RE: Barden Gale and Melanie Gale Amhowitz, Docket No. CUD-99-01 (DEC #98-340)

(Application of Gary and Paula Warner, Colchester, Vermont ) (July 16, 1999)

State of Vermont

WATER RESOURCES BOARD

RE: Barden Gale and Melanie Gale Amhowitz

Docket No. CUD-99-01 (DEC #98-340)

(Application of Gary and Paula Warner, Colchester, Vermont )



FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDERThis decision pertains to an appeal of a conditional use determination issued by the Agency of Natural Resources ("ANR"), authorizing a lawn and garden area in the buffer zone of a Class Two wetland. For reasons explained below, the Water Resources Board ("Board") affirms the ANR's decision, concluding that the proposed use, as conditioned by this decision, will not result in an undue adverse impact on protected wetland functions.

I. BACKGROUND

On December 14, 1998, the Acting Director of the Water Quality Division, Department of Environmental Conservation, ANR, issued DEC #98-340 ("CUD") to Gary and Paula Warner ("CUD Applicants"). This CUD allows the establishment of a lawn and garden area on the Applicants' residential lot in the "Lost Cove" subdivision and within the buffer zone of a Class Two wetland ("Project"). The CUD Applicants' property is located just off Brickyard Road in the Town of Colchester, Vermont.

On January 13, 1999, Barden Gale and Melanie Gale Amhowitz ("Appellants") 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 January 20, 1999, which was subsequently published in the Burlington Free Press. On March 23, 1999, 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 prehearing conference was held in conjunction with a prehearing conference in the matter, In re: Lost Cove Homeowners Association, Inc., Docket No. CUD-98-04, a matter involving many of the same parties. These two appeals were consolidated for limited purposes.

The following persons entered timely appearances, participated in the prehearing conference, and were granted party status:

Appellants, represented by William W. Schroeder, Esq. and Philip van Aelstyn, Esq., Downs Rachlin & Martin, PLLC, and Paul Gale, agent; and

CUD Applicants, represented by William Alexander Fead, Esq., Paul, Frank & Collins, Inc.

On March 30, 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 Appellants filed Stipulated Facts, a Joint Proposed Hearing Day Schedule, a Joint Proposed Site Visit Itinerary, and Evidentiary Objections. On that same date, the CUD Applicants filed a Motion to Extend Time to File Prefiled Rebuttal Testimony and a Motion In Limine/ Motion to Dismiss ("Motion In Limine/ Motion to Dismiss").

On May 25, 1999, the Chair convened a second 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. The Chair granted the Motion In Limine but denied the Motion to Dismiss. On May 28, 1999, the parties submitted evidentiary and other stipulations and the Appellants filed objections to certain of the Chair's evidentiary rulings. The stipulations were incorporated by reference into a Second Prehearing Conference Report and Order ("Second Prehearing Order") issued on June 1, 1999. The objections were acknowledged and reserved for consideration by the full Board.

On June 3, 1999, the Appellants filed a letter requesting that the record reflect the stipulation made by the Appellants at the second prehearing conference by which they voluntarily withdrew evidence about the house, curtain drains and septic system in response to the representation by the CUD Applicants that DEC #98-340 did not approve their house, the septic system, or the curtain drains for the septic system. The CUD Applicants filed no objections to this request. The Appellants' stipulation is therefore incorporated into the record.

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, Padraic 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 the Appellants and the CUD Applicants. The Board recessed the hearing and held a brief deliberation on June 8, 1999, continuing deliberations until receipt of proposed findings of fact, conclusions of law, and orders from the parties.

On June 15, 1999, the parties 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 Appellants filed a request for Board review of one of the Chair's preliminary evidentiary rulings with respect to this proceeding. The Appellants specifically objected to the Chair's ruling excluding statements contained in Exhibit Gale-1 (Sheila McIntyre's Prefiled Direct Testimony) with respect to the stockpiling of soil within the wetland buffer. Appellants Letter at 1 (May 28, 1999).

