Re: Champlain Water District (Richard A. Pratt), Docket No. WET-98-01DR, Decision (July 22, 1998) State of Vermont WATER RESOURCES BOARD RE: Champlain Water District ATTN: Richard A. Pratt Queen City Park Road South Burlington, Vermont Docket No. WET-98-01DR DECISION Champlain Water District ("Petitioner") asks the Water Resources Board ("Board") to reclassify a certain settling lagoon for the treatment of backwash water from the water filtering process at Petitioner's treatment plant from a Class II wetland to a Class III wetland under the Vermont Wetland Rules ("VWRs"). The lagoon is located entirely on the Petitioner's property on Queen City Road in South Burlington, Vermont. The Petitioner seeks this relief pursuant to the Board's authority under 10 V.S.A.  905(7)-(9) and Section 7 of the VWRs ("Petition"). As explained below, the Board determines that the subject lagoon is not a significant wetland. Therefore, the Board reclassifies it from a Class II to a Class III wetland. I. Procedural History On April 24, 1998, the Board received a Petition filed by the Champlain Water District by Richard A. Pratt, the Petitioner's Chief Engineer and Assistant General Manager. The petition was framed as a declaratory ruling request, seeking in the alternative a determination that the subject lagoon is not a wetland or a reclassification from protected Class II to Class III wetland status. On April 29, 1998, the Board's Executive Officer determined that the Petition was complete and he docketed the matter as WET-98-01DR. An acknowledgment letter was sent to the Petitioner on that same date. On May 4, 1998, a Public Notice of Petition was issued to interested persons by Board counsel. This was published in The Burlington Free Press on May 5, 1998. The notice established a deadline of June 11, 1998, for the filing of written comment or any requests for hearing. See VWRs, Section 7.4. On June 11, 1998, the Board received written comments to the Petition from the Agency of Natural Resources ("ANR") through its counsel, Jon Groveman. The ANR opposed the Petitioner's request for a determination that the lagoon is not a wetland within the meaning of the VWRs. However, the ANR supported the Petitioner's request for a reclassification from a Class II to a Class III wetland. No other persons submitted written comments by the June 11 deadline. There also were no requests for public hearing. On June 16, 1998, the Board's Executive Officer issued a memorandum to the Petitioner and the ANR advising them as to the procedural status of this matter. The Executive Officer specifically asked the Petitioner to respond to the ANR's objections and to supplement its filing with some additional information for the Board related to the wetland functions of the lagoon under Section 5 of the VWRs. This memorandum set a deadline of June 29, 1998, for the Petitioner's response. On June 19, 1998, the ANR requested an opportunity to respond in writing and orally to the Petitioner's supplemental filing. In a memorandum issued by the Executive Officer on June 23, 1998, a deadline of July 8, 1998, was set for the ANR's responsive filing. On June 23, 1998, this matter was noticed for oral argument. On June 29, 1998, the Petitioner supplemented its Petition and withdrew its request for a determination that the settling lagoon is not a wetland within the meaning of the VWRs. On July 7, 1998, a revised notice of oral argument was issued. On July 14, 1998, in Burlington, Vermont, the Board heard oral argument with respect to Petition, as revised and supplemented, and the ANR's responses. The Board then deliberated in open session. In addition to the materials submitted by the Petitioner, the Board took official notice of the following documents: the National Wetland Inventory ("NWI") map for the quadrant covering Queen City Park Road in South Burlington, Vermont. The Board voted to declare the subject lagoon a wetland within the meaning of the VWRs, but not a significant wetland warranting protection under those rules. Therefore, the Board reclassified the wetland from a Class II to a Class III wetland. The Board also voted to adopt a proposed decision, with minor changes. The Board declared the record closed on July 14, 1998. This matter is now ready for decision. II. Issue Whether to reclassify the lagoon located on the Petitioner's property off Queen City Park Road in South Burlington, Vermont, from a Class II to a Class III wetland pursuant to 10 V.S.A.  905(7)-(9) and Section 7 of the VWRs. III. Findings of Fact 1. The subject settling lagoon is located on a tract of land owned entirely by the Petitioner, Champlain Water District. This tract of land is located on Queen City Park Road in the City of South Burlington, Vermont. 2. The Petitioner is a municipal entity, established in the 1960s to provide drinking water via pipelines to several Chittenden County municipalities. Its sole water treatment plant is located on the Queen City Park Road tract. 3. As an essential part of its operations, the Petitioner daily discharges backwash water into the subject settling lagoon from the filtering process used in its water treatment plant. 4. The settling lagoon was constructed by the Petitioner and has been used by it for the discharge of backwash water for twenty-five years or more. 5. The settling lagoon is approximately 2 acres in size. It was constructed in the north end of an old abandoned rock quarry located just south of the treatment plant. The quarry walls form the north, east and west sides of the lagoon. To the south is a manmade dam and an outflow pipe which discharges processed water into Potash Brook, a distance of about two hundred feet south of the dam. The settling lagoon is bifurcated by a manmade dike, separating the southern third of the lagoon from the area closest to the backwash discharge pipes. 