In re: Home Depot, USA, Inc. et.al., CUD-00-07, Findings of Fact, Conclusions of Law and Order (Feb. 6, 2001)

STATE OF VERMONT

WATER RESOURCES BOARD

RE: Home Depot, USA, Inc., et al.

Docket No. CUD-00-07

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

This decision pertains to an appeal of Conditional Use Determination ("CUD") #1999-284. CUD #1999-284 was issued by the Agency of Natural Resources ("ANR") to Home Depot, USA., Inc. ("Home Depot") and Homer and Ruth Sweet (collectively, "CUD Applicants"), authorizing the CUD Applicants to fill 16,480 square feet of Class Two Wetland and 53,938 square feet of wetland buffer as part of reconstruction and expansion of the Juster Mall, Route 4, Rutland, Vermont ("Project").

As explained below, the Water Resources Board ("Board") affirms the decision of the Secretary of ANR, with modifications, and issues amended CUD #1999-284.

I. BACKGROUND

On June 2, 2000, the Department of Environmental Conservation ("DEC"), as the representative of the Secretary of ANR, issued CUD #1999-284, pursuant to Section 8.5 of the Vermont Wetland Rules.

On June 15, 2000, Friends of Vermont's Way of Life, Inc. ("Friends") appealed CUD #1999-284 to the Board. On June 30, 2000, Rutland Region First, Inc. ("RRF") filed a separate appeal of the CUD with the Board. The two appeals were timely filed pursuant to 10 V.S.A. §1269 and docketed as CUD-00-07 and CUD-00-08, respectively.

On June 23, 2000, counsel for the CUD Applicants entered his appearance in Docket No. CUD-00-07. On July 10, 2000, he entered his appearance in Docket No. CUD-00-08. On June 17, 2000, counsel for ANR entered his appearance in both appeals.

On July 19, 2000, the Board's Chair, David J. Blythe, Esq., convened a prehearing conference to consider the two CUD appeals and a stormwater discharge permit appeal, Docket No. WQ-00-07, related to reconstruction and expansion of the same mall. Friends, RRF, the CUD Applicants, and ANR were all represented at the prehearing

A Prehearing Conference Report and Order ("Prehearing Order") was issued on July 21, 2001. Final rulings concerning the standing/party status of Friends and RRF were reserved until briefing, oral argument, deliberations, and decision by the Board.

On July 27, 2000, the CUD Applicants filed Memoranda in Opposition to Party Status and Motions to Dismiss for Want of Standing in regard to both Docket Nos. CUD-00-07 and CUD-00-08 ("Motions to Dismiss").

On August 17, 2000, Friends filed a Response to the Motion to Dismiss filed in Docket No. CUD-00-07. On that same date, RRF filed a letter indicating that it would stand by the contents of it Notice of Appeal in support of party status in Docket No. CUD-00-08. On August 25, 2000, Friends filed a Memorandum in Support of Standing. On August 28, 2000, RRF filed a letter with the Board indicating that it would not attend the oral argument.

The Board held oral argument on preliminary issues, including standing/party status challenges on August 29, 2000. On September 8, 2000, the Board issued a Memorandum of Decision on Preliminary Issues and Order ("MOD") in which it ruled, among other things, that Friends has the requisite standing to appeal the CUD but RRF did not. Accordingly, the Board dismissed Docket No. CUD-00-08 and scheduled Docket No. CUD-00-07 for hearing.

In accordance with a Scheduling Order issued by the Board's Chair on September 8, 2000, the parties prefiled direct and rebuttal evidence in late September and throughout October. They filed evidentiary objections and responses and proposed findings of fact, conclusions of law and orders in early November.

The Board's Chair convened a second prehearing conference on November 14, 2000, at which time he made certain preliminary evidentiary rulings. Friends, the CUD Applicants, and ANR were all represented at this second prehearing conference. The Chair's preliminary rulings were memorialized in a Second Prehearing Conference Report and Order ("Second Prehearing Order") issued on November 17, 2000.

On November 20, 2000, Friends filed written objections to certain of the Chair's preliminary evidentiary rulings and scheduling determinations. With the authorization of the Chair, Friends filed an oversized exhibit, Exhibit F-18, an orthophotograph showing the entire wetland complex at issue in the appeal in lieu of a site visit to certain features identified on this exhibit.

On November 21, 2000, the Board convened a hearing and site visit in this matter. Participating in this proceeding were:

Friends, the Appellant, by David L. Grayck, Esq. of Cheney, Brock & Saudek, P.C.;

CUD Applicants, by James P.W. Goss, Esq. of Reiber, Kenlan, Schwiebert, Hall &

Facey, P.C.; and

ANR by Andy Raubvogel, Esq.

