In re: Darryl and Stephanie Landvater, Docket No. CUD-96-06 (Appeal of DEC CUD File #94-313), Findings of Fact, Conclusions of Law, and Order (Aug. 28, 1997)

State of Vermont

WATER RESOURCES BOARD

RE: Darryl and Stephanie Landvater Docket No. CUD-96-06

101 Chapman Lane (Appeal of DEC

Williston, VT 05495 CUD File #94-313)

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDERThis decision pertains to an appeal from a conditional use determination ("CUD") issued by the Department of Environmental Conservation ("DEC"), Agency of Natural Resources ("ANR") to Darryl and Stephanie Landvater. The CUD under appeal authorizes the cutting of trees within a buffer zone of a protected wetland but not in the same manner as proposed by the Landvaters. For the reasons explained below, the Water Resources Board ("Board") determines that the proposed activity requires a CUD and it hereby issues a CUD authorizing those activities specifically requested by the Appellant.

I. BACKGROUND

On October 30, 1996, the Board received a notice of appeal filed by Darryl Landvater ("Appellant"), on behalf of himself and his wife Stephanie Landvater, seeking review of a decision by the Secretary's designee, the DEC, a department of the ANR, granting CUD #94-313, with conditions. This appeal was filed pursuant to 10 V.S.A. § 1269 and Section 9 of the Vermont Wetland Rules ("VWR").

The Appellant and his wife own real property in Williston, Vermont, containing Class Two wetlands in an area formerly comprising an oxbow of the Winooski River. The Appellant had asked the ANR for approval to cut the tops off of a 200-foot swath of trees within the buffer zone of one of these protected wetlands in order to allow a line of sight from the Appellant's house and porch to certain ponds associated with the wetland, and to plant the exposed bank with low-growing willow sprigs ("Proposed Activity") . However, the CUD issued by the ANR authorized the Appellant to trim the tops off of only certain trees, said trimming to be confined to a height of two feet in three 30-foot windows, no closer than 30 feet apart ("Approved Activity"). The Appellant asserts that it was error for the ANR not to approve the Proposed Activity.

On October 31, 1996, the Executive Officer of the Board, William A. Bartlett, wrote to the Appellant informing him of certain deficiencies in his filing. On November 20, 1996, the Appellant supplemented his notice of appeal, and on December 20, 1996, this appeal was deemed complete and docketed. On that same date, a Notice of Appeal and Prehearing Conference was sent to persons required to receive notice and on December 28, 1996, it was published in the Burlington Free Press. Rule 18(C) and 20 of the Board's Rules of Procedure.

A timely entry of appearance was made by James A. Caffry, Esq., now former counsel for the ANR. No other persons entered appearances in this matter.

On January 13, 1997, at 11:00 a.m., a prehearing conference was convened at the Board's Conference Room, National Life Records Center Building, National Life Drive, Montpelier, Vermont, by the Board's duly authorized delegate, Kristina L. Bielenberg, Esq., pursuant to Rule 24(A) of the Board's Rules of Procedure. The following persons appeared and participated in the prehearing conference: Darryl Landvater, Appellant, pro se; and James A. Caffry, Esq., for the ANR. Also present were the Board's Executive Officer, William A. Bartlett, and Associate General Counsel, Donna Russo-Savage, Esq.

On February 13, 1997, a draft Prehearing Conference Report and Order was circulated to the above persons for review and comment by February 27, 1997. The Board received no written comments from the Appellant, ANR or others. A final Prehearing Conference Report and Order was issued by the Board's Chair on March 6, 1997, which, among other things, clarified the issues on appeal and established a schedule for the prefiling of testimony and exhibits. On March 13, 1997, Andrew Raubvogel, Esq., filed a Substitute Notice of Appearance, indicating that he would appear for the ANR in this matter in lieu of James A. Caffry, Esq.

