Vermont’s wetlands rules put onus on landowners

A wetland in Putney. Creative Commons photo by putneypics via Flickr

A wetland in Putney. Creative Commons photo by putneypics via Flickr

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.

Johnson Farm

Jane Lazorchak (center, facing camera) explains wetland ecology to visitors at the Johnson Farm in Canaan in August 2012. The wetland is one of several included in the conservation of the farm, a joint effort by the Vermont Land Trust, The Nature Conservancy and the Vermont Department of Fish and Wildlife. Photo by Tom Slayton

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.

Dirk Van Susteren

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  • Jacob Miller

    To quote the article:

    “The state’s Fish and Wildlife Department reports that despite the wetlands rules, Vermont is losing about 20 acres a year of valuable wetlands.”

    So where do they go if ANR is taking people to task for violation of wet land rules ? New Hampshire? Evaporation because of climate change? Please explain.

  • Connie Godin

    Agree these rules are a pain but necessary.

  • Townsend Peters

    This article completely ignores the relationship of wetland loss to climate change. Wetlands hold water and climate change is delivering more water to us. We need our wetlands to help mitigate the damage caused by dramatic storm events and we need our wetland rules.

    • Frank Seawright

      I see in today’s British Guardian an article titled “Entire economy depends on healthy environment, report shows”
      And the article contains the following paragraph

      Take wetlands – like fens, bogs and marshes – that on the face of it are a world away from your monthly budget plan. But the government’s own figures say wetlands provide more than £350m worth of flood defence value each year, by soaking up flooding that would otherwise inundate our towns. So if wetlands are damaged or built over, the bill for the resulting damage would have to be picked up by businesses and government instead. They would need to pass those costs on – which means higher bills and higher taxes coming out of your pocket.

      And here in very, very green and environment aware Vermont we have a robust 50 buffer? Really? 50 whole feet.

      • David Gross

        50 feet? In your dreams!
        Drive along any road or highway in Vermont and see how many 50′ buffers you see protecting wetlands (or riparian buffers for that matter). The ANR has these rules and cites them often, but enforce them? Ha! In Hardwick we have a Dollar General store being proposed on a floodplain that contains trees and vegetation in standing water ( a Class 3 wetland as it later turned out). When a group of concerned citizens questioned the wisdom of developing this site, do you think we could get a timely and helpful response from the State wetlands people? No. Do you think the ANR officially voiced their concerns about such a development? No. Do you think that the ANR will intervene and investigate the site’s new storm drainage plan that will pipe rooftop and parking lot runoff to a culvert under a state highway and directly into a MAPPED Class 2 wetland? One would hope so, but thus far all the ANR has given is resounding silence. Once again, Vermont talks a good game, but ………

  • Jane Palmer

    This is a subject very dear to my heart as we bought our farm years ago because of a wetland it contained. Seems counter-intuitive, to try to farm next to a wetland, but the marsh provides habitat for many beasts and bugs that support the ecosystem we all need and love.
    Imagine our chagrin when we learned that the ANR has given the nod to the crossing of numerous important wetlands by the proposed Addison Natural Gas Project through Hinesburg, Monkton and New Haven into Middlebury. I don’t know if anyone could have found a wetter route, but our Agency of Natural Resources has so far approved of the route with the use of horizontal directional drilling (HDD) under many substantial swamps and marshes. I have personally seen the devastation a pipeline installation such as this will entail. The soil separation techniques and timber matting used to supposedly mitigate “undue adverse impacts” to the wetlands and farmland were either not used or done is such a way that it was apparent it would destroy the ecosystems that had flourished in those sensitive areas for years. The HDD process itself can be devastating, especially if things go awry, as they often do.
    It is amazing to me what is allowed in this state in the name of “progress”. Make no mistake, this pipeline will destroy many wetlands. They will be forever damaged by this enormous ditch our governor seems bent on blasting and gouging through our countryside. I can imagine that the folks in the ANR who have devoted their lives to protecting sensitive areas cringe at the thought of it. But if the governor wants something such as this pipeline, how can they stop it and still keep their jobs?

    • Jeff Noordsy

      It’s astounding, is it not, that an actual landowner cannot cause a ripple in the waters of a wetland THEY OWN AND PAY TAXES UPON without semi-hysterical oversight while Big Energy is encouraged to have their way with the same property. As I have said earlier, the tail is truly wagging the dog.

  • Annette Smith

    ANR views its “customer” as the regulated community. Not the environment. ANR’s job is to issue permits. Permits to pollute.

    Yes, there are good people at ANR who care about the environment. They also know their job is to service their customers, which means issuing permits.

    We need to rethink the role of our supposed environmental protection agencies if there is any will left among Vermonters to protect the natural environment.

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