In re: Dean Leary (Point Bay Marina, Inc.), Docket No. MLP-96-04, Findings of Fact, Conclusions of Law and Order (Aug. 1, 1997)
STATE OF VERMONT
WATER RESOURCES BOARD
29 V.S.A §§ 401-409In re: Dean Leary (Point Bay Marina, Inc.)
Docket No. MLP-96-04
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
This decision pertains to an appeal of a management of lakes and ponds permit. As explained below, the Water Resources Board orders the issuance of an amended permit, thereby modifying the action of the Department of Environmental Conservation.
I. BACKGROUND
On September 17, 1996, the Department of Environmental Conservation ("DEC"), Agency of Natural Resources ("ANR"), issued Management of Lakes and Ponds Permit 96-11 ("Permit 96-11") to Point Bay Marina, Inc. ("Point Bay") pursuant to 29 V.S.A. §§ 401-409. Permit 96-11 allows Point Bay to relocate the service and swim docks in the public waters of Lake Champlain, Charlotte, Vermont ("Project").
On September 25, 1996, Dean W. Leary ("Leary") filed an appeal from Permit 96-11 pursuant to 29 V.S.A. § 406. Leary contends that the DEC erred in issuing Permit 96-11 with respect to the Project's compliance with 29 V.S.A. § 405(b) and the public trust as guaranteed by Vermont's constitution.
On September 27, 1996, the Board, by its Executive Officer, docketed the appeal as MLP-96-04 ("MLP-96-04").
On November 15, 1996, the Conservation Law Foundation ("CLF") filed a motion ("Motion") pertaining to the scope of the Board's public trust review.
On November 22, 1996, Board designee David L. Grayck, Esq., Associate General Counsel, convened a prehearing conference and, on December 11, 1996, issued a proposed Prehearing Conference Report and Order.
On January 29, 1997, the Board convened an oral argument regarding the Motion.
On March 18, 1997, the Board issued a memorandum of decision relative to the Motion, and the Board's Chair issued a Prehearing Conference Report and Order.
On April 14, 1997, CLF filed a Motion for Reconsideration regarding the Board's March 18, 1997 Memorandum of Decision.
On April 14, 1997, the Board's Chair issued a memorandum to the parties which provided that CLF's Motion for Reconsideration would be ruled upon in the Board's decision on the merits of this appeal.
The parties filed prefiled direct testimony and exhibits, and lists of rebuttal witnesses and exhibits during April, 1997.
On April 30, 1997, the Board convened an evidentiary hearing in this matter with the following parties participating:
Dean Leary, Pro se
Point Bay Marina, Inc. by Donald R. Powers, Esq. and Peter Allen Martin
Agency of Natural Resources by Andrew Raubvogel, Esq.
Conservation Law Foundation by Stephen L. Saltonstall, Esq.
At the hearing's conclusion, the Board recessed this proceeding pending receipt of proposed findings of fact and conclusions of law, deliberation and issuance of this decision.
On May 8, 1997, CLF filed proposed findings of fact and conclusions of law.
On May 22, 1997, the remaining parties filed proposed findings of fact and conclusions of law.
On June 4 and 20, and July 18, 1997, the Board deliberated regarding this appeal. On July 18, 1997, the Board declared the record complete and adjourned the hearing. This matter is now ready for decision. To the extent any proposed findings of fact and conclusions of law are included below, they are granted; otherwise, they have been considered and are denied. See Petition of Village of Hardwick Electric Department, 143 Vt. 437, 445 (1983).
II. ISSUES
The issues in this appeal are as follows:
1. Whether, pursuant to 29 V.S.A. §§ 401-409, the Project's encroachment adversely affects the public good with regard to the effect of the proposed encroachment as well as the potential cumulative effect of existing encroachments on water quality, fish and wildlife habitat, aquatic and shoreline vegetation, navigation and other recreational and public uses, including fishing and swimming, consistency with the natural surroundings, and consistency with municipal shore land zoning ordinances or any applicable state plans.
2. Whether the Project, after giving due consideration to the cumulative effect of the Project upon the waters of the State of Vermont, will have a detrimental effect on public trust uses.