On April 8, 1997, the Appellant, through counsel John Maitland, Esq., of Downs Rachlin & Martin P.C., timely requested an opportunity to supplement his previous direct testimony and exhibits in accordance with the terms of the Prehearing Conference Report and Order. Accordingly, the Board's Chair issued a Supplemental Prehearing Order on April 10, 1997, authorizing the requested additional filings, and on May 29, 1997, a Notice of Public Hearing was issued. On June 3, 1997, the parties completed the prefiling of testimony and exhibits.

On June 17, 1997, the Appellant, through counsel, filed a Legal Memorandum in this matter.

However, neither the Appellant nor the ANR filed written objections to prefiled testimony or exhibits by this deadline.

A second prehearing conference was convened by the Chair on June 19, 1997, at the Board's Conference Room in Montpelier. Those participating were: the Appellant and his counsel, Dale Rocheleau, Esq., of Downs Rachlin and Martin; and Andrew Raubvogel, Esq., for the ANR. The parties discussed an agenda for the hearing and site visit. At this conference, the ANR requested and was granted an opportunity to file a written response to the Appellant's Legal Memorandum. The ANR's Responsive Memorandum was filed on June 23, 1997.

A Board hearing was convened at 10:00 a.m., on June 25, 1997, in the 2nd Floor Meeting Room in the Williston Town Hall, in Williston, Vermont. Following appearances and opening statements, the Board recessed for a site visit at the Appellant's real property to observe the wetland, its buffer zone, and other features relevant to the determination of this appeal. Following the site visit and lunch, the hearing was reconvened, at which time the observations of the parties and the Board were placed on the record. This was followed by the Appellant's case in chief and that of the ANR. The Appellant testified as did his expert witnesses, Peter W. Spear of Natural Resource Consulting Service and Dr. Kurt Olson. Witnesses for the ANR were Catherine O'Brien, Wetlands Office staff, Department of Environmental Conservation, and John Austin, Wildlife Biologist, Department of Fish and Wildlife, ANR.

The Board recessed the hearing in this matter, allowing the parties to file proposed findings of fact, conclusions of law, and orders, and any supporting memoranda by July 10, 1997. On July 10, 1997, the Appellant filed Proposed Findings of Fact, Conclusions of Law and Order. On July 11, 1997, the ANR filed a Response to Request for Final Brief.

The Board deliberated with respect to this matter on June 25 and August 27, 1997. On August 27, 1997, the Board declared the record complete and adjourned the hearing. This matter is now ready for decision. To the extent that any proposed findings of fact and conclusions of law are included below, they are granted; otherwise, they are denied. Petition of Village of Hardwick Electric Department, 143 Vt. 437, 445 (1983).

II. ISSUES

A. Is the Proposed Activity an activity incidental to ordinary residential use and therefore an Allowed Use pursuant to VWR, Section 6.2(r)?

B. Alternatively, if the Proposed Activity is a Conditional Use, should a CUD be issued pursuant to VWR, Section 8 and, if so, with what conditions, if any?

III. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

1. The Appellant, Darryl Landvater, and his wife Stephanie Landvater own real property at 101 Chapman Lane, Williston, Vermont. Located on their property is an 8.5 acre wet- land.

2. This wetland appears on the National Wetlands Inventory ("NWI") map as a Palustrine Open Water (POWZ) wetland. It is an open water wetland, comprised of several inter-connected ponds, which is flooded much of the year.

3. The wetland is located in an old oxbow of the Winooski River. The wetland and much of the surrounding agricultural land is within a 100 year floodplain and constitutes riparian habitat associated with the Winooski River.

4. The area of the wetland that is the subject of this proceeding consists of a shallow pond located approximately 2,000 feet to the south of the present course of the Winooski River. It is bounded on the south by railroad tracks and two upstream ponds, and it is partially bounded on the west by a steep embankment, approximately fifteen feet in height, at the top of which is situated the Landvater home. The embankment is within the wetland's buffer zone.

5. The embankment is currently covered by a narrow, linear band of vegetation, comprised largely of twenty- to thirty-year old box elder trees, approximately thirty- to forty-feet in height. Box elders are relatively small, multi-stemmed trees. There are only two large trees in this area and both are willows.

