In re: Town of Groton, Docket No. SAP-98-01 (Jan.25, 1999) STATE OF VERMONT WATER RESOURCES BOARD 10 V.S.A. Chapter 41 In re: Town of Groton Docket No. SAP-98-01 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision pertains to an appeal by the Town of Groton from the denial by the Agency of Natural Resources of a stream alteration permit for a log crib dam on the Wells River. As explained below, the Water Resources Board denies the application. I. INTRODUCTION On March 20, 1998, the Department of Environmental Conservation ("DEC"), Agency of Natural Resources ("ANR"), denied the Town of Groton's ("Groton") application for a stream alteration permit ("Denial"). Groton seeks approval for the reconstruction of a log crib dam on the Wells River in Groton, Vermont ("Project"). On March 30, 1998, Groton filed an appeal from the Denial pursuant to 10 V.S.A.  1024. On March 31, 1998, the Board, by its Executive Officer, docketed the appeal as SAP-98-01 ("SAP-98-01"). On April 1, 1998, a Notice of Prehearing Conference was issued to all interested persons and parties. On May 4, 1998, William Boyd Davies, Chair of the Board, convened a prehearing conference and, on May 11, 1998, issued a Prehearing Conference Report and Order ("Prehearing Order"). During August and September, 1998, the parties filed prefiled direct evidence, objections to prefiled direct evidence, and lists of rebuttal witnesses and exhibits. On September 14, 1998, Chair Davies convened a second prehearing conference. On September 15, 1998, the Board convened an evidentiary hearing in this matter with the following parties participating: Town of Groton by David Otterman, Esq. Agency of Natural Resources by Jonathan Peress, 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 October 1, 1998, the parties filed proposed findings of fact and conclusions of law. On September 15 and December 22, 1998, the Board deliberated regarding this appeal. On December 22, 1998, 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 Secretary, Agency of Natural Resources v. Upper Valley Regional Landfill Corporation, Docket No. 96-369, slip op. at 13 (1998); Petition of Village of Hardwick Electric Department, 143 Vt. 437, 445 (1983). II. ISSUES As stated in the Prehearing Order, the issues are: 1. Whether, pursuant to 10 V.S.A.  1021(a), the Project does not require a permit. 2. Whether, pursuant to 10 V.S.A.  1023(a)(2), the Project will significantly damage fish life or wildlife. III. FINDINGS OF FACT 1. The Project is the reconstruction of a log crib dam on the Wells River in Groton, Vermont ("Site"). The Site is within the confines of Groton Village, just south of Route 302, and just west of Powder Spring Road. 2. The Wells River drains greater than 10 square miles at the Site. The Project would involve greater than 10 cubic yards of movement, fill or excavation within the limits of the Wells River. 3. There had been a dam at the Site from 1803 until January, 1998. During the period of its existence, the dam at the Site was commonly known as the "Village Dam." 4. The Village Dam was completely rebuilt in the early 1940s and was re-planked in 1967-68. In mid-January 1998, ice and high water destroyed the Village Dam and substantially washed it out. Presently, all that remains of the Village Dam is a 10 foot remnant and its abutment at the Site along the north shoreline of the Wells River. 5. When the Village Dam was in existence, the Site was a deep water area with slower water velocities as compared to other areas of the Wells River. The Site was flat and sunny with little fish habitat or cover. 6. Presently, fish cannot swim from the Connecticut River up to the Site because of two intervening dams. Fish cannot migrate from the Site into Groton Lake, Ricker Pond, or Noyes Pond because there are dams at those three water bodies which block fish passage. 7. Groton filed its application for a stream alteration permit for the Project on July 30, 1996 ("Application"). On August 8, 1996, ANR corresponded with Groton and requested additional information relative to the Application. 8. On February 10, 1998, ANR received sufficient information to act on the Application. The delay from August 8, 1996 until February 10, 1998 resulted from medical problems experienced by Groton's Project representative, and not from any lack of diligence or failure by ANR to timely process the Application. 9. The crest height of the Village Dam decreased from 8 feet when it was originally built in 1803, to 6 feet when it was rebuilt in the early 1940s, and to 5 feet when it was re-planked in 1967-68. The Project is for a dam with a crest height of 5 feet. The dam is proposed to be built in the same location as the prior Village Dam. 10. The Application submitted to ANR did not include a fish passageway as part of the Project. Groton modified the Project's design to include a fish passageway. 