At the hearing, the Board affirmed all of the Chair's preliminary rulings contained in the Second Prehearing Order with regard to Docket No. CUD-00-07, with the exception of the following: the Board overruled the Chair's rulings regarding the CUD Applicants' objections 9.b and c (see Second Prehearing Order at 7), thereby admitting struck portions of Kim Kendall's direct prefiled answers to Q.6, Q.7 and Q.8 (Exhibit F-9). The Board also allowed additional time to Friends for cross-examination of the CUD Applicants' and ANR's witnesses.

The Board conducted a site visit of the Project and the wetland and buffer zones at issue and placed its observations on the record.

The Board recessed the hearing and held deliberations on December 12, 2000, January 9, 24, and February 5, 2001. On February 5, 2001, the Board declared the record complete and adjourned the hearing. This matter is now ready for decision.

II. ISSUES

The issues in this appeal were initially framed in Friends' Notice of Appeal at 1-2. At the prehearing conference the issues were amended with the consent of the parties and memorialized as follows in the Prehearing Order at 9. In taking into account the impacts of the Project on the Class Two wetland and its buffer zone, the Board must determine:

(1) Whether the Project will result in an undue adverse effect on protected wetland functions? Section 8.5(a) of the Vermont Wetland Rules.

(2) If the Project will result in an undue adverse effect on protected functions, are these impacts minimal? Section 8.5(a) of the Vermont Wetland Rules.

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

Friends asked the Board to conduct a de novo review of the Project's impacts under Section 8.5 of the Vermont Wetland Rules with respect to functions: 5.1 (water storage for flood water and storm runoff; 5.2 (surface and groundwater protection); 5.3 (fisheries habitat); 5.4 (wildlife and migratory bird habitat); 5.7 (education and research in natural science); 5.8 (recreational value and economic benefits); 5.9 (open space and aesthetics); and 5.10 (erosion control through binding and stabilizing the soil). See Section 5, Vermont Wetland Rules. Friends asked the Board to evaluate the Project taking into consideration the cumulative impacts of past development at the Rutland Mall and other activities within the subject wetland complex and its buffer zone, whether or not those activities had been authorized by a CUD. Notice of Appeal at 2; Prehearing Order at 9.

III. FINDINGS OF FACT

To the extent that any party's 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).

General Description of Proposed Renovation and Redevelopment

1. The Project entails relocating 468 linear feet of man-made drainage ditch situated at the rear (north) of the present Juster Mall in the Town of Rutland, Vermont. The CUD Applicants intend to relocate the drainage ditch approximately 50 feet north of its present location in order to extend the existing parking area to serve a new home improvement products store to be constructed by Home Depot as part of the overall reconstruction and expansion of the mall.

2. In connection with the relocation of the drainage ditch, gentle curves will be incorporated into the ditch design as well as pools and riffles. New substrate will be placed in the ditch bottom and new plantings of native trees and shrubs will be placed along the toe of the slopes at the edge of the ditch. A buffer of between 25 and 60 feet in width, with most of the buffer being less than 50 feet in width, will be created between the top of the bank and the toe of the slope. The first 50 feet from the outlet of the 72-inch culvert will be rip-rapped to stabilize against erosive forces. All exposed areas will be seeded, mulched and stabilized until permanent growth appears.

3. The Juster Mall was originally constructed in 1973 as a major commercial/retail center for the Rutland Region. It is located in the "Urban Center" of the Rutland Region under the Rutland Regional Plan. The property is located adjacent to Route 4, which is the major east/west highway in Central Vermont. The area surrounding the Juster Mall property is characterized by other intensive commercial uses, including gas stations, retail stores, drive-through restaurants, banks and similar uses.

4. The CUD Applicants own a total of 70.2 acres of land, of which 30.5 acres is involved in the reconstruction and expansion of the Juster Mall. The main portion of the Juster Mall property is owned by Homer and Ruth Sweet and presently is the subject of a ground lease and option to purchase held by Ann Juster. A small area of land owned in fee by Ann Juster will also be used in connection with the Project. Both parcels are the subject of a Purchase and Sale Agreement with Home Depot under which Home Depot is the duly authorized agent of both Sweet and Juster for purposes of making all permit applications and prosecuting any necessary appeals.

5. After the completion of all construction, Home Depot will be fully responsible for operation, maintenance and management of the entire mall property, including general maintenance of the site and compliance with any CUD conditions.

General Description of the Involved Wetland and Buffer Zone

6. Prior to the construction of the Juster Mall in 1973, the mall site was an agricultural field crisscrossed with linear drainage ditches. One of these agricultural ditches received water from a wetland located to the east of Route 4. This ditch drained a tributary of Tenney Brook. When the Juster Mall was under construction, a drainage structure was installed corresponding to this agricultural ditch.

