Agency of Natural Resources v. Hugh McGee & Eileen McGee

Summary

The Vermont Supreme Court affirmed a decision of the Environmental Division upholding a wetlands violation against Hugh and Eileen McGee for placing unpermitted fill in a Class II wetland. The Court held that the evidence supported the finding that the affected area had not been used consistently to grow food or crops since 1990, so any farming exemption had expired. The placement of fill was also not an allowed use under the wetlands regulations.

Holdings

1. The court affirmed without deciding whether intermittent brush-hogging and grazing horses could otherwise satisfy the farming exemption because the evidence supported the Environmental Division's finding that the area had not been consistently used to grow food or crops in ordinary rotation since 1990.
2. Placing fill in the wetland was not an allowed use under the Wetlands Rules because the allowed-use provision expressly excludes activities involving draining, dredging, filling, or grading.

Questions Presented

1. Whether the wetland area qualified for the statutory and regulatory farming exemption based on intermittent brush-hogging and grazing horses.
2. Whether the farming exemption had expired because the area was not continuously used to grow food or crops, or in ordinary rotation, since 1990.
3. Whether placing dredged fill in the wetland constituted an allowed use under the Wetlands Rules.

Disposition

affirmed