11. The two Groton witnesses who testified regarding whether the Project would result in significant damage to fish life and wildlife in and along the Wells River lack any formal experience or training with regard to the biological requirements of fish or the life cycle biology of fish, the health of the fish population of the Wells River, or the design, construction, and operation of fish passageways. 12. Eric Palmer is a District Fisheries Biologist employed by ANR. Mr. Palmer has a B.A. in Biology and a M.S. in Fisheries. Mr. Palmer is experienced with the habitat needs of fish species, including trout and salmon. Mr. Palmer has performed official duties on the Wells River in and around the Town of Groton. 13. The following fish species have been found in the Wells River upstream from the Site: (i) brook trout (wild and stocked); (ii) brown trout (wild and stocked); (iii) atlantic salmon (stocked); (iv) slimy sculpin; (v) blacknose dace; (vi) longnose dace; (vii) creek chub; (viii) lake chub; and (ix) common shiner. 14. Brook trout, sculpin and dace are native species found in cold-water rivers and streams, and they primarily feed on aquatic insects. Each needs loose gravel and rocks to spawn. After hatching, small fish from these three groups use loose stones for cover. Larger trout may move to boulders, logs, under cut banks or deep water for cover. 15. The habitat of the Wells River is important to the survival of fish species. Fish habitat consists of food, cover and water quality. Fish die when they are deprived of adequate food, cover, and water quality. 16. Water quality refers to the physical and chemical properties necessary to sustain aquatic organisms. This includes properties such as water quantity, turbidity, substrate, temperature, and dissolved oxygen. 17. The area behind a dam is the impoundment area. The impoundment area fills with water. The length of the Project's impoundment area commencing at where the dam is to be built, and moving westerly upstream, would be approximately 1,200 feet. This is approximately 1% of the total length of the Wells River. 18. If built, the Project's impoundment area would not completely dam the flow of the Wells River. As the water flows downstream toward the Project, the Project would cause the water flow's velocity to be lessened as that flow enters the impoundment area. In this area where the water slows down, sand and fine sediment would be deposited on the river bed. 19. Sediment is all of the material on a river bottom going from fine clays and silt up through sand, gravel, and rocks. The process of sedimentation occurs along the bottom of a river, and it is where the finer materials which are smaller in size than a golf ball fill in and around coarser, larger materials. 20. Sediment ranging in size from large gravel « inch in diameter to 3-4 inch diameter rocks are helpful to spawning, depending upon the fish species. While some species can spawn in sediment as small as 1/10th of an inch, if there is no input source of oxygenated groundwater, then fish need larger grain size sedimentation for spawning. There is no evidence of an input source of oxygenated groundwater at the Site. 21. Insufficient evidence was presented to quantify how much fish habitat was filled in by sediment when the Village Dam was in existence, although sediment did result from the Village Dam. Since the Village Dam's wash out, sediment deposited as a result of the dam has been washed away. 22. The Project would result in sedimentation in the Project's impoundment area which would interfere with the cover used by juvenile trout and aquatic insects. Instead of having a live zone several feet deep in the permeable substrate, the river bottom would be filled in with sand and silt. The impoundment area would become unsuitable as a spawning area for trout, sculpin and dace; juvenile trout and salmon would be denied cover area; and aquatic insects would diminish thereby lessening the available food supply for brook trout, sculpin and dace. The Project would cause fish to migrate from the Site downstream toward South Ryegate due to the habitat damage caused by the Project. 23. If built, the Project would prevent the upstream movement of fish, and discourage the downstream movement of fish through the impoundment area and over the five foot dam crest. The ability of fish to move upstream is important when they need to access spawning areas, or escape unsuitable habitat conditions such as high water temperatures. 24. It is possible that some fish would be able to migrate upstream over the Project. There is insufficient evidence in the record to establish which fish species could jump over the Project and migrate upstream, and the minimum size a given fish species would have to attain to migrate upstream past the Project. 