Thursday, August 22, 2013

Wetland Woes

ANR v. Persons, 2013 VT 46

When the SCOV classifies the basis of your appeal as being “for a host of reasons” it’s not necessarily a good thing. 

Defendants here are a landowner and the Trust “A” of that landowner.  Without getting too far into the nitty-gritty details regarding ownership, sales, and so on, there was a 152-acre plot of farmland, which was subdivided into seven lots.  This case involves three of the lots—two of which are owned by a non-party—because the landowner replaced a water line that went through all three.   

There is a Class II wetland located on the lot owned by the Trust, and wet soils on the other two lots abut the wetland.  When the land was first subdivided in the late 1990s, landowner got in a little hot water (pun totally intended) for excavating and filling within the wetland and its buffer zone.  He eventually admitted to violations of applicable wetlands-protection laws and entered an assurance of discontinuance with the Agency on Natural Resources (ANR). 

Flash forward several years, when the owner of the other lots learns of the administrative order against landowner . . . he contacts ANR’s Waterbury office to ask about what excavation he, the neighbor, can do to prepare his lots for sale.  He also asked whether there were any outstanding requirements from the 2001 assurance of discontinuance that required attention.  

So ANR officials come a-callin’.  They determine that the wet soils constitute an additional wetland as evidenced by the surrounding vegetation, soil, and hydrology.  They also note that landowner had recently cleared a swath of trees and excavated soils from a strip of land that cut across the three lots to replace a damaged water line that supplied water to the Trust-owned lot. 

Another site visit revealed three spring-fed wells in the secondary wetland.  So the ANR issued a notice of violation, requiring that defendants remove the new tiles and gravel and make repairs to the cleared land promptly.  Long story, short, he didn’t.  In fact a follow-up site visit showed that landowner subsequently added electrical outlets to the well.  Approximately two-and-a-half years later, the ANR issued an administrative order against the landowner. 

Landowner appealed the order to the environmental court.  After a hearing on the merits, the court concluded that landowner “knew or should have known” that they were working in wetlands.  Landowner testified that everything was dry when he was doing the work, but the court didn’t believe him.  Instead, the court found that the soil, plants, and hydrology meant that the work was performed in a wetland and that the Trust was equally liable based on the trustee’s knowledge of the area and the Trust’s ownership of the lot.  The court slapped a $14,222 fine on the defendants. 

And that’s how we end up at the SCOV.

The standard of review is semi-deferential: factual findings are upheld unless they’re completamente locos; conclusions of law are upheld if the proper legal standard was applied and the conclusions are reasonably supported by the findings. 

Landowner made thirteen objections to the trial court’s findings.  The SCOV reasons that there is significant overlap and so addresses the claims “thematically.” 

Landowner’s first argument was notice and due process based.  Basically, he argued that he didn’t know that the work was being done in wetlands, nobody told him, and that inadequate notice is provided by the rules and National Wetlands Inventory (NWI) wetland maps.  The SCOV doesn’t buy it—reasoning that the rules require all landowners to seek authorization from the ANR before commencing any nonexempt activities, including clearing and excavating land.  The SCOV also reasons that the maps read in conjunction with the rules provide notice because the rules provide a definition that includes “that all wetlands shown on the state’s NWI maps and all wetlands contiguous to such mapped wetlands are presumed to be Class II wetlands.”  The SCOV also rejects landowner’s claim that they should have received a warning first, reasoning that whether to issue a warning or notice is a matter of discretion for the ANR.   

Landowner next argued that the assurance of discontinuance didn’t provide adequate notice of protected wetlands.  The SCOV rejects that argument in short order, noting that the trial court never said that the assurance of discontinuance gave notice; rather, the trial court used the assurance of discontinuance in its overall determination of whether defendants knew or should have known of the wetlands. 

Defendants also argue that the NWI maps are difficult to read and don’t show the exact location of wetland boundaries.  The SCOV finds this argument unavailing

[Author’s side note: Isn’t unavailing just a great not-used-enough-in-everyday-speech word?  I challenge you to use unavailing in normal speech today.  Please post reactions—and if at all possible, pictures of people’s faces in reaction to your usage—in the comments below.] 

The SCOV reasons that the NWI maps do not illustrate precise boundaries of each and every wetland in the state, but do highlight protected areas, generally.  Thus, it becomes the property owner’s responsibility to ensure that work is not performed in a restricted wetland. 

The SCOV sums up the landower’s position as being that “they were not afforded basic due process because they were never notified or able to learn the location of the wetlands before being charged by ANR for violating the law and regulations.”  The SCOV notes that due process requires reasonable notice and explicit standards for those applying prohibitions.   In this case, the SCOV notes that this is a civil not criminal penalty and that landowner had a reasonable opportunity to learn what was prohibited.  The SCOV also notes that landowner was “well aware that significant wetlands were located on the property.”  As such, “[a]t the very least, the very least, defendants should have sought the advice of ANR before commencing work.”  The SCOV also notes that the landowner had notice in 2007, but didn’t do anything about it until 2010. 


Landowner’s argument regarding the court’s calculation of the penalty falls into the no-error-without-abuse-of-discretion realm, and the SCOV finds no abuse of discretion.  There’s a mitigation argument and so forth, but none of it finds any traction. 

The landowner’s final argument was that he was entitled to a jury trial, but the SCOV just doesn’t see it in this context—it’s a civil penalty and there’s no common law or statutory right to a jury trial. 

So, if you want to avoid running afoul of wetland regulations, make sure you know what is and isn’t a wetland before you start excavating.  You dig?  

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