RE: S.T. Griswold & Company, Inc., Docket No. WET-98-02 (Sept. 16, 1998)



State of Vermont

WATER RESOURCES BOARD





RE: S.T. Griswold & Company, Inc.

c/o Dori Barton

Heindel & Noyes

P.O. Box 64709

Burlington, VT 05406

Docket No. WET-98-02DR

DECISION S.T. Griswold & Company, Inc., ("Petitioner") asks the Water Resources Board ("Board") to (i) reclassify a wetland located within a settling pond used for the treatment of storm water runoff and process water from the washing process at Petitioner's sand plant from a Class Two wetland to a Class Three wetland under the Vermont Wetland Rules ("VWR"); and (ii) define the boundaries of the wetland ("Petition"). The wetland is located entirely on the Petitioner's property off Industrial Avenue and Avenue A in the Town of Williston, 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 VWR.

As explained below, the Board determines that the subject wetland is not a significant wetland. Therefore, the Board reclassifies it from a Class Two to a Class Three wetland. The Board also declines to determine the final boundaries of this wetland.

I. Procedural History

On May 18, 1998, the Board received a Petition filed by Dori Barton of the firm Heindel & Noyes on behalf of S.T. Griswold & Company, Inc. The petition was framed as a declaratory ruling request seeking a determination that the subject settling pond is not a wetland. The petition, however, contained an alternate request that if the Board determined that the settling pond contains a wetland, then the Board should reclassify it from a protected Class Two to a Class Three wetland. The Petitioner also asked the Board to determine the final boundaries of the wetland.

On May 18, 1998, the Board's Executive Officer determined that the Petition was complete and he docketed the matter as WET-98-02DR. An acknowledgment letter was sent to the Petitioner on that same date.

On May 27, 1998, a Notice of Petition was issued to interested persons by Board counsel. This was published in The Burlington Free Press on May 30, 1998. The notice identified the Petitioner's alternative requests and established a deadline of Ju1y 2, 1998, for the filing of written comments or any requests for hearing. See VWR, Section 7.4.

On July 2, 1998, the Board received written comment relating to the Petition from the Agency of Natural Resources ("ANR") through its counsel, Jon Groveman, Esq. The ANR opposed the Petitioner's request for a determination that the settling pond is not a wetland within the meaning of the VWR and also opposed the alternative reclassification request. The ANR asserted that the Petitioner had failed to meet its burden of proof that the settling pond does not meet the definition of a wetland under the VWR. The ANR also asserted that the wetland is significant for at least function 5.2 (surface and ground water protection) under the VWR.

No other persons submitted written comments by the July 2 deadline. There also were no requests for public hearing.

On July 17, 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 offered the Petitioner an opportunity to respond to the ANR's objections and to supplement its filing with additional information for the Board's consideration in evaluating the wetland for its significance under Section 5 of the VWR. This memorandum set a deadline of August 3, 1998, for the Petitioner's response. It also set a deadline of August 14, 1998, for additional comments from the ANR and established a hearing date of August 25, 1998. Consis- tent with this memorandum, the Board's counsel issued a Notice of Site Visit and Hearing on July 28, 1998.

On July 31, 1998, the Petitioner supplemented its Petition with respect to its reclassification request and withdrew its request for a determination that the settling pond is not a wetland within the meaning of the VWR.(1)

On August 14, 1998, the ANR filed a response to the Petitioner's reclassification request.

On August 25, 1998, in Williston, Vermont, the Board conducted a hearing with respect to the Petition, as revised and supplemented. The Board also conducted a site visit of the settling pond and wetland at the Petitioner's Williston property. Those present and participating in the hearing and site visit were: the Petitioner, represented by Dori Barton, Wetland Ecologist, Heindel and Noyes, and Doug Griswold, Principal, S.T. Griswold & Company, Inc.; and the ANR, represented by Jon Groveman, Esq., Land Use Attorney, and Karen Bates, Wetland Ecologist, Water Quality Division.

The Board received testimony and argument from these persons. Also, the parties stipulated that the National Wetland Inventory ("NWI") map showing the wetland at issue in this proceeding is Vermont quadrant 13A, covering the Town of Williston in the area of Industrial Avenue and Avenue A.

On August 25 and September 15, 1998, the Board deliberated in open session. The Board declared the record closed on August 25, 1998. This matter is now ready for decision.

II. Issues

(1) Whether to reclassify the wetland located on the Petitioner's property off Industrial Avenue and Avenue A in the Town of Williston, Vermont, from a Class Two to a Class Three wetland pursuant to 10 V.S.A. 905(7)-(9) and Section 7 of the VWR.