6. The Proposed Activity consists of cutting the tops off of most of the box elder trees on the embankment, leaving stumps two feet in height. The total number of box elders to be cut is approximately 32. Additionally, the Appellant proposes to plant willow cuttings in the Activity Area. The two large willow trees growing on the embankment will not be cut as part of the Proposed Activity.

7. The reason for retaining the roots and trunks of the box elder trees and for planting the willow cuttings is to reduce erosion of the embankment and scouring by winter ice. Because the roots and lower trunks of the box elders will remain in place, it is expected that the cut trees will sprout new growth. The box elder sprouts, in combination with the planted willow, will be periodically cut by the Appellant to a height of two or more feet in order to maintain a dense stand of brush.

8. The area of the buffer zone to be affected by the Proposed Activity measures approximately 200-feet by 50-feet, or about 10,000 square feet ("Activity Area").

9. With the exception of the Activity Area, the land surrounding the wetland is largely in agricultural use, with the predominant land uses being pasture and tillage. The Landvater home and lawn are immediately to the west of the Activity Area. Accordingly, the Activity Area is like an "island" of woody vegetation, surrounded by grasses and other herbaceous plants.

10. The Appellant's objective in conducting the Proposed Activity is to maintain a line of sight from the kitchen window of the Landvater home to the ponds and farm road at the south end of the wetland near the railroad tracks.

11. One of the purposes of the Proposed Activity is safety. The Landvaters have children. They wish to safely supervise their children from the house while the children are playing in the ponds and the area surrounding the wetland. A farm road crosses the wetland at a point south of and at a grade below the embankment. A culvert passes under this farm road, providing a hydrologic connection between two ponds at the south end of the wetland. The Landvater children like to play in and around the ponds near this culvert. At present this play area is not visible from the house because the view is obstructed by the trees in the Project Area.

12. Another purpose of the Proposed Activity is security. The Landvaters want to be able to have a largely unobstructed view across the wetland so that they may observe people entering the wetland area via the farm road. A number of people presently enter the wetland area and farmland beyond without the Landvaters' permission. The farm road entrance to the wetland area is not visible from the Landvaters' house because the view is currently obstructed by the trees in the Activity Area.

13. Although the wetland as a whole is home to a variety of bird species, the Activity Area has not recently been a preferred nesting site for birds. Ducks and Canadian Geese have been observed to the north and east of the Activity Area. However, no nests have been seen in the Activity Area since at least 1995.

14. The Board observed ducks swimming in the open water of the wetland to the north of the Activity Area. However, the Board found no evidence of waterfowl nesting in the Activity Area. Instead, the Board observed that none of the trees located on the embankment had nesting cavities, and there was no mid-story layer of vegetation to provide suitable cover from predation. To the extent that the wetland is screened from the Landvater home, this is due more to the topography of the embankment than to the existing stand of trees in the Activity Area.

15. The Activity Area is a fragmented habitat where wildlife and migratory birds are at a disadvantage during nesting periods. Nesting birds are more subject to predation and disturbance in this area, due to sparse vegetative cover and the area's close proximity to human habitation and activity, much of which is concentrated at the south end of the wetland.

16. In contrast, the wetland area closest to the Winooski River contains greater diversity of habitat. The Board observed upper-, mid- and lower-layers of vegetation in this area, as well as more species of birds.

17. Beavers appear to be active at the wetland, however, there are no beaver lodges or other evidence of an adult beaver population in the southerly end of the wetland and Activity Area. The wetland also may be home to muskrat and other small mammals, as well as for reptiles and amphibians; however, the Board did not observe these animals or evidence of their activity in the area of the Proposed Activity.

18. The soils in the area of the embankment appear to be highly erodible, sandy loam. Ice scouring this past winter uprooted several large trees along the embankment, particularly north of the Activity Area.