6. The National Wetland Inventory ("NWI") map for South Burlington, Vermont, quadrant 13A, indicates that there is a small open-water wetland (POWH) of approximately 0.5 acres in the north end of the settling lagoon. 7. The NWI-mapped wetland is located directly under the outfall of the discharge pipes from the water treatment plant, where the greatest amount of water and residual solids collect. The wetland consists primarily of open water and backwash residual found in the northern portion of the settling lagoon. 8. The NWI-mapped wetland has wetland hydrology. However, the hydrology is largely the result of the thousands of gallons of backwash water from the Petitioner's treatment plant that is daily discharged into the area of the mapped wetland each day. There also may be a small amount of groundwater seepage from the steep wall of the abandoned quarry which supplies water to the mapped wetland. 9. The NWI-mapped wetland may have hydric soils, but this has not been determined using specific field indicators. The area is surrounded by the rock walls of the old quarry and stone rubble. The bottom of the lagoon, including the area identified as the wetland, consists of residual solids from the backwash discharge, broken rock rubble, and the solid rock quarry floor. 10. Vegetation in the wetland is dominantly hydrophytic vegetation. Nemopanthus mucronatus (Mountain Holly) and Cornus amomum (Silky Dogwood) are in the shrub layer. Sanguisorba minor (Small Burnet) and Sisyrinchium mucronatum (Slender Blue-eye-grass) are in the herbaceous layer. 11. The wetland is not significant for water storage for flood water and storm runoff. The wetland does not reduce either the magnitude or frequency of risks to public safety or damage to public or private property due to flood water or storm water runoff. Its water storage capacity is negligible. The drainage area that is tributary to the settling lagoon is very limited. The wetland is not contiguous to other wetlands or ponds and is 200 feet from Potash Brook to which it is only connected by an outflow pipe. 12. The wetland does not maintain the stability of important habitat for aquatic life, since it is not associated with a body of surface water for which it either attenuates peak flows of flood waters or storm water runoff or reduces streambank scouring and erosion. 13. The wetland is not significant for surface and groundwater protection. GIS information on Wellhead and Source Protection Areas indicates no significant contribution to groundwater recharge from the settling lagoon. According to the City of South Burlington Municipal Plan, the wetland does not recharge well head or aquifer protection areas or a Class I or Class II groundwater area. 14. The wetland does not reduce levels of contaminants in surface waters, as it is not associated with a body of surface water. 15. The wetland lacks significant fisheries habitat. Indeed, the wetland lacks significant aquatic animals altogether. No fish species have been identified in the open water during field investigations. Lack of tree cover renders the lagoon of marginal quality for spawning and nursery habitat for fish. 16. The wetland lacks significant wildlife and migratory bird habitat. The settling lagoon is very small in size, its water level fluctuates greatly due to its industrial use, and industrial land use activities are in close proximity. These factors contribute to its poor quality as habitat for breeding pairs of waterfowl or to support waterfowl in migration. 17. For similar reasons as in Finding 16, the wetland does not provide necessary winter of feeding habitat for mammals. 18. The wetland does not support, nor is it likely to support, populations of uncommon Vermont amphibian species. 19. The wetland does not support, nor is it likely to support, populations of uncommon Vermont reptile species. 20. The wetland lacks significant hydrophytic vegetation habitat. It is not an example of a particular wetland type. Indeed, it is not an example of a bog, fen, peatland marsh or swamp. Some small areas of emergent vegetation and shrubs can be found in the quarry rock rubble around the margins of the settling lagoon north of the manmade dike. However, the wetland does not provide habitat for a known rare species of hydrophytic vegetation, does not contain one or more known species at their range limits, and does not contain known disjunct plant species 40 miles or more from the nearest population. 21. The wetland does not provide, nor has it provided, important habitat for any threatened or endangered species of plants and animals according to the Vermont Natural Heritage inventory maps. Indeed, there is very limited wetland vegetation or aquatic life of any type within the wetland due to the hydrology created by the backwash water discharged into the settling lagoon. 22. The wetland does not provide valuable resources for education or scientific research. Although the wetland is owned by a public entity, it is not dedicated for education or research nor is it subject to an easement conferred to a public entity for those purposes. The wetland has no history of use for education or research. It has no characteristics which potentially make it unique or valuable for education or scientific research purposes. 