In re Champlain Parkway Wetland Conditional Use Determination (Fortieth Burlington, LLC)

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2018 VT 123

No. 2017-413

In re Champlain Parkway Wetland Supreme Court
Conditional Use Determination
(Fortieth Burlington, LLC)
On Appeal from
Superior Court,
Environmental Division

April Term, 2018

Thomas S. Durkin, J.

Judith L. Dillon of Lisman Leckerling, P.C., Burlington, for Appellant.

Thomas J. Donovan, Jr., Attorney General, and Nicholas F. Persampieri, Assistant Attorney
General, Montpelier, for Appellee Agency of Natural Resources.

Jonathan T. Rose and Brian S. Dunkiel of Dunkiel Saunders Elliott Raubvogel & Hand, PLLC,
Burlington, for Appellee City of Burlington.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. EATON, J. This appeal arises following the decision of the Agency of Natural

Resources (ANR) extending the City of Burlington’s 2011 Conditional Use Determination (2011

CUD), which permitted the City to commence construction on the Champlain Parkway project.

Appellant Fortieth Burlington, LLC (Fortieth) contests ANR’s approval of the permit extension,

and the Environmental Division’s subsequent affirmance of that decision, on the basis that the City

failed to adhere to several project conditions outlined in the 2011 CUD and was required to

redelineate and reevaluate the wetlands impacted by the project prior to receiving an extension,
among other reasons. The Environmental Division dismissed Fortieth’s claims, concluding that

the project complied with the 2011 CUD’s limited requirements for seeking a permit extension

and that Fortieth’s other claims were collateral attacks against the underlying permit and were

impermissible. We affirm.

I. Facts and Procedural History

¶ 2. The relevant facts as found by the Environmental Division are as follows. In

September 2016, ANR granted the City’s request to extend the 2011 CUD for the Champlain

Parkway project. The 2011 CUD approved the proposed project impacts as described in the City’s

application, provided that the project complied with several conditions that were part of the permit.

¶ 3. There are three conditions of the CUD at issue here, Conditions A, D, and E.

Condition A requires the City to obtain the written approval of the Vermont wetlands office prior

to making “material or substantial changes” to the project. Condition D provides that:

All construction activities in the wetland and adjacent 50-foot
buffer zone shall be performed in compliance with Condition A and
shall be completed within five years of the date of this Conditional
Use Determination or this Conditional Use Determination will
terminate. The Secretary may grant an extension to this five-year
period. Any request for an extension must be received by the
Department at least 30 days prior to the end of the five-year period
in order to prevent the termination of this Conditional Use
Determination. A request for extension will be considered a minor
modification.

(Emphases added.) Finally, Condition E states that “[t]he wetland boundary determination is valid

for five years from the date of this determination” and that “[t]he delineation will need to be re-

evaluated by a qualified wetland consultant if the project is not constructed, or additional impacts

are proposed, after the five-year time period expires.” (Emphasis added.) The interplay between

these three conditions—namely whether the conditions are linked or to be applied separately—is

at the heart of this appeal. Fortieth challenges the City’s compliance with Conditions A, D, and

E; asserts that the project’s impacts have changed since ANR granted the original permit; and

2
argues that the City is required to redelineate and reevaluate the project’s impacts on nearby

wetlands prior to receiving an extension.

¶ 4. In September 2015, approximately three-and-a-half months before the 2011 CUD

was set to expire in January 2016, the City formally requested an extension to the 2011 CUD for

the project pursuant to Condition D. The request was timely according to Condition D’s

requirement that the application for an extension be filed at least thirty days prior to the end of the

2011 CUD’s five-year period. In its request, the City notified ANR that it had not commenced

construction on the project and that the City would like an extension of the original permit. The

City stated that the project’s wetland areas and impacts outlined in the original permit authorization

had not changed.

¶ 5. ANR issued a Notice of Amendment to the 2011 CUD, advising that the extension

request had been received on behalf of the City and setting the forty-five-day public comment

period required under the 2012 Vermont Wetland Rules. Fortieth filed comments, which included

Fortieth’s assertion that the extension request “did not include a redelineation or re-evaluation of

wetland H/I, or any field data regarding current conditions and boundaries” of the wetlands on the

project site as required by Condition E.1 Fortieth insisted that an extension of the CUD could not

be granted until the site had been reevaluated. Fortieth’s comments were based on Condition E’s

requirement that if the project was not constructed in the five years when the original CUD was

valid, then the wetland boundary delineation would need to be reevaluated after the five-year

period expired.

1
Wetland H/I is a thirteen-acre wetland complex with an adjacent fifty-foot buffer. It is
designated as a Class II wetland pursuant to Vermont Wetland Rule § 2.07. The City’s project has
various impacts on wetland H/I, such as a “shared-use path [that] will bisect the wetland,” which
were known at the time the 2011 CUD was granted.

3
 ¶ 6. In response to the comments, ANR agreed with Fortieth that redelineation of the

wetland boundary was necessary for the project extension and instructed the City to reevaluate the

wetlands on the project site. ANR later explained that this response to Fortieth’s comment was in

error—ANR maintained in its briefing and at oral argument before this Court that the City’s

request for an extension did not trigger Condition E’s requirements. ANR verified that Condition

D required the extension request to be filed before the five-year period expired, while Condition

E required the wetland to be reevaluated after the five-year period expired—the two conditions

were not linked.2 Nonetheless, in December 2015 and May 2016, the City redelineated and field

verified the wetlands that were included under the 2011 CUD, including “[p]reviously delineated

wetlands” and additional wetlands P and Q. ANR reviewed the information provided by the City

and determined that the redelineation of all wetlands on the project site was conducted

appropriately and that no changes would preclude the project from moving forward.

