Vermont Newsguy

by Jon Margolis

Vermont Dams and Dam Safety

April 17, 2015

There used to be a dam right over there, Clark Amadon said, pointing to where the rapids begin, where one of the concrete abutments remained visible.

This was on Cox Brook, not far upstream from where it empties into the Dog River across Route 12 in Northfield Falls. The dam was built in the 1920s, he said, and dismantled in 2007, thanks in part to the efforts of Trout Unlimited and its Vermont Council, which Amadon chairs.

There are two advantages to removing a dam. One, Amadon noted, is that a river and its tributaries comprise a natural system, and getting rid of dams "keeps the systems open" which keeps them healthier.

The other is that a dam taken out by engineers who plan the job will not break apart when no one is watching, possibly destroying property and maybe even someone's life downstream. No, this does not appear imminent. No Vermont town is in danger of becoming the next Johnstown, PA, where 2,209 people were killed when a dam 14 miles up the Little Conemaugh River gave way in 1899. The big Vermont dams, the ones holding back large impoundments on major rivers, are regularly inspected and effectively maintained.

Vermont has a dam safety law, noted Steve Bushman, the dam safety engineer for the Department of Environment Conservation, adding that if his Department "felt a dam was in imminent danger of failure, we could implement an unsafe dam procedure. We haven't done that for quite a while."

But if a mega-tragedy from a breached dam is highly improbable, a smaller but still damaging and perhaps fatal flood is, if not exactly likely, enough of a threat to worry civil engineers.

"There have been quite a few" damaging floods caused by breached dams just in the Northeastern United States in recent years, said Jessica Louisos, a civil engineer with the Waterbury firm Milone & MacBroom and a co-author of a report on Vermont dams by the American Society of Civil Engineers (ASCE). In 2005, a dam in Fort Ann, N.Y., gave way, causing substantial property damage. In 1996, a New Hampshire motorist was drowned by flooding caused by a breached dam.

As far as engineers know, Vermont dams are safe. But they readily admit there is much that they do not know, and Louisos said 'the lack of information poses a risk." Nobody knows for sure how many dams are in the state. The ASCE report counted 1,219 in the 'state inventory" 198 of which, or 16 percent, "are classified as high significant-hazard-potential." (The big hydro dams are regulated by the Federal Energy Regulatory Commission or the state Public Service Board, and are not part of the state inventory).

That classification does not mean that they are in danger of failing. It means that if they did fail, the resulting flood would seriously endanger life or property. But 39 of those dams, Bushman said, have been "identified (as being) in poor condition, and need to be corrected before they get to that unsafe level. For most part they are not being ignored. They"re being looked at by engineers."

In all, found the ASCE report, 126 dams, most of them considered "low-hazard." are in poor condition. Neither Bushman nor Louisos doubt that there are some small dams that are not part of the state inventory. They suspect that there might be dams whose existence is unknown either to state officials or to the owners of the property where the dams were built years ago, perhaps in forests or fields not visited in decades. The ASCE report said "many small, privately owned dams are not listed in the state inventory." Furthermore, Louisos said, dams behind which sit less than 500 cubic feet of impounded waters, "are not on the inspection list."

Bushman said the high-hazard dams are inspected annually and the significant-hazard dams at least every five years. His goal is to inspect the low-hazard dams at least every ten years, but acknowledged that he and his one colleague " even with one part-time summer assistant " are behind schedule, and that some low-hazard dams have never been inspected.

To the dismay of dam safety experts, Gov. Peter Shumlin's proposed Fiscal Year 2016 budget calls for a small decrease in spending on dam safety. A bill (H. 37) now under consideration by the House Fish and Wildlife Committee would not add funding, but it would require dam owners to register dams and pay an annual fee to fund the state dam inspection program.

Its sponsor, Committee Chair David Deen, a Putney Democrat, does not expect the measure to pass both houses this year. More than half of Vermont dams are privately owned, according to the ASCE report. Their owners are responsible for them, meaning they would be liable for any damages caused by their dam's failure. These land-owners, says the report, 'tend to have limited willingness to invest in maintenance and repairs."