IV. CONCLUSIONS OF LAW

A. General

The Board has broad authority to adopt rules identifying and protecting Vermont's significant wetlands. 10 V.S.A. § 905(7)-(9). In 1990, the Board adopted the Vermont Wetland Rules. VWR, adopted Feb. 7, 1990; amended, Sept. 19, 1990. These rules classify significant wetlands as Class One or Class Two wetlands. VWR, Section 4.1. An NWI-mapped wetland is presumed to be a Class Two protected wetland, unless otherwise determined by the Board. VWR, Section 4.2(b). Furthermore, a Class Two wetland is presumed, until determined otherwise by the Board, to serve all of the functions specified in VWR, Section 5. VWR, Section 4.2(b). In order to protect the functions that make a wetland significant, the Board has established a presumptive fifty-foot buffer zone contiguous to the boundaries of all Class Two wetlands. VWR, Section 4.4. Any person conducting an activity within a Class Two wetland or its buffer zone must first obtain a CUD from the ANR, unless such activity is as an allowed use as defined in VWR, Section 6.2.

The wetland located on the Landvater property is an NWI-mapped wetland and therefore presumed to be a Class Two wetland. In accordance with VWR 4.4, a buffer zone of fifty-feet from the boundary of that wetland presumptively exists to protect its significant functions.

The Appellant asks the Board to determine: (1) whether its Proposed Activity is an allowed use under the VWR; and (2) if not, whether a CUD should issue for the Proposed Activity and with what conditions. The Board is authorized to conduct a de novo proceeding, following which it may issue an order affirming, reversing or modifying the CUD decision of the Secretary or her designee. 10 V.S.A. § 1269; VWR, Section 9. As a preliminary matter, the Board may determine whether an activity constitutes an allowed use or is a conditional use requiring a CUD. Board Rule of Procedure 16(B); VWR, Section 6. An appellant wishing to conduct an activity within a protected wetland or its buffer zone has the burden of proof, by a preponderance of the evidence, to show that either its proposed activity is an allowed use or, if it is not, that the proposed activity satisfies the standards set forth in VWR, Section 8, and a CUD should issue with or without the imposition of conditions. In re: Appeal of Larivee, Docket No. CUD-92-09, Findings of Fact, Conclusions of Law, and Order at 14 (March 24, 1994).

B. Allowed Use Analysis

The Appellant's first argument is that the Proposed Activity is an "Allowed Use," pursuant to the VWR, Section 6.2(r), and therefore a CUD is not required.

Certain uses are allowed in a Class Two wetland and its adjacent buffer zone without any prior review and determination by the DEC. VWR, Section 6. One of the enumerated allowed uses is the "mowing of existing lawns, the placement of barbecue pits, sand boxes, bird houses, and other similar activities incidental to residential use within a buffer zone." VWR, Section 6.2(r).

The Appellant argues that the Proposed Activity is incidental to ordinary residential use within a wetland buffer zone. He asserts that residential homeowners routinely make changes to the landscape to enhance the safety of their children and the security of their property. Such changes identified by the Appellant are "mowing the lawn, removing dead branches from trees, placing a fence around swimming pools, or removing shrubbery that obscures the view of the children's' play area or the entrance of the property." The Appellant argues that the Proposed Activity is no different, being a homeowner's reasonable attempt to make his property safe for his children and secure against unwanted intruders. Consequently, the Appellant argues that no CUD is required for the Proposed Activity.

The Board disagrees. The Proposed Activity is not an "Allowed Use," as that term is used in the VWR. First, the Proposed Activity is not expressly included in the list of activities that constitute allowed uses under VWR, Section 6.2. Second, the Proposed Activity is not similar to the kinds of activities deemed "allowed" under VWR, Section 6.2(r) or under any other subsection of VWR 6.

The list of allowed uses allowed under VWR 6.2 6.2(r) is highly circumscribed. It permits the "mowing of existing lawns" within the buffer zones of Class One and Two wetlands. Id. (Emphasis added). Therefore, a person may maintain the status quo by mowing a lawn within a buffer zone if that lawn pre-exists the adoption of the VWR. He cannot, however, create a new lawn encroaching upon the wetland or its protective buffer.