III. FINDINGS OF FACT
IV. CONCLUSIONS OF LAW
A. Standard of Review, Burden of Proof, and Sequence of Review
Under 29 V.S.A. §§ 401-409, a person must first obtain a permit before constructing a new encroachment, or enlarging, extending or adding to an existing encroachment. The DEC makes the initial determination with regard to the new or enlarged encroachment relative to the public good and the public trust. Thereafter, any person aggrieved by the DEC decision may appeal to the Board. The appeal is a contested case under Vermont's Administrative Procedure Act, 3 V.S.A. §§ 801-849, and is heard de novo. The Board may issue an order affirming, modifying or reversing the DEC's action. See § 406(c). The Board has the authority under 29 V.S.A. §§ 407 and 408 to include any permit conditions it considers necessary to protect the public good or the public trust. See Re: Appeal of Fred Fayette, No. 91-08, Order at 3-4 (Mar. 16, 1992).
Point Bay, as the permit applicant, bears the burden of proof. The burden of proof consists of the burden of production and persuasion. Under the burden of production, there must be sufficient evidence for the Board to make positive findings with regard to the Project on the public good and public trust issues. Under the burden of persuasion, the Board must be persuaded, by a preponderance of the evidence, that the weight of the evidence is in favor of the Project, notwithstanding the evidence presented in opposition to the Project.
The Board will evaluate the Project's impacts upon the "public good" before considering the Project in light of the public trust doctrine. In Re: Kevin Rose and the Champlain Kayak Club, Docket No. MLP-96-01, Findings of Fact, Conclusions of Law, and Order at 11 (Nov. 7, 1996). If the Project will have an adverse affect upon the public good, then this statutory analysis is dispositive and the Board will not reach the issue of the public trust doctrine. Id at 12.
B. Public Good
With regard to the public good, 29 V.S.A. § 401 provides, in part:
Lakes and ponds which are public waters of Vermont and the lands lying thereunder are a public trust, and it is the policy of the state that these waters and the lands shall be managed to serve the public good, as defined by section 405 of this title, to the extent authorized by statute.
Except under very limited circumstances, "no person shall encroach on any of those waters and lands of lakes and ponds under the jurisdiction of the board without first obtaining a permit under this chapter." 29 V.S.A. § 403(a). Under Section 403(a), the Board may reverse the action of DEC and void Permit 96-11 "if the encroachment adversely affects the public good." Id. The "public good" is "that which shall be for the greatest benefit of the people of the state of Vermont." 29 V.S.A. § 402(6). Section 405(b) then specifies certain elements which must be considered to determine whether the encroachment will adversely affect the public good:
In determining whether the encroachment will adversely affect the public good, the department shall consider the effect of the proposed encroachment as well as the potential cumulative effect of existing encroachments on water quality, fish and wildlife habitat, aquatic and shoreline vegetation, navigation and other recreational and public use, including fishing and swimming, consistency with the natural surroundings and consistency with municipal shore land zoning ordinances or any applicable state plans.
While the Board must consider the public good elements listed in 29 V.S.A. § 405(b), it is not required to make an affirmative finding and conclusion with regard to each public good element. Rather, 29 V.S.A. § 405(b) sets out the elements to be considered, and no single element is dispositive of whether the encroachment adversely affects the public good. See In Re: Angney, No. S96-91 LaCa, Opinion and Order at 4 (Sept. 4, 1992). Cf. 10 V.S.A. § 1263a(e) (an aquatic nuisance control permit cannot be issued unless it is affirmatively found that the project complies with five criteria). In its consideration of the § 405(b) public good elements, the Board must consider the Project and the potential cumulative effect of the Dock as an existing encroachment.
With respect to the Project, the Board is only considering the public good relative to the placement of the service and swim docks at the Present Location since the encroachment by the swim and service docks at the Former Location has already been authorized by a series of permits and approvals commencing in 1968.
