RE: Lost Cove Homeowners Assoc., Inc., (Gale Driveway, near Brickyard and Red Rocks Road, Colchester, Vermont), CUD-98-04



State of Vermont

WATER RESOURCES BOARD



RE: Lost Cove Homeowners Assoc. Inc.

Docket No. CUD-98-04 (DEC #97-185)

(Gale Driveway, near Brickyard and Red Rocks Road, Colchester, Vermont )



FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

This decision pertains to an appeal of a conditional use determination issued by the Agency of Natural Resources ("ANR"), authorizing a driveway crossing through a Class Two wetland and its buffer zone. For reasons explained below, the Water Resources Board ("Board") affirms the ANR's decision, concluding that the driveway crossing, as conditioned by this decision, will not result in an undue adverse impact on protected wetland functions.

I. BACKGROUND

On August 24, 1998, the Acting Director of the Water Quality Division, Department of Environmental Conservation, ANR, issued DEC #97-185 ("CUD") to Paul Gale, agent for Barden Gale and Melanie Amhowitz ("CUD Applicants"). This CUD allows the construction of a driveway to serve a residential lot and the installation of a 24-inch culvert within a Class Two wetland and buffer zone, located on the west side of Brickyard Road in the Town of Colchester, Vermont ("Project").

On September 23, 1998, the Lost Cove Homeowners Association ("LCHA"), an association of homeowners in a subdivision adjacent to the Project, appealed the CUD to the Board. This appeal was filed pursuant to 10 V.S.A. 1269 and Section 9 of the Vermont Wetland Rules ("VWR").

A Notice of Appeal and Prehearing Conference was issued on October 9, 1998, which was subsequently published in the Burlington Free Press. On October 29, 1998, the Board's Chair, William Boyd Davies, convened a prehearing conference in this matter pursuant to Rule 24 of the Board's Rules of Procedure (eff. April 25, 1988) ("Procedural Rules"). The following persons entered timely appearances and participated in the conference:

LCHA, by William Alexander Fead, Esq., Paul, Frank & Collins, Inc.; and

CUD Applicants, by William W. Schroeder, Esq., Downs Rachlin & Martin, PLLC, and Paul Gale, agent.

On November 2, 1998, the Chair issued a Prehearing Conference Report and Order ("Prehearing Order"). In response, the CUD Applicants and LCHA, each filed written comments. On November 12, 1999, the Chair issued a corrective Memorandum.

In response to the preliminary issues identified in the Prehearing Order, LCHA and the CUD Applicants made certain filings. On November 17, 1998, LCHA filed a Motion to Intervene and Petition for Party Status, responding to a standing challenge raised by the CUD Applicants and requesting party status for certain individual members owning real property adjacent to the Project and subject wetland. LCHA also filed on this date a Statement of Issues on Appeal, to clarify the functions and mitigation standards at issue. On November 17, 1998, counsel for the CUD Applicants filed a letter clarifying that Barden Gale and Melanie Gale Amhowitz were indeed the proper applicants for the CUD at issue, even though the ANR had identified Paul Gale, agent, as the applicant. On December 1, 1998, the CUD Applicants filed a Motion to Dismiss and Objections to the Appellants' Statement of Issues on Appeal.

On January 13, 1999, the Board issued a Memorandum of Decision on all preliminary issues. The Board denied the Motion to Dismiss and confirmed the standing of LCHA, granting party status to the homeowners association and to members Gary and Paula Warner, Dr. and Mrs. Burton Sobel, and Dr. and Mrs. Edward Terrien, all represented by Paul, Frank & Collins, Inc. The Board also granted party status to the CUD Applicants.

On February 1, 1999, the CUD Applicants filed a Motion to Consolidate this appeal and the appeal, In re: Barden Gale and Melanie Gale Amhowitz, Docket No. CUD-99-01. On February 3, 1999, the Chair issued a memorandum advising the parties that he would defer ruling on the Motion to Consolidate until a scheduled prehearing conference in Docket No. CUD-99-01.

On March 17, 1999, LCHA and the Warners, Sobels, and Terriens filed a letter concurring, in part, to consolidation of the two proceedings. On March 23, 1999, the Chair convened a prehearing conference, at which time counsel for all of the parties in the present appeal and in Docket No. CUD-99-01 agreed to limited consolidation of the two appeals. On March 31, 1999, a Prehearing Conference Report and Order ("Consolidated Prehearing Order") was issued clarifying the terms of consolidation and setting forth a consolidated filing schedule for prefiled testimony and exhibits in the two CUD appeals.

The parties filed prefiled testimony and exhibits during April and May 1999.

On May 18, 1999, the CUD Applicants filed Stipulated Facts, a Joint Proposed Hearing Day Schedule, a Joint Proposed Site Visit Itinerary, and Evidentiary Objections. LCHA and the Warners, Sobels, and Terriens filed no evidentiary objections.

On May 25, 1999, the Chair convened another prehearing conference with respect to the two appeals, at which time he made preliminary rulings on the evidentiary objections, the Hearing Day Schedule, and other pending matters.

On May 28, 1999, the parties submitted evidentiary and other stipulations. The stipulations were incorporated by reference into a Second Prehearing Conference Report and Order ("Second Prehearing Order") issued on June 1, 1999.

On May 28, 1999, the CUD Applicants filed objections to certain of the Chair's evidentiary rulings. On June 3, 1999, LCHA filed certain objections to the Chair's preliminary evidentiary rulings and, on June 4, 1999, the CUD Applicants advised the Board that they did not oppose LCHA's request for Board review of the Chair's rulings with respect to LCHA 9 through 27. The objections were acknowledged and reserved for consideration by the full Board in the Second Prehearing Order and in a memorandum issued by the Chair on June 4, 1999.

