Jay Peak Resort Fined, But Penalty Questioned

11/17/12 9:30AM By John Dillon
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The Jay Peak ski resort faces a $5,250 fine for violating an environmental permit.

The state says the resort failed to report how much water it was drawing out of a local brook for snowmaking last winter.

Jay Peak has admitted to the violation. But there are questions about whether the fine is tough enough.

As a condition of its Act 250 land use granted in 1988, Jay Peak was supposed to file monthly reports showing how much water it pulls from Jay Branch Brook to make snow.

For three months last winter, Jay didn't file the reports. And when the state Agency of Natural Resources investigated last February, officials learned that the stream sensor was showing levels far below what was expected.

Christopher Kilian, the Vermont director of the Conservation Law Foundation, says the state sets minimum stream flow standards for snowmaking in order to protect fish and other aquatic life.

"Which is why we ask Jay Peak and other resorts to monitor what the river flow is and how much water they're taking out at what times," he says. "It's critical that we know those things so that appropriate decisions can be made to shut off the equipment in order to protect the waterways."

Kilian says the low levels seen in Jay Branch Brook last February means the stream could have been affected by the resort's snowmaking.

"What that indicates to me is that Jay Peak was withdrawing water at a time that the river was already stressed and they shouldn't have been withdrawing water," he says.

Jay Peak spokesman J.J. Toland says the resort didn't make much snow last winter because the weather was so warm. He says the monitoring system also got damaged by the high waters from Tropical Storm Irene.

"So once we realized the system was in error we took all steps to correct it and since stepped up our reporting protocols to come in well ahead of the deadline," he says.

Jay Peak has admitted to the violation and agreed to pay the fine.

"You know, you never like to see yourself getting fined but we've worked closely with the state on everything we've done and worked to be as environmentally sound as we can possibly be," he says.

The settlement and the fine are now under review because a new law allows the public to comment on environmental enforcement actions.

Kilian of the Conservation Law Foundation questions whether a $5,250 sanction is a sufficient penalty for this violation, and for a company as large as Jay Peak.

He says fines for environmental violations must take into account the economic benefit the company received from the violation. Otherwise, he says, the fine just becomes a cost of doing business.

"It should include some form of deterrent effect," Kilian says. "And really it seems like there are a few zeroes missing in this number or it's just seems to me an extremely minimal penalty for a resort like Jay Peak."

Kilian says he's studying the case to see whether CLF will get involved. He points out that the environmental group has pursued citizen enforcement actions under the federal Clean Water Act throughout New England and has never won a penalty as low as the one proposed for Jay Peak.

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