest part of the lake. The water ski jump could be located in a more stable area of the Oxbow where the increased traffic would not affect Arcadia. Canoeists should stay away from motorboats and away from the channel. Simple rules like these do not require any state or city regulation; they are ordinary common sense. However, municipal and state authorities do not seem to go in for common sense approaches. As suggested one reason for this may be their not wanting to lose power to a "rival" agency. Another may be that no agency wishes to take firm responsibility for anything unless it is forced to. The latter could explain the lack of action taken by the city for five months as well as the unwillingness of DEQE to take, a stand. Massachusetts law states that DEQE has jurisdiction over structures built on, under or in the water of the Connecticut and great ponds. DEQE has to take a stand under the law. Instead they simply passed the issue on to the Army'Corps of Engineers. This is becoming typical of DEQE in western Massachusetts. It could be that their hands have been tied, as with the Mt. Tom coal conversion problems, but if this is so, nobody is talking about it. Another problem of this agency is that it simply does not enforce laws it is legally mandated to do. Besides the Oxbow issue an example of 19 this is the refund of the Division of Water Pollution Control, which is part of DEQE, to put any pressure on the state (actual- ly the University of Massachusetts) to clear up the Taylor Brook problem. This situation has been known to have been a problem for over five years but the state has taken very little action to force a solution, or even a proper address of the problem. Admittedly this is a state agency versus state agency issue but DEQE does have adequate power. All in all this agency's track record in Western Massachusetts does not seem very good. 20 XI. Conclusion As a result of the fragmentation of powers pertaining to all aspects of water, Massachusetts has gained a reputation of a "no action" state. Even when a procedure is written out in the state code no action is taken. As the Supreme Court has done with federal environmental laws, Massachusetts courts seem to be trying to strengthen laws and define authority. The above mentioned Sharon v. Segal is a good example. In Sacco v. DPW 227 NE 2d. 478, Justice Spiegal said. "the great ponds of this commonwealth are among its most cherished resources. Since early times they have received special protection." If the Ox- bow is ever to have its special protection it must'legally be classified as a great pond. It fits all the legal requirements as it is well over ten acres in size and it is a lake, not part of the Connecticut. As a great pond it would be under the jurisdiction of DEQE for licensing purposes, the Attorney General's Office for abatement of public nuisances and, if it wants the power, the City of Northampton for boating and other user restrictions. This would be a more manageable system than the current chaos. However, DEQE should maintain its legally mandated power without delegating authority to sub agencies. This practice of delegating is one of the major problems of the 'political interaction on the Oxbow. Once power is delegated to a sub agency, DEQE is unwilling to control the power or the or- ganization. Perhaps to avoid this the legislature should exert its authority and take control of all the great ponds of the 21 state, not just the ones considered as such for administrative purposes. It could create a single agency in charge of all as- pects of great ponds. However, given the administrative history of the state, this is not likely to happen. At any rate, if the city is truly concerned it should petition the Division of Waterways for acceptance of the Oxbow as a great pond. This act would end all the problems and clear up a very murky situation. It would also be conforming to political as opposed to legal realities. Appendix I In a letter sent to Angelo Iantosca, Regional Environ- mental Engineer of DEQE Western Region, Wayne Payuer of the ski club made the following claims: (1) a ski jump does not increase boat traffic; (2) all boating has the same effect on the environ- ment; (3) ski jumping would not cause erosion; (4) the jump would not be an obstruction. All of these claims have been proven to be false. Appendix II On the notice of intent filed by Payuer there are several false statements. These should have been noticed by the reviewer and the permit should have been denied on this ba- sis. These claims pertain to the impact of the proposed ac- tion. The notice states that there will be no effect on marine species, drainage or runoff siltation of surface water or on surface water quality. In a strict legal sense this is ture. A ski jump by itself does nothing. The use of the jump on the contrary will have an effect in all the above. 22 Appendix III Projected Land Use of the Oxbow 1. Increased recration useage: swimming, fishing, power and non -power boating. (note: swimming should be dis- couraged due to the presence of giardia bacteria in Connecticut River water.) 2. Expansion of the marina. Duda seems to get his way even though all his land falls under the Wetland Protection Act. 3. Increased development of shorefront property. 4. Increased preserve. Appendix IV Federal Agencies Involved 1. Army Corps of Engineers. Under River and Harbor Act of 1897 the Corps must issue permits for any construction on or along a navigable 'waterway. 2. Coast Guard- -has general regulatory jurisdiction over all navigable waterways. Appendix V State Agencies 1. DEQE 2. Department. of Environmental Management 3. Department of Fish, Wildlife and Recreational Vehicles. 4. Registry of Motor Vehicles 23