23. The wetland provides no substantial recreational value or economic benefits because of its industrial use. The economic benefits of the settling lagoon are associated with the wastewater treatment process and not due to wetland attributes. 24. The wetland does not substantially contribute to the open-space and aesthetic character of the landscape. The wetland cannot be readily observed by the public, and it does not possess special or unique aesthetic qualities or values as open space. 25. The wetland is not significant for erosion control. There are no significant erosive forces present in water bodies adjacent to the wetland, such as large waves or high current velocities. III. Conclusions of Law Most wetlands that are delineated on an NWI map are presumed to be Class II wetlands, unless determined otherwise by the Board as provided in section 7 of the VWRs. Wetlands contiguous to Class II wetlands are also deemed Class II wetlands even though they do not appear on an NWI map. Section 4.2(b), VWRs. Certain development activities within those wetlands and their associated buffer zones may result in violations of the VWRs unless the ANR has issued a conditional use determination ("CUD"). On the other hand, the Board may deter-mine that a given wetland delineated on an NWI map is not so significant that it merits protection under the VWRs and therefore development activities may occur in that wetland without prior review and authorization by the ANR. See Section 4.1(c), VWRs. In such an instance, the Board may reclassify that wetland from a Class II to a Class III wetland pursuant to Sections 4.4 and 7 of the VWRs. See In re: David T. Mance, Jr., "Furnace Brook" Wetland, Docket No. WET-96-01, Decision (Aug. 15, 1996). A reclassification may be initiated by petition of an affected landowner or other interested persons, organizations, or agencies. Section 7, VWRs. The Board may conduct such fact finding as is necessary to decide whether reclassification of the wetland is warranted after providing notice of the petition and an opportunity for public hearing. See Section 7.4, VWRs; see also Rule 4 of the Board's Rules of Procedure (Referee Hearings). The Board's action on a reclassi-fication petition is an administrative proceeding, not a contested case proceeding. See In re: Technology Park Associates, Inc., Docket No. WET-95-02 (Feb.1, 1996) (distinguishing wetland reclassification proceeding from a request for declaratory ruling). The Board's review consists of an evaluation of the subject wetland for its significance (or lack of significance) for each of the values and functions set forth in Section 5 of the VWRs. A petitioner may ask for a determination that the wetland is significant for only certain values and functions and not for others, or ask the Board to determine that the wetland is not significant for any of the listed values and functions. If the petitioner asks for the latter and the Board concurs with the petitioner's assessment that the wetland is not so significant that it merits protection for any of the stated values and functions, the wetland will be reclassified to Class III. In the present proceeding, the Petitioner has asked the Board to reclassify the subject wetland from a Class II wetland to a Class III wetland based on a determination that the wetland does not merit protection for any of the values and functions set forth in Section 5 of the VWRs. With this request in mind, the Board has reviewed the written record provided by the Petitioner and ANR and considered their oral arguments. Based on its findings, the Board concludes that the subject wetland is not so significant that it merits protection for functions 5.1 through 5.10. Section 5, VWRs. Specifically, the Board concludes: Function 5.1 - The subject wetland is not significant for the temporary storage of floodwater or storm water runoff; Function 5.2 - The subject wetland is not significant in its contribution to the protection or enhancement of the quality of surface or of ground water; Function 5.3 - The subject wetland is not important fisheries habitat; Function 5.4 - The subject wetland is now significant wildlife and migratory bird habitat; Function 5.5 - The subject wetland is not significant habitat for hydrophytic vegetation consisting of rare plant species or communities of plant species that make an important contribution to Vermont's natural heritage; Function 5.6 - The subject wetland does not contain threatened or endangered species; Function 5.7 - The subject wetland does not provide, nor is it likely to provide, valuable resources for education or scientific research; Function 5.8 - The subject wetland does not provide substantial recreational values or economic benefits; Function 5.9 - The subject wetland does not contribute substantially to the open-space and aesthetic character of the landscape; and Function 5.10 - The subject wetland is not important for erosion control. Therefore, the Board determines that the subject wetland is not so significant that it merits protection as a Class II wetland under the VWRs. IV. Order The Board hereby reclassifies the NWI-mapped wetland located within the Petitioner's settling lagoon at its South Burlington property off Queen City Park Road from Class II to Class III. Dated at Montpelier, Vermont, this 22nd day of July, 1998. VERMONT WATER RESOURCES BOARD \s\ William Boyd Davies William Boyd Davies, Chair Gerry Gossens Jane Potvin