HomeMy WebLinkAboutAgenda 08D_SD-19-04_133 Cheesefactory Ln_Ewing_wetland permit
VERMONT AGENCY OF NATURAL RESOURCES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
INDIVIDUAL WETLAND PERMIT
In the matter of:
Peter N. Ewing, Trustee, Linka R. Lee Living Trust
21 Old Homestead Road
Westford, MA 01886
Application for the construction of a previously permitted access road for a four-lot
subdivision with proposed impacts to 5,150 square feet of wetland and 3,940 square feet of
buffer zone.
Cheesefactory Lane, South Burlington
File #: 2014-480.01
DEC ID #: EJ15-0070
Date of Decision: December 11, 2018
Permit Decision: Approved
Permit Expiration: December 11, 2023
Any activity in a Class I or Class II wetland or its associated buffer zone is prohibited unless it is
an allowed use under the Vermont Wetland Rules (VWR) or unless it receives a permit allowing
such activity. 10 V.S.A. § 913. Applicants for an individual permit for a proposed activity in any
Class I or Class II wetland or its buffer zone must demonstrate that the proposed activity complies
with the VWR and will have no undue adverse effects on protected functions and values. VWR §
9.5(a).
The Vermont Agency of Natural Resources (Agency) received an application dated September 13,
2018 from Peter N. Ewing, Trustee, Linka R. Lee Living Trust (permittee) seeking an individual
Vermont Wetland Permit for a project involving activities in a wetland and associated buffer zone
located in South Burlington, Vermont. The Agency gave notice of the application in accordance
with the VWR. The Agency considered all comments received during the public comment period
during review of the application and issuance of this permit.
DECISION AND PERMIT CONDITIONS
1. Based on the Findings contained in this permit below, the Secretary has determined that the
proposed project will comply with 10 V.S.A. chapter 37 and the VWR and will have no
undue adverse effect on protected functions and values of the wetland. The permittee has
demonstrated that the project will have no undue adverse effects on the protected functions
and values of the significant wetland and associated buffer zone, provided the project is
conducted in accordance with the following conditions:
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2014-480.01
A. All activities in the wetland and buffer zone shall be completed, operated, and
maintained as set forth in the permit application #2014-480.01 and the supporting
materials submitted with the permit application including site plans titled:
• “Proposed Conditions Site Plan”, designed by CEA, dated August 7, 2018.
• “Ewing Subdivision; Site Plan, 15-187 C2-01”, designed by CEA, dated
7/16/2018.
• “Partitioning of Ewing Farm Family Trust”, designed by CEA, dated
4/25/2018.
No material or substantial changes shall be made to the project without the prior
written approval of the Vermont Wetlands Program. Project changes, including
transfer of property ownership prior to commencement of a project, may require a
permit amendment and additional public notice.
B. The permittee shall record this permit in the land records of the Town of South
Burlington for all properties subject to the permit. Within 30 days of the date of
issuance of this permit, the permittee shall supply the Vermont Wetlands Program with
a copy of the recording of this permit.
C. Prior to commencement of the approved project, the permittee shall notify the
Vermont Wetlands Program electronically in writing of the date the project will
commence.
D. Prohibitions: No additional activities are allowed in the wetland and associated
buffer zone without the approval of the Secretary unless such activities are allowed
uses under VWR § 6. No draining, dredging, filling, grading, or alterations of the
water flow is allowed. No cutting, clearing, or removal of vegetation within the
wetland and buffer zone is allowed with the exception of the proposed project area as
approved by this permit.
E. This permit expires five years from the date of issuance. If the permittee has not
completed all construction activities covered by this permit before the expiration date
and wishes to continue construction, the permittee must request a permit extension or
apply for a new permit. Any request for an extension must be received by the Agency
at least 30 days prior to the end of the five year period in order to prevent the expiration
of the permit. A request for extension may be considered a minor modification at the
discretion of the Secretary. Pursuant to VWR § 9.1, projects may not be extended
beyond ten years of the issuance date.