(2) Whether to determine the designated boundaries of this wetland, if the Board concludes that the wetland should be reclassified from a Class Two to a Class Three wetland.

III. Findings of Fact

1. The subject wetland is located within a settling pond on a tract of land owned entirely by the Petitioner, S.T. Griswold & Company, Inc. This tract of land is located off Industrial Avenue and Avenue A in the Town of Williston, Vermont.

2. The settling pond is approximately 4.77 acres in size. At the southern end of the settling pond is a wetland, approximately 2.46 acres in size, consisting of an open water pond surrounded by a periodically inundated area. The NWI map for the Town of Williston, Vermont, quadrant 13A, identifies this wetland as "Palustrine, open water, intermittently exposed/ permanent" ("POWZ").

3. The Petitioner is an industrial corporation, established in the 1960s. As part of its sand plant operations, it discharges an average of 600 gallons per minute of silt-laden process water from its filtration process via a drainage pipe into the subject settling pond. It discharges this process water on a daily basis during the months of May through October. The subject settling pond is located in close proximity to the Petitioner's main plant.

The Petitioner has used the settling pond for the discharge of waste water for the past 30 years.

4. The settling pond is located on a low relief plateau, approximately 340 feet above sea level. The site of the settling pond was previously a sand pit excavated by the Petitioner. The native soils underlying the settling pond are well-drained marine soils. Monitoring wells in the open water pond demonstrate that the water table is six to thirteen feet below the ground surface. The settling pond is located 875 feet west of Muddy Brook. The settling pond has no outlet and there is no visible evidence of seeps. Given the above facts, there is no surface water hydrologic connection between the settling pond and Muddy Brook.

5. Although the primary source of water to the settling pond is the silt-laden process water from the Petitioner's sand plant referred to in Finding 3, the settling pond also receives some surface water runoff from catch basins in the Avenue A industrial park. This runoff is from the neighboring Vermont Mack Company property. The wetland area sur- rounding the open pond is naturally dry, exhibiting ponded water only at times when the sand plant is in operation. Without the discharge of water from these two sources, there would likely be little or no water in the settling pond basin and mapped wetland.

6. Because the settling pond has not been dredged for the last 10 years, an eight inch silt layer has accumulated over the native deep, well-drained marine sands present on the site. The soils in the mapped wetland are hydric, characterized by fine to coarse sand overlain by a silty sand horizon. These soils were deposited as a result of the filtration process used at the Petitioner's facility. Mottling of soils in the surface silt layer are reflective of redox reactions. The fine sands and silts impede water from infiltrating through the native coarse sands underlying the surface layer.

7. The mapped wetland provides at least three of the wetland functions and values set forth in Section 5 of the VWR. These functions are 5.1 (water storage for flood water and storm runoff), 5.2 (surface and ground water protection), and 5.4 (wildlife and migratory bird habitat). The mapped wetland provides these functions and values to a limited extent only.

8. The mapped wetland is not significant for water storage for flood water and storm runoff. The open water pond provides the primary water storage for the entire wetland. The area draining into the wetland is approximately 14 acres, encompassing much of the Avenue A industrial park, and the pond has ample storage capacity to hold temporary storm flow that is generated from this area as evidenced by previous water lines around the pond. The Board observed the pond following a period of particularly high rainfall and the pond still had ample storage capacity even though the surface level of the pond was about two feet above its normal level. The wetland is not contiguous to other wetlands or ponds and is 875 feet from Muddy Brook to which it is not connected by an outlet. Accordingly, 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.

9. The mapped 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.

10. The mapped wetland is not significant for surface and groundwater protection. Geographic Information Systems ("GIS") information on Groundwater Source Protection Areas shows no significant contribution to groundwater recharge from the mapped wetland. The wetland does not contribute to the flows of Class A waters.

11. The mapped wetland has some value in protecting surface and ground water. The Petitioner has conducted preliminary studies which indicate that petroleum products and heavy metals are not present in the stormwater entering the settling pond, and therefore the wetland, from the Avenue A industrial park. Nevertheless, fines and other pollutants from storm water runoff and the sand manufacturing process enter the settling pond and are filtered by the settling pond sediment. The eight to twelve inch layer of fine silt from the process water provides soil particles conducive to bonding with heavy metals and hydrocarbons. While the settling pond protects ground water by the retention of sedi ments and pollutants, it does so as a function of the design and construction of the pond and not due to the presence of wetland vegetation. This is evident from the fact that the settling pond performed the function of retention of sediments and pollutants after it was dredged but prior to the colonization of wetland vegetation.

12. The mapped wetland does not reduce levels of contaminants in surface waters as it is not associated with a body of surface water.