¶ 7. ANR granted the City’s extension request for the 2011 CUD, and extended all the

conditions of the 2011 CUD, including Conditions A, D, and E. Fortieth appealed ANR’s

Extension Decision to the Environmental Division, filing twelve questions in its Statement of

Questions.3 The majority of the questions related to the project’s impacts on wetland H/I and its

2
ANR’s current position is that “[t]he only requirement for obtaining extension of the
2011 CUD was that the City submit a timely request for an extension.”
3
The twelve questions submitted by Fortieth are as follows:

(1) Whether the project will result in an undue adverse impact to
protected functions and values of the significant wetland H/I, or
wetland buffer, and fails to comply with the Vermont Wetland
Rules?

(2) Whether the project complies with Vermont’s Wetland Statute,
10 V.S.A. sec. 913?

(3) Whether the City failed to comply with the terms and
conditions of the original CUD issued January 14, 2011, in failing
4
compliance with the Vermont Wetland Rules and Vermont wetland statute 10 V.S.A. § 913

(prohibiting certain activities in wetlands and wetland buffer zones). Questions 3 and 4 challenged

the City’s compliance with the 2011 CUD conditions because the City “fail[ed] to redelineate the

wetland boundary or re-evaluate the wetland delineation” and “provide a wetland delineation by a

to redelineate the wetland boundary or re-evaluate the wetland
delineation before it applied for its CUD extension?

(4) Whether the City failed to file a complete and timely wetland
permit extension request where it failed to provide a wetland
delineation by a qualified wetland consultant during the growing
season and failed to include an updated Champlain Parkway Natural
Resource Map, [w]etland H/I impacts detail figure, wetland data
sheets and functional assessment, and wetland H/I photographs?

(5) Whether the project or project impacts on [w]etland H/I have
changed or increased, thereby requiring a new individual wetland
permit or major permit amendment, and review under the individual
permit standards, Section 9.5 of the Vermont Wetland rules?

(6) Whether the project and permit extension request fail[] to
qualify as a minor permit amendment?

(7) Whether a CUD extension request should have been granted?

(8) Whether the wrong version of the Vermont Wetland Rules was
applied to the original application, and whether and how that error
impacts the extension request?

(9) Whether the project complies with mitigation sequencing
under [§] 9.5(b) of the Vermont Wetland Rules?

(10) Whether reliance on anticipated stormwater improvements or
benefits arising from the project to the watershed generally can
render the adverse impacts to the water storage and stormwater
function of wetland H/I not undue?

(11) Whether the functions and values of wetlands J, K, and N, are
significant and require a wetland permit prior to impacts to those
wetlands?

(12) Whether the project will result in an undue adverse impact to
[w]etlands J, K, and N?

5
qualified wetland consultant” based on an updated assessment of wetland H/I prior to applying for

its CUD extension. Question 7 broadly asked, “[w]hether a CUD extension request should have

been granted.” Questions 11 and 12 requested that the City assess the project’s impacts on

additional wetlands J, K, and N prior to seeking an extension. Fortieth later sought to amend

Questions 11 and 12 to assess whether the project would have negative impacts on newly

discovered wetland P.

¶ 8. After Fortieth filed its Statement of Questions, the parties filed multiple motions,

which the court addressed in its April 14, 2017 decision. In that decision, the court dismissed

Questions 1-6 and 8-10, and it directed Fortieth to submit a clarified Question 7. The order also

granted Fortieth’s request to withdraw Questions 11 and 12 and denied Fortieth’s request to amend

those questions. Fortieth submitted a clarified Question 7 with six subparts, which largely

reiterated Fortieth’s original questions.4 After denying several motions to reconsider and

4
Fortieth’s clarified Question 7 contained subparts (a)-(f):

(a) Whether the extension . . . will result in a violation of the
Vermont Water Quality Standards . . . ?

(b) Whether the extension . . . complies with the Vermont Wetland
Rules?

(c) Whether the extension . . . complies with the Vermont Wetland
Statute, 10 V.S.A. § 913?

(d) Whether the extension . . . will have an undue adverse impact
on the protected functions and values of significant wetlands?

(e) Whether the extension . . . meets the requirements for granting
an extension under the Vermont Wetland Rules[] and the 2011 CUD
permit?

(f) Whether the extension . . . was insufficient and incomplete and
should have been denied because it did not evaluate impacts to
additional significant wetlands, including [w]etlands G and Y, not
identified as being impacted in the 2011 CUD, and where such
impacts have not been evaluated and there has been no
demonstration that these wetland impacts will not result in an undue
6
conducting an evidentiary hearing in September 2017, the Environmental Division dismissed the

rest of the questions and issued a judgment order.

¶ 9. In its decision, the Environmental Division explained that the CUD is “functionally

akin” to a final permit decision, which generally may not be challenged in a subsequent

proceeding. The court ultimately dismissed Questions 1, 2, 6, 8, 9, 10, and clarified Question 7

and its subparts (a)-(e) because, in its view, these questions sought to collaterally attack the 2011

CUD by attempting to tie issues related to the underlying permit to the extension request.