7. Today, a 36-inch concrete culvert conducts waters from the east of Route 4 to a junction box where these waters receive treated stormwater discharged from the Juster Mall. From the junction box, these waters flow through a 72-inch culvert under the mall's parking lot and into a 3- to 5-foot wide, 468-foot long man-made drainage ditch. From the drainage ditch, the waters meander through a large wetland complex until they join Tenney Brook.

8. There are now two wetland areas in the vicinity of the Juster Mall which are of relevance in this appeal. The first is the large Class Two wetland complex ("wetland complex") referred to in Finding 7, located approximately 65 feet to the north of the edge of the future pavement of the Project. This wetland complex has been variously estimated to be between 104 acres and 150 acres in size, with 117 acres being the size determined by ANR. Within the last century, and with greater intensity since the early 1970s and prior to the adoption of the Vermont Wetland Rules in 1990, various land uses have resulted in alterations to the hydrology and configuration of this wetland, including the relocation of the Tenney Brook channel, the construction of a mitigation pond, the routing of electric power lines, and filling and construction associated with various commercial enterprises along the Route 4 corridor, including the Juster Mall. This wetland complex, however, remains a viable, ecologically diverse natural community significant for the following functions: 5.1 (water storage for flood water and storm runoff; 5.2 (surface and groundwater protection); 5.3 (fisheries habitat); 5.4 (wildlife and migratory bird habitat); 5.7 (education and research in natural science); 5.8 (recreational value and economic benefits); 5.9 (open space and aesthetics); and 5.10 (erosion control through binding and stabilizing the soil). It also may be significant for function 5.5 (hydrophytic vegetation).

9. The second wetland area ("ditch wetland") is approximately 0.52 acres in size and is associated with the man-made drainage ditch which was constructed at the time the Juster Mall was built in 1973. Since its construction, the man-made ditch has developed wetland characteristics although it is not mapped on the relevant National Wetland Inventory Map, ("NWI Map") #26A. Nevertheless, the ditch is a knob-like extension of the wetland complex and is deemed a Class Two wetland under Section 4.2(b) of the Vermont Wetland Rules ("VWR") due to its contiguity with the wetland complex. The ditch wetland is significant for function 5.10, erosion control. It provides fair to average fisheries habitat under function 5.3. It performs to a lesser degree function 5.1, water storage for flood water and storm runoff, and function 5.2, surface water protection, in part because of its vegetative buffer.

10. The ditch wetland is characterized as a wet meadow. Dominant vegetation along the drainage ditch includes rough-leaf goldenrod (Solidago rugosa), reed canary grass (Phalaris arundinacea), sensitive fern (Onoclea sensibilis), Joe-pye weed (Eupatori-adelphus maculatus), asters (Aster novae-belgii), jewelweed (Impatiens capensis), fowl bluegrass (Poa palustrus), purple loosestrife (Lythrum salicaria), and water hemlock (Cicuta maculata).

11. The soils in the area of the ditch wetland have standing water or are saturated during at least part of the growing season. Within the wetland, the soils are principally sandy to silty loams.

12. The CUD Applicants propose to fill and grade the present ditch wetland from the outfall of the present 72-inch culvert to a point where waters from the ditch wetland enter the wetland complex. This will entail conversion of 16,480 square feet of Class Two wetland (approximately 0.38 acres) and 53,938 square feet of wetland buffer (approximately 1.24 acres). The area to be disturbed is largely the ditch wetland and upland buffer associated with the present ditch wetland and adjacent wetland complex. A very small area of the wetland complex and its buffer zone, an area dominated by alder shrubs, will be disturbed where the relocated ditch is proposed to discharge into the existing stream channel (swale) leading to Tenney Brook.

13. The CUD Applicants delineated the edge of both the ditch wetland and the southern edge of the wetland complex to the north using standard delineation methodology described in Sections 3.2 and 4.6 of the VWR. The CUD Applicants' experts then evaluated wetland and buffer zone impacts for the Project using the Vermont Wetland Evaluation Form and the professional judgement of the evaluators.

14. Since the work proposed within the ditch wetland and the buffer zones is not an allowed use within the meaning Section 6 of the Vermont Wetland Rules, the CUD Applicants sought and received approval for their Project from the Secretary of ANR through the issuance of CUD #1999-284 pursuant to Section 8 of the Vermont Wetland Rules.

15. As the CUD Applicants did not intend to conduct work in the wetland complex, the CUD Applicants' analysis for purposes of obtaining a CUD focused on impacts to the ditch wetland. However, at the request of the ANR, the CUD Applicants performed an evaluation of the wetland complex.

5.1. Water Storage for Flood Water and Storm Run-Off

16. The wetland complex is significant for water storage for flood water and storm run-off. The Board adopts and incorporates herein that portion of Finding 12 in CUD #1999-284 which supports the significance of the wetland complex for this function. The Board finds that the Project will have no undue adverse impact on this function.