On June 3, 1999, the Chair issued a memorandum to the parties advising them that, after further consideration of the Appellants' arguments, he had modified his ruling such that Ms. McIntyre's statements regarding the stockpiling of soil would not be excluded. The Chair advised the parties that should they seek Board review of this ruling, they would need to submit on June 8, 1999, a short memorandum and indicate in writing the specific exhibits and lines of testimony affected by this revised ruling.

No memorandum was timely filed in opposition to the Chair's modified ruling. Accordingly, the Chair's ruling as modified is final.

III. ISSUES

1. Whether the proposed establishment of a lawn and garden in the buffer zone of the Class Two wetland will result in an undue adverse effect on protected wetland functions? VWR, Section 8.5(a).

2. If the proposed establishment of a lawn and garden in the buffer zone 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? The Appellants specifically ask the Board to consider mitigation under VWR, Section 8.5(b)(2), (4), and (5).

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 VWR, Section 5, 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 in CUDs related to the subject wetland, with the exception that the ANR has found 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).(1) Accordingly, the Board makes 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 own a residential lot of 4.78 acres ("Lot #14") in the Lost Cove subdivision off Brickyard Road in Colchester, Vermont. They purchased Lot #14 in the spring of 1998. During the summer of 1998, they built a house on Lot #14 and they began to live in that house full time during the first week of November 1998.

2. A portion of Lot #14 is located within the buffer zone of a Class Two wetland.

3. The wetland is contiguous to wetlands delineated on the Vermont Significant Wetland Inventory Map (National Wetland Inventory Map #12B) ("VWSI 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. A 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.

4. The wetland complex is home to various aquatic mammals, deer, migratory waterfowl, amphibians, and other animals. The wetland is also an 1,100-foot corridor for wildlife traveling through the Lost Cove subdivision.

5. Lot #14 abuts that portion of the Class Two wetland that was excavated and impounded by the Lost Cove developers in 1994 to create a trout pond ("Upper Pond"). The construction of this pond was authorized by the ANR in CUD #94-368. The Upper Pond has historically been stocked with fish. The existence of fish in this pond can be inferred from the presence in the area of kingfishers, blue heron, and other fish-eating birds.

6. The wetland buffer zone bordering the Upper Pond is largely upland and, in the area of Lot #14, the over story consists of mixed hardwoods and a few hemlocks. The forest canopy was thinned somewhat during a salvage cut after the January 1998 ice storm, but it still retains crown closure. The under story is comprised of a thin cover of native woodland ferns and herbaceous plants. There are few shrubs.

7. Much of the wetland buffer zone in the area of Lot #14 nearest the CUD Applicants' house is comprised of a steep embankment, typical of a terrace edge. The soils are Adams and Windsor loamy sand. Provided such embankments are well-vegetated, they are not readily subject to erosion by water or wind. There is no evidence of any present or past erosion on the embankment involved in the Project.

8. The CUD Applicants' house is located on a terrace of land overlooking the Upper Pond. The house, itself, is several feet outside the wetland buffer zone. However, a portion of the terrace and the steep embankment which descends to the Upper Pond are located within the buffer zone.

9. The CUD Applicants, through their consultants William D. Countryman Environmental Assessment and Planning, propose to create a lawn and perennial bed in that portion of the buffer zone which is comprised of a flat, lense-shaped piece of terrace land on the edge of the embankment. The total area of wetland buffer zone involved in the Project is 20 feet wide by 50 feet long, measured parallel with the edge of the embankment. Thirty feet of buffer zone on the steep embankment will be left undisturbed in its natural state and no portion of the steep embankment will be disturbed during or after construction of the Project. The Class Two wetland is not directly involved in the construction of the Project, as the perimeter boundary of the wetland is located at the toe of the embankment, 30 feet from the Project area.