¶ 10. In addressing Questions 3, 4, 5, and 7(f),5 the Environmental Division construed

the 2011 CUD permit Conditions A, D, and E as separate provisions. Regarding Questions 3, 4,

and 7(f), the court concluded that, while the City was required to comply with both Condition D

(extension request) and Condition E (redelineating project impacts), the time frames for complying

with Condition D and Condition E were different. Based on the plain language of the Conditions,

the court concluded that the City was required to seek a permit extension under Condition D before

the 2011 CUD’s five-year expiration date and was required to redelineate the wetland boundary

under Condition E after the five-year expiration date. Regarding Question 5, the court explained

that, based on the plain language of the CUD, the City’s extension request was a “minor

modification” rather than a “material or substantial change,” and therefore it did not trigger review

of the project by the Vermont wetlands office under Condition A. Based on these conclusions, the

Environmental Division approved ANR’s grant of an extension for the project. Fortieth now

appeals the Environmental Division’s decision to this Court.

adverse impact to the functions and values of these significant
wetlands or a violation of the Water Quality Standards?
5
Question 7(f) asked whether the time extension request was insufficient and incomplete
as it did not evaluate impacts to additional wetlands not identified as impacted in the 2011 CUD.
To the extent this subpart asked for the court to require a reassessment of potential new wetlands,
this is similar to Questions 3 and 4, which sought to require redefinition of the wetland boundaries
prior to seeking an extension request.
7
 ¶ 11. Fortieth lists a number of arguments on appeal. Most notably, Fortieth contends

that the Environmental Division erred when it: (1) incorrectly applied the motion-for-summary-

judgment standard rather than the motion-to-dismiss standard in dismissing Fortieth’s appeal; (2)

failed to apply the rules of statutory and permit construction correctly when interpreting the City’s

2011 CUD conditions and dismissing Questions 3, 4, 5, and 7(f); (3) dismissed Fortieth’s

remaining Questions 1-10 and amended Question 7; and (4) denied Fortieth’s motion to alter

Questions 11 and 12 to add inquires related to project impacts on wetland P. We affirm the

Environmental Division’s decisions on all counts.

II. Standard of Review

¶ 12. We review the court’s factual findings for clear error and its findings of law de

novo. In re Vill. Assocs. Act 250 Land Use Permit, 2010 VT 42A, ¶ 7, 188 Vt. 113, 998 A.2d

712. Thus, we review the Environmental Division’s grant of the City’s motion to dismiss and its

interpretation of the 2011 CUD permit conditions without deference. In re Confluence Behavioral

Health, LLC, 2017 VT 112, ¶ 12, __ Vt. __, 180 A.3d 867 (reviewing Environmental Division’s

interpretation of permit conditions de novo); Skaskiw v. Vt. Agency of Agric., 2014 VT 133, ¶ 6,

198 Vt. 187, 112 A.3d 1277 (“We review decisions on a motion to dismiss de novo under the same

standard as the trial court and will uphold a motion to dismiss for failure to state a claim if it is

beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.”

(quotation omitted)).

III. Motion-to-Dismiss Standard

¶ 13. First, Fortieth alleges that the court erred in granting the City’s motion to dismiss

because it failed to apply the appropriate standard. Fortieth contends that the court incorrectly

held Fortieth to the standard for opposing summary judgment motions and relieved the City of the

8
greater burden under the motion-to-dismiss standard. As a result, Fortieth claims that it was

prevented from introducing facts or discovering evidence that might support its appeal.

¶ 14. As explained above, this Court reviews a motion to dismiss de novo under the same

standard as the trial court. Skaskiw, 2014 VT 133, ¶ 6. We will uphold a dismissal “for failure to

state a claim if it is beyond doubt that there exist no facts or circumstances that would entitle the

plaintiff to relief.” Id. (quotation omitted). “We assume as true all facts as pleaded” by the

nonmoving party, and “accept as true all reasonable inferences derived therefrom, and assume as

false all contravening assertions in the [moving party’s] pleadings.” Birchwood Land Co. v.

Krizan, 2015 VT 37, ¶ 6, 198 Vt. 420, 115 A.3d 1009. Because we review the Environmental

Division’s decision granting the City’s motion to dismiss de novo, whether the Environmental

Division applied the correct legal standard is not relevant to this appeal.

IV. Interpretation of 2011 CUD Conditions

¶ 15. Next, we consider whether the Environmental Division erred in construing the 2011

CUD conditions and dismissing Fortieth’s Questions 3, 4, 5, and 7(f). As explained above, we

review the Environmental Division’s interpretation of the CUD conditions de novo. Confluence

Behavioral Health, LLC, 2017 VT 112, ¶ 12. We construe permit conditions according to the

established rules governing statutory construction. Agency of Nat. Res. v. Weston, 2003 VT 58,

¶ 16, 175 Vt. 573, 830 A.2d 92 (mem.). In doing so, we first look to the plain meaning of the

words used by the drafters to determine their original intent. Id. If the plain meaning of the

language is clear, we “accept[] the plain meaning of the words because we presume that they

express the underlying intent.”6 Id.

¶ 16. On appeal, Fortieth asserts two theories to support its contention that the City

violated the 2011 CUD permit conditions. First, Fortieth contends that Conditions D and E must

6
Generally, we give some level of deference to ANR interpretations of rules promulgated
by the agency and/or terms that are within the agency’s area of expertise. In re Korrow Real Estate
9
be read together, such that the City was required to redelineate the wetland boundaries implicated

by the project prior to applying for a permit extension. Second, Fortieth asserts that the City’s

request for an extension constitutes a “material or substantial change” under Condition A and

therefore the City required the “written approval of the Vermont Wetlands Office” prior to

obtaining an extension. As we explain below, under the language of this permit, the only relevant

consideration regarding a request for an extension under Condition D is the timeliness of the

request. The request for a permit extension was made more than thirty days before the expiration

of the five-year CUD period, and thus was timely under the 2011 CUD permit. Accordingly, there

exists no set of facts upon which Fortieth could prevail on this issue, and we affirm the court’s

dismissal of Questions 3, 4, 5, and 7(f).