With respect to the Dock, the Board is only considering the potential cumulative effect on the public good elements. The Board is limited to the potential cumulative effect of the Dock and not the Property since 29 V.S.A. § 405(b) pertains only to existing encroachments in public waters. See Re: Mr. and Mrs. Ronald P. LaFleur, Findings of Fact, Conclusions of Law, and Order at 5 (Nov. 28, 1994).
C. Consideration of Public Good Elements
i. water quality
The Project's effect on water quality is not the same as the Dock's potential cumulative effect on water quality.
The Project, since it is limited to the relocation of the swim and service docks, benefits water quality because the Present Location is a safer and more accessible location from which to conduct marina services, especially sewage pump-out and fueling services. Greater accessibility and enhanced safety means less risk of a boating accident which could cause a discharge of sewage or fuel.
The service dock's design minimizes the threat of wind, wave or storm damage because it is situated straight into the direction of the prevailing wind and waves, and does not include bends or stretches of dock or line lying broadside to the wind and waves. Unlike the Former Location, there are no turns in the fuel and sewage lines which increase the risk of rupture or damage.
There is an emergency spill response plan in the event of a spill. It also provides for the disconnection of the fuel and sewage pump-out service lines to the service dock in the event of extremely high winds or a storm.
The sewage pump-out system of the day tank, shore-side tank, and holding tank meet current professional engineering standards for facilities of this type. Like boat fueling, only Point Bay personnel trained to do sewage pump-out perform the service.
Based on the findings of fact, no significant water quality risks are created by the Project. The Board concludes that the Project will not have an adverse effect on water quality.
However, with respect to the Dock's potential cumulative effect on water quality, the water in the vicinity of the Dock has lower clarity, higher nutrient levels, higher bacteria levels, and suffers from fouling by petroleum products in comparison to surrounding waters.
Accordingly, the Board concludes that the Dock's potential cumulative effect on water quality is and will be adverse, but that the degradation is localized to the Dock's vicinity. Moreover, by making sewage pump-out and garbage disposal services available to the boating public, illegal dumping into Lake Champlain is reduced and this benefits Lake Champlain, including Town Farm Bay.
ii. fish and wildlife habitat
Like water quality, the Project's effect on fish and wildlife habitat is not the same as the Dock's potential cumulative effect on fish and wildlife habitat.
The Project will benefit fish and wildlife habitat by reducing the risks of water degradation from fuel or sewage spills that might otherwise result from broken lines, boat collisions or boat fires. Accordingly, the Board concludes that the Project will not have an adverse effect on fish and wildlife habitat.
With regard to the Dock's potential cumulative effect on fish and wildlife habitat, the Board has found a negative impact on fish and wildlife habitat as evidenced by a reduction of fish species desirable to anglers. However, there are no significant natural communities or rare, threatened, and endangered animals and plants in the vicinity of the Dock. The Board is not persuaded that the reduced number of fish species is anything more than a localized condition, or that the Dock is the sole or principle cause of this condition.
Accordingly, the Board concludes that, while the Dock has a potential cumulative adverse effect on fish and wildlife habitat, it is localized to the vicinity of the Dock, and there is no evidence that any species have been or will be eliminated by the Dock's cumulative impact.
iii. aquatic and shoreline vegetation
As is the case with water quality and fish and wildlife habitat, the Project's effect on aquatic and shoreline vegetation and the Dock's potential cumulative effect on vegetation is not the same.
Relocation of the swim and service docks to the Present Location clearly reduces the risk of harm to aquatic or shoreline vegetation by reducing the risk of a sewage or fuel spill. As noted above, easier and safer boater access to the sewage pump-out and garbage disposal services will reduce illegal sewage and garbage dumping in Lake Champlain. Accordingly, the Board concludes that the Project will not have an adverse effect on aquatic or shoreline vegetation.
There has been a negative impact on aquatic vegetation in Town Farm Bay as evidenced by mats of starwort and milfoil weeds in the Dock's vicinity. However, the Board is not persuaded that the negative impact is solely attributable to the Dock. Town Farm Bay is subject to a variety of recreational and other uses, some of which do not make use of the Dock. Town Farm Bay is also subject to lake currents. Accordingly, the Board concludes that the Dock's potential cumulative effect on aquatic vegetation is to increase the risk of a negative effect on aquatic vegetation, but that the Dock is not the sole risk. Moreover, the Board is not persuaded that the Dock is even the predominant source of the risk to aquatic vegetation.
iv. navigation and other recreational and public uses, including fishing and swimming
Both the Project's effect and the Dock's potential cumulative effect on navigation are beneficial.
