Editor’s note: The following story first appeared in Vermont Property Owners Report, a bimonthly newsletter, published in Montpelier, that focuses on taxes, legal matters, market trends and other issues of importance to Vermont property owners. Dirk Van Susteren of Calais is a freelance reporter and editor.
Was the wetland the result of natural occurences over the course of millennia or the result of a few days work by a local road crew? John McCullough, an architect and a member of the Calais Planning Commission, believes he’s seen several cases in which land became a wetland thanks largely to man-made ditches and culverts.
And in such cases, the property still falls under state wetlands regulations, which require that a landowner receive approval from the state before building or excavating on or near it.
McCullough mentions a case in Marshfield where a homeowner with whom he was working wanted to build a driveway on a favored spot but had to modify plans thanks to protected wetlands that McCullough believes were caused, at least in part, by ditching done years ago by a prior owner.
A similar case occurred in Calais, where a homeowner recently wanted to move his house back from a busy dirt road, but first had to negotiate with the state after he learned his backyard is a wetland, thanks at least in part, McCullough says, to runoff from a town culvert.
Rainwater and snowmelt have to be funneled somewhere. Occasionally it’s onto a newly forming wetland. A few years ago, when Calais was planning to build its new town offices on a spot near Pekin Brook, some townspeople unhappy with the proposed site raised wetlands protection as an issue. They figured the state might step in and require a different location.
McCullough says the “wetland” was more of a seasonal puddle that probably first appeared in the 1950s after town road crews began excavating a section of a hillside to create space to park trucks. The state allowed the town to build the new town offices on the site.
The good news is that in all three instances the landowners, after some maneuvering, reached satisfactory accommodations with the state. Still, there’s a lesson to be learned: Whether manmade or God-made, a wetland is a wetland is a wetland.
And if one exists on your property, whether a large marsh or tiny vernal pool with a few frogs, you best check with the state before building or filling it in. The process can involve a visit, a visual inspection and soil tests by a “wetlands ecologist” from one of the five regional offices of the state Watershed Management Division.
For the record, McCullough says he has had only respectful dealings with the office with which he usually works, the one in Montpelier that handles requests from five counties, including Washington, Lamoille, Caledonia, Essex and Orleans.
“They are friendly and fast, but they do have their objective criteria, and must go by it,” he said.
Also for the record, Alan Quackenbush, state wetlands coordinator, acknowledges he couldn’t rule out the idea that “man-made features” sometimes help form a protected wetland. But, he says, “We don’t protect ditches that may have cattails.”
While the origins of a wetland may not always be certain, what is certain is that it’s the landowner’s responsibility to determine if there’s a “significant” wetland on the property and to determine where it is before building on, near or across it.
Vermont’s wetlands rules, established in 1990, require that landowners obtain permits if they wish to build on what’s designated Class 1 or 2 wetlands, tracts that the state deems “significant” for wildlife habitat, aesthetic or other environmental reasons. Class I wetlands must have a 100-foot buffer zone around them, while Class II wetlands must have a 50-foot buffer.
Both of these classes of wetlands are relatively easy to identify, either because they have standing water or soggy soil, or contain trees, such as willows or white cedar, or other plants, such as ostrich ferns, that naturally thrive in such areas.
The state also recognizes a wetland as Class 3, which can be harder to identify without a soil test. As far as the state is concerned landowners usually can build on Class 3 wetlands, but still have to abide by local or federal laws.
Prior to 1990, landowners had less stringent wetlands regulations to follow under Act 250, the development-control law (enacted in 1970), as well as various federal wetlands regulations, including the Clean Water Act, enforced by the Environmental Protection Agency and the Army Corps of Engineers.
Under state law, local communities are also able to enact their own regulations as long as they remain consistent with the state’s regulations. In most cases it has just been cities and towns located on lakes or rivers that have taken advantage of this provision.
In 2010, Vermont’s wetlands law was amended in several ways, with perhaps the most noteworthy being a provision that states unequivocally that landowners cannot rely solely on state or federal watershed maps to determine where a wetland might be located on their property.