VWR, Section 6.2(r) also allows activities within a buffer zone which are incidental to ordinary residential use of a property but which are de minimis in their impacts. The examples provided by the rule are the placement of discrete structures within a buffer zone. The structures specifically listed are barbeque pits, sand boxes, and bird houses, which occupy little physical area.

It cannot be said that the placement of a bird house and the cutting of 32 box elders within a 10,000 square-foot Activity Area are comparable in their scope and degree of potential or actual impact on a wetland buffer zone. To otherwise interpret the rule and construe the facts would lead to absurd results. Homeowners would be free to extend their yards, incrementally or otherwise, into protected wetlands and their buffer zones, without prior review to evaluate the impacts of such activity and without suitable conditions to achieve the purposes of the VWR. Indeed, the protective value of most buffer zones would be eliminated or greatly reduced if such a broad interpretation of Section 6.2(r) were to be adopted and applied.

The Board therefore narrowly construes VWR, Section 6.2(r) so as to assure, rather than undermine, the protections contemplated by the rules. Consequently, the Board concludes that Appellant's Proposed Activity is not an allowed use within the meaning of VWR, Section 6.2(r).

Therefore, a CUD is required prior to the initiation of this activity.

C. Conditional Use Analysis

VWR, Section 8.5(a) sets for the general requirements for authorization of a conditional use in a significant wetland or its adjacent buffer zone:

The Secretary may determine that a proposed conditional use in Class One or Class Two wetlands or their buffer zones will have no undue adverse impact only when the Secretary determines that the proposed use will not result in an undue adverse effect on protected functions. In making this determination, the potential effect of any proposed conditional use shall be assessed on the basis of both its direct and immediate effects as well as on the basis of any cumulative or on-going effects on the significant wetland.

The Secretary shall not determine that any proposed conditional use is in compliance with these rules if it has an undue adverse effect on protected functions unless the Secretary determines that these impacts are sufficiently mitigated. Adverse impacts on any protected functions, other than minimal impacts, shall be presumed to constitute an undue adverse effect unless mitigated in accordance with subsections (b) [of Section 8.5].

Thus under Section 8.5(a), there are two ways to qualify for a CUD: either (1) the proposed conditional use will have no undue adverse impact under the protected wetland functions, or (2) any undue adverse impact under the protected wetland functions will be sufficiently mitigated, such that there will be "no net undue adverse effect." In re: Champlain Oil Company, Docket No. CUD-94-11, Findings of Fact, Conclusions of Law and Order at 10 (Nov. 1, 1995); In re: Appeal of Larivee at 16.

The first step in applying Section 8.5(a) is to determine whether the proposed activity will have an adverse impact on any protected function, beyond a minimal impact, taking into consideration any cumulative or on-going effects on the subject wetland. The Board has previously defined "minimal" impacts as "smallest in degree or amount." In re: Appeal of Larivee at 17. If an adverse effect in only minimal, it is not "undue" and therefore there is no need to consider whether the impact has been mitigated. On the other hand, if the adverse impact is more than minimal, it is deemed to be "undue." If a proposed activity has an undue adverse impact on one or more protected wetland functions, a CUD must be denied for that activity unless that impact can be sufficiently mitigated in accordance with VWR, Section 8.5, such that there will be "no net undue adverse effect." In order to achieve no net undue adverse effect, an applicant must meet all five mitigation provisions of VWR, Section 8.5. Id. at 19.

In the proceeding below, the ANR determined that the wetland complex as a whole serves the following protected functions: water storage for flood water and storm runoff (§5.1), surface and groundwater protection (§5.2), fisheries habitat (§5.3), wildlife and migratory bird habitat (§5.4), recreational value and economic benefits (§5.8), open space and aesthetics (§5.9), and erosion control through binding and stabilizing the soil (§5.10). In re: Darryl and Stephanie Landvater, DEC #94-313, Findings of Fact, Conclusions of Law and Decision at 2, Finding 8 (Oct. 9, 1996). The ANR further determined that the Proposed Activity would have no adverse impacts on wetland functions §§ 5.1, 5.2, and 5.3. Id. at 2, Finding 10. Additionally, the ANR determined that the following wetland functions were not present or were present at such a minimal level as to not be protected (i.e.: significant) functions: hydrophytic vegetation habitat (§5.5), threatened and endangered species habitat (§5.6), and education and research in natural science (§5.7). Id. at 9.