When the service dock was located at the Former Location, service dock traffic was commingled with boats transiting in and out of the stem and finger docks. This commingling of traffic created obstacles to safe navigation for boats approaching the area. The Present Location improves safety because it reduces traffic conflicts. The service and swim docks in the Present Location have been in use each season since the 1989 boating season. No collisions, accidents, or spills have been caused by the location of the swim and service docks at the Present Location. Point Bay maintains buoys marking speed limits and no-wake zones in the area around the Dock, including the swim and service docks. No other location, including the Former Location, provides equivalent safety. Accordingly, the Board concludes that the Project will have a positive effect on navigation.
With regard to the Dock's potential cumulative effect on navigation, the Board has found that 4,000 to 5,000 boats use the Marina each boating season.
The Dock is an integral part of the pump-out service. The nearest facilities offering pump-out services on the Vermont side of Lake Champlain are Shelburne Shipyard, approximately 17.5 miles to the north, and Champlain Bridge Marina, approximately 18.7 miles to the south. While there is a facility on the New York side of Lake Champlain, a boater on the Vermont side of Lake Champlain must cross the lake to get to the facility, and lake crossings are disfavored by some boaters. By being accessible and safe, boaters will use the Point Bay sewage pump-out and garbage disposal services instead of disposing of waste directly into Lake Champlain.
Accordingly, the Board concludes that the Dock's potential cumulative effect is beneficial with respect to navigation in Lake Champlain.
With regard to other recreational uses, because of the Project, vessels must divert around the Project to travel in an easterly or westerly direction along the Town Farm Bay shoreline. However, locating the service dock on the breakwater would require additional construction and disturbance of lake bed materials, and placing the service dock parallel to the breakwater would result in boats being pushed broadside against the dock by wind and waves.
People with boats on trailers can launch their boat from the vehicle-accessible boat launch ramp, and then park their vehicles at the Property. People cannot boat in the exact location occupied by the Dock, but without a dock, a boat must be moored or anchored. Mooring or anchoring a boat occupies more water area than using a boat slip at the finger dock. Without docks, there is an added burden on public access facilities, and otherwise navigable waters become congested when dock space is not available.
Since 1972 people have fished from the Dock, although no fishing is allowed at the service dock. During the winter time, people can access Lake Champlain via the Property for ice fishing, skating, and boating. While people cannot fish and swim in the exact location occupied by the Dock, fishing and swimming are allowed from a designated area on the Dock, although the water's depth at this location may interfere or hinder swimming by youths. While there are no prohibitions about where a person can swim once in the water, recreational boat traffic can interfere with swimming.
Based on the findings of fact, the Project does not have an adverse effect on recreational and public uses, including fishing and swimming. Overall, the Dock will not have an adverse potential cumulative effect on recreational and public uses, including fishing and swimming.
v. consistency with the natural surroundings
The natural surroundings in the general vicinity of the Dock have been substantially altered by cottages, private docks, and moorings around Town Farm Bay. The viewscape looking lakeward from the Property is the lake itself, with land jutting out on the eastern and western fringes. Mountains can be seen in the extreme background. When the finger dock is occupied by boats, the viewscape includes the boats. Since the Dock rests on the water, boats at the Dock visually obstruct the view of the Dock.
The viewscape shoreward from Lake Champlain is of boats on the water, trees on shore, and cleared areas where there are houses and Marina buildings. Viewed from close-in, there are small craft lying up-side down adjacent to the shore.
Based on the findings of fact, the Project does not affect the consistency with the natural surroundings since the Project is only the relocation of the service and swim docks.