17. The ditch wetland does not provide significant storage of flood water, being essentially a linear ditch with steep banks. Rather, the ditch has functioned as a channel for stormwater runoff and waters from east of Route 4 since the construction of the Juster Mall. The ditch itself does not significantly reduce either the magnitude or frequency of risks to public safety or of damage to public or private property due to flood water or stormwater runoff. It is the stormwater management system upstream of the ditch, which is most important in accomplishing that reduction.

18. The ditch wetland contributes in a minor way to this function, by virtue of its rip-rap and vegetation, to a reduction in scouring and erosion of the streambanks and a reduction in water velocities. Those qualities will still be present in the relocated drainage ditch.

19. The relocated drainage ditch will occupy a portion of upland buffer zone adjacent to the existing ditch wetland and also part of the buffer zone for the wetland complex. The channel of the new ditch will have an extremely gentle slope (1'V : 173'H). The side slopes of the ditch will range from 1'V: 2'H on the southerly side of the ditch to 1'V : 5'H on the northerly side of the ditch. From the proposed edge of the top of the bank to the toe of the slope will be a grassed buffer zone of between 25 and 60 feet in width, with the first 50 linear feet from the outlet of the 72-inch culvert being rip-rapped to stabilize against erosive forces. Plantings of native trees and shrub species, planted along the banks of the relocated drainage ditch will further reduce scouring and erosion. Moreover, given the improved stormwater management system with expanded detention pond planned for the renovated Juster Mall, it is expected that flows entering the relocated drainage ditch will not significantly increase over those presently entering the drainage ditch wetland.

5.2. Surface and Groundwater Protection.

20. The wetland complex is significant for surface and groundwater protection. The Board adopts and incorporates herein that portion of Finding 13 in CUD #1999-284 which supports the significance of the wetland complex for this function. The Board finds that the Project will have no undue adverse impact on this function.

21. The ditch wetland, in and of itself, is not significant for the protection or enhancement of the quality of surface or groundwater in the area. The ditch wetland serves as a conduit for waters from the east side of Route 4 and stormwater from the Juster Mall and has so served for the past 27 years. It does not function to recharge any well head or aquifer protection area or a Class 1 or Class 2 groundwater area. The ditch wetland does not contribute to the flows of any Class A surface waters. The ditch wetland helps to slow water velocities somewhat and may remove some sediments along its 468-foot channel.

It does not significantly enhance or protect water quality through chemical action by the removal of nutrients, the retention or removal of sediments or organic matter or by moderating the adverse water quality effects of soil erosion or stormwater run-off due in part to the low residence time of waters within the ditch. The foregoing is primarily due to the low residence time of waters within the ditch, the ditch's small size and linear form, and minimal interaction of water and vegetation. It further is not rated high or moderate for nutrient removal or for sediment retention using the Wetland Evaluation Technique.

22. The present buffer zone between the ditch wetland and the Juster Mall parking area provides some protection to surface waters in the ditch wetland and the adjacent wetland complex into which the waters from the ditch flow. This is because the buffer is approximately 50 feet wide, consisting of persistent vegetation, principally trees and erect herbaceous plants. Some stormwater from the parking area presently goes by sheet flow across the pavement of the parking lot and then down the slope into the drainage ditch. But for the presence of the ditch wetland buffer, there would be no treatment of stormwater runoff from this source.

23. To the extent that the ditch wetland serves the function of surface water protection, the relocated ditch will continue to serve that function.

24. In designing the buffer zone for the relocated drainage ditch, the CUD Applicants' wetlands consultant and engineering firm did not take into consideration the design guidelines contained in the ANR's riparian buffer policy. Ideally, a buffer zone of at least 50 feet (measured on the horizontal) between the the top of the bank at the edge of the extended parking area and the relocated ditch would assure that waste such as untreated stormwater would not enter directly into the surface waters of the relocated drainage ditch and from there to the surface waters in the wetland complex. However, the proposed 25 to 60 foot buffer, if planted with trees and shrubs as described in Finding 19 and additional plantings to encourage the growth of persistent vegetation, will provide adequate surface water protection benefits, if coupled with other measures as required in the stormwater discharge permit, Amended DEC Permit #1-0460 in WQ-00-06, issued this day.

5.3. Fisheries Habitat

25. The wetland complex is significant for fisheries habitat. The Board adopts and incorporates herein that portion of Finding 14 in CUD #1999-284 which supports the significance of the wetland complex for this function. The Board finds that the Project will have no undue adverse impact on this function and, in time, may actually enhance the fisheries habitat function of the wetland complex.

26. The ditch wetland is not significant for fisheries habitat. The ditch wetland serves as fair to average habitat for fish species due to the generally silty substrate, lack of significant in-stream and adjacent cover and shade, and the concomitant high water temperatures in the summer. The stream channel within the ditch wetland is small, varying in width from 3 to 5 feet in width and is 0.5 to 1.5 feet deep with an average velocity of 0.5 feet per second. It thus does not provide good conditions for nesting, nursery, spawning or feeding activities of brook trout (Salvelinus fontinalis).

