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Questions arise over Otter Creek wetlands designation

CORRECTION: In a June 24 story regarding this topic, it was incorrectly stated that land within the buffer of a Class II or Class I wetland that is allowed to lay fallow for “a year or more might not be able to be returned to its fullest use, when in fact it is “five years or more.”
CORNWALL/SALISBURY — Meetings in Cornwall and Salisbury aimed at providing information on a proposal to strengthen protections of wetlands along the Otter Creek south of Middlebury brought out a lot of people and a lot of questions last week.
Conservation officials offered some answers and promised to come back with more in future meetings regarding a proposed change to the protected status of the Otter Creek Wetland Complex.
About 30 people attended an informational meeting in Salisbury this past Thursday, June 27. Salisbury Conservation Commissioner Heidi Willis described the gathering as “emotional and heated.”
It followed a meeting called for a similar purpose on Tuesday, June 25, when more than 30 residents of Cornwall, Salisbury and Leicester gathered upstairs at the Cornwall Town Hall.
On Tuesday, landowners heard a presentation led by Cornwall Conservation Commission and Otter Creek Reclassification Steering Committee member Rene Langis. Department of Environmental Conservation (DEC) District Wetland Ecologist Zapata Courage was present to answer questions, as was DEC Commissioner Emily Boedecker and representatives from the Nature Conservancy of Vermont.
The Otter Creek Wetland Complex encompasses both the major river that flows north through Brandon and Addison County and the associated swamps.
Currently listed by the state as a Class II wetland, reclassification to Class I would change the protective buffer that currently exists around the wetland’s perimeter, where development is restricted. Becoming a Class I wetland would increase the buffer from 50 to 100 feet. Within that new buffer zone, aside from certain allowed and exempted uses, a property owner would have to demonstrate that new development meets a compelling need for public health or safety in order to be permitted.
However, said Courage Tuesday, “The Class I wetland would inevitably be smaller than what is currently mapped as Class II.”
At 15,000 acres, the Otter Creek Wetland Complex is the largest and most biodiverse wetland in New England, Langis told the audience.
“According to research by the University of Vermont, it offers flood mitigation services to our communities in the range of $126,000 to $450,00 on average per year,” she said, citing the 2016 study “Quantifying flood mitigation services: The economic value of Otter Creek wetlands and floodplains to Middlebury, Vermont.” The study found that the wetland complex saved Middlebury as much as $1.8 million in avoided damages during Tropical Storm Irene.
In early June, the Cornwall and Salisbury conservation commissions mailed letters to the nearly 300 residents in the two towns whose properties currently abut the existing Class II boundary. One Leicester landowner asked how landowners will know whether their property falls within the boundary of the proposed new Class I wetland.
“Right now, the answer is the landowner doesn’t necessarily know,” Courage said. “Once they finalize the mapping… and a petition is submitted to the DEC, legally, all abutting landowners have to be notified. At that point, you would know for sure that your land is part of that.”
Mary Dodge, who sits on the Cornwall Conservation Commission and steering committee, said landowners would be consulted prior to that time.
Landowner Gordon Naylor asked if logging would be permitted in the new buffer zone, saying he currently harvests a rotating timber crop on his property.
“Logging or silviculture, the sustained harvesting of wood products, can occur both in the wetland and in the buffer, regardless of classification,” Courage said. “What you can’t do without a wetland permit, and that includes right now in a Class II wetland or buffer, is convert the land, meaning taking all of the trees off and stumping and grubbing to not allow those trees to grow back.”
Tom Fitzpatrick of Middlebury expressed concern that the reclassification would cause farmers to have to obtain a wetland permit in order to switch fields within the new 100-foot buffer to organic pasture.
“I have a 50-acre meadow that I want to go organic, to raise cattle for grassfed beef. I have to let that meadow sit for five years to meet the requirements. I just want to let it go naturally… but then it’s one past your deadline of five to six years,” said Fitzpatrick.
Courage clarified that a field may be reclaimed after five years, provided woody vegetation hasn’t been established to the degree that mechanical removal is necessary to convert it back to pasture. “If the same field is only growing grasses or cattails and you want to go back in and re-hay it or turn cows back onto it, or put a fence around it, that is an allowed use that is exempt under the wetland rules, regardless of whether the wetland is Class I or Class II.”
Several landowners asked for confirmation that a reclassification would not adversely affect the values of their properties. Citing existing programs such as the Natural Resource Conservation Service’s (NRCS) Agricultural Conservation Easement Program, which offers financial assistance and compensation to private landowners who wish to conserve wetlands on their properties, Brandon property owner Paul Stone expressed concern that a reclassification would prevent him from being compensated for protecting wetland functions occurring on his land.
“If the state looks at this wetland as something that is currently being preserved and maintained as Class I, then the Nature Conservancy or Fish and Wildlife will say, ‘Why should we put any more money out to acquire any more land? Our work is already being done,’” said Stone, who is retired from farming but still lives on his farm. “It seems to me that the landowners would be doing the work of restoration and preservation for the state, and right now, that is not necessarily the case. I would like to know what is going to happen to the value of my land if this is reclassified.”
Courage said the NRCS is a federal agency and not governed by the Vermont Wetland Rules, so it would be best to reach out to them directly on that topic and offered to provide local contacts to anyone seeking them.