Dams, of course, do a lot of good. They create cheap and clean electricity, help irrigate crops, and create impoundments (lakes) where people love to swim, fish, boat, or simply enjoy the view.

But dams also do a lot of harm. As Clark Amadon put it, there is an "inherent disconnect" between dams and rivers. A dam invades the natural processes of a stream. Not only does it keep some fish from getting to their spawning beds, it alters "in most cases, degrades " the distribution of sediment, woody debris, and insect life that make a river"well, a river, as opposed to an artificial system created by human beings.

That helps explain the growing dam-removal sentiment around the country. It has already had some impact in Vermont, where only one dam has been erected in recent years while ten -- including the one on Cox Brook " have been torn down.

As more are likely to be in coming years. To begin with, it's cheaper to remove a dam than to repair it. The ASCE report said removing all the dams in poor condition would cost $22 million, less than the $35 million it would cost to repair them.

The engineers and anglers (openly) and state natural resources officials (less openly) both favor getting rid of dams that no longer serve their original purpose, whether that be hydro power or irrigation. There is some opposition, both from landowners and from residents who simply want things to stay as they are, but for now, the momentum seems to be on the side of the dam removers.

Some of whom, like Trout Unlimited, are anglers, who may hope that they will catch more fish if the dams are taken away. But Amadon, an outreach counselor for the Vermont Student Assistance Corporation, said the fish themselves are not the focus. Habitat is. As much as possible, he said, a river should be restored to its natural state for the sake of restoring the river to its natural state. The fish, then, "will take care of themselves." he said.

Besides, he said, in many cases a landowner can have a dam removed without paying for it. Removing the Cox Brook dam, he said, was financed by the U.S. Fish & Wildlife Service as part of its effort to protect and restore native brook trout fisheries throughout the Northeast. The Dog River, he pointed out, is one of only two in Vermont (the Battenkill is the other) managed as a wild trout fishery, with no stocking.

But even elsewhere, he said, the federal and state governments, with some help from volunteer organizations, would pay for most if not all dam removal. And a removed dam, unable to be breached, can do no harm.

Is this any way to elect a Governor?

December 30, 2014

On January 8, the second Thursday of the New Year, the Vermont General Assembly, aka the Legislature, is scheduled to perform an unusual and somewhat mysterious act:

It will elect the governor.

Unusual and mysterious, but by no means unprecedented. The legislature has performed this task 23 times since Vermont became a state in 1793, most recently in 2011, when it did what it is likely to do this time: choose Peter Shumlin to be the governor for the next two years.

Then as now, Shumlin got more votes than any other candidate in the previous November's election. Then as now, he didn't get a majority, and according to Vermont's Constitution, when no candidate for governor (or lieutenant governor or Treasurer) gets a majority of the popular vote, the Legislature makes the final decision.

And the Legislature has been given this responsibility, this decisive role, this awesome power, because"because"well, no one is quite sure what's supposed to follow "because" here.

As the King of Siam might have told Anna, "is a puzzlement."

"No records were kept of the 1777 Constitutional Convention at Windsor." noted retired State Archivist Gregory Sanford. "So we are all left to speculate."

As Sanford noted, holding constitutional conventions behind closed doors and with no official transcript of the proceedings was not unusual in the late 18th Century. Some ten years later, the  federal constitutional convention in Philadelphia was also held in camera (not on camera; photography was just being invented) and with no official account of the event, a policy, Sanford suspects, "inherited from England's concept of parliamentary privilege."

(A challenge, one would think, to advocates of interpreting the U.S. Constitution according to the "original intent" of its drafters. Without knowing what they said, knowing their intent would seem difficult if not impossible).

That 1777 Constitution was not for the State of Vermont. There was no such thing. It was for the Republic of Vermont. That constitution actually referred to Vermont as a state, but it was not recognized as one by Congress until 1791. After Vermont was admitted into the Union, the constitution was re-written in 1793, with that peculiar provision for choosing a governor transplanted into the new version.