With regard to the Dock's potential cumulative effect on natural surroundings, the Dock is consistent with the cottages, private docks, and moorings in the general vicinity. See Re: Appeal of Masterson, Ketcham and Devoid, Findings of Fact, Conclusions of Law, and Order at 1 (July 2, 1987). Accordingly, the Dock will not have an adverse potential cumulative effect on consistency with natural surroundings.
vi. consistency with municipal shore land zoning ordinances or any applicable state plans
The Town of Charlotte does not have a separate shoreland zoning ordinance. See 10 V.S.A. § 1425 and 24 V.S.A. § 4411. There is no applicable state plan that pertains to the Marina and the Dock's encroachment into Lake Champlain. The Project does not require approval pursuant to the Town of Charlotte zoning by-laws.
The Town of Charlotte zoning by-laws provide for a shoreland district. The Marina, Lake Services, and Shore Services are conditional uses within the shoreland district. The Marina is located in the shoreland district, but the Marina pre-exists the creation of the shoreland district.
Based on the findings of fact, the Project will have no impact on consistency with the Town of Charlotte zoning by-laws. The Project will not adversely impact the consistency of the Town of Charlotte zoning by-laws in the Town Farm Bay area or shoreland district, and there will not be any negative impact on the consistency of Town of Charlotte zoning by-laws in the Town Farm Bay area or shoreland district due to the Dock's cumulative impact.
vii. Public Good Determination
The Board concludes that the Project will not adversely affect the public good based on a consideration of the effect of the Project, as well as the potential cumulative effect of the Dock, on each of the public good elements specified in 29 V.S.A. § 405(b).
The public good is that which shall be for the greatest benefit for the people of the state of Vermont. See 29 V.S.A. § 402(6).
With respect to consistency with natural surroundings and consistency with ordinances, the Project and Dock have no adverse affect. While the Project will not have an adverse effect on water quality, fish and wildlife, and aquatic vegetation, the Dock will have a potential cumulative adverse effect on these elements. These adverse effects are real, but they are localized to the Dock's vicinity, and the availability of sewage pump-out and garbage disposal services protects Lake Champlain from illegal dumping.
The Project and Dock have a positive effect on navigation as established by the improved safety at the Present Location, and the 4,000 to 5,000 boats that use the Marina each boating season.
The Project and Dock have a varied effect on other recreational and public uses depending on which use is being considered. There is an adverse effect on swimming in that portion of Town Farm Bay which surrounds the Dock since swimming is generally not compatible with recreational boat traffic. Nevertheless, without docks, there is an added burden on public access facilities, and otherwise navigable waters become congested when dock space is not available. There is both an adverse and positive effect on fishing since people cannot fish in the exact location occupied by the Project and Dock, but people may fish from the Dock. People also can access Lake Champlain during the winter via the Property. Overall, the Project and Dock do not have an adverse effect on other recreational uses such as fishing and swimming.
The Board is not persuaded that the Project will aggravate the existing adverse potential cumulative effect of the Dock on water quality, fish and wildlife, and aquatic vegetation. The Project is the relocation of the swim and service dock from the Former Location to the Present Location. The Project will have either no effect or a beneficial effect on these elements. While the Board has considered the potential cumulative effect of the Dock, the legal conclusion required by 29 V.S.A. § 405(b) is solely limited to whether the Project will adversely affect the public good.
Recreational boating requires marina services. Point Bay provides these marina services from the service dock. As between the Former Location and the Present Location, the latter is the superior location from which to provide these services. The Project serves the needs of the people of the state of Vermont.
Accordingly, based on the findings of fact herein, the Board concludes that the Project does not adversely affect the public good. The Board will next consider the second issue in this appeal, the issue of the public trust doctrine.
D. Public Trust
Under 29 V.S.A. § 401, "[l]akes and ponds which are public waters of Vermont and the lands lying thereunder are a public trust. . . ."
i. CLF's April 14, 1997 motion for reconsideration
The Board's March 18, 1997 Memorandum of Decision denied CLF's request that the Board conduct a comprehensive public trust review of the entire Marina. On April 14, 1997, CLF filed a Motion for Reconsideration. The parties were then informed by memorandum that the Board would rule on CLF's motion in the decision on the merits of the appeal.
