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Agency of Natural Resources v. McGee

Supreme Court of Vermont

August 19, 2016

Agency of Natural Resources
Hugh McGee & Eileen McGee v.

         On Appeal from Superior Court, Environmental Division Thomas G. Walsh, J.

          Hugh McGee & Eileen McGee, Pro Ses, Brandon, Appellants

          William H. Sorrell, Attorney General, and Robert F. McDougall, Assistant Attorney General, Montpelier, for Appellee

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          EATON, J.

          1 In this environmental enforcement action, the Agency of Natural Resources (ANR) issued a violation and imposed a penalty of $10, 000 against defendants Hugh McGee and Eileen McGee for placing unpermitted fill in a Class II wetland. Defendants appealed and, following a site visit and evidentiary hearing, the Environmental Division concluded that the land was not exempt, upheld the violation, and reduced the penalty to $3647. On appeal, defendants argue that the land is used for grazing horses and it therefore meets the requirements of the farming exemption in the wetlands regulations. We conclude that the evidence supports the Environmental Division's finding that the area had not been used consistently to grow food or crops since 1990 and therefore any exemption had expired, and affirm.

         ¶ 2. A little background regarding the underlying statutes and regulations is useful to understanding the arguments involved in this appeal. Pursuant to statute, a permit is generally required before conducting an activity "in a significant wetland or buffer zone." 10 V.S.A. § 913(a). This broad requirement is tempered in two ways. First, the definition of wetland exempts certain lands. Wetlands are defined as areas "inundated by surface or groundwater with a frequency sufficient to support significant vegetation or aquatic life that depend on saturated or seasonally saturated soil conditions for growth and reproduction, " but excluding "such areas as grow food or crops in connection with farming activities." 10 V.S.A. § 902(5) (emphasis added). ANR's wetlands regulations contain a parallel "Farming Exemption, " which defines farming activities as "the cultivation or other use of land for growing food, fiber, Christmas trees, maple sap, or horticultural and orchard crops; and the growing of food and crops in connection with the raising, feeding, or management of livestock, poultry, equines, fish farms, or bees for profit." Vermont Wetlands Rules § 3.1(a)(2), Code of Vt. Rules 12 030 026 [hereinafter Wetlands Rules]. The Wetlands Rules specify that the farming exemption has a "Limitation on Exemption, " which confines its application to those areas used for farming activities as of the rules' effective date and expires "whenever the area is no longer used to grow food or crops or in ordinary rotation." Id. § 3.1(a)(3). Thus, under the statute and applicable regulations, only those areas that have been used for farming activities continuously since 1990 are exempt from regulation as a wetland.

         ¶ 3. The second way that the general prohibition on activity in a wetland is narrowed is that the statute authorizes nonpermitted "allowed uses, " which are set by rule. 10 V.S.A. § 913(a). The Wetlands Rules list certain activities that are allowed in Class I or Class II wetlands without a permit, but emphasize that these may be conducted only "provided that the configuration of the wetland's outlet or the flow of water into or out of the wetland is not altered and that no draining, dredging, filling, or grading occurs." Wetlands Rules § 6. This list includes "[t]he growing of food or crops in connection with farming activities, " under certain conditions. Id. § 6.06. Thus, unless an activity takes place in an area exempt from regulation or is an allowed use, it requires a permit. Id. § 9.1.

         ¶ 4. Here, ANR alleged that defendants violated the Wetlands Rules by placing fill in a Class II wetland without a permit. The Environmental Division made the following factual findings. Defendant Eileen McGee is the sole owner of the 28.36-acre property in Brandon, Vermont. Her former husband, Hugh McGee, is responsible for the daily upkeep of the property. For thirty years, defendants have conducted various farming activities on areas of the property including raising and training horses, raising cattle, haying, and grazing horses. The property spans Smalley Road. On the south side of the road, there are several paddocks and fields close to the road where defendants pasture the horses. South of the paddocks is a pond that provides water for the horses. South and east of the pond is a large Class II wetland. The land south of the pond has been used for grazing horses, but, as the trial court found, only in that the horses were permitted to eat what was attractive to them for forage and was there growing naturally. The ANR enforcement officer testified that the area in question was not being used to grow crops in connection with the management of horses or livestock. The findings and conclusions of the trial court leave no doubt that except for occasional cutting, there was an absence of any soil management practice for pasture land intended to cultivate fertile soils consistent with animal health and water quality.

