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Friday, Apr. 29, 2016

Briley Ditch issue is near resolution

Saturday, January 18, 2003

Briley Creek has been around for a long time, and the controversy has been around for almost as long.

Stories indicate that the problem really started when a local landowner had some timber cut and the tree cutters were told to put all the tree tops into the creek. The tops began trapping trash and sediment and the problem continued for years.

After years of flooding county roads, the highway department decided to take action.

It seemed like a simple enough project - keep the creek from flooding CR 500 west.

Application was made to the Department of Natural Resources and the description of the work was "to clear approximately 2,680 feet of the creek of logjams and debris within a 100 foot-wide easement to protect adjacent farmland and CR 500 west from flood damage". The permit was approved on Nov. 12, 1997.

"I take full responsibility for the problems with Briley Creek," Ron Chamberlain, county highway supervisor said. The problems with the creek have been going on since 1997, when a suggestion was made to clean out the creek. Now, more than $250,000 and five years later, the issue is not dead. As a matter of fact, the mitigation is still pending.

"I did not receive any instructions as to what to do on Briley Creek," said Thad Shidler, the person who volunteered to do the work on the creek. Shidler said that he got a call from Chamberlain saying the permit was issued and he could start to work on the creek. He said he did not receive a copy of the permit to post at the worksite, nor did he receive the general conditions or special conditions of the permit. Shidler says that the project cost him $12,000, however he is not complaining about the cost - it was a job that needed to be done, and Shidler wanted to help the financially-strapped county by volunteering his time and money.

Chamberlain agrees that Shidler is not to blame for the problems with the permit. Chamberlain said that time was an important factor since the work had to be done under dry conditions, and in an attempt to prevent flooding of CR 500 west during the winter, the work was expedited.

The general conditions of the permit, which were included, are that:

. The permit must be posted and maintained at the project site until the project is completed.

Special conditions of the permit included that:

. All major channel reshaping must be limited to an area within 450 feet of the County Road 133 South (County Road 500 west) bridge.

. Outside of the 450 foot long section of stream listed above, only logjams, debris piles and silt piles may be removed; these obstructions are to be removed only down to the surrounding elevation.

. There shall be no excavation of the streambanks or outside the streambanks.

. Do not clear any standing trees greater that 4 inches diameter at breast height.

. Place spoil materials no closer than 5 feet from the top of the streambank and spread to a maximum depth of six inches sloping landward of the stream.

On Feb. 9, 1998, the Department of Natural Resources filed a complaint for the issuance of a notice of violation and the imposition of penalties against Clay County and Ronald Chamberlain.

According to the document, on Oct. 28, 1997, a Division of Fish and Wildlife biologist met with Chamberlain at the site and expressed his concerns regarding the detrimental impacts that an unmitigated project would have, and outlined the special conditions which the division would be insisting upon.

Chamberlain indicated he understood the conditions and assured the biologist that the county would abide by them.

"I called the DNR biologist to inform him of the date that we would be starting the project, but nobody came out," Chamberlain said. "He said he or one of his associates would be out to observe the work. Nobody showed up."

Less than two months later, the biologist returned to the site to find all but one of the special conditions had been violated. The violations include:

. No revegetation

. No erosion control measures taken

. Nothing seeded or mulched

. Major channel reshaping was not limited to within 450 feet of the bridge. Major channel reshaping occurred throughout 2,680 feet of the channel.

. More than just logjams and debris piles were removed. Originally the channel was one to three feet deep. It had been excavated to seven feet deep in some places.

. All of the streambanks were excavated, and there was extensive evacuation outside the streambanks.

. Hundreds of trees over four feet diameter at breast height were cleared.

. The material excavated from the channel was piled up in the wetland.

. The biologist was not contacted at least one week prior to work initiation, but he was called several days after the work had begun.

. There are still felled trees and debris in the floodway.

. Spoil materials are piled up higher than six feet in some places.

As a result of the violations listed, the project was determined to be unpermitted and a penalty of $1,000 be imposed for the day that the violation occurred and that a penalty of $1,000 per day be imposed for each day that the violation has continued after the date that the first civil penalty is imposed.

According to Gregory Carlson, Environmental Protection Agency, a person from the DNR forwarded the case for EPA review. At that time, the EPA decided to take over jurisdiction of the case.

"Under the Clean Water Act, Briley Creek is a valuable resource," Carlson said. "Eel River is an impaired waterway, which means it doesn"t meet water quality. Added to that, Clay County didn"t go through the process through the U.S. Corps of Engineers and the Department of Natural Resources. And there was the issue that there were 11 of 12 special conditions violated."

"I wasn"t aware of any trouble until late December 1997 or January 1998." said Shidler.

When Shidler started working on Briley Creek, there were logjams and sandbars. He began working to remove the logjams and sandbars that were contributing to the creek problem. "I wanted to do the project as economically as possible, however, I couldn"t tell where the creek was. I had to view the big picture and see where there were big trees and where there were scrub brush. I kept digging on the ditch until the water drained like it should."

Shidler has a degree from Purdue in Agronomy, specializing in soil and plant science. Based on his experience, he returned the ditch to the anaerobic soil level, where it should be to do its job effectively.

"We are still in discussions with the EPA and the Clay County Commissioners and Council. I"ll work with them as long as I don"t have to pay a fine and as long as the county doesn"t file a lawsuit against me," Shidler said.

Lewis Beckwith, the county"s attorney, had threatened a lawsuit against Shidler on several occasions. The possibility of suing Shidler was a matter discussed in the two executive sessions held at the Jan. 6 county council meetings, however, it appears that the county officials will not sue Shidler.

Carlson said that as soon as the work on the creek area is complete, the EPA will work to close the entire Briley Creek case.

To finish the work, tree seedlings must be planted along the waterway, which should be completed in March. Also required is the planting of grass seeds, according to Chamberlain.

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