Property Rights Foundation of America®

(Reprinted from the New York Property Rights Clearinghouse, Spring 2009)

DEC Should Control Its Beavers

By Carol W. LaGrasse
May 31, 2009

A beaver dam burst in Warren County during May, releasing a barrage of water from the impoundment. The flood caused a forty-foot washout beneath the rebuilt tracks for the Upper Hudson Railroad in Riparius. The taxpayers of Warren County and the state and federal governments have invested undisclosed millions in the hope of restoring rail service to bring tourists from Saratoga Springs, the most northerly station on the Amtrak, to North Creek. New track and structures were thought to be in place to allow operating the railroad this summer.

Exorbitant expenditures on the rail project have been the subject of numerous newspaper articles. Just prior to the washout, official reports revealed that a little 16-by-40-foot roofed passenger platform next to the tracks in Thurman, with wiring and provisions for future sanitary facilities, had cost taxpayers $1.37 million. Local officials estimated that the restoration of the washed out grade for the tracks would cost about $70,000 and that the delay means that the tourist train could not operate this summer. Jaws are dropping locally at the repeated debacles to be absorbed by the taxpaying public. But who's really responsible for the new setback?

It seems to me that the New York State Department of Environmental Conservation (DEC), rather than Warren County, should be footing the bill to repair the railroad track washout. After all, in New York State, wildlife such as beaver are owned and managed by the DEC. So it was the DEC's beavers that built the unsafe dam that failed and caused the damage. Why should the local taxpayers be forced to pay toward the repairs through their county property taxes?

The DEC undoubtedly knows that its beavers often build significant dams, which can become dangerous. Dams of this size, when built by human beings, are professionally classified as to the degree of hazard that they could pose to downstream structures and populations. Under government supervision, these dams are prioritized for monitoring and repair on the basis of danger related to their structural condition.

However, the DEC does not logically evaluate the danger posed by dams constructed by its beavers. Consider a dam with which I am personally familiar. This beaver dam less than a mile from our house measures about 100 feet across and impounds perhaps 10 acres of water, about 2 to 5 feet deep. Several weeks before the beavers built that dam, the DEC stopped a man who owned land on the other side of the road from building a mere 10-ft. wide dam to impound about an acre of shallow water. The DEC required the man to hire a licensed professional engineer, but it was beyond the man's means to pay for this. The beaver dam still stands, waiting for the possible occurrence that could result in it releasing its impoundment.

The beaver is the mascot of the City College of New York, known as CCNY, where I received a degree in engineering. So I'm reluctant to point this out, but, lacking engineering, the dams built by DEC's beavers fail repeatedly. There are common, obvious design deficiencies to beaver dams. For instance, a DEC beaver crew won't lock its dam into the base material, allowing a dam to slip sideways like a hinged gate. If the beavers don't find a handy tree for anchorage, they build anyway. Their wattle and earth construction material can be too loose and light to resist the mass of water in the impoundment.

The DEC's beaver crews do not submit drawings and do not have licensed engineers for their structures, even though public safety demands this preparation. The DEC doesn't inspect its beaver dams during construction or keep tabs on their condition. And the DEC doesn't bond or guarantee its beaver construction projects.

Yet, beaver dams are somewhat protected by the DEC. The dams cause wetlands that are the subject of lengthy, complicated law and regulations. The DEC considers wetlands so "environmentally significant" that it could be difficult to get a permit to breach a beaver dam, resulting in draining and killing the wetland vegetation, etc., and altering the "significant habitat."

Any other manager of a work crew, including, for instance, a crew of work horses, is responsible for the danger that the work crew poses to others in the normal course of the crew's work. Tort law dating back thousands of years protects the public from injury by an animal that belongs to someone, where, for instance, the animal has been known to bite. The propensity of beavers to build dams that fail is indeed well established.

Perhaps it is impossible for the DEC to protect the traveling public from motor vehicle accidents caused by deer, as their movements are sudden and unpredictable, but this is not the case with the structures built by DEC's beavers. These structures are stationary and sit out in the open in plain sight.

So it can hardly be said in DEC's defense that its work crews are wild, as the DEC protects and manages these particular wild work crews, and fails to take advantage of the obvious oversight opportunity to exercise care that their structures are maintained in a safe condition.

It is a breech of public trust that DEC has its little wild work crews routinely build dams all over the countryside with no engineering, no supervision, and no compensation when the dams fail.

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© 2009 Carol W. LaGrasse
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