Peculiar does not mean unique, at least not quite. Right now, one other state has a similar provision for selecting a governor if no candidate gets a popular majority. That state is Mississippi, not one most Vermonters consider similar to their own.

The Mississippi system is not identical, though. Down there, only the House of Representatives makes the final choice between the two top vote-getters, by "viva voce vote, which shall be recorded in the journal, in such manner as to show for whom each member voted."

In Vermont, both houses, "by a joint ballot." (the Senate and House meeting as one) choose any one of the three leading candidates, and they do it by secret ballot. Legislators may " but need not " disclose for whom they voted.

As for where the 1777 Vermont drafters got the idea for this provision, the answer seems to be: Pennsylvania.

Such at least is the plausible assessment of Eric Davis, the emeritus professor of political science at Middlebury College.

"Needing a constitution for the new republic, and not wanting to write one from scratch, they looked at the new post-independence constitution of Pennsylvania and decided to copy many of its provisions." Davis said.

Though the precise motivations of the constitution-drafters in both states are lost in the mists of time, Sanford and Davis suggest two likely explanations.

One is that political parties had not yet developed. Ambitious, prominent (and usually wealthy) men (the non-men in those days couldn't vote, much less run and serve) would simply put themselves forward as candidates So it was common to have more than two major candidates for governor, making it less likely that one of them would get a majority.

The second reason was, as Davis noted, that in the late 18th Century, "Americans were very skeptical about executive power.  Executives were seen as carrying with them the potential of tyranny. The Pennsylvania-Vermont system of having the legislature elect the governor was thought to prevent a tyrannical executive from getting elected through demagogic appeals."

No wonder. Back in those days, "executive" was all but synonymous with "royal." The executives with whom 18th Century Americans were familiar were kings (or, between 1558 and 1603, a Queen, Elizabeth I). They ruled by divine right, and though, at least in England, their power was no longer absolute, it was considerable, and not infrequently tyrannical.

That fear of "demagogic appeals" indicates that the original drafters also feared too much democracy. That fear was also widespread in 18th Century America. In the 1789 Federal Constitution, U.S. Senators were elected by their state legislatures, not directly by the people. The Founders created a far more elitist version of democracy than the one Americans currently enjoy (and complain about).In most states, men (and usually only white men) could vote only if they had a certain amount of property.

Not in Vermont. Those guys in Windsor did not copy the Pennsylvania constitution word for word. The took out the property qualification. In Vermont, even the destitute could vote, and "at least in theory " so could the non-whites.

But that may have only enhanced the concern over demagoguery. Sanford said he suspected that Vermont's founders "had great faith in representative democracy, as opposed to pure majoritarian democracy." That could explain, he said, why 'they created a unicameral legislature with the representatives kept close to the people by, among other means, annual election."

As the two party system evolved in Vermont and elsewhere, fewer elections were won by mere pluralities. When that does happen, most states just stick with the plurality winner. But Georgia and Louisiana hold runoff elections if no candidate for governor or U.S. Senator gets a majority of the popular vote. And as a residue of the days when the Deep South was solidly Democratic and victory in that primary was 'tantamount" (a word almost never used in any other context) to winning in November, eight states (including Georgia and Louisiana) hold runoff elections if no one wins a majority in the primary. North Carolina and South Dakota hold primary runoffs, too, but only if no candidate breaks a 35 percent threshold.

Vermonters could, of course, amend their constitution. But that's not easy. It's probably harder than in any other state. The process can begin only once every four years, and it can only begin in the Legislature, where the Senate must pass a proposed amendment by a two-thirds majority, and the house concur by a simple majority.

Then both houses in the next Legislature (after an election) have to re-pass the amendment, by a simple majority in both houses this time, before it goes to the voters in a referendum.

No surprise, then, that amendments are rare.

In modern times, the Legislature has always chosen the gubernatorial candidate with the statewide plurality. The last time it did not was in 1853, which was, politically speaking, in another world. In almost every case in which there was no a majority winner, the runner-up has effectively dropped out and urged the lawmakers to choose the top vote-getter.