F. Wetland boundary delineations are valid for five years. The delineations will need to
be re-evaluated by a qualified wetland consultant if the project is not constructed
during the five-year period and a request for an extension is submitted.
G. Within 30 days of completion of the work approved by this permit, the permittee shall
supply the Vermont Wetlands Program with a letter certifying that the project was
constructed in compliance with the conditions of this permit.
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2014-480.01
H. If a stormwater construction permit is obtained for this project, the erosion prevention
and control requirements of that permit shall be followed. At minimum, the permittee
shall comply with the following: A continuous line of silt fence shall be properly
installed by the permittee immediately upgradient of the snow fence or tape prior to
any construction and shall be regularly maintained. Care shall be taken to ensure that
silt fence is installed on the contour and not in areas of concentrated flow such as
stream channels or ditches. Sediment shall be cleaned out before and after any
significant storm event or when sediment has reached less than half the height of the
fence. Removed sediments shall be disposed of in a stable, upland area outside the
50-foot buffer zone at least 100 feet from waters of the state and stabilized immediately
with seed and mulch at a minimum. All other disturbed soils shall be seeded and
mulched within 48 hours of final grading. All sediment barriers and construction
fencing shall be removed following the successful establishment of vegetation.
I. If a stream alteration permit is obtained for this project, the requirements of that permit
shall be followed. If no stream alteration permit was required, the permittee shall
comply with the following: The method of installing an 18” diameter culvert shall be
that which presents the least disturbance of stream flow and prevents any discharge of
sediment downstream. Stream flow at all times shall be diverted from the work area.
The contractor’s equipment shall be clean and well maintained, free of fuel, hydraulic,
and gear oil leaks, especially if such equipment is to be used in or adjacent to the water.
There shall be absolutely no discharge of uncured concrete to the stream flow.
Pumping from excavation areas shall be discharged to an overland area or settling
basin such that the effluent shall be essentially clarified before reentering the stream
flow. All areas of stream bank disturbed during construction shall be suitably reshaped
and stabilized with stone fill or a vegetative planting prior to completion of the project.
Additionally, the extent of stream bank disturbance shall be strictly limited, and all
existing vegetation maintained to the greatest degree practicable. Stream work shall
be limited to the period June 1 to October 1. Culvert invert elevations shall be installed
six inches below the stream bed level.
J. All contractors’ equipment shall be cleaned so as to contain no observable soil or
vegetation prior to work in wetlands and buffer zones to prevent the spread of invasive
species. The permittee shall monitor the portion of the wetlands in question annually
during early July for five years following construction for the nuisance plant species
purple loosestrife (Lythrum salicaria) and common reed (Phragmites australis). All
nuisance plants found shall be pulled by hand and disposed of by burial or burning in
a non-wetland location. If hand pulling is not feasible, a state approved invasive
species control plan is required.
2. The Secretary maintains continuing jurisdiction over this project and may at any time order
that remedial measures be taken if it appears that undue adverse impacts to the protected
functions and values of the wetland or buffer are occurring or will occur.
3. This permit does not relieve the permittee of the responsibility to comply with any other
applicable federal, state, and local laws, regulations, and permits.
4. The permittee shall allow the Secretary or the Secretary’s representatives, at reasonable
times and upon presentation of credentials, to enter upon and inspect the permitted property
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for the purpose of ascertaining compliance with this permit, the VWR, and the Vermont
Water Quality Standards, and to have access to and copy all records required to be prepared
pursuant to this permit.
5. The Agency accepts no legal responsibility for any damage direct or indirect of whatever
nature and by whomever suffered arising out of the approved project. This permit does not
convey any property rights in either real or personal property, or any exclusive privileges,
nor does it authorize any injury to public or private property, or any invasion of personal
rights, or any infringement of federal, state, or local laws or regulations. This permit does
not obviate the necessity of obtaining such federal, state, or local permits or approvals as
may be required by law. Nothing in this permit shall be construed to preclude the institution
of legal action or relieve the permittee from any responsibilities, liabilities, or penalties to
which the permittee is or may be subject to under other laws.