On June 7, 1999, ANR entered its appearance through counsel, N. Jonathan Peress, Esq.,

for the limited purpose of participating in matters pertaining to the testimony of its employee, Padriac Monks, whose testimony was compelled by subpoena.

On June 8, 1999, at the Burnham Memorial Library in Colchester, Vermont, the Board convened a hearing in the present appeal. The Board also conducted a consolidated site visit. Participating in this proceeding were LCHA, the Warners, Sobels, and Terriens, the CUD Applicants, and ANR. The Board recessed the hearing and held a brief deliberation on June 8, 1999, continuing deliberations until after receipt of proposed findings of fact, conclusions of law, and orders from the parties.

On June 15, 1999, the Warners and the Gales each filed proposed findings of fact, conclusions of law, and orders.

On June 16, 1999, the Chair issued a memorandum to the parties advising them that the Board would take official notice of certain Act 250 permits issued for the Lost Cove subdivision and providing the parties an opportunity to object to such notice of documents. On June 21 and June 25, 1999, the CUD Applicants and Appellants respectively advised the Board that they had no objections to the Board so noticing the Act 250 permits. Therefore, the Board took official notice of the following land use permits pursuant to 3 V.S.A. 810(4):

Re: Lost Cove Partnership, #4C0886 - Land Use Permit and supporting Findings of Fact, Conclusions of Law and Order (Oct. 16, 1991);

Re: Lost Cove Partnership, #4C0886-1 - Administrative Amendment (Nov. 18, 1991);

Re: Lost Cove Partnership, #4C0886-2 - Administrative Amendment (Jan. 30, 1992); and

Re: Lost Cove Partnership, #4C0886-3 - Land Use Permit Amendment (June 19, 1992).

The Board deliberated on June 29 and July 14, 1999. On July 14, 1999, the Board declared the record complete and adjourned the hearing.

This matter is now ready for decision. To the extent that any proposed findings of fact and conclusions of law are included below, they are granted; otherwise, they are denied. See Secretary, Agency of Natural Resources v. Upper Valley Regional Landfill Corporation, 167 Vt. 228, 242-243 (1997); Petition of Village of Hardwick Electric Department, 143 Vt. 437, 445 (1983).

II. EVIDENTIARY RULINGS

On May 28, 1999, the CUD Applicants filed a memorandum and request for Board review certain of the Chair's preliminary evidentiary rulings with respect to this proceeding. They specifically objected to the Chair's rulings to not exclude statements contained in Exhibit LCHA-1 (Errol Briggs' Prefiled Direct Testimony) which quoted or paraphrased findings from various CUDs. The CUD Applicants asked the Board to reverse the Chair's ruling on the bases that such testimony should be excluded under the best evidence rule and because an expert cannot be used as a conduit to admit otherwise inadmissible evidence. Gale Letter at 1 (May 28, 1999).

On June 3, 1999, LCHA filed a request for Board review of the Chair's preliminary evidentiary ruling excluding certain of its exhibits on the basis that, without a sponsoring witness, the CUD Applicants had failed to lay a sufficient foundation to support admission of these documents. The specific exhibits covered by the Chair's ruling were Exhibits LCHA 9-16 and 18-27.(1) On June 4, 1999, the Chair advised the parties that this matter would be referred to the Board for its review.

On June 8, 1999, the parties each filed written memoranda and presented brief oral argument with respect to the issues preserved. The Board deliberated and then entered oral rulings. Based of the parties' written and oral argument, the Board affirmed the Chair's preliminary evidentiary rulings with respect LCHA-1, thereby allowing such testimony to be admitted. The Board also affirmed the Chair's preliminary evidentiary rulings excluding Exhibits LCHA 9-16 and 18-27, on the basis that LCHA provided insufficient foundation to support admission of these exhibits. However, Exhibits LCHA 9, 10, and 18 were admitted in the course of cross-examination of the CUD Applicants' witnesses.

III. ISSUES

1. Whether the proposed driveway and culvert will result in an undue adverse effect on protected wetland functions? VWR, Section 8.5(a).

2. If the proposed driveway and culvert will result in an undue adverse effect on protected wetland functions, are these impacts minimal? VWR, Section 8.5(a).

3. If the undue adverse effect on protected wetland functions is more than minimal, has this impact been sufficiently mitigated to the extent necessary to achieve no net undue adverse effect? VWR, Section 8.5(b).

The Board has recognized that the scope of any de novo proceeding must be limited to those issues specified in the notice of appeal, unless the Board determines that substantial inequity or injustice would result from such limitation. In re: Darryl and Stephanie Landvater, Docket No.CUD 96-06, Findings of Fact, Conclusions of Law, and Order at 9-10 (Aug. 28, 1997); In re: Appeal of Cole, Docket No. WQ-92-13, Memorandum of Decision at 8 (July 9, 1993). While a Class Two wetland is presumed to serve all of the functions specified in VWR, Section 5, where the parties, as in this proceeding, have agreed by stipulation that certain wetland functions are not at issue, the Board makes no findings of fact and conclusions of law in its final decision with respect to such functions. See Procedural Rules 6 and 30.

The parties agree and stipulate, and the Board so finds, that the subject wetland is a Class Two wetland. Of the ten protected functions recognized in Section 5, VWR, the parties agree and stipulate that the following functions are either not present or are present at such a minimal level as to not be protected functions: hydrophytic vegetation habitat (5.5); threatened and endangered species habitat (5.6); education and research in the natural sciences (5.7). Second Prehearing Order at 2 (June 1, 1999). These stipulations are consistent with the ANR's past findings of fact in CUDs related to the subject wetland, with the exception that the ANR has found that the wetland as a whole is only minimally significant for protected functions: recreational value and economic benefits (5.8) and open space and aesthetics (5.9).(2) Accordingly, the Board make no findings of fact and conclusions of law with respect to 5.5, 5.6, and 5.7. However, the Board does make findings with respect to 5.8 and 5.9, given that the parties dispute the wetland's significance for these functions.