Republican Scott Milne has not, and continues to hope that the legislators will make him governor. Because plurality winner Shumlin is a Democrat, as are most legislators, and because he got the most votes, he is widely expected to prevail on January 8. But Milne's perseverance has treated (or subjected") Vermonters to another political theory debate.

Milne and his supporters argue that representatives ought to represent " to vote for the candidate who carried their districts. Shumlin and his supporters point out that more Vermonters chose him than any other candidate.

Obviously, legislators ought to take into account the wishes of their constituents. There is a powerful incentive for them to do so; elected official who regularly ignore the wishes of their constituents are likely to find themselves un-elected ere long.

But the governor does not govern one House or Senate district. He governs the whole state, making it appropriate for lawmakers to consider carefully who won the statewide plurality.

Then there is the argument that legislators ought to use their own judgment and vote for the candidate they think will do the best job. This point of view was most famously and most eloquently expressed around the time Vermont's constitution writers met in Windsor by the conservative Anglo-Irish political philosopher Edmund Burke.

A representative, Burke wrote, owes his constituents "his unbiased opinion, his mature judgment, his enlightened conscience,. ...Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion"

Once chosen, Burke said, the representative "is not member of Bristol, but he is a member of Parliament"

He meant Bristol in southwestern England, not the smaller one in Addison County. But the point holds, and the likelihood is that come January 8, the winners will be Edmund Burke and Peter Shumlin.

Does Vermont Really Need a Lt. Governor?

October 30, 2014
Three questions and answers about Vermont's lieutenant governor:

#1 - Who will it be

Incumbent Republican Phil Scott, Progressive/Democrat Dean Corren, or " theoretical possibility " Liberty Union's Marina Brown.

#2 - What does Vermont's lieutenant governor do

Not much. He or she becomes acting governor when the governor is out of state, presides over the Senate (voting only if the vote will be decisive), and serves on the Senate's Committee on Committees.

Oh, and imprudent though it is to say, waits around for the governor to die, resign in disgrace, or decide to leave public life and seek inner peace in a monastery or the wilderness.

#3 - Does Vermont need a lieutenant governor

Obviously not. Five states, including neighboring New Hampshire and nearby Maine, manage just fine without one. In both those states, the Senate President becomes governor should the office become vacant. In Oregon, West Virginia, and Wyoming, the Secretary of State takes over.
And in Tennessee and West Virginia the president (called 'speaker" in Tennessee) of the State Senate is the lieutenant governor.

In fact, if the state did abolish the office " unlikely a prospect though that may be " Vermonters would hardly notice. In an age of cell phones and the Internet, the governor can govern from afar. Any senator can preside over the chamber (in only about half the states does the lieutenant governor play that role), and there are various mechanism for finding that decisive vote or creating a Committee on Committees comprised solely of senators.

If Vermont got rid of its lieutenant governor, the state would save a little (very little) money, free up a spacious office on the first floor of the Statehouse, and have one less line on the ballot every two years.

Needless to say, this is not about to happen. And there are problems in systems that lack a lieutenant governor. New Jersey did not have one in 2004 when Gov. Jim McGreevey was forced to resign. As the Constitution then provided, Senate President Richard Codey (a Democrat like McGreevey) became acting governor.

But he also continued on as senate president, so he was "convening legislation in the morning and signing bills in the afternoon." said Julia Hirst, the Executive Director of the National Lieutenant Governors Association, creating constitutional complications. Two years later, New Jersey adopted a constitutional amendment creating a lieutenant governor.

In New Hampshire, though, the senate president has to leave the legislature on becoming acting governor. And Mane's constitution calls for holding a new election soon after the senate president fills a gubernatorial vacancy.

Another reason people would hardly notice the absence of a lieutenant governor is that Vermont's "lite gov." as the often is often called, is very weak.

No, that's not a condemnation of Phil Scott. It's a description of the office as designed by the Constitution. In some states, said Julia Hirst, either the constitution or statute grants the lieutenant governor "a dual duty, head of an agency, or a cabinet slot, or chair of a commission." Vermont's, she said, is one of the few states in which the lite gov has no role except"lite gov.