A. Conditions D and E

¶ 17. First, Fortieth argues that the City must redelineate and reevaluate the wetlands on

the project site pursuant to Condition E prior to seeking an extension of the 2011 CUD under

Condition D. We disagree; the plain language of the 2011 CUD requires the timely filing of an

extension application to be considered for a project extension, nothing more.

¶ 18. The permit language at issue provides the following. Condition D governs project-

extension requests. Condition D mandates that “[a]ll construction activities in the

wetland . . . shall be completed within five years” of the CUD. If the project requires an extension

beyond that five-year time period, Condition D simply provides that “[a]ny request for an

extension must be received by the Department at least 30 days prior to the end of the five-year

period in order to prevent the termination of [the 2011 CUD].” (Emphasis added.) If this

requirement is met, “[t]he Secretary may grant an extension to this five-year period.” Condition

LLC Act 250 Permit Amendment Application, 2018 VT 39, ¶¶ 21-22, __Vt. __, 187 A.3d 1125
(outlining when court owes deference to agency interpretations of policy or terms). Here, where
we are construing the permit conditions based on their plain language and ANR’s expertise is not
implicated, we owe no deference to the agency’s permit determination.
10
E is a separate provision that governs delineation of the project’s wetland boundaries. Condition

E explains that the project’s “wetland boundary determination is valid for five years from the date

of [the 2011 CUD].” However, “[t]he delineation will need to be re-evaluated by a qualified

wetland consultant if the project is not constructed, or additional impacts are proposed, after the

five-year time period expires.” (Emphasis added.)

¶ 19. Upon reviewing the conditions outlined above, the Environmental Division

concluded that the CUD conditions were “clear on their face”: the City was not required to conduct

a new wetland delineation prior to applying for an extension of the City’s five-year term because

the procedures for receiving a time extension under Condition D were separate from Condition E’s

requirement that the City redelineate the wetland boundary. We agree.

¶ 20. Based on the plain language of Conditions D and E, we conclude that the City was

not required to redelineate the wetland boundaries prior to seeking a permit extension for the

project. First, the language of these conditions indicates that they were intended to be read

separately. The language of Condition D is simple: the only condition to seeking an extension is

timeliness. If the application for an extension is timely submitted within thirty days of the CUD’s

expiration date, then “[t]he Secretary may grant an extension to this five-year period.” While the

2011 CUD requires the City to comply with all conditions, nowhere does the 2011 CUD specify

compliance with Condition E as a prerequisite to seeking a time extension under Condition D.

Such a reading would be contrary to the plain language of the CUD. Had the extension provision

been meant to be intertwined with Condition E, as the dissent suggests, it would have been a simple

matter to include such language within Condition D. It is not for us to rewrite the CUD in a way

that might seem more advisable to some, but rather to construe it according to its plain language

when, as here, that language is clear.

¶ 21. Second, while the City is required to comply with both Conditions D and E, these

provisions have a timeline. Under Condition D, which expressly governs project extensions, the

11
City must apply for a project extension at least thirty days before the CUD’s five-year expiration

date to avoid termination. In contrast, Condition E, which requires re-assessment of the wetland

boundaries, only becomes applicable after the initial five-year permit has expired. Therefore,

under the 2011 CUD conditions, the City was required to comply with Condition D and seek an

extension before Condition E’s requirements were triggered. In theory, this would relieve projects

that were not approved for an extension, either due to untimely filings or due to the Secretary’s

denial of their application, from unnecessarily undergoing the redelineation process. Therefore,

under the 2011 CUD, applying for a permit extension was not conditioned upon re-assessing the

project’s wetland boundaries.

¶ 22. Applying these permit conditions to the case at hand, Condition D simply required

the City to seek a permit extension at least thirty days prior to the CUD’s termination date in

January 2016, which it did. As such, ANR was correct in granting the City’s permit-extension

request because the City was not required to comply with Condition E prior to filing for an

extension.7

¶ 23. Fortieth argues that comparing the 2010 Vermont Wetland Rules (VWR) to the

most recent version of the rules supports its position that the two provisions were intended to be

linked.8 However, the 2010 VWR were still in force when the 2011 CUD was issued and when

7
Although ANR initially seemed to agree with Fortieth’s construction of these provisions
in a “Response Summary” issued by the agency, ANR has since changed its position and stated
that the City was not required to conduct a redelineation of the wetland boundaries for the project
prior to obtaining the extension. Neither the fact that ANR originally indicated a redelineation
was necessary nor the fact that ANR has changed position on this issue is relevant to our review
of the CUD permit language.
8
The 2017 VWR cited by Fortieth has recently been superseded by a new set of VWR,
effective August 15, 2018. Those rules include similar provisions allowing the Secretary to issue
a CUD or order (§ 9); determine whether any wetland is a Class II or Class III wetland (§ 8); or
initiate a rulemaking process to classify a wetland as Class I or to lower the classification to a Class
I wetland (§§ 4.3, 7). Vermont Wetland Rules §§ 4.3, 7, 8, 9, Code of Vt. Rules 12 030 026 (2018)
[hereinafter 2018 VWR], https://dec.vermont.gov/sites/dec/files/documents/wsmd_
VermontWetlandRules_2018.pdf [https://perma.cc/G494-DC44]. As such, the language at issue
12
the City sought a permit extension. As such, the language of the 2018 VWR does not control our

interpretation of the 2011 CUD conditions. To the extent that the 2018 VWR is instructive, these

changes lend further support to our interpretation that Conditions D and E were not linked when

the 2011 CUD and this extension were granted.