25. In addition to migrating fish, resident fish within the Wells River need to swim up and downstream without obstacles to search out habitat to complete their life cycle. Fish need to search out suitable spawning substrate, food, cover, and cooler water temperatures. 26. The two downstream dams from the Site do not eliminate the need for free movement in the area of the Site, even if returning Atlantic Salmon can't migrate up from the Connecticut River. Being able to move freely upstream provides access to more habitat. Access to more habitat results in increased chances for resident fish to survive and grow. 27. The Project's construction and its periodic maintenance would disrupt aquatic habitat. Maintenance activity can result in large amounts of sediment being released from the impoundment area. 28. Sedimentation buildup and increased water temperatures resulting from the Project would harm the ability of the Wells River to support native fish populations, and would give non-salmonid fish species a competitive advantage. The Project would reduce the amount and quality of existing cold water habitat resulting in lower survival of trout and sculpin. 29. In 1955, minimum and maximum temperature tests were done on the Wells River in the Ricker Pond outlet, the South Branch of the Wells River above the confluence with the main stem of the Wells River, and in South Ryegate substantially downstream from the Site. The min/max temperature test does not record how long the water remained at a given temperature. The min/max temperature test only records that a given temperature was reached. 30. The 1955 temperature data showed that the water temperature was higher, and reached a higher maximum, in the upstream area of the Wells River as compared to the downstream area due to the three dams at Groton Lake, Ricker Pond, and Noyes Pond. The 1955 temperature data is reliable data that describes the present day temperature conditions of the Wells River. 31. The Project would skim off the surface layer of water as the river flows over the dam crest. The skimmed off surface layer would be at a higher temperature than the residual water behind the proposed dam. The skimmed off warmer water would mix with cooler water downstream from the Project thereby increasing the temperature of the downstream water. Without the Project, the water temperature would be lower in the main stem of the Wells River. 32. Groton's temperature analysis assumed a flow of 310 cubic feet per second ("cfs"). This flow rate far exceeds the Site's expected median monthly flow of 23 cfs for the month of July, 16 cfs for the month of August, and 6 cfs for the 7Q10 flow period. These flow rates are representative of summer time flows. 33. A linear relationship exists between temperature and flow such that if the flow decreases by half, then the temperature will double. A flow rate of 310 cfs is 19 times the August median flow, and 52 times the 7Q10 flow. At 310 cfs, the Project would increase the water temperature by 1/10th of a degree. At 16 cfs and 6 cfs, respectively, the Project would increase the water temperature by 1.9 and 5.2 degrees. With water temperatures at the Site approaching the 80 degree mark, increases of between 1.9 and 5.2 degrees would harm fish life creating lethal water temperatures for certain salmonids. 34. Fish undergo the highest amount of biological distress during periods of low flow and high water temperature. The conditions which cause high stress occur on hot summer days. Under biologically stressful conditions, fish are forced to relocate to areas of cooler water temperature. During the summer months, even a slight increase in temperature can be significant both in the impoundment area and downstream since warmer water holds less oxygen. Trout require high dissolved oxygen levels and cool temperatures to survive. 35. Nonlethal, but warmer than optimal, water temperature can cause poor fish growth, and also increase levels of predation as fish crowd into cool water seeps or springs thereby exposing themselves to predators such as otters and birds. Trout do well in temperatures from just above freezing to 65 degrees. Trout suffer when the temperature goes above 70 degrees, and temperatures above 77 degrees will cause death if trout are unable to quickly relocate to a cool water spring or ground water seep. 36. With water temperatures in the Wells River and at the Site already at the upper margins of trout survival, fish need to be able to move freely up and down the Wells River to seek cool water refuges. The Project would reduce the amount and suitability of cold water habitat, resulting in lower survival and increased mortality of trout and sculpin. 