Vermont Supreme Court Upholds Violation of Wetlands Regulations

In Agency of Natural Resources v. McGee, 2016 VT 90 (August 26, 2016), the Vermont Supreme Court affirmed the Environmental Division’s finding of a violation of wetland regulations and its imposition of a $3,647 penalty for placing unpermitted fill in a Class II wetland.

Issue: Defendants appealed the violation and penalty, arguing that the land met the requirements for the farming exemption in the wetland regulations. This raised two issues: 1) whether brush-hogging and grazing horses on open land that was not managed for pasture other than intermittent and occasional cutting satisfied the farming exemption requirements; and 2) whether the exemption expired because defendants no longer used the area to grow food or crops or in ordinary rotation.

Holding: The Court did not decide the first issue because it found that any exemption that defendants may have had would have expired because the area had not been consistently used to grow food or crops since 1990.