No person in interest challenged the ANR's findings, with the exception of the Appellant.

He limited his objections to Condition 1(C) which restricted cutting in the Activity Area to three 30-foot windows.

While a Class Two wetland is presumed, until determined otherwise by the Board, to serve all of the functions specified in VWR, Section 5 (VWR, Section 4.2(b)), the Board has recognized that the scope of any de novo proceeding must be limited to those issues specified in the notice of appeal unless the Board determines that substantial inequity or injustice would result from such limitation. Rule 18(D) of the Board's Rules of Procedure; In re: Appeal of Cole, Docket No. WQ-92-13, Memorandum of Decision at 8 (July 9, 1993), citing with favor Village of Woodstock v. Bijan Bahramian, 160 Vt. 417, 434 (1993). Therefore, while the ANR found that the wetland served several functions under Section 5, the only restrictions objected to in the Appellants' Notice of Appeal were those related to cutting within the Activity Area under Condition 1(C) of CUD #94-313. These restrictions, according to the ANR, were imposed solely based on the agency's interest in mitigating any undue adverse impacts to the protected function of wildlife and migratory bird habitat (§ 5.4). See Prehearing Conference Report and Order at 2-3 (March 6, 1997).

Accordingly, the Board's de novo review should be limited in this proceeding to consideration of the impacts of the Proposed Activity under function 5.4 alone. However, the prefiled testimony of the parties and evidence at hearing suggested that erosion control through binding and stabilizing the soil (§5.10) are also implicated by the Proposed Activity. Therefore, in the interest of justice, the Board has evaluated the Proposed Activity for its impacts under functions 5.4 and 5.10. VWR, Section 5.

1. Wildlife and Migratory Bird Habitat

As noted above, the wetland as a whole is significant for § 5.4, wildlife and migratory bird habitat. However, the Board concludes that there is sufficient evidence to support the Appellant's contention that the area of the wetland in proximity to the Landvater house is not significant for this function, and that the Proposed Activity will not have an undue adverse effect on wildlife and migratory bird habitat. See In re: Champlain Oil Company at 12.

The Board reaches this conclusion based on the following. Although ducks and Canadian Geese have been observed to the north and east of the Activity Area, waterfowl appear to avoid the south end of the wetland due to human habitation and activity in the vicinity. Three experts asked by the Appellant to assess the habitat of the wetland could find no bird nests in the Activity Area. Furthermore, the Board observed no evidence of waterfowl nests or trees with suitable nesting cavities in the south end of the wetland or in the Activity Area. The ANR's experts provided no evidence to refute these facts.

Pursuant to VWR, Section 5.4, a wetland that supports a significant number of breeding waterfowl or broods of waterfowl or that provide important habitat for wildlife and migratory birds is a significant wetland. In determining whether a wetland is significant for wildlife and migratory bird habitat the Board is required, at a minimum, to consider the extent to which the wetland:

(1) Has the habitat to support one or more breeding pairs of waterfowl or one or more broods of waterfowl;

(2) Supports or has the resting, staging or roosting habitat to support waterfowl migration;

(3) Supports a nest site, provides a buffer for a nest site, or is used as feeding habitat for any of the following species: Great blue heron, black-crowned night-heron, snowy egret, or green-backed heron;

VWR, 5.4(a). Additionally, the Board must consider whether the wetland supports or has the habitat to support one or more breeding pairs of birds listed in VWR, 5.4(a)(4).