6. Within 15 days of the date of the decision, the permittee, any person entitled to notice under
VWR § 9.2, or any person who filed written comments regarding the permit application may
request in writing reconsideration of the decision by the Secretary in accordance with VWR
§ 9.6.
7. Appeals. Any person with an interest in this matter may appeal this decision pursuant to
10 V.S.A. § 917. Pursuant to 10 V.S.A. chapter 220, an aggrieved person shall not appeal
this permit to the Environmental Division of the Vermont Superior Court unless the person
submitted to the Secretary a written comment during the applicable public comment period
or an oral comment at the public meeting conducted by the Secretary. Absent a
determination of the Environmental judge to the contrary, an aggrieved person may only
appeal issues related to the person’s comments to the Secretary as prescribed by 10 V.S.A.
§ 8504(d)(2). Any appeal of this decision must be filed with the clerk of the
Environmental Division of the Superior Court within 30 days of the date of the
decision. The Notice of Appeal must specify the parties taking the appeal and the statutory
provision under which each party claims party status; must designate the act or decision
appealed from; must name the Environmental Division; and must be signed by the
appellant or their attorney. In addition, the appeal must give the address or location and
description of the property, project, or facility with which the appeal is concerned; the
name of the permittee; and any permit involved in the appeal. The appellant must also
serve a copy of the Notice of Appeal in accordance with Rule 5(b)(4)(B) of the Vermont
Rules for Environmental Court Proceedings. For further information, see the Vermont
Rules for Environmental Court Proceedings, available on line at
www.vermontjudiciary.org. The address for the Environmental Division is: 32 Cherry
Street, 2nd Floor, Suite 303, Burlington, VT 05401 (Tel. # 802-951-1740).
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FINDINGS
1. The Agency received a complete permit application from Peter N. Ewing, Trustee, Linka R.
Lee Living Trust for a Vermont Wetland Permit on September 13, 2018.
2. The wetland and adjacent 50-foot buffer zone are located south of Cheesefactory Lane,
across from 133 Cheesefactory Lane. The subject wetland is approximately 0.6 miles north
of Shelburne Pond.
3. Julie Follensbee District Wetlands Ecologist, conducted a site visit to the subject property
on 12/15/2014.
4. The wetland is identified as an area contiguous to a palustrine wetland on the Vermont
Significant Wetlands Inventory maps and therefore designated as a Class II wetland under
VWR § 4.6.
5. The wetland in question is described in detail in Sections 4 and 5 of the permit application.
The wetland is located within a depression and is approximately 10 acres in size and consists
of a wet meadow adjacent to a pond. It is contiguous to the Shelburne Pond wetland complex.
The wetland receives its hydrology from spring runoff. Water flows north to southwest
within the wetland and eventually into Shelburne Pond. The dominant vegetation is reed
canary grass and soils are mapped by NRCS as Covington silty clays.
6. The proposed project is described in detail in Sections 17 and 18 of the permit application.
The project consists the construction of a previously permitted access road for a four-lot
subdivision.
7. Proposed impacts to the wetland and buffer zone, summarized in Section 19 of the permit
application are as follows:
Wetland Alteration: Buffer Zone Alteration:
Wetland Fill: 4,125 sq.ft.
Temporary: 1,025 sq.ft. Temporary: 736 sq.ft.
Other Permanent: 0 sq.ft. Permanent: 3,204 sq.ft.
Total Wetland Impact 5,150 sq.ft. Total Buffer Zone Impact: 3,940 sq.ft.
8. The protected functions of the wetland include the following: water storage for flood water
and storm runoff (VWR § 5.1), surface and groundwater protection (VWR § 5.2), fish
habitat (VWR § 5.3), wildlife habitat (VWR § 5.4), exemplary wetland natural community
(VWR § 5.5), threatened and endangered species habitat (VWR § 5.6), education and
research in natural science (VWR § 5.7), recreational value and economic benefits (VWR §
5.8), and open space and aesthetics (VWR § 5.9).
9. The following functions are either not present or are present at such a minimal level as to
not be protected functions: Erosion control through binding and stabilizing the soil (VWR §
5.10).