With regard to the scope of its public trust review, the Board ruled in a prior decision involving the same parties and Project that it is limited to the project and the permit on appeal. The Board stated:
[Leary] argues that the proceeding should be expanded to encompass public trust review of the entire marina and its operations, based on [his] interpretation of the marina's prior permit, Permit No. 85-83, as amended by an agreement of June 22, 1990, between [Leary], [Point Bay], and ANR.
CLF and ANR support [Point Bay's] decision to withdraw its request for approval of the new and relocated finger docks, but argue that the Board should retain jurisdiction to conduct a public trust review of the swim and service dock, whether or not these facilities remain in the location authorized by the ANR under DEC Permit No. 93-29, since these facilities have never been reviewed for their impacts under the public trust doctrine. CLF further argues that under the terms of the 1990 agreement, review of the swim and service dock should trigger public trust review of the entire marina.
The Board concludes that there is no legal basis for retention of jurisdiction over the present appeal.
* * *
Even if [Point Bay] had decided to retain its interest in that part of DEC Permit No. 93-29 authorizing the relocation of the swim and service dock ... and relinquished its interest with respect to the finger docks, the Board could not expand the scope of its review to encompass Public Trust review of [Point Bay's] entire marina and its operations, even if the 1990 agreement could be read to suggest such a result. This is because the Board is limited to considering the permit immediately before it; its jurisdiction cannot be expanded by agreement of the parties.
In re: Dean Leary, Docket No. MLP-94-08, Dismissal Order at 2-3 (March 11, 1996).
While there is no agreement at issue in this appeal, the fundamental principle remains the same: the Board is limited to considering the permit immediately before it. Moreover, in its prior decision, the Board also advised the parties that if Point Bay later decided to seek a permit for the relocation of the service and swim docks, then such an application would be reviewed for conflicts with public trust uses. Id.
The Board's prior decision remains valid in all respects, and it was the basis for the Board's March 18, 1997 Memorandum of Decision with regard to the Motion. The Board's jurisdiction is limited by 29 V.S.A. §§ 401-409 to that DEC action which is being appealed from, namely the issuance of Permit 96-11. The scope of the Board's
public trust review is limited to the Project as authorized by Permit 96-11. Accordingly, the Board denies CLF's April 14, 1997 Motion for Reconsideration with regard to the Board's March 18, 1997 Memorandum of Decision.
ii. scope of review of public trust issue
The Board has ruled in another prior decision involving the same parties and Project that it has a duty, independent of the public good determination, to assure the protection of public trust uses. In re: Dean Leary, Docket No. MLP-94-08, Memorandum of Decision at 4 (April 13, 1995). The Board stated:
As a part of State government, the Board has a fiduciary obligation under the public trust doctrine to determine that encroachments will not have a detrimental effect on public trust uses. Hazen v. Perkins, 92 Vt. 414 (1918); State v. Malmquist, 114 Vt. 96 (1944); In re Establishment of Water Levels of Lake Seymour, 117 Vt. 367 (1952); State of Vermont v. Central Vermont Railway, Inc., 153 Vt. 337 (1989). In making this determination, the Board may rely on the guidance provided by case law both from this jurisdiction and other jurisdictions recognizing the public trust doctrine. In many instances, the uses identified in 29 V.S.A. § 405 are identical to the uses protected by the public trust.
Id at 5.
As stated to the parties in the Board's March 11 Memorandum of Decision, the issue with regard to the public trust is whether the Project, after giving due consideration to the cumulative effect of the Project upon the waters of the State of Vermont, will have a detrimental effect on public trust uses.
Accordingly, the Board will first determine what public trust uses are at issue, and second, whether the Project will have a detrimental effect on these uses.
iii. public trust uses at issue
The public trust doctrine "is not fixed or static, but one to be molded and extended to meet changing conditions and needs of the public it was created to benefit." State of Vermont v. Central Vermont Railway, Inc., 153 Vt. 337, 342 (1989).