COMPENSATION?
Still another resident expressed concern that a reclassification would diminish property values by further limiting the development potential of properties within the new 100-foot buffer, asking: “What funding do you see to compensate landowners?”
Courage replied, “There is no compensation to landowners because the reclassification will not change property values. The presence of wetlands does impact property values, and that is through your town tax assessment, but it is because a wetland is present, not a Class I or Class II designation.” Courage said that in the past, property owners have been able to use the presence of wetland on their property to contest their municipal tax bills.
“I agree with you that your lands are doing this work that is incredibly important and that they are not being valued at the monetary level,” she said.
Courage suggested landowners inform their local state representatives that payment for the ecosystem services wetlands provide is something they would be interested in seeing formally implemented at the state level.
Todd Kincaid, chair of the Cornwall Listers Office, said June 28 that, “After a quick review of current properties and zoning the Cornwall listers do not see any changes in tax values that would result from this 50-foot buffer change.”
Additionally, Courage added, a Class I wetland designation would not necessarily make the Otter Creek Wetland Complex eligible for funding or other restoration resources that are not currently available with its existing Class II status.
“Then why are we doing this?” asked one meeting attendant.
“We are doing this because we think this is a Class I wetland,” said Langis. “It should have been a Class I wetland from the beginning. The state probably should have done it, but instead of doing it, they designed this process where there has to be an initiative from the local community. What does it do? It gives this wetland the class it should be. It’s the best in New England.”
Ben Marks of Cornwall asked, “What happens if a landowner disputes the delineation that the DEC or steering committee comes up with?”
Courage said that once the proposed boundary is submitted as part of the petition for change to the DEC’s Wetlands Program, the boundary is reviewed by an ecologist.
“There is a public notice period and public comment period, but if it is made into a rule, I don’t think there is an appeal process,” she said.
Commissioner Boedecker pointed out in the reclassification of the LaPlatte River Complex in 2017, landowners did weigh in at an earlier step in the process.
“Several landowners questioned the boundary that was put forward (during the public comment period) and it was changed to be smaller than what was initially proposed,” she said.
Ben Lawton, chair of the BLSG Mosquito Control District board, asked whether a written statement could be procured from the Agency of Agriculture with the promise that, if the Otter Creek Wetland Complex were reclassified as a Class I wetland, the change would not affect the district’s ability to procure a permit to spray larvicide.
“We have your word, but it’s the Agency of Agriculture who writes our permit,” he said.
Commissioner Boedecker suggested the steering committee request letters and written responses from agencies such as the NRCS and Agency of Agriculture regarding how a reclassification of the Otter Creek Wetland would or would not affect their policies.
The Otter Creek Wetland Complex Reclassification steering committee will meet in the coming weeks to discuss the questions and comments put forward by residents.
For updates regarding the project, interested residents should email Matt Lacey at matt.lacey@tnc.org to register for the Landowner Email list.

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