13. The mapped wetland lacks significant fisheries habitat. An unidentified fish species was observed in the open water pond during one field investigation. The surrounding red pine forest may provide some degree of cover but the pond is of marginal quality for spawning and nursery habitat for fish, in part because it is not associated with a stream or other body of surface water.

14. The mapped wetland lacks significant wildlife and migratory bird habitat. The north-eastern part of the wetland is characterized by cattails and shrub willow and may provide habitat for select bird species that favor willow thickets. A single pair of water fowl has been observed on the open pond during a field investigation conducted by the Petitioner. Shrub willow may provide marginal cover for water fowl in this area, but the wetland at best provides only a temporary staging ground for water fowl that frequent a large wetland complex along Allen Brook, to the north of the Petitioner's property. Several factors contribute to the wetland's poor quality as habitat for breeding pairs of waterfowl or for waterfowl in migration. These include fluctuations in water level of the wetland due to seasonal changes in the amount of water being discharged from the filtration process into the wetland, noise and other disturbances associated with the nearby industrial uses of the property, and the lack of a diverse wetland community of plants and biota.

15. For similar reasons as in Finding 14, the mapped wetland does not provide necessary winter or feeding habitat for mammals.

16. The mapped wetland does not support, nor is it likely to support, populations of uncommon Vermont amphibian species.

17. The mapped wetland does not support, nor is it likely to support, populations of uncommon Vermont reptile species.

18. The mapped wetland lacks significant hydrophytic vegetation habitat. The area surrounding the open water pond is characterized by Salix sp. (shrub willow), Phragmites australis (common reed), and Equisetum spp. (horsetail). The wetland also contains Typha spp. (cattails). The mapped wetland 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 area of the mapped wetland surrounding the open pond. 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.

19. The mapped wetland does not provide important habitat for any threatened or endangered species of plants and animals according to the Vermont Natural Heritage inventory maps, nor is the site a significant natural community.

20. The mapped wetland is not significant for education or research in the natural sciences, nor does it contain features that would make it valuable for these purposes.

21. The mapped wetland does not have substantial recreational value or provide economic benefits because there are no important fish, wildlife or plant resources which can be fished, hunted, or gathered for sport or food.

22. The mapped wetland is not significant for open-space and aesthetics. The open pond has a small stand of cattails at the inlet and is bordered to the south by red pine. The wetland cannot be readily observed by the public, and it does not possess special or unique aesthetic qualities or values as open space. The pond is not easily accessed by the public.

23. The mapped wetland is not significant for erosion control. There are no large streams, rivers or other bodies of water adjacent to the wetland which have the potential to generate waves or currents with significant erosive force.

24. The Petitioner previously delineated the boundaries of the wetland in the field, using the methodology set forth in the 1989 Federal Manual for Identifying and Delineating

Jurisdictional Wetlands. Soils were analyzed to a depth of 24 inches, and hydrology and vegetation characterized at three selected observation areas. The boundaries of the wetland are no longer marked in the field, however, the Petitioner and the ANR are in agreement as to the location of these boundaries.

III. Conclusions of Law

Most wetlands that are delineated on an NWI map are presumed to be Class Two wetlands, meriting protection under the VWR. Section 4.2(b), VWR. Certain development activities within those wetlands and their associated buffer zones may result in violations of the VWR unless the ANR has issued a conditional use determination ("CUD") for those activities. The Board, however, may determine that a given wetland delineated on a NWI map is not so significant that it merits protection under the VWR and therefore development activities may occur in that wetland without prior review and authorization by the ANR. See Section 4.1(c) and 4.2(c), VWR. In such an instance, the Board may reclassify that wetland from a Class Two to a Class Three wetland pursuant to Sections 4.4 and 7 of the VWR. See In re: David T. Mance, Jr., "Furnace Brook" Wetland, Docket No. WET-96-01, Decision (Aug. 15, 1996).

Over the years, the Board has received a number of petitions requesting reclassification of NWI-mapped wetlands from Class Two to Class Three on the basis that those wetlands lacked significance for the functions listed in Section 5 of the VWR. In a number of instances, the surface body of water in question has been a man-made structure, and while wetland character-istics were present, the Board has determined that the wetland should be reclassified to Class Three. See Re: Champlain Water District, Docket No. WET-98-01DR, Decision (July 22, 1998) (concluding that a wetland in a settling lagoon used for muncipal water treatment was not a significant wetland). Alternatively, the Board has determined that the structure was not a wetland within the meaning of the VWR, even though a function served by a wetland was present. See Re: Luzenac America, Inc., WET-95-01, Decision (Nov. 7, 1995) (concluding that settling lagoons for a talc processing facility were not wetlands within the meaning of VWR, although these structures provided some level of surface water protection by retaining sediments produced in the talc milling process).