IV. FINDINGS OF FACT

A. General Description of the Involved Wetland and Project

1. The CUD Applicants are the owners of a 10.13-acre parcel in the Town of Colchester, Vermont, near Mallets Bay on Lake Champlain. They have owned this lot as tenants in common since 1976, when it was conveyed to them by their father, Paul Gale. Paul Gale acquired the property in 1972.

2. The parcel is irregularly shaped and is accessed from Brickyard Road by a narrow strip of land, 35 feet wide and 930 feet long ("access strip"), extending in a westerly direction to the main portion of the property. Like the balance of the parcel, the access strip is owned in fee simple by the CUD Applicants.

3. In 1987, the Lost Cove Partnership ("LCP") acquired a 28-acre parcel of land abutting the southwest side of the access strip. Also in 1987, the Davis Development Corporation ("DDC") acquired an 8-acre parcel of land abutting the northeast side of the access strip.

4. In the early 1990s, LCP, DDC and Lost Cove Corporation ("LCC"), a successor development entity, subdivided the 28-acre and 8-acre parcels into approximately 14 residential building lots and two parcels of land in common ownership. The subdivision is known as Lost Cove.

5. Dr. and Mrs. Burton Sobel, Dr. and Mrs. Terrien, and Mr. and Mrs. Gary Warner each own residential lots in the Lost Cove subdivision adjoining the CUD Applicant's 10.13- acre parcel. The Sobels acquired their two lots in 1993 and June 1995 (Lots #1 and 2), the Terriens purchased their one lot in August 1997 (Lot # 6), and the Warners purchased their one lot in May 1998 (Lot #14).

6. The two parcels of common land were conveyed to LCHA in October 1998, although LCHA had at least an equitable interest, if not a vested future interest, in the two parcels prior to the initiation of this proceeding. One common parcel abuts the northeast side of the access strip and the other is on the southwest side of the access strip.

7. The access strip crosses a small, unnamed stream and the subject Class Two wetland, approximately 600 feet northwest of Brickyard Road. The two parcels of common land are located within or abut the same Class Two wetland and its buffer zone. Likewise, the residential lots owned by the Sobels, the Terriens, and the Warners, abut the same Class Two wetland and its buffer zone.

8. The wetland located on the CUD Applicants' property is contiguous with wetlands delineated on the Vermont Significant Wetlands Inventory (National Wetland Inventory Map #12B) ("VSWI map") and is therefore a Class Two wetland with a presumptive 50-foot buffer zone. The mapped wetlands are designated as palustrine forested/ scrub shrub wetlands. The mapped and contiguous unmapped areas ("wetland complex") consist of a chain of open water, marsh, and forested wetland areas near the shores of Lake Champlain. The small, unnamed stream flows through the entire length of the wetland complex in a westerly and southerly direction, a distance of approximately 2,500 feet to Lake Champlain.

9. The wetland complex is several acres in area. It includes much of the area upstream of the Project along the unnamed stream and east of the Brickyard Road crossing in the direction of Route 2, outside the area of the Lost Cove subdivision. Estimates of the size of the entire wetland area, between Brickyard Road crossing and the Lost Cove subdivision road just below the Lower Pond, range from approximately two to four acres in area. The estimates vary widely as the wetland has not been delineated in its entirety.

10. In 1991, the ANR issued CUD #90-359, allowing the Lost Cove developers to fill portions of the subject wetland and its buffer zone to permit the construction of a house on Lot #2, a driveway on the edge of Lot #3, a house and driveway in the buffer zone of Lot #5 and the widening and grading of Brickyard Road. In 1992, the ANR issued CUD #91-370, allowing the Lost Cove developers to place additional fill in the wetland and its buffer zone to allow the creation of an outdoor living space for the single-family residences planned for Lots #2 and #3.

11. The Lost Cove developers constructed two ponds within the subject wetland. The building of these ponds involved the cutting of trees within the wetland and its buffer zone, substantial excavation of soil and vegetation from the wetland itself, and the impoundment of the unnamed stream at two locations. In 1991, an earthen dam with a spillway was constructed at a point just upstream of the drive leading to Lots #1 through #5 and south of the access strip ("Lower Pond"). In 1994, another earthen dam, with an exposed rock spillway, was constructed upstream and to the northeast of the access strip ("Upper Pond").

12. The Lower Pond, authorized by CUD #91-117, was constructed as a fire pond for the subdivision. It required an excavation of six to eight feet in depth. According to the application for CUD #91-117, the impoundment for the Lower Pond was expected to raise by two feet the elevation of the water, thereby creating a pond from eight to ten feet deep and less than one acre in area. A concrete sump was installed in the westerly end of the Lower Pond connected to a dry hydrant for the purposes of fire protection.

A low berm or dike with a stone spillway was constructed near the center of the pond. The intention of this structure was to assure that the upstream section of the pond would have a slightly higher elevation of water than the lower section. The berm was to be planted to grass and the northern section of the pond was to be planted to arrowhead, pickerelweed, waterlilies, and other native, non-invasive aquatic species.

During the course of the site visit, the Board observed that a part of the buffer zone surrounding the Lower Pond had been sown to grass and, in some areas it had been converted to lawn that was mown to the pond's edge. This was especially true on Lot #6 and the common land parcel abutting Lot #5. The Board also observed that in select areas around the pond and on the berm, non-native species of iris (yellow flag), garden lupine and other perennials had been planted.