Vermont’s “Significant Wetlands Inventory Maps,” which are modified versions of federal maps, are based largely on aerial photos, some taken years ago, which thanks to tree cover and natural and manmade changes in the landscape are not entirely accurate. They can be found at town offices and regional planning offices.
The state has estimated that about a third of the wetlands identified in field studies are not on the maps, and that perhaps more than 5 percent of the “wetlands” on the maps don’t now belong there.
So, the maps are to be considered a guide, a place to start; in other words, a landowner cannot use the absence of a wetland on the map as a green light to build or fill without further investigation.
This aspect of the law was addressed and upheld last February by the Vermont Supreme Court in a case brought by a Lunenburg resident, Tim Persons, against the Vermont Agency of Natural Resources (ANR).
Persons, who subdivided some 150 acres into several lots, was accused by the ANR of dumping gravel and other fill within the 50-foot buffer of a Class 2 wetlands. The state also charged that he excavated wetlands soils to replace a damaged waterline and built wells in a protected area.
Persons, in his appeal before the Vermont Supreme Court, argued that state wetlands officials years ago, while on his property for another enforcement matter, had a responsibility to inform him of the boundaries of the wetlands. He also contended that the Significant Wetlands Inventory Maps “did not sufficiently alert” him to the extent of wetlands on his property.
“The onus is placed on the landowner to seek further clarification or to petition for remapping,” the Supreme Court ruled as it upheld a $14,000 fine and other sanctions laid down against Persons by a lower environmental court. The high court added that while maps will denote approximate location, the actual boundaries of the wetland “shall be determined in the field.”
Quackenbush says any property owner having difficulty identifying a wetland is invited to contact one of the Wetland Division’s regional offices for help. With a couple of weeks’ notice, a wetland ecologist will come out to view the site, point out the wetlands and its boundary, and, if needed, maybe even suggest an alternative building or driveway site.
Ignorance or willful failure to abide by the law can have costly consequences. This past spring, for example, the Department of Environmental Conservation Enforcement Division required that a homeowner in Barre pay a $6,000 penalty and establish a remediation plan for a Class II wetland after she graded and dredged the land to build a driveway and a small pond.
She may have gotten off easy: The law states that violators can be fined up to $42,500 for an initial violation, and $17,000 daily as the violation continues.
And occasionally the wetlands law is used in ways that at first glance may seem less than environmental.
In May, a plan by the Costco Co. to build a 12-pump gas station in Colchester on Class 3 wetlands – which would have been allowed under the state law – was challenged by competitors, who argued the property was a Class 2 wetlands.
Costco said it would accept the reclassification, but would work to obtain the required permit.
However Vermont’s wetlands regulations may be applied, they are on the books for good reasons. They are meant to preserve areas that can contain and absorb stormwater and floodwaters; they filter water and protect groundwater; they provide habitat for valued wildlife, from 1,200-pound moose to tiny springtime peepers; they are home to endangered plants; they provide recreational benefits, from hunting to canoeing; and they add to the beauty and open nature of Vermont’s landscape.
Studies by the state suggest that 5 percent or less of Vermont can now be considered wetlands and that over the decades roughly half of Vermont’s wetlands have been lost as a result of dredging, development and agricultural activities.
The state’s Fish and Wildlife Department reports that despite the wetlands rules, Vermont is losing about 20 acres a year of valuable wetlands.
McCullough says while having a protected wetland on one’s property can limit where to build, it can provide aesthetic and economic value. “I like wetlands, and I think they are an asset … We have a one on our property – some people would call it a swamp – and it attracts ducks and all kinds of critters,” he said. “I think people are more and more thinking of wetlands as interesting little ecosystems that are assets.”
Quackenbush says he believes that after 23 years most Vermonters know about the wetlands rules, though not necessarily their details, and that if the rules are not always popular, they usually are obeyed.
“I may be naïve, but I think most people are pretty honest and want to follow them,” he says.