A reclassification may be initiated by the filing of a petition with the Board. Such a petition may be filed by an affected landowner or other interested persons, organizations, or agencies. Section 7, VWR. The Board may conduct such fact finding as may be 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, VWR. The Board's action on a reclassification petition is an administrative proceeding, not a contested case proceeding.

See In re: Technology Park Associates, Inc., Docket No. WET-95-02, Decision (Feb.1, 1996) (distinguishing a 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 VWR. A petitioner may ask for a determination that the wetland is significant for only certain values and functions and not for others,(2)

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, then the wetland is reclassified to Class Three. If, on the other hand, the Board determines that the wetland is so significant for one or more values or functions in Section 5 of the VWR that it merits protection as a Class Two wetland, then the Board may so declare and establish a specific boundary and buffer zone to protect that wetland resource and the specific values or functions at issue. See Section 4.4(c) and (d), VWR; Section 7.1(c) and (d), VWR.

In the present proceeding, the Petitioner has asked the Board to reclassify the subject wetland from a Class Two wetland to a Class Three wetland based on a determination that the mapped wetland at its Williston property does not merit protection for any of the values and functions set forth in Section 5 of the VWR. With this request in mind, the Board has reviewed the written and oral record provided by the Petitioner and ANR and considered their arguments. Based on its findings, the Board concludes that the subject mapped wetland is not so significant that it merits protection for functions under Section 5 of the VWR 5. Specifically, in regard to each of the Section 5 functions, the Board concludes:

Function 5.1 - The mapped wetland is not significant for the temporary storage of floodwater or storm water runoff;

Function 5.2 - The mapped wetland is not significant in its contribution to the protec- tion or enhancement of the quality of surface or of ground water;

Function 5.3 - The mapped wetland is not important fisheries habitat;

Function 5.4 - The mapped wetland is not significant wildlife and migratory bird habitat;

Function 5.5 - The mapped 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 mapped wetland does not contain threatened or endangered species;

Function 5.7 - The mapped wetland does not provide, nor is it likely to provide, valuable resources for education or scientific research;

Function 5.8 - The mapped wetland does not provide substantial recreational values or economic benefits;

Function 5.9 - The mapped wetland does not contribute substantially to the open-space and aesthetic character of the landscape; and

Function 5.10 - The mapped wetland is not important for erosion control.

Therefore, the Board determines that the subject mapped wetland is not so significant that it merits protection as a Class Two wetland under the VWR and therefore reclassifies this wetland from Class Two to Class Three.

The Petitioner also asks the Board to determine the final boundaries of the mapped wetland at its Williston property. Section 7.1(d) authorizes the Board to "determine the final boundaries of any significant wetland." Since the Board has determined that the mapped wetland at issue in this proceeding is not a significant wetland but rather a Class Three wetland, the Board lacks the authority to determine the final boundaries of this wetland. Therefore, the Board denies this request.

IV. Order

(1) The Board hereby reclassifies from Class Two to Class Three the NWI-mapped wetland located within the Petitioner's settling pond at the Petitioner's Williston property off Industrial Avenue and Avenue A.(2) The Board denies the Petitioner's request that the Board determine the final boundaries of this wetland.

Dated at Montpelier, Vermont, this 16th day of September, 1998.



VERMONT WATER RESOURCES BOARD

/s/ William Boyd Davies

William Boyd Davies, Chair

Concurring:

Ruth Einstein*

Gerry Gossens

Gail Osherenko

Jane Potvin



* Board Member Einstein was not present for the final deliberation on September 15, 1998, but she reviewed and concurred in the decision.

1. Although this matter is still docketed as Re: S.T. Griswold, Docket No.WET-98- 02DR, the effect of the Petitioner's withdrawal of the declaratory ruling request was to convert this proceeding into an administrative determination under VWR 7, exclusively.

As a consequence, the hearing held in this matter was a discretionary public hearing, and not a contested case proceeding pursuant to 3 V.S.A. ch. 25. Compare with Re: Champlain Marble Company, Docket No. CUD-97-06 (conditional use determination appeals heard as contested cases pursuant to 10 V.S.A. 1269 and VWR Section 8 and 9).

2. The Board is empowered to determine which functions make any wetland significant and to reclassify a wetland to a higher or lower classification. Sections 4.4 and 7.1(a) and (b), VWR. If a petitioner asks for a determination that a Class Two wetland is not significant for a particular function, and the Board finds accordingly, the wetland remains significant for all other values and functions and continues to receive the protections afforded to Class Two wetlands for those values and functions only. For many types of development activities, such partial findings may be easier to obtain and preferable to seeking reclassification of the wetland based on an assessment of all values and functions.