The construction and use of the Lower Pond was authorized by Land Use Permits #4C0886 and #4C0886-3.

13. The Upper Pond, authorized by CUD #94-368, was likewise constructed such that it required an excavation of six to eight feet in depth and a rise of about two feet in elevation of the water level due to the impoundment. The acreage of this pond was a little under one acre.

According to the application for CUD #94-368, the purpose of this pond was "to create an amenity of a trout pond for the two parcels of land that abut the wetland" (Lots #14 and #15). The Lost Cove developers proposed to leave the shores of this pond "natural and not landscaped."

During the course of the site visit, the Board observed that much of the buffer zone was comprised of terraces with steep banks sloping six to eight feet to the edge of the Upper Pond. Most of the northwesterly side of the pond (Lot #15), was open meadow with a few scattered trees on the slope of the bank. The buffer zone on the southeasterly side (Lot #14) had a thin over story of native oaks, white pines, hemlocks, and other trees, and on the slopes dropping to the pond's edge, a sparse cover of native shrubs and herbaceous plants. The Board observed that a lawn had been planted to the edge of the terrace, within the buffer zone. There also was a planting of rose bushes and garden perennials within close proximity of the wetland.

14. The filling and construction of the Upper and Lower Ponds reconfigured the wetland within the Lost Cove subdivision into an hour glass shape, with the area of the access strip becoming the narrow area between the two ponds. The impoundment for the Lower Pond, however, altered the water level in the area of the access strip, with the result that the wetland in the area of the access strip expanded to approximately 100 to 150 feet in width. This made it impossible to cross the stream and wetland using planking. Under an agreement between the developers of the Lost Cove subdivision and the CUD Applicants, the Lost Cove developers constructed a wooden board walk, approximately one hundred feet long, to allow crossing by foot to the main portion of the CUD Applicants' lot.

15. The purpose of the CUD application is to allow the construction of a 930-foot long driveway to access the CUD Applicants' 10.13-acre parcel. No residential development of the parcel is proposed at this time, however, the CUD Applicants want to gain reasonable access to show their land to potential buyers.

16. The CUD application, prepared by Pinkham Engineering Associates, Inc., requests authorization to construct a driveway within the access strip and to install a 24-inch culvert to convey the waters of the unnamed stream to the Lower Pond. The CUD Application calls for use of approximately 18-inches of fill materials to create the driveway crossing. However, to ensure the maximum grade required by the Town of Colchester, the driveway surface will be located between three and five feet above the surface of the wetland, at the top of an embankment with a 2 to 1 slope from the wetland to the driveway surface. The traveled surface of the road will be approximately ten-feet wide. The total width of the driveway, including shoulders and ditches, will be between thirty and thirty-two feet wide. Grading and ditching in the wetland buffer zone area and filling in the wetland will occur nearly the full width of the 35-foot buffer zone.

17. The Project will directly impact approximately 3,935 square feet of wetland and 3,540 square feet of buffer zone.

18. The area of the wetland to be directly impacted by the Project is characterized as marsh which is flooded much of the time. The predominant hydrophytic plants are grasses, sedges, and jewel weed, with burr reed growing along the channel of the unnamed stream. The buffer zone has a thin over story of mature oak, birch, red maple, ash and other hardwood trees and a thin under story predominantly composed of ferns, grasses and shrubs.

B. Impacts of the Project on Protected Wetland Functions

Function 5.1 Water storage and flood water and storm runoff

19. The watershed for the subject wetland is estimated to be 300 acres in area. The area of the wetland between the Upper Pond dam and the Lower Pond impoundment, is approximately two acres in area or less than one percent of the watershed upstream of its outlet.

20. The unnamed stream does not receive significant stormwater runoff from development upstream of the Project. The surface area of the proposed driveway will contribute only a minimal amount of runoff.

21. Given that the unnamed stream enters a well-defined channel upon leaving the wetland complex and the stream empties into nearby Lake Champlain, there is little private and no public property downstream of the Project which could be damaged from peak storm events.

22. While the wetland complex as a whole may attenuate flood peaks and reduce water velocities, the fact that there is an unconstricted inlet to the subject wetland from the Upper Pond and a relatively unconstricted outlet through the spillway of the dam impounding the Lower Pond, means that only in major storm events is there likely to be any backup of flood waters into the marsh area of the access strip. Since most of the wetland area below the Upper Pond has been converted to an open water wetland due to the construction of the Lower Pond, what little dense, persistent, emergent vegetation now exists in the area of the access strip cannot be expected to contribute significantly to the retention and slow release of flood or storm waters.

23. The 24-inch culvert proposed as part of the Project is adequate to handle most storm events. A culvert of the same diameter was approved for and installed by the developers of the Lost Cove subdivision below the Lower Pond to carry water from the unnamed stream under the drive leading to Lots #1 though 5. The 24-inch culvert is designed to handle 25-year storm flows. If flows of greater than a 25-year storm were to occur, the proposed driveway would temporarily impound the flood waters, until they could pass through the culvert.

Function 5.2 Surface and ground water protection

24. The wetland is surrounded by forested uplands and low density residential areas.

25. Some stormwater runoff from Brickyard Road and the subdivision drive may enter the subject wetland complex. A black, 4-inch pipe, partially buried in a stone-lined swale, enters the Lower Pond near the westerly dike. This pipe appears to drain into the Lower Pond from either the common land parcel or Lot #5. The Board observed two similar black, 4-inch pipes in the bottom of the Upper Pond adjoining the Warners' property (Lot #14).

26. The wetland does not recharge a well head or aquifer protection area, or a Class I or Class II ground water area. It does not contribute flows to Class A waters.