         ¶ 5. In August 2013, ANR received a citizen complaint about a possible wetland violation. An ANR enforcement officer visited defendant's land on August 26 and observed Hugh McGee using an excavator to dredge the pond south of the horse paddocks and placing the dredged material on the southern bank of the pond. The enforcement officer spoke to Hugh McGee and explained that it did not appear that his current actions were a violation, but that it would be a violation to place any dredged material in the wetland. He advised Hugh McGee to stop dredging until he could return with a wetlands ecologist. On August 29, the enforcement officer returned with a wetlands ecologist. They observed that material had been pushed into the wetland. That area of the wetland had wild vegetation growing. The brush was chest-high and thick and did not show signs of being cultivated.

         ¶ 6. In September 2013, ANR issued a notice of alleged violation. In response, Eileen McGee sent a letter stating that the property was an agricultural operation and therefore exempt. In June 2015, ANR issued an administrative order for the violation, ordering removal of the fill and requiring payment of a $10, 000 fine. Defendants requested a hearing, claiming they were exempt from the Wetlands Rules because the land was used for farming activities. The matter was heard before the Environmental Division. The court conducted a site visit and heard testimony from the enforcement officer, the wetlands ecologist, and defendant Hugh McGee.

         ¶ 7. The court concluded that defendants' activities of intermittently cutting the brush and allowing horses to graze in the area did not meet the definition of farming in the statute or the Wetlands Rules. 10 V.S.A. § 902(5) (exempting from definition of wetland "such areas as grow food or crops in connection with farming activities"); Wetlands Rules § 3.1(a)(2) (defining farming activities as "cultivation or other use of land for growing food"). The court explained that the definition of farming entailed some type of cultivation-physical measures applied directly to the soil-and did not include land where vegetation was merely allowed to grow in a random fashion and animals were permitted to graze.

         ¶ 8. The court further concluded that even if periodic cutting of vegetation and grazing of livestock fit within the meaning of "farming activities" and "cultivation, " the evidence failed to show that the activity had been continuous since 1990 when the Wetlands Rules went into effect. See Wetlands Rules § 3.1(a)(3) (limiting farming exemption to those areas used to grow food or crops as of the rules' effective date and explaining that exemption expires "whenever the area is no longer used to grow food or crops or in ordinary rotation"). The court explained that the credible evidence showed that to the extent the area had been managed-by cutting with a brush hog-this was on an intermittent and inconsistent basis. The court cited defendant Hugh McGee's testimony that he intermittently brush-hogged and hayed the land south of the pond, and that at times the area was reclaimed by brush. In addition, the court credited the testimony of the wetlands ecologist that when she inspected the area in August 2013 the brush was chest high and thick and showed no signs of cultivation. Therefore, the court concluded that whatever exemption the land may have had, it was abandoned by the inconsistent nature of the use.

         ¶ 9. The court additionally held that the activity of putting fill in the wetland was not an allowed use under the Wetlands Rules, which specifically disallowed any use which entailed "draining, dredging, filling or grading." Wetlands Rules § 6. Finally, the court considered various factors and decreased the penalty to $3647.

         ¶ 10. On appeal, defendants argue that their land has been used continuously since 1976 as a farming operation and it is therefore exempt from regulation under the Wetlands Rules. Defendants list various types of activities they allege amount to farming, including raising and training horses, growing Christmas trees, caring for stray animals, and haying, and assert that at the evidentiary hearing the court agreed that the land was used as a farm. It is important to distinguish, however, between the defendants' property generally and the area of the wetland where the alleged violation took place. While defendants may engage in other activities on the property, the sole use on the area in question was, ...

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