¶ 24. The 2010 VWR, which was in effect at the time the 2011 CUD issued, simply

explains that:

[a]n individual wetland permit shall remain valid for one year from
the date of issuance unless the Secretary specifies a longer period
not to exceed five years. The Secretary may extend a permit for up
to a total of ten years beyond the date of issuance of the original
permit.

Vermont Wetland Rules § 9.1 (2010) [hereinafter 2010 VWR]

https://dec.vermont.gov/sites/dec/files/documents/WSMD_VermontWetlandRules_2010_7_16.p

df [https://perma.cc/YRJ2-ZTXK]. Under this version of the VWR, there are no qualifications

limiting the Secretary’s ability to extend the original permit for up to ten years beyond the original

issuing date. In contrast, the more recent 2018 VWR provides an expanded version of this

language:

The Secretary may extend a permit for up to a total of ten years
beyond the date of issuance of the original permit if the permittee
re-evaluates and re-delineates the wetland resources impacted by the
authorized activity and the Secretary determines there will be no
impact to Class I or Class II wetland or buffer beyond those impacts
permitted under the original permit. If any additional wetland or
buffer will be impacted, an amendment must be applied for,
concurrent with a permit extension.

2018 VWR § 9.1 (emphasis added). The language in the 2018 VWR specifies that redelineating

project boundaries and determining whether additional impacts will occur is a prerequisite to

requesting and obtaining a permit extension. If there are changes to the project or its impacts, the

here remains consistent between the 2017 and 2018 versions of the VWR, and we refer to the more
recent 2018 VWR throughout.
13
2018 VWR requires the developer to apply for a project amendment concurrent with the extension

application. This clause reiterates that the developer must know about any changes in the project

and plan accordingly prior to applying for an extension. However, none of these specifications

were included in the 2010 VWR.

¶ 25. At the time that the 2011 CUD permit issued and the City applied for an extension

in 2015, there were no rules providing an expanded definition regarding the interplay between

Conditions D and E. The plain language of Conditions D and E in the 2011 CUD provided a clear

timeline for the extension application and redelineation process. The fact that the VWR was later

revised to clarify these rules merely demonstrates that the language at issue was insufficient to

communicate this practice at the time that the 2010 VWR was in place. It would be unfair to

impose the enhanced standard crafted for the 2018 VWR retrospectively to the 2011 CUD, and we

decline to do so here.

¶ 26. Fortieth further argues that the extension cannot be granted without a redelineation

of the project’s wetland boundaries because the project will enter its five-year extension period

without valid boundaries. Fortieth is concerned that unknown project impacts may harm various

wetlands on and around the project site. This argument is without merit because the City is not

excused from compliance with Condition E, or any other permit condition, simply because it

receives a permit extension—the City is still required to redelineate the wetland boundaries after

the initial five-year permit lapses. Changes in the wetland boundaries or harmful impacts from the

project, such as those alleged by Fortieth, would be discovered through this process and

appropriate steps could be taken if additional impacts arise. For example, if the result of Condition

E’s “checkup” on the project’s wetland boundaries indicated that the boundaries had changed

significantly, then ANR could initiate new delineation proceedings under Section 8 of the VWR,

which allows “a person” to petition the Secretary to evaluate and classify a wetland as a Class II

14
or Class III wetland. 2018 VWR § 8.1. If a new wetland was identified in these proceedings, then

ANR could address any project impacts to that new wetland through a new permitting proceeding.9

B. Conditions A and D

¶ 27. We also agree with the Environmental Division that the City’s request for an

extension was not a “substantial or material change” under Condition A of the CUD. Condition

A provides that “[n]o material or substantial changes shall be made in the project without the

written approval of the Vermont Wetlands Office.” (Emphasis added.) However, Condition D

specifies that “[a] request for extension will be considered a minor modification.” (Emphasis

added.) The CUD does not further define “minor modification,” and neither the wetland statutes

nor the VWR define the term. As such, the plain language of the CUD conditions governs our

inquiry. The plain language of the two provisions clearly indicates that a request for an

extension—a “minor modification”—under Condition D does not rise to the level of a “material

or substantial change” contemplated under Condition A. Therefore, we conclude that merely

requesting a time extension under Condition D does not require written approval from the Vermont

wetlands office.

¶ 28. In sum, we conclude that: (1) seeking an extension under Condition D of the 2011

CUD was not preconditioned on reevaluating the wetland boundaries under Condition E; and (2)

seeking a permit extension under Condition D is a “minor modification” rather than a “material or

substantial change” under Condition A and therefore does not require additional review by the

Vermont wetlands office. Accordingly, the Environmental Division was correct to dismiss

Questions 3, 4, 5, and 7(f).

9
Here, the project did undergo redelineation and reevaluation of the wetlands, and ANR
deemed that no changes would preclude the project from moving forward.
15
 V. Collateral Attacks on 2011 CUD

¶ 29. Because we conclude that seeking a permit extension under Condition D does not

implicate permit Conditions A or E, Fortieth may not appeal ANR’s grant of an extension as an

avenue to collaterally challenge the City’s compliance with these peripheral conditions or to

challenge the underlying 2011 CUD.

¶ 30. Where a land permit decision has become final, a party cannot later collaterally

attack that final decision through a separate proceeding. Levy v. Town of St. Albans Zoning Bd.

of Adjustment, 152 Vt. 139, 141, 564 A.2d 1361, 1363 (1989). This rule applies to municipal

zoning permits through 24 V.S.A. § 4472(d), which specifically bars collateral attacks to final

permit decisions. In re Lathrop Ltd. P’ship, 2015 VT 49, ¶¶ 54-55, 199 Vt. 19, 121 A.3d 630. The

bar against collateral attacks also applies to Act 250 permits, In re Taft Corners Assocs., Inc., 160

Vt. 583, 593, 632 A.2d 649, 654 (1993), and has been applied to ANR permit decisions, In re

Unified Buddhist Church, Inc., 2006 VT 50, ¶ 13, 180 Vt. 515, 904 A.2d 1139 (mem.).