10. The Project will be located near the CUD Applicants' house and involves stabilizing the terrace area by seeding it with lawn grasses and establishing a perennial bed about 3 to 5 feet wide along the terrace edge. The perennial bed will be slightly raised and mulched with bark.

B. Impacts of the Project on Protected Wetland Functions

Function 5.1 Water storage and flood water and storm runoff

11. The buffer zone itself does not perform the function of water storage and flood water and storm water attenuation. The Upper Pond may perform this function, but the Project, which is to be located on the terrace at the top of the embankment, 30 feet from the water's edge, will not interfere with this function.

Function 5.2 Surface and ground water protection

12. The buffer zone itself may indirectly contribute to water quality protection by reducing contaminants entering the wetland, but its primary function is to prevent activities from occurring in close proximity to the wetland which will adversely affect the wetland's capacity to perform the function of reducing levels of contaminants, nutrients, and sediments entering surface or ground water.

13. The Project is intended to stabilize the soils on the terrace edge through the planting of grass, perennials, and shrubs. Therefore, it will indirectly contribute to surface water protection, by reducing or eliminating the likelihood of sediments entering the wetland through erosion of the embankment.

14. The CUD Applicants have agreed not to use fertilizers or pesticides on their lawn and perennial bed, thereby eliminating a possible source of contaminants and nutrients that might enter the wetland. A prohibition on the application of synthetic chemical fertilizers and pesticides to lawns on all lots in the Lost Cove subdivision is currently a condition of Land Use Permit #4C0886.

Function 5.3 Fisheries habitat

15. While the Upper Pond was created as a "trout pond" and stocked by the developers of the Lost Cove subdivision, this alone does not qualify the pond, and the wetland complex as a whole, as a significant fisheries habitat. The wetland is only potentially significant for this function.

16. The buffer zone itself does not perform the function of fisheries habitat, with the exception that trees and shrubs along the edge of the wetland may provide shade and cover habitat. The CUD Applicants have agreed not to disturb that portion of the buffer zone that will not be occupied by the Project.

17. The Project, due to its location on the terrace at the top of the embankment, will not interfere with any feeding habitat for fish at the wetland's edge.

Function 5.4 Wildlife and migratory bird habitat

18. The primary function served by the wetland complex, including the Upper Pond, is wildlife and migratory bird habitat. The wetland is home to various aquatic mammals such as beaver and muskrat, deer, migratory waterfowl, and common amphibians. During the course of its site visit, the Board observed a pair of mallard ducks in the Upper Pond

19. The buffer zone and wetland serves as an 1,100-foot wildlife corridor through the Lost Cove subdivision.

20. The buffer zone nearest the Warner house has a thin canopy of mixed hardwoods and a few hemlocks and a thin under story of ferns and herbaceous plants. As observed by the Board, there is not a significant shrub layer in the area of the buffer zone where the Project is to be located nor on the slopes of the embankment in general.

21. The Project, due to its location on the terrace at the top of the embankment, will not interfere with the function of the Upper Pond as wildlife and migratory bird habitat or as a wildlife corridor. The CUD Applicants have offered to plant native shrubs at the top of the terrace as part of their planting plan. Such a planting of shrubs will create a transition to the natural landscape and a visual and auditory screen, enhancing the separation between human activity and wildlife and migratory bird habitat.

Function 5.8 Recreational value and economic benefits

22. The subject wetland provides no direct economic benefits and is not presently significant for recreational use. Some residents make passive recreational use of the wetland by observing wildlife, principally deer and birds from their backyards, from locations within and outside the buffer zone.

23. Given that the Upper Pond is located between two private lots, one owned by the CUD Applicants and the other by the lot owners on the north side of the pond, rather than surrounded by a common land parcel accessible to all of the residents of the Lost Cove subdivision, the value of this area of the wetland for bird and wildlife observation is very limited. The Project may interfere with the CUD Applicants' ability to observe birds and wildlife from the wetland buffer zone, but given the small scale and location of the Project, it will not interfere with others' observations of animals in the wetland.