27. To significantly enhance surface water quality, a wetland typically has a constricted outlet that increases water retention and slows water velocities through woody vegetation that allows sediments to settle out, and pollutants to be taken up by the persistent plant communities. This wetland lacks a constricted outlet, it lacks a significant stand of woody vegetation in part due to the conversion of the forested wetland to the Lower Pond, and there are no significant known sources of pollutants and sediments entering the wetland.

28. If the Project is constructed as proposed, it is possible that some minimal pollutants -- such as road salt and petroleum products -- could enter the wetland from snowmelt or road wash. Land Use Permit #4C0886 already restricts the use of road salt within the Lost Cove subdivision and a similar restriction imposed on the CUD Applicants and their successors in interest would reduce the likelihood that salt will leach into the wetland.

Function 5.3 Fisheries habitat

29. Fish do not access the subject wetland from Lake Champlain due to the presence of waterfalls between the lake and the wetland. Prior to the construction of the two ponds, the wetland served no fisheries habitat function. Once the ponds were completed, the Lost Cove developers stocked the ponds with trout and perhaps other species. It is not known what species of fish are currently present in the wetland complex nor in what numbers.

30. The presence of fish may be inferred from the sitings of kingfishers, merganser ducks, and other fish-eating waterfowl in the area of the two ponds and connecting marsh.

31. The subject wetland does not provide spawning, nursery or significant feeding habitat for fish. The construction of the ponds has created some open water habitat, but there is so little native aquatic vegetation and cover that this habitat is presently of limited significance for fisheries. Also, there is no evidence that there are springs discharging into the subject wetland, thereby lowering or moderating the temperature of the surface waters of the unnamed stream and Lower Pond, making them suitable habitat for cold water species such as trout.

32. Shade is provided by some hardwood trees growing in the buffer zone of the two ponds and the marsh. Much of the tree cover that used to exist in this wetland has been eliminated by cutting by the Lost Cove developers and homeowners, as evidenced by tree stumps seen in the buffer zone of the wetland and areas of buffer converted to lawn. Other trees once grew along the banks of the unnamed stream within the area of the access strip and below the Upper Pond, but have died due to the rise in the elevation of the water following the construction of the Lower Pond. Therefore, the principle source of shade cover for fish and other aquatic animals is grass and low-lying pond weeds within the wetland.

33. At present, a fish weir (screen) placed under the board walk and within the channel of the unnamed stream limits fish passage between the two ponds to only the smallest fish. Since the marsh is inundated and channelized, however, some fish may bypass the weir to move between the two ponds.

34. Upon construction of the driveway, the fish weir will be removed and the proposed 33- foot long, 24-inch diameter culvert will provide fish passage between the two ponds.

35. The use of silt fences and other proposed sediment and erosion control measures will protect water quality for aquatic life, including fish, during the driveway's construction.

Function 5.4 Wildlife and migratory bird habitat

36. The primary function served by the subject wetland is wildlife and migratory bird habitat. The wetland is home to various aquatic mammals, deer, migratory waterfowl, assorted amphibians, and small predators. The wetland serves as a wildlife corridor for about 1100 feet from the Upper Pond to the Lower Pond through the Lost Cove subdivision.

37. This function has been enhanced by the construction of the two ponds, which created new open water habitat. Also, the introduction of fish to these ponds has encouraged the presence of certain fish-eating birds. However, the erection of impoundments, the cutting of trees and creation of lawns within the buffer, and the disturbance or outright destruction of native wetland vegetation related to the construction of the two ponds also destroyed wildlife habitat. This alteration of the wetland's ecology, combined with the presence of houses within close proximity of and readily visible from the wetland and its buffer, limits the value of the wetland and its buffer as a travel corridor through the wetland complex, particularly for mammalian species such as deer.

38. The following types of migratory birds have been observed in the subject wetland, including the two ponds: great blue heron, kingfishers, and various species of ducks. On the day of the site visit, the Board observed a merganser in the Lower Pond and a pair mallards in the Upper Pond, and heard a kingfisher.

39. Given its close proximity to Lake Champlain, the subject wetland supports or has the habitat for resting, staging, or roosting to support waterfowl migration. Although the Board was provided with no direct evidence to support the conclusion that the wetland has the habitat to support one or more breeding pairs of waterfowl or one or more broods of waterfowl, the presence of the pair of mallards suggests that such habitat may exist, especially given the existence of open water habitat in combination with various other wetland types.

40. There is no evidence that the subject wetland supports a nest site or provides a buffer for a nest site or is used as feeding habitat for great blue heron, black-crowned night-heron, snowy egret, or green-backed heron.

41. There is no evidence that the subject wetland supports one or more breeding pairs of the species of birds listed in VWR, section 5.4(a)(4), even though the wetland may provide habitat for certain song birds.

42. White-tailed deer have been sighted in the subject wetland and its buffer zone. There is no evidence, however, that evergreen trees exist in abundance to provide winter or otherwise necessary feeding habitat for deer. The lack of evergreen species of trees is confirmed by the Board's site visit observations concerning forest cover surrounding the wetland.

43. There is no evidence that the wetland provides necessary feeding habitat for black bear or moose.

44. The subject wetland has been used by muskrats and otters, and the Board observed on its site visit what appeared to be a muskrat hole in the western bank of the Lower Pond. Otters were observed at the time the Lower Pond was stocked with trout, but there is no evidence of their present use of the wetland.

45. Adult beaver were present in the subject wetland prior to the construction of the two ponds. On its site visit, the Board observed evidence of recent beaver occupation of the area, including a beaver-chewed stump of a small diameter tree near the lower end of the Lower Pond. Other evidence of beaver presence include a dam above the Lower Pond.