37. Since the January 1998 washout of the Village Dam, the aquatic habitat at the Site has improved. The area has been scoured out and become a rocky river bed that is able to support all life stages of trout, sculpin and aquatic insects. The amount of sedimentation has decreased and fish are now able to move through this stretch of the Wells River in both directions without obstruction. In the absence of the Village Dam there will be a significant increase in the number of fish, the variety of fish species, and the sizes of fish at the Site. 38. The Project's impoundment area would not provide suitable habitat for juvenile salmon or trout. Trout would not be able to spawn successfully in the impoundment area. Habitat for aquatic insects would be filled in by sediment. Brown and brook trout are unlikely to inhabit the Site if the Project is built because there would not be suitable habitat, but would do so if the Project is not built. 39. The loss of habitat and increased mortality that would result from the Project would damage fish life in the Wells River. Without the Project, the Site provides high quality habitat for trout, sculpin, and juvenile salmon. 40. Rod Wentworth is a fisheries biologist for ANR. Mr. Wentworth has a B.S. in Wildlife Management and a M.S. in Fisheries Biology. Mr. Wentworth has 20 years of related work experience, and his practice areas include salmonid ecology, in stream flow, dams, and fish passageways. Mr. Wentworth is familiar with the Site. 41. Mr. Wentworth did not have an adequate opportunity to conduct a thorough review of Groton's proposed fish passageway. The proposed fish passageway would not mitigate the adverse effects on temperature, stratification, and sedimentation which would result from the Project. 42. During the period of the Village Dam's existence, the Site did not provide suitable habitat for juvenile salmon or trout. Trout were unable to live their entire life cycle in the Project's impoundment area. 43. The following are relevant factors to consider to determine whether a proposed stream alteration project such as a dam will cause significant damage to fish life: a river's present conditions; what fish inhabit the river; what is the river's substrate; the length of the impoundment area; whether there are other dams on the river and, if so, their locations; and how close the proposed dam will be to existing dams. These factors all pertain to the quality of a river's fish habitat. 44. The presence of other dams and impoundments on the Wells River has reduced suitable habitat for biota and fish on the Wells River. The Project would significantly impact remaining habitat by further constraining suitable habitat and restricting fish. 45. Even though the impoundment area only constitutes approximately 1% of the Wells River, its natural features make it an important area for trout spawning and insect production. If this area is taken out of productive use, damage to fish and wildlife would result. 46. The Village Dam has not been, nor would the Project be, the only impact to the Wells River. The stretch from Ricker Pond downstream to where the South Branch joins the main stem of the Wells River is devoid of salmonids because of elevated water temperature. The embankments along much of the river have been cleared of trees. The Wells River's water temperature is presently at levels which are dangerous to fish life. 47. Generally, eliminating 2-5% of a river with good fish habitat conditions would result in significant damage to fish life. Where a river has marginal conditions, eliminating 1% of a river as an area for good fish habitat can cause significant damage to fish life. The marginal scenario describes the Wells River. 48. The harmful effect of the Project on fish habitat, fish passage, and water temperature cannot be alleviated by any mitigation measures. IV. CONCLUSIONS OF LAW A. De Novo Appeal and Burden of Proof The hearing before the Board is de novo and is conducted as a contested case under Vermont's Administrative Procedure Act, 3 V.S.A. Chapter 25 ("APA"). 10 V.S.A.  1024(a). All of the evidence is heard anew, and the probative effect determined by the Board as though no decision had been previously rendered relative to those issues which are appealed to the Board. See In re Poole, 136 Vt. 242, 245 (1978). Groton has the burden of proof on both issues on appeal. Re: Clarence Jelley, Docket No. SA-96-03, Findings of Fact, Conclusions of Law, and Order at 4 (Oct. 30, 1996). On appeal, the Board has the same authority granted to the secretary of ANR under 10 V.S.A.  1023(a), and the Board may issue a permit, issue a permit with conditions, or deny a permit for the Project. Id. The burden of proof consists of the burden of production and the burden of persuasion. Under the burden of production, there must be sufficient evidence for the Board to make a positive finding with regard to the Project. 