27. In connection with the final design for the relocated ditch, the CUD Applicants have incorporated a number of measures, based on their Aquatic Ecologist's recommendation, to specifically enhance any fisheries habitat value, i.e.: (1) gentle curves have been added to the ditch design to create a more natural, sinuous setting; (2) special gravel substrate will be installed in the bottom of the ditch instead of the present silty substrate to encourage growth of aquatic biota upon which fish feed; (3) pools will be created to provide deeper, cooler water in which fish can rest; and (4) vegetation will be established along the banks of the ditch to provide shade to reduce water temperatures and to provide leaf drop for food for small organisms. All of the foregoing will cause the drainage ditch to function as better fish habitat after its relocation than before and therefore contribute to the downstream fisheries habitat in the wetland complex.

5.4 Wildlife and Migratory Bird Habitat

28. The wetland complex is significant for wildlife and migratory bird habitat. The Board adopts and incorporates herein that portion of Finding 15 in CUD #1999-284 which supports the significance of the wetland complex for this function. The Board finds that the Project will have no undue adverse impact on this function.

29. The ditch wetland is not significant for migratory or other bird habitat. The area to be converted is associated with the 3- to 5-foot wide, 468-foot long drainage ditch. This wetland area does not support breeding water fowl and does not function as important habitat for wildlife or migratory birds due to its small size and paucity of cover. While occasional use of the ditch wetland by birds and wildlife may occur, much more significant use occurs in the wetland complex located to the north. Specifically, the ditch wetland does not have sufficient habitat to support one or more breeding pairs of water fowl or one or more broods of water fowl. Due to the ditch wetland's small size and location adjacent to existing paved areas with little cover, it is unlikely to support or have the resting staging or roosting habitat to support water fowl migration. No heron or snowy egret nest sites have been observed in or near the ditch. No nest sites for which the ditch would provide a buffer were observed and no witness has observed any use as feeding habitat by great blue heron, black crowned night heron, snowy egret or green-backed heron. The ditch wetland is not large enough to support and does not have the habitat to support one or more breeding pairs of any of the species of birds listed in Section 5.4(a)(4). To the extent that the ditch wetland serves the wildlife or migratory bird habitat function, the relocated drainage ditch will continue to serve that function in the future, and may possibly improve the quality of that function.

30. The ditch wetland is not significant for wildlife habitat. The ditch wetland does not contain evergreen trees which provide winter cover for white-tail deer, does not function as feeding habitat for other large mammals, contains no evidence of consistent use by muskrats, otter or mink, and does not support an active beaver dam. The ditch wetland does not provide habitat that supports the reproduction of any of the uncommon Vermont amphibian species listed in Section 5.4(c)(1) and is unlikely to support breeding populations of any of the uncommon Vermont amphibians listed in Subsection 2. No reptiles of the species noted in Subsection (d) have been observed. In addition, the ditch wetland does not meet four or more of the conditions specified in Section 5.4(e) of the Vermont Wetland Rules which are indicative of wildlife habitat diversity. The drainage ditch wetland is not owned by the State or Federal government in fee or through easement and is not managed as a wildlife area. It further contains no significant evidence that it is used by wetland-dependent wildlife species. To the extent that the ditch wetland provides any habitat for wildlife or migratory birds, that habitat may be improved by the measures being implemented in connection with improving fisheries habitat. See Finding 27.

5.5 Hydrophytic Vegetation Habitat

31. The wetland complex may be significant for hydrophytic vegetation habitat if the presence of rough-leaved goldenrod (Solidago patula) can be confirmed. However, the Project will have no undue adverse impact on this function.

32. The ditch wetland is not a bog, fen, alpine peatland or black gum swamp and does not provide habitat for hydrophytic vegetation consisting of rare plant species or communities of plant species that make an important contribution to Vermont's natural heritage. No rare plant or animal species have been identified in this vicinity. The ditch wetland contains none of the elements recited at Subsections (a) through (d) of Section 5.5 of the Vermont Wetland Rules. Accordingly, the ditch wetland is not significant for hydrophytic vegetation habitat.

5.6 Threatened and Endangered Species Habitat

33. The ANR has concluded that the wetland complex is not significant for this function and no party has asserted that this function is at issue in this appeal.

34. No evidence was provided that rare, threatened or endangered plant or animal species exist in or adjacent to the ditch wetland.

5.7 Education and Research and Natural Sciences

35. The wetland complex is potentially significant for education and research in the natural sciences due to the fact that it is the largest wetland complex in the Town of Rutland, it contains several different wetland types, it is adjacent to Tenney Brook, and it is located in an urbanized residential and commercial setting. However, the wetland complex is not readily accessible to the public and there is limited evidence of its past use for education and scientific research. The Board finds that the Project will have no undue adverse impact on this function.

