Agenda - Planning Commission - 03/04/1996

Home

Page 2 4-- February 1996 z.g. Wetlan~ls - .. Company Without Permit Spills Clay Into Wetland SecFFtary, Vermont Agency of Natural Resources v. Earth Co~struction Inc., 'Vermont Supreme Court, Docket No. 93-427 (Vermont) :7996 In 1992, Earth Construction Inc. bought an existing gravel pit in East [o Montpel!er, Vt. It began improving an access road to the pit that forked around two borders of a Class Two Wetland. The improvements included cutting down trees for ia truck turnaround area, removing a clay bank in the road, and apply- ing gravel to 115 feet of road. A statute (Act 250) required permits to improve access roads, and condi- tional use. approval for filling, excavating, and grading activities within 50 feet of a Class Two Wetland. Uses that existed before 1970 were exempt, but only if they di~t not have any "substantial change." State Wetland Rules also required a permit 9nless the activity was not subject to other wetland permitting require- ments (su[ch as Act 250's), was maintenance or routine repair of "structures or facilities,!' or was "routine maintenance and upkeep [of]... manmade ponds." Earth CoCstruction did not apply for a permit or seek conditional use approval before i~prowng the access road. Earth ~Construction caused a slope failure when it removed clay from a berm at tt~e pit's edge m 200 cubic yards of clay slid into the wetland. Despite removal e?forts, the wetland was not fully restored. An en~Vironmental official asked Earth Construction to prove it was exempt from Act ~50. The company responded, but the official found the site had a substantial[ change and needed a permit. The state Agency of Natural Resources Enforcement Division (Agency) then insp~ted the site and told Earth Construction it needed a permit before continuint~ operations. Earth Construction continued anyway and asked the Environmental Board (Board) to determine whether the Act applied. While !he Board considered the issue, the Agency cited Earth Construction with violations of the Act and the wetland rules. The Agency fined the com- pany and ~rdered it to cease certain activities, take remedial action, and apply for a permit. Earth Construction continued operating the pit, and the Environ- mental La~ Division (Division) issued it an Emergency Order. The company requested ~ hearing before the Division regarding the citations and order. The Boa.~ rd determined the Act applied because the access road was a sub- stantial cha~nge. The DiVision fined Earth Construction forAct and wetland rules violations. Earth Construction appealed. It claimed it did not need a permit because there was ~o substantial change to the gravel pit since 1970. Earth Construc- tion arguedt its project was allowed under the wetland rules because it was routine repair of a structure or facility. DECISION~ Affirmed. Earth C~nstruction's failure to get permits for road improvements violated * S both Act 25D and the state Wetland Rule . The roa.~ improvement, was a substantial change to the existing gravel pit, so it was subject to the Act s requirements. The road could potentially increase