Function 5.9 Open space and aesthetics

24. 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. The wetland buffer, therefore, does not contribute to this function.

25. The only special or unique aesthetic quality of this portion of the wetland complex is the Upper Pond itself. Neither the Upper Pond nor the Project will be visible to the general public.

Function 5.10 Erosion control through binding and stabilizing the soil

26. Given the steep embankment on Lot #14, trees and vegetation in the buffer zone contribute to the erosion control function of the subject wetland.

27. In executing the Project, the CUD Applicants do not propose to disturb the trees and vegetation on the embankment. They intend to stabilize the terrace area with the planting of grass seed and limit their gardening activities to a narrow and well-defined perennial bed. The Project is designed to prevent erosion.

C. Project Design and Execution

28. The Project was conceived and designed to remediate damage to a small area of the buffer zone resulting from the stockpiling of soil excavated during the construction of the CUD Applicants' house.

29. The pile of soil has been removed, and the CUD Applicants propose to stabilize the soils in the disturbed area by sowing grass seed to create a lawn and by planting a perennial bed. This remediation plan was developed in consultation with staff from the ANR.

30. The area of the disturbed buffer zone to be planted to grass seed and mulched is that nearest the CUD Applicants' house. The area nearer the edge of the embankment will be planted to native shrubs and perennial herbaceous plants and dressed with bark mulch. The shrub and perennial planting will stabilize the terrace edge, prevent erosion, and assure that sediment and other runoff do not reach the Upper Pond. Natural regeneration of native plants will be encouraged in the area between the proposed perennial border and the edge of the embankment. Native trees and vegetation on the embankment will be left uncut and undisturbed.

31. All remediation activities will occur within the 20-foot by 30-foot area identified by the CUD Applicants in their application and observed by the Board on its site visit.

32. All soils disturbed during restoration will be seeded and mulched immediately following final grading. Sediment barriers will be used during the lawn and perennial bed installation process and will be removed following successful establishment of vegetation.

33. No fertilizers or pesticides will be used in the execution or maintenance of the Project.

34. The CUD Applicants have offered to use native species of shrubs and non-invasive perennial varieties for planting in the buffer zone.

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, and a wetland contiguous to an NWI-mapped wetland is presumed to be a Class Two wetland. 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, Sections 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). Based on the record in this case, including its site visit observations, the Board concludes that the Project will be located in the buffer zone of the subject Class Two wetland in a location thirty feet from the wetland, at the edge of the Upper Pond. The Project will occupy an area of the buffer zone measuring twenty by thirty feet.



B. Conditional Use Analysis

The Project is not an allowed use within the meaning of VWR, Section 6. Therefore, the construction and use of the proposed lawn and garden within the wetland 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 conditional 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 upon 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 VWR, 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 protected 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, an applicant must meet all five mitigation provisions of VWR, Section 8.5. Id. at 19.

C. Impacts Analysis with respect to Protected Functions

The Project will be located entirely within the buffer zone of the subject wetland. A buffer zone is "the area contiguous with a significant wetland which serves to protect those values and functions sought to be preserved by its designation." Section 2.05, VWR. Buffer zones, in general, are designed to create a protective envelope around a significant wetland rather than perform one of the functions for which the wetland is significant. Nevertheless, a buffer zone for a particular wetland may contribute to the significance of that wetland for a particular function. In re: Darryl and Stephanie Landvater at 11-12 (Board found that buffer zone could provide valuable nesting habitat, as well as necessary screening; Board found that trees within the subject buffer zone did in fact contribute to erosion control).

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

The Project will not result in an undue adverse effect on the wetland's water storage and floodwater and storm runoff function. The Project is located in the buffer zone and the buffer zone does not perform or contribute to this function.

2. Function 5.2 Surface and ground water protection

The Project will not result in an undue adverse effect on the wetland's capacity to protect surface and groundwater. The Project is remedial in nature and intended to stabilize the soils on the terrace edge through the planting of grasses, perennials, and shrubs. This will indirectly contribute to surface water protection, by reducing or eliminating the likelihood of sediments entering the wetland through erosion of the embankment.