The Board observed ducks swimming in the open water of the wetland to the north of the Activity Area, but as indicated above, observed no evidence of waterfowl nests or nesting sites in the south end of the wetland, including the Activity Area. While it is possible that some of the species listed in VWR, Section 5.4(a) may make use of the wetland as a whole for resting, staging or roosting in support of waterfowl migration, the Board was persuaded by the Appellant's uncontroverted expert testimony that the southerly portion of the wetland in the vicinity of the Landvater home is not presently used as nesting or other habitat by migratory birds. Indeed, the evidence supports the conclusion that the Activity Area is but a fragment of wooded habitat that is species poor (limited to box elder and two willows) and with little to no habitat value for waterfowl and other wetland-dependent bird species. In contrast, the wetland riparian area closer to the Winooski River exhibits much greater diversity of woody and herbaceous species of plants, providing better cover, shade, food, and greater isolation from human activity.

Therefore, while the Board agrees with the ANR that a buffer zone can provide valuable nesting habitat, as well as necessary screening of the visual and auditory impacts of nearby human activity, such screening is only essential where there is evidence that the wetland or portion of the wetland in question is in fact "important habitat for waterfowl and migratory birds." VWR, Section 5.4 (Emphasis added). The Board is unable to find, based on the record before it, that the portion of the wetland in question is important habitat for waterfowl and migratory birds. Therefore, regardless of the purpose for which the Appellant requests approval for tree cutting, the Board is unable to conclude that the Proposed Activity will have more than a minimal adverse impact on the habitats contemplated by VWR, Section 5.4(a).

The Board reaches the same conclusion with respect to the wetland's value for habitat for mammals and other animals. VWR, Section 5.4(b), (c), (d). While the wetland as a whole may provide important habitat for beaver, muskrats and other small mammals, as well as for differ- rent species of amphibian and reptiles, none of the expert witnesses, whether sponsored by the Appellant or the ANR, provided convincing evidence that the Proposed Activity would have more than a minimal adverse impact on the habitat of these animals. Therefore, although the Board observed some evidence of beaver activity in the wetland to the north of the Activity Area, it concludes that the Proposed Activity will have no more than a minimal adverse impact on wildlife habitat.

2. Erosion control through binding and stabilizing the soil

VWR, Section 5.10, states that wetlands that are important for erosion control are significant wetlands and that in determining whether a wetland is significant for erosion control, the Board shall, at a minimum, consider the extent to which it protects a shoreline, river or streambank from excessive erosion by dissipation of wave and current energy or by binding and stabilizing the soil. VWR, Section 5.10(a).

The existing trees within the Activity Area help to stabilize the steep embankment near the Landvater home thereby preventing erosion. Additionally, they help to hold the soils in place during periods of ice scouring in late winter. Although the Appellant originally proposed to cut and stump the trees in the Activity Area and to reseed the embankment with grass, the CUD application before the Board calls for retaining the tree stumps in situ and supplementing the existing woody vegetation with new willow sprigs. Therefore, to the extent that the cutting of trees on the embankment adjoining the wetland would have had an undue adverse effect on the wetland's erosion control function (§5.10), the Appellant has adequately demonstrated that the Proposed Activity has been redesigned to mitigate these effects. VWR, Section 5.10.

Because the project objectives cannot be practicably achieved in any other manner than to cut the specified trees in the Activity Area and the Appellant has taken all practicable measures to avoid adverse impacts and minimize potential adverse impacts with respect to the wetland's erosion control function (§5.10), the Board concludes that the Proposed Activity does not constitute an adverse impact under VWR, Section 8.5(a).

V. CONCLUSION

Having concluded that the Proposed Activity will have no undue adverse impact on the wildlife and migratory bird habitat and erosion control functions of the subject wetland, the Board further concludes that the Proposed Activity satisfies the standards in VWR, Section 8.

VI. ORDER

The ANR's decision to issue CUD #94-313, is affirmed with the exception that Condition 1 is modified to eliminate section (C) requiring that cutting of trees be restricted to three 30' intervals.

Dated at Leicester, Vermont, this 28th day of August, 1997.

Water Resources Board,

by its Chair

\s\ William Boyd Davies

William Boyd Davies

Concurring:

Ruth Einstein

Gerry Gossens