46. Although the Board observed green frogs near the board walk in the access strip and on or near the water's edge of the Lower Pond, the Board was presented with no direct and credible evidence that the subject wetland provides habitat that supports the reproduction of or is likely to support the reproduction of Jefferson salamander, blue-spotted salamander, yellow-spotted salamander, and the other uncommon Vermont salamanders nor breeding populations of mountain dusky salamander, four-toed salamander, Fowler's (Woodhouses') toad, and other amphibians of similar significance.

Additionally, the Board was presented with no credible circumstantial evidence that this wetland provides habitat for these uncommon amphibians.

47. There is no evidence that the wetland supports or is likely to support populations of any of the following declining or disjunct species of reptiles: wood turtle, map turtle, stinkpot turtle, or spotted turtle.

48. The subject wetland has at least three vegetative classes and due to its close proximity to Lake Champlain, it has some value for wildlife habitat diversity. However, no evidence was provided that the wetland meets four or more of the conditions indicative of wildlife habitat diversity as required by VWR section 5.4(e).

49. The subject wetland provides significant habitat for migratory birds and small mammals, and habitat for common amphibians.

50. The migratory and wildlife habitat of the wetland has been compromised, however, by the extension of residential uses, especially mown lawns and access drives, into the wetland buffer zone. These amenities invite humans and their pets to enter the wetland, thereby disturbing feeding and nesting birds and other wildlife. Furthermore, the introduction of fish into the ponds, reduces the value of these wetlands for habitat for salamanders, as some species of fish prey on salamander eggs.

51. Aside from an area of marsh above the Upper Pond, the access strip possesses the last remaining vestige of native hydrophytic plants within the area of the Lost Cove subdivision, providing both cover and food for small mammals, amphibians, and other animals. Because this area of marsh is largely inundated and channelized, it also provides a valuable corridor for small mammals and amphibians traveling up and down the wetland complex.

52. The Project poses no physical barrier to migratory birds, deer, and other mammals passing through the wildlife corridor. The Project will, however, create a physical barrier for amphibians, especially during dry weather. Salamanders, for example, will not cross dry gravel surfaces. The culvert may create a physical barrier for certain small mammals. The 24-inch culvert has not been designed to take into consideration the migratory needs of amphibians and other small animals. Without credible evidence, however, that the wetland is habitat for uncommon species of amphibians or that otter, beaver, and muskrat are unable to cross over the top of the driveway as designed, the Project will at worst have only a minimal adverse impact on wildlife habitat. Therefore, the construction of a bridge in lieu of the proposed culvert is not required.

Function 5.8 Recreational value and economic benefits

53. The subject wetland provides no direct economic benefits and has limited recreational value.

54. Some residents of the Lost Cove subdivision have tried fishing in the ponds, but there is no evidence that the ponds are regularly used for this purpose.

55. No evidence was provided that residents or others use the wetland for hunting, trapping, or harvesting wild foods.

56. The ponds and marsh are located on private property. The general public does not have access to them for purposes of hiking, fishing, or other recreational activities.

57. Some residents make passive recreational use of the wetland by observing wildlife, principally deer and birds, from their homes or yards. A few residents may occasionally walk in the buffer zone to the edge of the ponds to observe wildlife.

58. While the Project will involve the destruction of some trees and native hydrophytic vegetation and therefore some habitat for migratory birds and wildlife, its impact on bird and wildlife observation will be minimal as bird and wildlife are present and find habitat in the ponds, their buffer zones, and other areas of the wetland complex.

Function 5.9 Open space and aesthetics

59. The wetland is not significant for open space and aesthetics. It may be attractive to the residents of the Lost Cove subdivision, but it does not meet the criteria set forth in VWR section 5.9.

60. The wetland is not readily observable by the general public because it is located entirely on private property and cannot be seen from Brickyard Road. The wetland is located in a narrow ravine, and is only visible from the immediately surrounding properties and residences, along the edge of the wetland buffer zone.

61. The wetland does not possess any special or unique aesthetic qualities or values as open space, with the exception of the two man-made ponds. The size, plant community types, and visual features are typical of common wetlands in the region, with the exception that the wetland's buffer zone has been compromised by the cutting of trees, creation of mown lawns, and construction of an access drive to serve Lots #1 through 5.

62. The Project is similar in visual character to Brickyard Road and the access drive serving Lots #1 through 5, which was authorized by a previous CUD. The Project will not be visible to the general public given its location in a ravine beyond any public view shed from a town highway.

Function 5.10 Erosion control through binding and stabilizing the soil

63. The banks of the unnamed stream are defined and stabilized in the area of the narrow marsh where the Project is to be located. Downstream and to the southwest of the Project area, the Lower Pond has a well-defined bank, consisting in part of mown lawn and open woodland. There are no cut embankments or other characteristics indicative of erosive forces.

64. The wetland is not subject to erosive forces such as lake fetch, high wave velocities or high current velocities associated with a stream or river. Even during spring run-off, there is no evidence that erosion has occurred.

65. What function the emergent wetland community plays in dissipating erosive forces within the area of the access strip is not significant, given that the marsh is very small in area.

66. The drainage swales and ditches proposed for either side of the driveway will contribute additional stormwater runoff to the wetland. However, the slopes and drainage features have been designed to prevent erosion, not to contribute erosive forces. The culvert will not change the flow of the water through the wetland area, as it is being located within the thread of the existing unnamed stream.

67. The erosion control plan provided by the CUD Applicants' engineer will minimize erosion and sedimentation from the Project during the course of construction.