¶ 31. Here, we are presented with an appeal from an ANR decision granting a time

extension to an existing wetland CUD issued by ANR. The 2011 CUD was an act or decision

made by ANR pursuant to Chapter 37 of Title 10, which could have been appealed within thirty

days pursuant to Chapter 220 of Title 10. When no appeal was made, the 2011 CUD became final.

Merely requesting an extension for the 2011 CUD does not alter the 2011 CUD other than to

extend the CUD dates. Here, Fortieth’s challenges to the project’s compliance with Conditions A

and E reach beyond the extension determination, asserting that the project’s impacts have

substantially changed and that new wetland boundaries will be affected by the project.10 Because

10
Although it is not relevant to our analysis of the City’s permit extension request, we
note Fortieth has other avenues to raise these challenges. First, the City is still required to comply
with Condition E, which functions as a mandatory “checkup” to see whether the boundaries have
changed if the project is not started within five years of the original permit issuance. If the
information provided as part of the “checkup” suggests the wetland boundaries have changed
significantly, then ANR could initiate new delineation proceedings under Section 8 of the current
16
these allegations are not relevant to the limited scope of the extension request determination, these

challenges are collateral to the matter at hand and we do not consider them.

¶ 32. Similarly, we conclude that the Environmental Division properly dismissed the

remainder of the questions raised by Fortieth (Questions 1, 2, 6, 8, 9, 10, and clarified Question

7(a)-(e)) because they are issues that were finally decided in the original 2011 CUD and cannot be

collaterally attacked on appeal.11 See Lathrop Ltd. P’ship, 2015 VT 49, ¶¶ 54-55; Unified

Buddhist Church, Inc., 2006 VT 50, ¶ 13; Taft Corners Assocs., 160 Vt. at 593, 642 A.2d at 654;

Levy, 152 Vt. at 142, 564 A.2d at 1363. Having failed to participate in those proceedings or appeal

the 2011 CUD, Fortieth cannot raise those issues on appeal here, when the Court is simply

addressing the City’s compliance with Condition D’s extension procedures. To the extent Fortieth

alleges those questions relate to the extension at issue, they are duplicative of Questions 3, 4, 5,

and clarified Question 7(f), which we address above, and should be dismissed for the same

reasons.12

VWR and could address any project impacts to that new wetland through a new permitting
proceeding. Additionally, both the wetlands statute and VWR allow interested parties to petition
ANR for classification proceedings. See 10 V.S.A. § 914(a); 2018 VWR §§ 8.1-8.5. Decisions
of ANR in such proceedings are appealable to the Environmental Division and the Court. 10
V.S.A. §§ 8504-8505; 2018 VWR § 8.4. Additionally, the City is not excused from compliance
with Condition A. If the Agency determines that the City needs a wetland permit for the alleged
changes asserted by Fortieth, then the City will be required to apply for one before constructing
the project. The Agency may initiate an investigation or enforcement proceeding and, assuming
Fortieth can demonstrate standing, Fortieth may have the opportunity to ask to participate in those
proceedings. 10 V.S.A. § 8020. The viability of these options and Fortieth’s likelihood of success
in pursuing these alternate avenues is beyond the scope of this opinion; we note them merely to
demonstrate that there are other ways to monitor the project’s impacts on local wetlands.
11
Questions 1, 2, 9, and 10 attempt to challenge the project’s compliance with the Vermont
Wetland Rules and statutes; Question 6 challenges whether the 2011 CUD was allowed to define
a project extension request as a “minor modification”; and Question 8 challenges whether the
correct version of the Vermont Wetland Rules was applied when the 2011 CUD was originally
created. Clarified Question 7 subparts (a) through (e) merely reiterate these challenges.
12
Fortieth argues that the Environmental Division erroneously relied on “suggested facts”
in ANR’s memoranda about “separate proceeding[s] for re-evaluating wetland boundaries.”
Fortieth contends that: (1) “there is no separate process” for reevaluating the wetland boundaries,
17
 VI. Motion to Amend Related to Wetland P

¶ 33. Finally, we conclude that the Environmental Division correctly denied Fortieth’s

motion to amend the Statement of Questions to raise issues related to wetland P because those

issues are not relevant to the time-extension request. Fortieth contends that wetland P is located

close to, and is hydrologically connected to, wetland H/I. Because of the asserted connection

between wetland P and wetland H/I, Fortieth argues that the discovery of wetland P requires a

more comprehensive review of the wetland impacts of the project prior to an extension request

being granted. However, as explained above, the 2011 CUD does not require redelineation or

reevaluation of the wetland prior to granting an extension request. The project may receive an

extension request under Condition D without these additional measures. A reevaluation of the

wetland delineation is required under Condition E after the original five-year permit has lapsed.

The potential impacts to wetland P should not be considered in a request that solely asks for a time

extension of the 2011 CUD, but may be germane concerning other permit conditions. Therefore,

the court was correct in dismissing Fortieth’s request to amend is Statement of Questions to add

questions related to wetland P.

and (2) the availability of alternative mechanisms for challenging the 2011 CUD does not excuse
the City from complying with the CUD conditions here. However, this argument is without merit
because the availability of alternative proceedings are not relevant to determining whether the City
complied with the limited requirements for a permit extension under Condition D. We provide
examples of these alternate mechanisms to explain how Fortieth would appropriately challenge
these apparent areas of concern. See supra, ¶ 31 n.10.

