In re: Mark & Karen Christiansen, Petition to Reclassify an Unnamed Wetland, Docket No. WET-97-01, (Jun. 17, 1997)



State of Vermont

WATER RESOURCES BOARD

In re: Mark and Karen Christiansen, WET-97-01 Authority:

Petition to Reclassify an Unnamed Wetland, 10 V.S.A. 905 and the

Town of Sandgate, Vermont Vermont Wetland Rules

DISMISSAL ORDER

For the reasons stated below, the Water Resources Board (Board) declines to act on its own motion to initiate a wetland reclassification proceeding with respect to a certain unnamed Class III wetland in the Town of Sandgate, Vermont.



Mark and Karen Christiansen (the Christiansens) of Sandgate, Vermont, own real property near but not adjacent to a parcel of land belonging to the Town of Sandgate. This parcel (Town parcel) is located near the intersection of Sandgate Road and Hamilton Road in the Town of Sandgate, Vermont (Town). The Town intends to develop a highway maintenance facility on the Town parcel with ancillary stockpiles of salt, sand, machinery, and fuel oil at the site.

Located entirely within the Town parcel are a Class III wetland and small vernal pool included therein (the wetland). A Class III wetland is not protected under the Vermont Wetland Rules (VWR). However, significant wetlands, designated as Class I and Class II wetlands, do receive the protections afforded by the VWR. The Board has authority to reclassify wetlands to a higher or lower classification upon the filing of a proper petition. VWR 7.

The Christiansens have asked the Board to initiate a wetland reclassification proceeding on the Board's own motion, pursuant to VWR 7.1. They request this proceeding for the purpose of determining whether the wetland located on the Town parcel should be reclassified to a C1ass II protected wetland and whether a protective 100-foot buffer zone should be established for that wetland.

The Christiansens had initially filed a request with the Secretary of the Agency of Natural Resources (ANR) seeking a temporary reclassification of the wetland. Having not heard from the Secretary, the Christiansens, as petitioners, filed a wetland reclassification petition with the Board on March 20, 1997. On March 21, 1997, Executive Officer, William Bartlett, responded with an advisory opinion concluding that the petition was incomplete in substantial respects.

Water Resources Board Rule of Procedure (RP) 18(B). Among other things, the Executive Officer asked the Christiansens to provide additional information concerning how their interests as landowners are affected in order to establish their standing to bring this petition. VWR 7.1 (An "affected landowner" may file a wetland reclassification petition.)

On April 11, 1997, the Christiansens filed a request with the Board, asking that it initiate a wetland reclassification proceeding on its own motion. On April 16, 1997, the Executive Officer responded with a letter acknowledging receipt of that request. In this letter, he indicated that the Board would consider the Christiansens' request at its meeting on May 14, 1997. The Executive Officer sent a copy of his letter to the Town, the ANR, adjoining property owners, and others having an interest in this matter. He invited these individuals and entities to file written comment on how the Board should proceed. On May 5, 1997, the Christiansens and Steven M. Oronte, an adjoining property owner, each filed timely responses in support of a reclassification proceeding.

Also on May 5, 1997, the Town through its counsel, Seth Bongartz, Esq., filed a letter opposing the initiation of the proceeding.

At its regular meeting on May 14, 1997, the Board considered the Christiansens' request in open meeting. Those present and offering additional oral argument to the Board were: the Christiansens and the Town, through attorney Bongartz. Following oral comment, the Board deliberated in open meeting with respect to this matter. On a motion by Board member Gossens, seconded by member Einstein, the Board voted unanimously not to initiate, on its own motion, a reclassification proceeding with respect to the wetland.

Whether the Board will initiate on its own motion a proceeding to reclassify a certain unnamed wetland in the Town of Sandgate from Class III to Class II and establish a 100-foot buffer zone for that wetland.



Pursuant to 10 V.S.A. 905(7)-(9) and VWR 7.1, the Board has authority to reclassify any wetland to a higher or lower classification and determine the size or configuration of a buffer zone for a wetland deemed significant under the VWR. The Board makes such a determination after providing public notice and providing an opportunity for interested persons to request a hearing. However, such a reclassification proceeding is not a contested case. VWR 7.4.

Only certain persons have standing to bring a petition to initiate a proceeding under VWR 7.4. These persons are identified in VWR 7.1 as: "a state agency, a regional planning commission, a municipal conservation commission, an affected landowner, 15 or more persons in interest," and "an organization in interest with 15 or more members." Additionally, the Board may initiate such a proceeding "on its own motion." VWR 7.1.

The Christiansens have not demonstrated that they have standing to bring a petition in their own names under VWR 7.1. They have not explained how their interests as landowners are "affected" by the functions and values of the wetland. See VWR 5. Alternatively, they have not secured the support of the requisite number of persons or organizations "in interest" to support a petition. As a consequence, they must convince the Board that it should initiate a reclassification proceeding "on its own motion," pursuant to VWR 7.1.

The Board has never been presented with the specific issue at hand. However, in the absence of a petition duly supported by a governmental entity or other interested party listed in VWR 7.1, the Board concludes that it must be provided with a sufficiently compelling factual record to justify the exercise of its discretion. This record must convince the Board: (1) that there is a reasonable likelihood that the wetland in question may be significant for one or more of the functions identified in VWR 5; and (2) that, without the Board's timely action, strict compliance with the standing requirements of VWR 7.1 would in all likelihood result in substantial and irreversible harm to one or more of those functions.

Staff from both the ANR and the United States Army Corps of Engineers (COE) recently visited and evaluated the wetland, and neither agency chose to initiate its own petition or offered written comment in support of the Christiansens' reclassification request. The Board notes that these two agencies have principal responsibility for implementing wetlands protection policy at the state and federal levels and they also have the expertise to evaluate the functions and values of wetlands for their significance. Cf. Re: Petition for Reclassification of Scanlon Bog, Town of Brandon, Docket No. WET-91-01 (ANR filed petition and offered testimony in support of wetland reclassification). Accordingly, in consideration of the fact that the ANR and COE have evaluated the wetland and have elected not to request a reclassification proceeding nor offer comment supporting the Chrisitansens' request, the Board is unwilling to exercise its discretion to initiate a reclassification proceeding on its own motion.

Additionally, the Board is not convinced that substantial and irreversible harm would result to one or more functions under VWR 5 as a result of the Board's failure to act on its own initiative. The Christiansens have not demonstrated that this is an emergency situation. Indeed, their dispute with the Town concerning the location of the Town garage and the impact of the Town's activities on the wetland has extended over nearly four years. In part because the Christiansens have been so effective in articulating their concerns at the local level, the Town has taken certain measures, such as imposing a greater isolation distance between the wetland and driven well, to minimize the impacts of its project on the wetland and associated vernal pool. Not being convinced that substantial and irreversible harm to the wetland will occur, the Board sees no reason to initiate a wetland reclassification proceeding on its own motion based on the record at hand.



For the foregoing reasons, the Board hereby declines to initiate, on its own motion, a proceeding to reclassify a certain unnamed wetland in the Town of Sandgate from Class III to Class II and establish a 100-foot buffer zone for that wetland and its associated vernal pool.

Dated at Montpelier, Vermont, this 17th day of June, 1997.

WATER RESOURCES BOARD

By its Chairs,

\s\ William Boyd Davies

William Boyd Davies

Concurring:

Ruth Einstein

Gerry Gossens

Gail Osherenko

Jane Potvin