V. CONCLUSIONS OF LAW

A. General

The Board has broad authority to adopt rules identifying and protecting Vermont's significant wetlands. 10 V.S.A. 90(7)-(9). In 1990, the Board adopted the Vermont Wetland Rules. These rules classify significant wetlands as Class One or Class Two wetlands. VWR, Section 5. An NWI-mapped wetland is presumed to be a Class Two protected wetland, unless otherwise determined by the Board. VWR, Section 4.2(b). Furthermore, a Class Two wetland is presumed, until determined otherwise by the Board, to serve all of the functions specified in VWR, Section 5. VWR, Section 4.2(b) and 7. In order to protect the functions that make a Class Two wetland significant, the Board has established by rule a presumptive fifty-foot buffer zone. VWR, Section 4.4. Any person intending to conduct an activity within a Class Two wetland or its buffer zone must first obtain a CUD from the ANR or, on appeal, from the Board, unless such activity is an allowed use specifically identified in VWR, Section 6.2. In re: Darryl and Stephanie Landvater, Docket No. CUD-96-06, Findings of Fact, Conclusions of Law and Order at 6 (Aug. 28, 1997).

The parties to this proceeding agree and stipulate, and the Board so finds, that the subject wetland is a Class Two wetland and that the fifty-foot buffer zone provided by VWR, Section 4.4, applies. They further agree and stipulate, and the Board so finds, that the proper delineation of the boundary of a wetland's buffer zone is made by measuring horizontally outward from the border of that wetland. Second Prehearing Conference Report and Order at 2; Stipulated Facts (May 18, 1999).

B. Conditional Use Analysis

The proposed driveway and culvert is not an allowed use within the meaning of VWR, Section 6. Therefore, the construction and use of such a project within a Class Two wetland and its buffer zone may only be authorized as a conditional use under the terms and conditions of a CUD.

VWR, Section 8.5(a), sets forth the general review standards for authorization of a condi-tional use in a significant wetland or its adjacent buffer zone. Applications for a CUD are filed with the ANR and reviewed by the Secretary or his or her designee. If the Secretary or his or her designee grants or denies a CUD, such a decision is appealable to the Board. The Board then conducts a de novo hearing applying the following standards:

The [Board] may determine that a proposed conditional use in Class One or Class Two wetlands or their buffer zones will have no undue adverse impact only when the [Board] determines that the proposed use will not result in a undue adverse effect on protected functions. In making this determination, the potential effect of any proposed conditional use shall be assessed on the basis of both its direct and immediate effects as well as on the basis of any cumulative or on-going effects on the significant wetland.

The [Board] shall not determine that any proposed conditional use is in compliance with [the VWRs] if it has an undue adverse effect on protected functions unless the [Board] determines that these impacts are sufficiently mitigated. Adverse impacts on any protected functions, other than minimal impacts, shall be presumed to constitute an undue adverse effect unless mitigated in accordance with subsection (b) [of Section 8.5].

VWR, Section 8.5(a).

Accordingly, there are two ways that a project may be found to qualify for CUD approval: either (1) the proposed construction and use will have no undue adverse impact under any of the protected functions, or (2) any undue adverse impact on protected wetland functions will be sufficiently mitigated such that there will be "no net undue adverse effect." In re: Darryl and Stephanie Landvater at 9; In re: Champlain Oil Company, Docket No. CUD-94-11, Findings of Fact, Conclusions of Law and Order at 10 (Nov. 1, 1995); In re: Appeal of Larivee, Docket No. CUD-92-09, Findings of Fact, Conclusions of law, and Order at 14 (March 24, 1994).

The first step in applying Section 8.5(a) is to determine whether the project will have an adverse impact on any protected function, beyond a minimal impact, taking into consideration any cumulative or on-going effects on the subject wetland. The Board has previously defined "minimal" impacts as "smallest in degree or amount." In re: Appeal of Larivee at 17. If an adverse effect is only minimal, it is not "undue." If a project has an undue adverse impact on one or more protection wetland functions, a CUD application must be denied for that project, unless the project's impacts can be sufficiently mitigated in accordance with VWR, Section 8.5, such that there will be "no net undue adverse effect." In order to achieve no net undue adverse effect, any applicant must meet all five mitigation provisions of VWR, Section 8.5. Id. at 19.

C. Impacts Analysis with respect to Protected Functions

1. Function 5.1 Water storage and flood water and storm runoff

The Project will not have more than a minimal adverse impact on the ability of the wetland to provide water storage for flood and storm water as the area of the wetland relative to the size of the watershed is not great, the flow of waters through the wetland is largely unconstricted, and the Project will not adversely alter flood flows or contribute a significant amount of stormwater runoff.

2. Function 5.2 Surface and ground water protection

The Project will not have more than a minimal adverse impact on the ability of the wetland to provide surface and ground water protection as the wetland does not recharge a well head or protected groundwater area, it does not contribute to the flows of a Class A surface water, and given its configuration and limited woody and persistent, emergent vegetation, it is not likely to significantly contribute to the retention and removal of sediments and pollutants. The Project itself will not generate a significant amount of pollutants, but a condition restricting the application of road salt will assure that any adverse impact the driveway is likely to have on water quality within the wetland will be minimal.

3. Function 5.3 Fisheries habitat

The Project will not have more than a minimal adverse impact on the wetland's fisheries habitat as the wetland is only potential significant for this function and the Project has been designed to prevent injury to fish and other wildlife during construction and to allow fish passage after construction.

4. Function 5.4 Wildlife and migratory bird habitat

The Project will not have more than a minimal adverse impact on the wetland's wildlife and migratory bird habitat. While the subject wetland provides significant habitat for migratory birds and mammals such as beaver and muskrat, the Project will have no undue adverse impact on birds and only a minimal adverse impact on small mammals. It may have an adverse impact on certain amphibian species, but the wetland is not significant habitat for listed uncommon salamanders. The Project has been designed as a driveway crossing for residential purposes, and its adverse impacts on the wildlife and migratory habitat of the subject wetland will be minimal.