Similarly, Fortieth’s argument that the court erred in “ruling the operational [stormwater]
permit can substitute for a wetland permit or authorization from the Vermont Wetlands Program”
is beyond the scope of our analysis of the City’s permit extension request. Regulatory processes
for reviewing substantial or material changes to the project are not relevant to our analysis of the
project’s compliance with Condition D, and we decline to consider them. Accordingly, appellees’
joint motion asking this Court to take judicial notice of documents related to ANR’s stormwater
program and Fortieth’s stormwater permit is denied as moot.

18
 VII. Conclusion

¶ 34. In sum, we conclude the following. First, Questions 3, 4, 5, and 7(f) were properly

dismissed because, based on the plain language of the 2011 CUD Conditions, (1) the City may

seek a permit extension under Condition D without redelineating and reevaluating the project’s

wetland boundaries under Condition E, and (2) the City’s request for a project extension under

Condition D is a “minor modification” rather than a “material or substantial change” and thus does

not require review by the Vermont wetlands office under Condition A. Second, to the extent that

these Questions collaterally attack the permit’s validity for reasons other than its compliance with

Condition D, such attacks are impermissible. The remainder of Fortieth’s Questions (1, 2, 6, 7(a)-

(e), 8, 9, and 10) constituted impermissible collateral attacks on the underlying 2011 CUD permit

and as such were properly dismissed. Finally, the City appropriately denied Fortieth’s request to

amend its Question 11 and 12 to add questions related to wetland P because such issues were

beyond the scope of proceedings related to a permit extension under Condition D.

Affirmed.

FOR THE COURT:

Associate Justice

¶ 35. ROBINSON, J., dissenting in part. The 2010 Conditional Use Determination

issued to the City of Burlington by the Water Quality Division of the Department of Environmental

Conservation, Agency of Natural Resources, contains the following conditions:

D. All construction activities in the wetland and adjacent 50-foot
buffer zone shall be performed in compliance with Condition A and
shall be completed within five years of the date of this Conditional
Use Determination or this Conditional Use Determination will
terminate. The Secretary may grant an extension to this five-year
period. Any request for an extension must be received by the
Department at least 30 days prior to the end of the five-year period
in order to prevent the termination of this Conditional Use

19
 Determination. A request for extension will be considered a minor
modification.

E. The wetland boundary determination is valid for five years
from the date of this determination. The delineation will need to be
re-evaluated by a qualified wetland consultant if the project is not
constructed, or additional impacts are proposed, after the five-year
time period expires.

¶ 36. The majority’s suggestion that these two provisions are unrelated and operate

independently, even if a permit extension would extend the CUD more than five years beyond the

original boundary delineation, would lead to nonsensical consequences. A contrary construction—

one that would require a reevaluation of the wetland before the extension can be granted beyond

the five-year period during which the boundary determination is valid—is more consistent with

the language and structure of the permit and better promotes the purposes of the wetland-protection

laws.13 The parties’ own conduct throughout the permit extension process and prior to the appeal

to the Environmental Division, as well as ANR’s subsequent amendment of its rules, reinforce that

approval of the City’s extension request is contingent on completion of a reevaluation of the

wetland by a qualified wetland consultant. Accordingly, I respectfully dissent from that portion

of the majority’s decision relating to its conclusion that these two provisions operate independently

and holding that the City may secure an extension without reevaluating the wetland boundaries.14

I. The Majority’s Construction of the Statute Is Untenable

¶ 37. We should not construe a permit condition in a way that renders the permit

nonsensical. See Agency of Nat. Res. v. Handy Family Enters., 163 Vt. 476, 482, 660 A.2d 309,

13
My argument is limited to cases like this in which the proposed permit extension would
extend the permit beyond the period when the boundary delineation underlying that permit was
valid—in this case, five years. Nothing about my argument suggests that a permit extension within
the period in which the boundary delineation remains valid requires a reevaluation of the wetland
boundary.
14
In particular, I would reverse the Environmental Division’s judgment as to Questions 3,
4, 5, 11, and 12. I join the majority’s affirmance with respect to Questions 1, 2, 6, 7, 8, 9 and 10
for the reasons stated by the majority.
20
312 (1995) (“We see no reason to depart from normal statutory construction techniques in

interpreting permit conditions.”); Dep’t of Taxes v. Montani, 2018 VT 21, ¶ 24, __ Vt. __, 184

A.3d 723 (explaining that courts should avoid constructions that “produce absurd or illogical

consequences”). A construction of the 2010 CUD that treats Condition E as irrelevant to an

extension request pursuant to Condition D would do just that. Because (1) pursuant to Condition

E and the Vermont Wetland Rules (VWR), the wetland boundary determination is invalid after

five years, and (2) the boundaries of the wetland are integral to the permit, a CUD extended

pursuant to Condition D without redelineated boundaries would no longer apply to a validly

delineated area and thus would be meaningless. I expand on each of these points below.

¶ 38. First, by its plain terms, Condition E provides that the wetland boundary

determination upon which the 2010 CUD was predicated “is valid for five years from the date of

this determination.” There is nothing unclear about this provision. After five years, the subject

wetland, assuming it still exists, no longer has valid or established boundaries.

¶ 39. This requirement is consistent with the VWR in effect at the time. Those rules

require that “[t]he presence of a wetland and the boundary between a wetland and upland shall be

delineated by the methodology set forth in the Federal Manual for Identifying and Delineating

Jurisdictional Wetlands, as amended, and supplemental guidance documents issued by the U.S.

