Sunday, August 28, 2016

Wetland Woes

Agency of Natural Resources v. McGee, 2016 VT 90

By Elizabeth Kruska

I like horses. Here’s an actual conversation I have had with various horses:
Me: Walk on, we’re going to the paddock.
Horse: But there’s grass.
Me: Walk on, you can eat the grass in your paddock.
Horse: But there’s grass right here.
Me: What part of “walk on” were you not totally understanding?
Horse: You know I weigh 1200 pounds, right? There’s grass. We’re stopping to graze.
Anyone who has led a horse past anything green has had this same conversation. Horses are grazing machines. And who can blame them? If your favorite food grew directly out of the ground and all you had to do was bend your head down and munch on it, you’d be all over it, too. (Note: if your favorite food is lettuce, and you can and have done this in a lettuce patch, please tell us all about it in the comments.)

This is going somewhere, I promise.

The McGees own some property in Brandon, and on that property they have various features. First, they’ve got a pond and some associated wetlands. Second, they have some horses. They’ve had this property since the 70s. There is some land that is used for paddocks, and south of the paddocks is a pond and a wooded area. Over the years, the McGees have hayed and allowed the horses to graze near the pond. Mr. McGee, from time to time, would brush-hog the wooded area near the pond. He didn’t do this especially regularly, but he would do it if the brush got too thick. The horses would still get in there and eat what they felt like eating, although there was never anything specifically planted for them.

One day, Mr. McGee was out near the pond with an excavator-type machine, dredging the pond and depositing the dredged material onto the wetland nearby. An official from the Agency of Natural Resources (ANR) came by based upon a citizen’s complaint and spoke to him. Although at first that official thought there was no issue, since the McGees had continuously used the area as a farm for many years, the official thought it would be a good idea to bring a wetlands ecologist to take a look at the situation. Mr. McGee was asked to stop dredging, which he readily did.

The ecologist came by a few days later, and found that there was material in the wetland, that the brush was about chest-high, and hadn’t been cleared in a while. The ecologist gave an opinion that it didn’t look like the area had been used for cultivation. As a result, the McGees received a citation from ANR requiring them to pay a $10,000 fine and to remove the fill from the wetlands. They followed proper procedure and requested a hearing before the Environmental Court.

The Environmental Court made a site visit and took testimony, and ultimately upheld the citation, although the amount of the fine was reduced to $3647 based on some mitigating factors. The McGees appealed, and SCOV upholds the finding.

For starters, there are some rules about wetlands. Remember back when people thought draining and filling in wetlands was a fine plan? I’m looking at you, South Florida. Turns out that’s not the best of ideas, so now we have rules about wetlands. In Vermont, you’re not supposed to fill or dredge wetlands without a permit. But, for people who have been continuously farming or engaging in other agricultural pursuits, all of which are defined in the rule, since prior to 1990, no permit is needed. The McGees have had this particular parcel of land since sometime in the 70s and have always had some sort of herbivorous megafauna (horses, cows) on the land. They argued they should be exempt.

The Environmental Court disagreed. Although there were horses there doing horsey things, and at some points, also cattle, there wasn’t really any other evidence that the land had been continuously used in farming. Sure, Mr. McGee hayed the land sometimes, and sometimes he cleared the brush when it got unwieldy. Sure, grazing is something that farm animals do, but to be agriculture, there has to be more work and more management with the land. Because the Environmental Court found that the agricultural use of the land was inconsistent and intermittent, whatever farming exemption the McGees might have had in the past was now extinguished.

On appeal, SCOV considers two questions. First, was whether the acts the McGees did—the brush-hogging, the grazing, the occasional haying—was enough to meet the standard of a farming activity within the definition in the wetlands rules. Second, was whether the activities they did were in constant rotation since 1990 such that the exemption they might have would still be in place.

In the case of an exemption, the defendants, the McGees in this case, bear the burden of proving that the exemption exists and applies to them. SCOV says that based on the evidence presented, the McGees did not engage in qualified farming activities consistently since the wetland rules were put in place since 1990. They don’t address the first question of whether the activities themselves qualified. The problem was that the activities were not done on a consistent enough basis, and the evidence presented at the Environmental Court supported its findings. SCOV is clear that letting horses graze on the land wasn’t the problem, the problem was that Mr. McGee dredged and filled a wetland without a proper permit or exemption.

So, SCOV upholds the Environmental Court, and I assume the McGees’ horses are still munching on whatever green things they can find.

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