5. Function 5.8 Recreational value and economic benefits

The Project will not have an undue adverse impact on this wetland function. The wetland is not significant for economic benefits and it is presently not significant for recreational use. While the wetland is used for wildlife observation by Lost Cove residents, that portion of the wetland in the area of the access strip is not open to the public either for wildlife observation or for hunting. Therefore, the Project will have no adverse impact on the values to be protected by this function.

6. Function 5.9 Open space and aesthetics

The Project will not have an undue adverse impact on this function as the wetland is not significant for open space and aesthetics. The wetland complex as a whole does not meet the criteria set forth in VWR section 5.9. However, even if the wetland did meet these criteria, the Project will not be visible to general public and its visual character will be similar to other driveways in the Lost Cove subdivision buffer zone.

7. Function 5.10 Erosion control through binding and stabilizing the soil

The Project will not have an undue adverse effect on the wetland's capacity to control erosion through binding and stabilizing soil. The wetland is not subject to erosive forces and the design of the Project has taken into consideration prevention of erosion in this watershed, both during construction and afterwards.

D. Mitigation of Adverse Impacts

The Board concludes that the subject wetland is signficant for functions 5.1, 5.2, 5.4 and 5.10. Having concluded that the Project will not result in an undue adverse effect on all of these functions, no mitigation is required for this Project beyond what the CUD Applicants have proposed in their application and through their testimony and exhibits as part of the Project's design and execution. The Board is not persuaded that the wetland is significant for functions 5.3, 5.8, and 5.9, but even if the wetland is presumed to be significant for these functions, the Project will not have an undue adverse effect on them.(3)

VI. CONCLUSION

Having concluded that the Project will not result in an undue adverse impact on functions 5.1, 5.2, 5.4, and 5.10, the Board determines that the Project satisfies the standards of VWR, Section 8. Accordingly, the Board affirms the ANR's decision to issue DEC #97-185, but adds several conditions in addition to those imposed by the ANR, consistent with the representations made by the CUD Applicants in their application and at the hearing.

In affirming the ANR's decision, the Board wishes to register its concern that the piecemeal issuance of CUDs, subdivision, stormwater discharge, and Act 250 permits for the Lost Cove subdivision, over a period of eight years, has allowed activities which, cumulatively, may have compromised some of the functions of the subject wetland. The Board observes that, given the wetland's close proximity to Lake Champlain, and Malletts Bay in particular, where water quality problems already abound, a more prudent course of action by the ANR would have been to assess at one time all of the potential water quality and wetland impacts of this subdivision attributable to proposed water supplies, wastewater treatment systems, stormwater discharges, and fire protection needs. Had such a review been performed, the impacts of all subdivision development within the wetland and its buffer zone would have been revealed, including, but not limited to, hydrologic impacts on the property owned by the present CUD Applicants which have necessitated the scale of the present Project. We hope that in the future such piecemeal review can be avoided in the interest of more comprehensive environmental protection.

VI. ORDER

1. The ANR's decision to issue DEC #97-185 is affirmed. All conditions of that decision are effective and of full force, with the exception of Condition 1(F), which is amended to read as follows:

For five years following the execution of the Project, the CUD Applicants shall monitor the wetland and buffer zone in the designated Project area on an annual basis for the presence of nuisance plant species purple loosestrife (Lythrum salicaria) and common reed (Phragmites australis). All nuisance plants found shall be pulled by hand and disposed of by burial or burning in a location outside the wetland and its buffer zone. Additionally, all equipment used in the implementation of the Project shall be cleaned so as to contain no observable soil or vegetation prior to work in the wetland buffer zone to help prevent the spread of invasive species.

2. Additionally, the Board imposes the following additional requirements as a part of Condition 1:

(G) The CUD Applicants and their successors in interest are prohibited from applying chemical fertilizers or pesticides in the wetland or buffer zone of the subject Class Two wetland, either as a part of executing or maintaining the Project.

(H) The CUD Applicants shall not disturb any native vegetation within the buffer zone not included in the designated area to be occupied by the Project.

3. Jurisdiction over this matter is returned to the ANR

Dated at Montpelier, Vermont, this 16th day of July, 1999.



WATER RESOURCES BOARD



/s/ William Boyd Davies

William Boyd Davies



Concurring:

Gerry Gossens

Jane Potvin



Abstained:

Gail Osherenko



























1. In their filing of June 3, 1999, LCHA erroneously identified the exhibits covered by the Chair's preliminary evidentiary ruling as Exhibits LCHA 8-25. In preserving for Board review the question whether LCHA had provided adequate foundation for certain exhibits, the Chair identified the same numbered exhibits in a memorandum to the parties. In its subsequent Memorandum of Law in Support of Exhibits, filed June 8, 1999, LCHA identified the affected exhibits as LCHA 9-27. A review of the record, however, reveals that the Board's ruling that LCHA had failed to lay an adequate foundation through a sponsoring witness applied to Exhibits LCHA 9-16 and 18-27.

2. In the proceeding below, the ANR determined that the wetland as a whole serves the protected functions: 5.1, 5.2, 5.3, 5.4, and 5.10. DEC #97-185, Decision at 2, Finding 8. The ANR further determined that the following wetland functions are not present or are present at such a minimal level as to not be significant functions: 5.5, 5.6, 5.7, 5.8, and 5.9. DEC #97-185, Decision at 2, Finding 9. These determinations are merely advisory, as only the Board has the power to declare which functions are significant and which functions are not, as provided for in VWR, Section 7.

3. A formal determination of a wetland's lack of significance for certain functions can only be obtained in accordance with the petition process set forth in VWR, Section 7.