36. The ditch wetland does not provide, and is not likely to provide, valuable resources for education or scientific research. It is located entirely on private property, is of very small size and has no public access. It is not owned by a public entity dedicated for education or research and no easement for education or research has been conferred upon a public entity. It has no history of use for education or research and no scientific papers exist regarding this wetland. It further does not have one or more characteristics which potentially make it unique or valuable for education or scientific research purposes.

5.8. Recreational Value and Economic Benefit

37. The wetland complex is significant for recreational value and economic benefit. Neighboring property owners, including members of Friends, make use of the wetland complex for wildlife viewing and recreation. However, the Board finds that the Project will have no undue adverse impact on this function.

38. There are no substantial recreational values or economic benefits associated with the ditch wetland other than that it provides fair to average fisheries habitat. Nevertheless, there is no evidence that the ditch wetland has been used for fishing, hunting, or trapping or that it can lawfully be used for these purposes under applicable state law. The drainage ditch wetland is not used for the harvesting of wild foods.

5.9. Open Space and Aesthetics

39. The wetland complex is significant for open space and aesthetics due to its size and location in an urban setting. However, the Board finds that the Project will have no undue adverse impact on this function.

41. The ditch wetland does not serve an important open space and aesthetics function. It cannot readily be observed by the general public and is not even visible unless one stands on the edge of the pavement of the Juster Mall parking lot. It does not possess special or unique aesthetic qualities or values as open space. It further does not have any prominence as a distinct feature in the surrounding landscape.

42. To the extent that the ditch wetland has any value for open space and aesthetics, the relocated ditch has been designed to be more aesthetically pleasing than the existing ditch wetland due to its enhanced design, including native tree and shrub plantings.

5.10 Erosion Control Through Binding and Stabilizing the Soil

43. The wetland complex is significant for erosion control through binding and stabilizing soil. The Board adopts and incorporates herein that portion of Finding 19 in CUD #1999-284 which supports the significance of the wetland complex for this function. The Board finds that the Project will have no undue adverse impact on this function.

44. The drainage ditch wetland is also significant for this function due to the presence of well-established emergent vegetation adjacent to the ditch and the very gentle slope along the length of the ditch. The Board finds that the proposed relocation would have an undue adverse impact on this function, except that the CUD Applicants have planned to minimize actual and potential adverse impacts on this function through their Project design such that there will be no net undue adverse effect.

Mitigation

45. No mitigation measures are required with respect to the wetland complex and its buffer zone since the Project will have no undue adverse impact on any of the protected functions.

46. With respect to the ditch wetland, no mitigation measures under Section 8.5(b) of the Vermont Wetland Rules are needed, except with respect to 5.10 (erosion control through binding and stabilizing the soil), as all other impacts on protected functions are not undue adverse impacts.

47. In considering whether the CUD Applicants have sufficiently mitigated undue adverse impacts with respect to function 5.10, the following findings are relevant:

A. The proposed activity cannot practicably be located on the upland portion of the site or on another site owned, controlled or available to satisfy the basic Project purpose. The ditch wetland is located at the toe of the slope along the northern edge of the existing Juster Mall parking area. To the extent possible, the ditch is being relocated into an upland area. The extra parking space is needed to adequately serve the Juster Mall renovations while responding to neighbors' objectives of avoiding expansion of the mall to the west and avoiding adverse impacts to the wetland complex. The extra parking area must of necessity be contiguous with the existing parking area. There is no other area at the site where it can be located.

B. All practicable measures have been taken to avoid adverse impacts on protected functions. While the ditch wetland will be destroyed, due to the design of the relocated drainage ditch, it will serve virtually the same functions as it does now and, in the case of fisheries habitat, its function will actually be enhanced.

Also, with the design measures proposed by the CUD Applicants' consultants and as further required by CUD condition, the relocated drainage ditch and its buffer zone should better perform the functions of water storage for stormwater runoff and surface water protection.

C. Each of the protected functions has been evaluated in accordance with the protocols determined by the Department of Environmental Conservation as contained in the Wetlands Evaluation Form.

D. The Project has been planned to minimized potential adverse impacts on the protected functions. As noted above, the only protected function which the ditch serves is erosion control, for which extensive erosion control and design measures have been implemented. The fisheries habitat function, while not significant within the drainage ditch wetland itself, does exist within this wetland and the design measures noted above will in fact enhance any fisheries potential of the relocated ditch.

E. The redesign of the relocated ditch incorporates restoration elements to assure that the one wetland function adversely impacted by the Project is addressed in the construction and maintenance of the relocated drainage ditch.