3. Function 5.3 Fisheries habitat

The Project will not result in an undue adverse effect on fisheries habitat. The wetland is only potentially significant for this function. The Project is located in the buffer zone. While the trees and shrubs along the edge of the Upper Pond may provide shade and cover habitat for fish, the CUD Applicants have agreed not to disturb native vegetation in the buffer zone outside the area designated for the Project.

4. Function 5.4 Wildlife and migratory bird habitat

The Project will not result in an undue adverse effect on wildlife and migratory bird habitat. Although the subject wetland is significant for this function, the small scale of the Project and its location well above the Upper Pond makes its impact on this function less than minimal. The Board has previously recognized the value of natural vegetative screens in visually and auditorially masking human activities. Id. at 11. Here, the planting of native shrubs at the terrace edge will separate residential uses associated with the CUD Applicants' home and yard from an area recognized as significant wildlife and migratory bird habitat.(2)

5. Function 5.8 Recreational value and economic benefits

The Project will not have an undue adverse effect on this function as the wetland provides no direct economic benefits and presently is not significant for recreation. The Project will have no impact on the use of the wetland for wildlife observation, as only the CUD Applicants and one other lot owner in the Lost Cove subdivision have access to the Upper Pond.

6. Function 5.9 Open space and aesthetics

The Project will not have an undue adverse effect on this function as the wetland is not significant for open space and aesthetics. The Upper Pond is an attractive amenity for some lots in the Lost Cove subdivision, however, the wetland complex as a whole does not meet the criteria set forth in VWR section 5.9.

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 native trees and vegetation on the steep embankment of Lot #14 contribute to the erosion control function of the subject wetland. See In re: Darryl and Stephanie Landvater at 12. However, the Project will not be located in this area of the buffer zone and the CUD Applicants have specifically proposed not to disturb the trees and vegetation on the embankment. Furthermore, the Project has been designed for the express purpose of preventing erosion by stabilizing the terrace area at the top of the embankment.

D. Mitigation of Adverse Impacts

The Board concludes that the subject wetland is significant 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 by the evidence 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)

In order to assure that no nuisance species are inadvertently introduced to the wetland and its buffer zone as a result of this Project, however, the Board advises the CUD Applicants to consult with a wetlands consultant and staff from the Wetlands Office of ANR to determine which species of plants should not be included in their planting plan. Preference in plant selection for the Project should be given to native (indigenous to Vermont) shrubs and perennial woodland plants.

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 #98-340, but adds several conditions in addition to those imposed by the ANR, consistent with representations made by the CUD Applicants in their application and at the hearing.

VII. ORDER

1. The ANR's decision to issue DEC #98-340 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 buffer zone on Lot #14 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 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 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.

(I) The CUD Applicants shall plant native shrubs at the top of the terrace as part of their planting plan.

(J) Prior to executing the Project, the CUD Applicants shall consult with a wetlands consultant and staff from the Wetlands Office of ANR to determine which species of plants should not be included in their planting plan in order to avoid possible invasive species. Preference in plant selection for the Project should be given to native (indigenous to Vermont) shrubs and perennial woodland plants.

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, Chair

Concurring:

Gerry Gossens

Gail Osherenko

Jane Potvin

1. 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 #98-340, 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 #98-340, 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.

2. Given the choice between a remediation plan that calls for restoration of a buffer zone to its former condition by the replanting of native flora versus a plan to establish a lawn and garden, the Board would prefer the former in furtherance of the general wetlands protection policy to assure "no net loss of such wetlands and their functions." VWR, Section 1.1. However, as the Board has stated before "[i]t is not the Board's role or desire to re-design the applicant's development plan," and as long as a Project does not result in an undue adverse effect on protected wetland functions, the Board will approve that Project through the issuance of a CUD.

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.