Traditionally, "[t]he public's right to use the tidal lands and water encompasses navigation, fishing and recreational uses, including bathing, swimming and other shore activities." Matthews v. Bay Head Improvement Association, 471 A.2d 355, 358 (1984) (citing Borough of Neptune City v. Borough of Avon-by-the Sea, 294 A.2d 47 (1972)).
Although early cases expressed the scope of the public's right in tidelands as encompassing navigation, commerce and fishing, the permissible range of public uses is far broader, including the right to hunt, bathe or swim, and the right to preserve the tidelands in their natural state as ecological units for scientific study.
City of Berkeley v. Superior Court of Alameda County, 606 P.2d 362, 365 (1980) (citing Marks v. Whitney, 491 P.2d 374 (1971)).
Generally, "trust uses" relate to uses and activities in the vicinity of the lake, stream, or tidal reach at issue. National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709, 723 (1983). In evaluating an encroachment's effect on public trust uses, it is permissible to choose between competing public trust uses. Id. However, in identifying and choosing between public trust uses, courts have also recognized that the right to avail oneself of these uses is meaningless if access to tidelands and dry sand beaches is unduly restricted. Matthews, 471 A.2d at 369. The same holds true for access to lakes.
Thus, public trust uses range from commerce and navigation to swimming and environmental preservation and research. Moreover, to ensure that these uses remain meaningful, the public must have access to property from which they can enjoy the benefit of the public trust uses.
iv. project's public purpose, cumulative effect, and effect on public trust uses
The Board cannot grant to a private party the right to use property impressed with the public trust for private purposes. However, this does not mean that all waters or land which fall within the doctrine can never be developed by private parties. Rather, the Board must find affirmatively that a proposed encroachment serves a public purpose before granting a permit. In Re: Williams Point Yacht Club, No. S213-89CnC, Opinion and Order at 5 (April 16, 1990).
The Board concludes that the Project serves the public purpose of the public's use and enjoyment of Lake Champlain. The sewage pump-out and fueling services, the use by local, state, and federal marine authorities, and the use by non-profit and educational institutions and groups, are all related to the public's use and enjoyment of Lake Champlain. Consequently, the Project has a positive effect on a number of public trust uses.
The Project promotes recreational boating on Lake Champlain by providing marina services. Recreational boating on Lake Champlain is a public trust use. As noted above under the public good analysis, the Present Location is superior to the Former Location with regard to the provision of marina services. The state of Vermont's own facilities do not provide all of the services that are necessary for recreational boating. The Project has a beneficial effect on the public trust use of recreational boating on Lake Champlain.
The Project's beneficial effect depends upon a number of services being provided from the service dock, and the manner in which they are provided. One of these services which is fundamental to the Project's public purpose is sewage pump-out and garbage disposal. This free service protects Lake Champlain, and this is a benefit to all users of Lake Champlain and not just recreational boaters. The Board will require by condition that Point Bay operate its pump-out and garbage disposal service and that this service be available to the general boating public, and not just to boats which use the finger and stem dock for tie-up.
A second service is boat launching. The Board will require by condition that Point Bay maintain a free boat launch available to the general boating public, and not just for boats which use the finger and stem dock for tie-up. This includes the two boat launch ramps and the parking areas which the public can use without charge.
The public purpose served by the Project depends upon the area around the Project being safe. Point Bay maintains buoys marking speed limits and no-wake zones in the area around the Dock. The Board will require by condition that Point Bay maintain buoys in the area around the Dock as it presently does.
The public purpose served by the Project depends upon it being available for use by a variety of local, state, and federal authorities, as well as non-profit groups. For example, these groups include organizations that work with children, marine researchers from Middlebury College, boating and boat maintenance groups from the Northland Job Corp, the U.S. Coast Guard, the Vermont State Police Marine Patrol, the Charlotte Fire and Rescue Services, and the Vermont Department of Fish and Wildlife. The Board will require by condition that Point Bay continue to provide access to the Dock as it presently does to local, state, and federal authorities, as well as non-profit groups and educational programs.
The public purpose served by the Project depends upon it being available to all boaters, and not just patrons of Point Bay. In this regard, there must be dock spaces for transient boaters. The Board will require by condition that Point Bay continue to make dockage available to the general boating public, and not just to boaters who rent a slip on a regular basis.