Not that lite govs in the other states are always considered necessary, either. In Rhode Island in 2010, a candidate who pledged to abolish the office got 40 percent of the vote. And the old vaudeville line that a lieutenant governor's job is to "get up, read the paper, see if the governor is dead, if not, go back to sleep," can get a laugh nationwide.

In this state, lieutenant governor is a part-time job. Lt. Gov. Howard Dean continued to practice medicine as Dr. Howard Dean. He was seeing a patient when one of his assistants told him that Gov. Richard Snelling had died, and Dean was now governor. That was in 1991. Dean hasn't seen a patient since.

Befitting a part-time job, the salary is $63,701. Higher than the typical worker's pay, but far below the governor's $150,067 or the $95,156 for the other constitutional offices. Even the state agency heads earn substantially more than the lieutenant governor.

Scott still helps run his company, Dubois Construction Company, often going to its Middlesex office early in the morning before starting his public duties, and returning in the evening. Sometimes, he said, he even mops the floor.

Corren said that if he's elected he"d still devote some of his time to Verdant Power Company, the New York based energy design firm he serves as chief technical officer, though he would have "no day-to-day responsibilities."

And then there's the staff. The lieutenant governor's office consist of the lieutenant governor and a staff of "(are you ready")"one (1). As an institution, Vermont's lieutenant governorship has limited clout. So limited that it seems plausible that the most outstanding "or at least the most visible " deed ever executed by a Vermont lieutenant governor was accomplished by Hollister Jackson during the great hurricane of 1927. He drowned.

Neither Scott nor Corren disagrees that the office one holds and both seek is constitutionally weak. Scott, in fact, jokes that he gets lots of mail from constituents "who don't know how much power we have."

Meaning, he acknowledged, how little power the office has. These letter-writers think he can handle their complaints because he has 'the Number two (license) plate."

Sometimes he can handle them, he said, but it's because of his personal relationships with agency officials, not the intrinsic power of his office.

To both candidates, though, the official weakness of the office is more of an opportunity than a shortcoming, an opportunity each would exploit in his own way.

The Constitution, Corren said, 'sets the basic minimal duties" of lieutenant governor, but "it doesn't set a maximum. So after you've discharged those minimal duties'the portfolio is really open.

The lieutenant governor, Corren said, "has potentially the freedom to do much, much more, and that's the kind of role that I would play, really stepping up the activity of that office"

Corren's stepped up activity would be as an advocate, most immediately in support of Gov. Peter Shumlin's universal health care plan, later moves to combat climate change and help create jobs.

How would he do that from an office that has little official power"

"The mechanism is hard work." he said.

Scott's approach to the job is less issue-oriented and more concerned with the procedural duties of the office, especially presiding over the Senate. As a former senator himself, Scott said, he finds that he can often help keep the body running smoothly.

"It goes along with the Senate environment at large." Scott said. "People tend to try to get consensus."

Because consensus-building comes naturally to him, he said, he's able to contribute to that process.

Vermont is one of only 18 states in which the lieutenant governor is not elected on a ticket with the governor. That means it is possible " and not that rare " that the two top officials will be from different parties, as they are now.

The downside here is that the voters could elect a governor with one set of policies but end up with one whose positions are quite different. That didn't happen when Dean replaced Snelling. Snelling was a moderate Republican and Dean (back then, if perhaps no longer) was a moderate Democrat. Were Scott to replace Shumlin, the difference would be a bit more pronounced. Though Scott is on the moderate side of the GOP spectrum, his policy positions are clearly to Shumlin's right.

Still, Shumlin has invited him to join cabinet meetings, and the two men, who served together in the Senate, often co-operate.

Whoever wins, Vermont will continue to have a lieutenant governor, for better and for worse. As Corren said, "The Constitution gives us one, and we"re not going to take it away. If you have a limb as part of your body, it behooves you to exercise it so it doesn't wither away.

Interview with Phil Scott. Republican for Lt. Governor

Interview with Dean Corren, Progressive/Democrat for Lt. Governor

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