10. The wetland is significant for water storage for flood water and storm runoff function as
demonstrated in Section 7 of the permit application. Based on the factors described in
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Section 7.2 of the application, as confirmed through a site visit by Agency staff, the proposed
project will not result in an undue adverse impact to this function.
11. The wetland is significant for the surface and ground water protection function as described
in Section 8 of the permit application. Based on the factors described in Section 8.2 of the
application, as confirmed through a site visit by Agency staff, the proposed project will not
result in an undue adverse impact to this function.
12. The wetland is significant for the fish habitat function as described in Section 9 of the permit
application. Based on the factors described in Section 9.2 of the application, as confirmed
through a site visit by Agency staff, the proposed project will not result in an undue adverse
impact to this function.
13. The wetland is significant for the wildlife habitat function as described in Section 10 of the
permit application. Based on the factors described in Section 10.2 of the application, as
confirmed through a site visit by Agency staff, the proposed project will not result in an
undue adverse impact to this function.
14. The wetland is significant for the exemplary wetland natural community function as
demonstrated in Section 11 of the permit application. Based on the factors described in
Section 11.2 of the application, as confirmed through a site visit by Agency staff, the
proposed project will not result in an undue adverse impact to this function.
15. The wetland is significant for the rare, threatened and endangered species function as
demonstrated in Section 12 of the permit application. Based on the factors described in
Section 12.2 of the application, as confirmed through a site visit by Agency staff, the
proposed project will not result in an undue adverse impact to this function.
16. The wetland is significant for the education and research in natural sciences function as
demonstrated in Section 13 of the permit application. Based on the factors described in
Section 13.2 of the application, as confirmed through a site visit by Agency staff, the
proposed project will not result in an undue adverse impact to this function.
17. The wetland is significant for the recreational value and economic benefits function as
demonstrated in Section 14 of the permit application. Based on the factors described in
Section 14.2 of the application, as confirmed through a site visit by Agency staff, the
proposed project will not result in an undue adverse impact to this function.
18. The wetland is significant for the open space and aesthetics as demonstrated in Section 15
of the permit application. Based on the factors described in Section 15.2 of the application,
as confirmed through a site visit by Agency staff, the proposed project will not result in an
undue adverse impact to this function.
19. Under 10 V.S.A. § 913 and VWR § 9.5, the Secretary may authorize activities in a Class II
wetland or in its buffer zone if the Secretary determines that it complies with the VWR and
will have no undue adverse effect on the protected functions and values. Based on the permit
application, the site visit(s) by Agency staff, and the foregoing findings and analysis, the
Secretary has determined that the proposed project will have no undue adverse effects on the
protected functions and values of the Class II wetland.
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20. Pursuant to VWR § 9.5(b), the permittee has demonstrated that the proposed activity in the
wetland cannot practicably be located outside the wetland or on another site owned,
controlled, or available to satisfy the basic project purpose. All practicable measures have
been taken in this proposal to avoid adverse impacts on protected functions, as described in
the application.
In summary, the applicant has demonstrated that impacts to the wetland are unavoidable as
there are no upland alternatives to locate the access road. The crossing was minimized by
aligning it across the shortest distance across the wetland. The applicant was provided a
variance from the City of South Burlington to decrease the width of the access road from
20-feet to 18-feet. All other infrastructure associated with the subdivision avoids wetland
and buffer impact. As part of the master plan for the Ewing property, the four proposed house
lots are located on a 20-acre parcel, while 48 acres along Muddy Brook was purchased by
The Nature Conservancy, and 45 acres towards Shelburne Pond was purchased by the
Vermont Land Trust. These purchases will create a wide buffer and provide protection to
Muddy Brook and its associated wetlands while the Vermont Land Trust parcel will increase
the buffer around Shelburne Pond and place additional wetlands downstream on the property
into land conservation.
21. No public comments were received during the public comment period.
Emily Boedecker, Commissioner
Department of Environmental Conservation
by: ________________________________
Laura Lapierre, Program Manager
Wetlands Program
Watershed Management Division
Dated at Montpelier, Vermont
this eleventh day of December 2018
EB/LVPL/TMH