48. The specific and practicable measures being employed by the CUD Applicants both to avoid and minimize actual and potential adverse impacts with respect to protected function 5.10, include the following: (1) the existing drainage ditch is to be replaced with a new ditch approximately 50-feet to the north of its present location in an upland area via an extension of the existing 72-inch culvert; (2) the channel of the new ditch will have an extremely gentle slope (1'V: 173'H) which will allow water traveling through it to slow down, reducing its erosive effect; and (3) the new ditch will be rip-rapped for the first 50 feet from the outlet of the culvert to protect it against erosion. This will also slow the water thereby reducing its downstream erosive force. Finally, gentle curves, pools and riffles have been designed and will be constructed in the channel, which will also slow the water.

49. All disturbed areas adjacent to the new channel will be seeded and mulched immediately upon completion of construction to stabilize the soil and prevent erosion. These erosion control measures will be inspected regularly until growth is established. Revegetation will be established as noted in the plans along the edges of the relocated drainage ditch including the native tree and shrub species so noted.

50. Further erosion control, and additional protection of surface water quality and other values and functions, will be achieved by conditions imposed in the CUD requiring the CUD Applicants to protect, maintain and enhance the buffer between the extended parking area and toe of the slope just south of the relocated drainage ditch. Such conditions shall include the requirement that the CUD Applicants consult with ANR about what additional plantings and practices may be required on the slope between the extended parking area and the relocated ditch to create a denser stand of trees, shrubs and herbaceous vegetation consistent with ANR guidance on riparian and buffer zone design and management.

51.. Compensation as required pursuant to Section 8.5(c) of the VWR is not appropriate in this case since function 5.10 (erosion control) is principally at stake, and compensation is not available for loss of this function. Moreover, the design of the relocated drainage ditch and its buffer zone will enhance the function for erosion control, while improving surface water quality and fisheries habitat.

• CONCLUSIONS OF LAW

The sole question in this proceeding is whether the drainage ditch relocation work proposed by the CUD Applicants and approved by the Secretary of ANR conforms with the requirements of the Vermont Wetland Rules.

While the Board is charged with ensuring that protected functions associated with the ditch wetland and the wetland complex are not adversely impacted by proposed development activities, the Board is not required to consider, in its analysis under Section 8.5(a) of the Vermont Wetland Rules, any land uses and associated impacts substantially outside the zone of the Project's impacts. Nevertheless, in considering the cumulative or on-going effects of any given project, the Board may take into account development and other land uses which have affected the hydrology and other attributes of the wetland(s) at issue. This is the case whether or not such changes predate the adoption of the Vermont Wetland Rules in 1990 or are subject to those rules, but only to the extent that these changes and their impacts are shown to have a direct and demonstrable relationship to the Project impacts on functions under CUD review.

Thus, contrary to the argument of the CUD Applicants, Section 1.1 of the Vermont Wetland Rules, relating to the "grandfathering" of certain projects, simply has no bearing on cumulative impacts analysis in this case. The Board's Lost Cove decision does not expressly or implicitly stand for the proposition that Section 1.1 limits the scope of the Board's inquiry. See, Re: Lost Cove Homeowners Assoc., Inc., Docket No. CUD-98-04, Findings of Fact, Conclusions of Law, and Order (July 16, 1999). Indeed, where development activities prior to 1990 have had a direct bearing on the functions of the wetland at issue as well as to Project impacts, the Board has not hesitated to make findings to this effect. See, Re: Champlain Oil Company, Docket No. CUD-94-11, Findings of Fact, Conclusions of Law, and Order (Oct. 4, 1995) (setting forth findings regarding pre-1990 development and cumulative and on-going impacts in relationship to the project under review). In the present appeal, however, the Board concludes that the Project has no undue adverse impacts on protected functions or, in the case of function 5.10 (erosion control through binding and stabilizing the soil), such impact is sufficiently localized and mitigated that findings regarding cumulative impacts are not required.

The Project applied for by the CUD Applicants involves the loss of 0.38 acres of Class Two wetland associated with the existing manmade drainage ditch and the filling and regrading of the adjacent upland buffer zone to allow the relocation of that ditch. No dredging, filling or other work is proposed outside the general area of the present drainage ditch and no credible evidence was submitted that any of the work to be performed in that ditch will have any undue adverse impact on the wetland complex. Indeed, the CUD Applicants submitted a detailed scientific analysis of how the Project complies with the Vermont Wetland Rules and, by design, will actually enhance the fisheries habitat and erosion control functions. The ANR's wetlands expert agreed with this analysis and concluded that the Project satisfies the requirements of Section 8.5 of the Vermont Wetland Rules. No substantial evidence was submitted by Friends to rebut this expert testimony and other evidence.

Accordingly, the Board concludes that if the Project is constructed as proposed in the CUD Application, and as conditioned below, it will be in conformance with the Vermont Wetland Rules in that there is reasonable assurance that the work proposed will have no undue adverse impacts on the protected functions of the significant Class Two wetlands and buffer zones at issue in this appeal.