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, not- withstanding the evidence presented in opposition to the Project. See In re: Dean Leary (Point Bay Marina, Inc.), Docket No. MLP-96-04, Findings of Fact, Conclusions of Law, and Order at 13 (Aug. 1, 1997). There must be evidence from which the Board can make its own findings of fact and conclusions of law. The Board cannot simply make an order which affirms or reverses the Denial. Poole, 136 Vt. at 246. B. Jurisdiction The Board must affirmatively determine that it has jurisdiction over the Project. See In re Lake Sadawga Dam, 121 Vt. 367, 370 (1960). The Wells River drains greater than 10 square miles at the Site. The Project would involve greater than 10 cubic yards of movement, fill or excavation within the limits of the Wells River watercourse. Accordingly, the Project requires a permit pursuant to 10 V.S.A.  1021(a), and the Board has jurisdiction over Groton's appeal from the Denial. C. Project's Failure to Comply with 10 V.S.A.  1023(a)(2) Under 10 V.S.A.  1023(a)(2), a permit for the activity described in 10 V.S.A.  1021(a) "shall be granted, subject to such conditions determined to be warranted, if it appears that the change . . . will not significantly damage fish life or wildlife[.]" In this case, the "change" which the Board must consider is the Project. The Project is the reconstruction of the former Village Dam, and the resulting flow modification of the Wells River. Before the Board can determine whether the Project would result in significant damage to fish life or wildlife, it must first establish a base line from which to compare the Project. Groton contends that the Project should be evaluated based upon the historical conditions at the Site and in the Wells River. ANR contends that the Project should be evaluated based upon the existing conditions at the Site and in the Wells River. In determining what constitutes the appropriate base line the Board has generally looked to the Vermont Water Quality Standards ("VWQS") which define a similar concept, background conditions, to mean conditions that exist in the absence of human or cultural influences, or conditions due to human or cultural influences that are not subject to regulation or management under the Act or under 6 V.S.A., Chapter 215. VWQS effective April 21, 1997 at 1-01(B)(7). In the context of federal relicensure of hydroelectric dams and the associated state certification under section 401 of the Clean Water Act, which is made applicable in Vermont through 10 V.S.A. Chapter 41, the Board has addressed the issue of how to most appropriately determine background conditions. In re: Passumpsic Hydroelectric Project, Docket No. WQ-94-09, Memorandum of Decision (August 15, 1995); In re Lamoille River Hydroelectric Project, Docket Nos. WQ-94-03 and WQ-94-05, Memorandum of Decision (August 15, 1995). In both Passumpsic and Lamoille, the Board considered whether to evaluate historical, pre-dam, free-flowing conditions in order to establish the appropriate background condition. The Board concluded that doing so would be problematic for a number of reasons. Most relevant to the question before the Board in this case was the uncertainty concerning the ability to establish historical conditions. The Board stated that it was: . . . unwilling to speculate concerning the water quality of public waters during the eighteenth, nineteenth, or for that matter, the early twentieth century to establish a benchmark for existing impoundments. In re: Passumpsic Hydroelectric Project, Docket No. WQ-94-09, Memorandum of Decision at p.9. The rationale for excluding evidence of pre-dam conditions in Passumpsic and Lamoille was based, in large part, on the Board's reluctance to try to establish as the evidentiary basis for its decision, water quality conditions that may have pre-existed the operation of the dams. Unlike the cited cases which involved existing impoundments that resulted in substantial and ongoing modifications to streamflow, in this case, the condition of the Wells River at the Project Site as of the date that the stream alteration permit application was rendered complete is free-flowing. Consistent with the Board's rationale in Passumpsic and Lamoille, we decline to establish a baseline by speculating as to water quality and fish habitat associated with the impounded condition of the waters in question during the past two centuries. Rather, the appropriate baseline in this case should derive from the sound assessment of water quality and fish habitat associated with the present free-flowing condition of the Project Site. This approach is consistent with the manner in which some federal courts have addressed federal relicensure of hydroelectric facilities. For example, the Ninth Circuit Court of Appeals has emphasized that relicensure can be appropriately characterized as an evaluation of the recommitment of the water resource irrespective of its historical use. Confederated Tribes and Bands of the Yakima Indian Nation v. FERC, 746 F.2d 466, 476-77 (9th Cir. 1984). In the FERC relicensure process, the state's role under 10 V.S.A. Chapter 41 involves an exhaustive review pursuant to section 401 of the Clean Water Act of compliance with the VWQS and other appropriate requirements of state law and may, in some cases, require an assessment of historical or pre-dam conditions. In contrast, 10 V.S.A. 1023(a)(2) focuses discretely on whether the change from the status quo will significantly damage fish life or wildlife, providing even less support for using historical conditions as a baseline. The Board concludes that a stream alteration project should be evaluated based upon the conditions that are in effect when the applicant provides all of the information that ANR needs to conduct its review of a stream alteration project under 10 V.S.A.  1023. In this case, Groton did not provide all of the necessary information regarding the Project until February 10, 1998 at which time the Village Dam had already washed out. If the Legislature had intended to allow the replacement of existing dams without regulatory review, then it would have specifically so provided. Cf. 24 V.S.A.  4408(b)(3) (resumption of nonconforming uses allowed, except where such use is abandoned for six calendar months). Instead, under 10 V.S.A.  1023(a)(2), any change, provided it is of sufficient size, requires a stream alteration permit. The Board believes that sedimentation, temperature, and fish passage are the general determinants of high quality habitat at the Site if the Project is built. The Board is persuaded by ANR's witnesses, each of whom is an expert within the field of fisheries research and management. See Vermont Rule of Evidence 702. Based on the findings of fact, the Project would result in damage to fish life and wildlife as a result of sedimentation, higher water temperatures, and interference with fish movement. The Board must also decide whether the Project's damage to fish life and wildlife is significant. While 10 V.S.A.  1023(a)(2) requires the Board to determine whether there will be significant damage to fish life or wildlife, there is no statutory definition of what constitutes significant damage. Rather, this determination is left to the Board to decide based upon the facts in each case. Generally, eliminating 2-5% of a river with good conditions would result in significant damage to fish life. Where a river has marginal conditions, eliminating 1% of a river as an area for good fish habitat can cause significant damage to fish life. The Wells River is a marginal river. The length of the Project's impoundment area commencing at where the dam is to be built, and moving westerly upstream, would be approximately 1,200 feet. This is approximately 1% of the total length of the Wells River. The Project would have a harmful effect on fish life at the Site with regard to fish habitat, fish passage, and water temperature, and would elevate water temperature below the dam as well. The Project would result in making the impoundment area unsuitable for many life stages of fish species. The Board concludes that to take this section of the Wells River and make it unsuitable would result in significant damage to fish life and wildlife. Moreover, the significant damage to fish life that would result from the Project can not be alleviated by any mitigation measures. In summary, Groton has failed to persuade the Board that the Project will not significantly damage fish life or wildlife pursuant to 10 V.S.A.  1023(a)(2). Accordingly, a stream alteration permit for the Project is denied. D. Groton's Modification of the Project to Include a Fish Passageway The Legislature has assigned initial consideration of a proposed stream alteration project to ANR. The Board has no authority to rule upon a project's compliance with the requirements of 10 V.S.A.  1023(a)(2) where that project is different from that ruled upon by ANR. See In re Taft Corners Associates, 160 Vt. 583, 591 (1993); In re Juster Associates, 136 Vt. 577, 581 (1978). When ANR reviewed the Project, Groton had not proposed a fish passageway. Moreover, ANR's expert witness for fish passageways did not have an opportunity to review Groton's proposal until the day before the hearing in this appeal. Accordingly, while the Board has ruled that the Project does not comply with 10 V.S.A.  1023(a)(2), it makes no conclusions regarding the proposed fish passageway and other modifications except to note that a fish passageway would not alleviate the other identified problems of elevated water temperature and reduced habitat. V. ORDER The Project is denied a stream alteration permit pursuant to 10 V.S.A.  1023(a)(2). Jurisdiction is returned to the Agency of Natural Resources. Dated at Montpelier this 25th day of January, 1999. WATER RESOURCES BOARD /s/ William Boyd Davies Chair Concurring: Gerry Gossens Gail Osherenko Jane Potvin