Finally, the Project's beneficial effect on public trust uses depends upon minimizing the Project's effect on public trust uses unrelated to recreational boating, and ensuring the public's right to avail itself of the public trust uses which are available from the swim dock.
Boating and swimming are both public trust uses, and just as recreational boaters need the Project, people need a place to swim, and they need bathrooms to be available while they are swimming. Accordingly, the Board will require by condition that Point Bay maintain free toilet facilities. If these facilities are to be locked, then Point Bay shall post signs saying where a key may be obtained. Point Bay shall also maintain the swim dock, and it shall be open to the general public. Point Bay shall also modify its no trespassing signs so that members of the public will not be discouraged from using the swim dock. Point Bay may post no trespassing signs along the Property in the boat storage areas, but Point Bay shall post a sign at the entrance to the Property that states "open to the public."
Provided that Point Bay complies with the conditions required herein, the cumulative effect of the Project upon the waters of the State of Vermont will be beneficial. The Board acknowledges that, as a result of the Project, vessels must divert around the Project, but this adverse effect on this public trust use is more than offset by the public purpose served by the Project, and the Project's beneficial effect on the public trust uses associated with the public's use of Lake Champlain. Cf. Champlain Kayak Club, No. MLP-96-01 at 12 (encroachment would interrupt the use of small craft in the public waters adjacent to the applicant's property).
Accordingly, the Board concludes that the Project, after giving due consideration to the cumulative effect of the Project upon the waters of the State of Vermont, will not have a detrimental effect on public trust uses subject to the conditions required herein. The Board's conclusion in no way limits or preordains what may result from a full public trust review of the Dock as part of ANR's implementation of a systematic review of all encroachments on Lake Champlain. See In re: Dean Leary (Point Bay Marina, Inc.), Docket No. MLP-96-04, Memorandum of Decision at 5 (March 18, 1997). The Board's conclusion is limited to the Project, and the Project is solely the relocation of the swim and service docks from their Former Location to the Present Location.
V. ORDER
1. The Vermont Water Resources Board hereby modifies Management of Lakes and Ponds Permit 96-11 issued to Point Bay Marina, Inc., as set forth herein.
2. Point Bay is obligated to complete, operate and maintain the Project in accordance with:
i. the terms and conditions of Management of Lakes and Ponds Permit 96-11 issued by the Department of Environmental Conservation on September 17, 1996, except as amended hereby;
ii. the plans, exhibits, and testimony submitted by Point Bay to the Water Resources Board; and
iii. In re: Dean Leary (Point Bay Marina, Inc.), Docket No. MLP-96-04, Findings of Fact, Conclusions of Law, and Order (August 1, 1997).
3. Point Bay shall provide sewage pump-out and garbage disposal services to the general boating public.
4. Point Bay shall maintain a free boat launch available to the general boating public. This includes the two boat launch ramps and the parking areas which members of the public can use without charge.
5. Point Bay shall maintain buoys marking speed limits and no-wake zones in the area around the Dock as it presently does.
6. Point Bay shall cooperate with local, state, and federal authorities, as well as non-profit groups and educational programs, and provide, as it presently does, access to the Dock and its services by the aforementioned.
7. Point Bay shall make dockage available to the general boating public, and not just to boaters who rent a slip on a regular basis.
8. Point Bay shall maintain free toilet facilities. If these facilities are to be locked, then Point Bay shall post signs saying where a key can be obtained.
9. Point Bay shall maintain the swim dock, and it shall be open to the general public.
10. Point Bay may post no trespassing signs which prohibit trespassing in the boat storage areas. Point Bay shall post a sign at the entrance to the Property that states "open to the public".
11. Jurisdiction over the Project is hereby returned to the Department of Environmental Conservation, Agency of Natural Resources.
Dated at Montpelier, Vermont, this 1st day of August, 1997.
WATER RESOURCES BOARD
/s/ William Boyd Davies, Chair
William Boyd Davies, Chair
Concurring:
Ruth Einstein
Gerry Gossens
Gail Osherenko
Jane Potvin