IV. ORDER

Accordingly, it is hereby ordered:

1. The Secretary of ANR's decision to issue CUD #1999-284 is affirmed in part and modified in part, and the conditions contained in that decision are amended as provided in the following text. Substantive modifications made by the Board to the CUD issued by the Secretary, through his designee, are indicated in bold italic. Minor changes to improve clarity are not so noted.

A. All Project activities shall be carried out consistent with CUD Application #1999-284 and all submittals made to the ANR, except as modified by this Order, the above Findings of Fact and Conclusions of Law, and any material representations or exhibits offered by the CUD Applicants and admitted by the Board.

B. The applicant must notify the Vermont Wetlands Office in writing or by telephone at least one week prior to the start of the Project.

C. A continuous line of staked hay bales or a silt fence must be installed at the edge of the work zone prior to any construction and must be regularly maintained until the Project is completed. Sediments must be cleaned out when they have reached half the height of the fence or haybale, and before major predicted rainfall events. Removed sediments must be disposed of in a stable, upland area outside the 50-foot buffer zone of the Class Two wetland complex. All disturbed soils must be seeded and mulched immediately following final grading. All sediment barriers must be removed following the successful establishment of vegetation.

D. The final design of the relocated drainage ditch must be approved by the Water Quality Division before the start of the construction phase of the Project. The final design shall, address what practices will be implemented to protect, maintain, and enhance the buffer zone between the extended parking area and the stream bank adjacent to the relocated drainage ditch and wetland complex. Such measures shall include:

(1.) Installation of a solid fence or other physical barrier between the edge of the extended parking area and the top of the slope such that untreated stormwater or snow may not advertently or inadvertently be disposed of down the slope and into the drainage ditch. Implementation of this measure shall be done through the snow management plan required by Condition 14(a) of the Stormwater Discharge Permit, Amended DEC Permit #1-0460, issued this day in WQ-00-06.

(2.) After consultation with the Department of Environmental Conservation, implementation of a buffer zone maintenance and enhancement plan to increase the density of trees, shrubs, and herbaceous vegetation in the buffer zone, thereby improving its function for erosion control as well as for water storage for stormwater runoff, surface water protection, fisheries habitat and other values, consistent with ANR guidance on riparian and wetlands buffer zones.

E. Within 30 days following completion of the proposed work in the subject wetland and/or buffer zones, the CUD Applicants or their representative shall supply the Vermont Wetlands Office with a letter certifying that the Project was constructed in compliance with the conditions in this determination.

F. Any additional conditional use within the wetlands or the buffer zones not specifically described in the above Findings of Fact requires an amendment to this Conditional Use Determination authorized by the Secretary of ANR or his designee.

G. All proposed activities in the wetland and adjacent 50-foot buffer zone carried out in compliance with Condition A. above must be completed within three years of the date of this determination or the Conditional Use authorization will expire. The terms and conditions of this decision run with the land. An extension of time may be granted for cause. A request for an extension must be received by the Department of Environmental Conservation at least 30 days prior to the end of the three year period in order to prevent the expiration of this Conditional Use Determination. A request for extension will be considered a minor modification.

H. The CUD Applicants must monitor the wetland annually in the area of disturbance during early July for five years following construction for the nuisance plant species purple loosestrife (Lythrum salicaria) and common reed (Phragmites australis). All nuisance plants must be pulled by hand and disposed of by burial or burning in a non-wetland location. Additionally, the contractor's equipment shall be cleaned so as to contain no observable soil or vegetation prior to work in wetlands and buffer zones to help prevent the spread of invasive species.

2. Jurisdiction over this Project is returned to the ANR. The ANR shall maintain continuing jurisdiction over the Project and may at any time order remedial measures be taken if it appears likely that adverse impacts to the protected functions and values will occur.

3. This Conditional Use Determination does not relieve the CUD Applicants of responsibility to comply with any other applicable federal, state, and local laws, regulations, and permits.

4. By acceptance of this Conditional Use Determination, the CUD Applicants agree to allow representatives of the Department of Environmental Conservation access to the property covered by the Conditional Use Determination, at reasonable times, for the purpose of ascertaining compliance with the Vermont Wetland Rules and the Vermont Water Quality Standards.

5. The Board, by issuing this Conditional Use Determination, accepts no legal responsibility for any damage direct or indirect of whatever nature and by whomever suffered arising out of the Project described herein.

Dated in Montpelier, Vermont, this 6th day of February, 2001.

WATER RESOURCES BOARD

/s/ David J. Blythe

David J. Blythe, Chair

Concurring:

Barbara S. Farr

John D.E. Roberts

Gail Osherenko*

* Gail Osherenko, a former Board member of the Water Resources Board, participated in the hearing and deliberations with respect to this appeal pursuant to an appointment order issued under authority of 10 V.S.A. § 905(1)(F).