Army Corps of Engineers.” Vermont Wetland Rules § 3.2(a), Code of Vt. Rules 12 030 026 (2010)

[hereinafter 2010 VWR], https://dec.vermont.gov/sites/dec/files/documents/WSMD_Vermont

WetlandRules_2010_7_16.pdf [https://perma.cc/YRJ2-ZTXK]. The Army Corps of Engineers

has issued guidance indicating that jurisdictional determinations, including wetlands delineations,

are valid for five years “unless new information warrants revision of the determination before”

that time. U.S. Army Corps of Eng’rs, No. 05-02, Regulatory Guidance Letter on Expiration of

Geographic Jurisdictional Determinations of Waters of the United States ¶ 3(a) (June 14, 2005),

21
https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll9/id/1246 [https://perma.cc/W

3CK-RQQD]].

¶ 40. The five-year limitation on the validity of wetland delineations makes sense;

wetlands are dynamic in their scope and character. As the Army Corps of Engineers explained in

its Regulatory Guidance Letter, “[s]ince wetlands and other waters of the United States are affected

over time by both natural and [human-caused] activities, local changes in jurisdictional boundaries

can be expected to occur. As such, jurisdictional determinations cannot remain valid for an

indefinite period of time.” Id. ¶ 2(a). In fact, the Army Corps of Engineers guidance acknowledges

that in some cases rapidly changing environmental conditions may merit reverification sooner than

five years after the original delineation. Id. ¶ 3(a). Given that the delineation of a Class I or Class

II wetland drives the findings underlying a wetland CUD and determines the scope and

requirements of the CUD itself, it makes sense that the permit limits the validity of the wetland

delineation in this case to five years.

¶ 41. Second, the delineation of the wetland that is the subject of the CUD is integral to

both the findings underlying the permit and the terms of the permit. This is apparent from the

2010 CUD itself.

¶ 42. The Secretary’s findings of fact for the 2010 CUD relate to a specifically delineated

area of wetland: a thirteen-acre wetland complex in a ravine along Englesby Brook. The findings

describe the character of the subject wetland, the flora found there, the protected functions of the

wetland, and the functions that are not present or are present at such a minimal level as not to be

protected functions. They consider the impact of the project on the described wetland and its

protected functions. The findings reflect the Secretary’s conclusions that the project will not lead

to any undue adverse impacts and that the project “cannot practicably be located outside the

wetland and buffer zone or on another site owned, controlled or available to satisfy the basic

project purpose.” They further state, “if the project is constructed according to the specifications

22
of the application and accompanying site plans, and the conditions of this Conditional Use

Determination, the resulting wetland and buffer zone alteration is not expected to result in any

violations of the Vermont Water Quality Standards.” These findings are specific to a wetland with

validly established boundaries. The Secretary’s assessment of the impact of the project as

proposed on the wetland’s protected functions, and the determination that the proposed use cannot

practicably be located outside the wetland and buffer zone, require consideration of the location

and impacts of the project relative to the location, characteristics, and boundaries of that specific

wetland.

¶ 43. Likewise, the terms of the permit itself depend on established wetland boundaries

for their effect. The permit only purports to allow impacts within the wetland and buffer zone. It

requires all construction activities “in the wetland and adjacent 50-foot buffer zone” to be

performed in compliance with the City’s proposals and submissions.

¶ 44. So if Condition D and Condition E are unrelated and operate independently such

that the grant of a permit extension more than five years from the operative wetland delineation is

not conditioned on a redelineation, then the Secretary could simply issue an order extending the

expiration date of an existing CUD, even though that permit was based upon boundaries that were,

as a matter of law pursuant to the terms of the CUD itself, no longer valid.15

¶ 45. At the time of the Secretary’s extension of the permit, the wetland, assuming it

continued to exist, would lack any valid boundaries—making any purported findings about the

impacts of the project within the wetland or its buffer nonsensical. Where does the wetland end?

15
I note that’s not what happened here. In this case, the City did secure a reevaluation of
the wetland boundaries, the extended permit included revised findings to reflect that fact, and the
extended permit established that the wetland boundaries would be valid for five more years. Only
when the permit was on appeal to the Environmental Division did the Secretary assert that the
reevaluation of the wetland boundaries was not actually a requirement for the permit extension in
the first place.
23
Where does the buffer lie? How can we know what a project’s impacts on the wetland actually

are when we don’t fully know where the wetland is?

¶ 46. Moreover, the scope of such a permit would be impossible to assess: the CUD

would authorize specified development within a purportedly specified wetland, and would

condition the CUD on compliance with certain requirements within the wetland and buffer, but

the exact location of the wetland and buffer would be unknown. How would the City, the

Secretary, or anyone else know if the City violated the permit by conducting impermissible

activities within the wetland or buffer when the boundaries of the wetland and buffer are

undetermined? It makes no sense.

II. A Construction Harmonizing Conditions D and E Better Aligns with the Language and
Structure of the Permit

¶ 47. In construing the permit, the majority fails to grapple with the clear and unequivocal

language of Condition E, providing that the boundary determination that defines the subject

wetland and is the foundation for the CUD is no longer valid after five years. See State v. Tierney,

138 Vt. 163, 165, 412 A.2d 298, 299 (1980) (“In construing a statute, this Court considers it as a

whole, and, if possible, gives effect to every word, clause and sentence.”). In contrast, a

construction of the CUD pursuant to which the City must conduct a reevaluation before the

Secretary can grant the extension is consistent with all of the language in the CUD. Contrary to

the majority’s suggestion, ante, ¶ 21, the fact that Condition D sets a deadline for an application

for an extension does not mean that the Secretary’s exercise of discretion in granting a requested

extension is limitless, or that the pending invalidity of the wetland boundary determination is

irrelevant.

¶ 48. The majority focuses on the fact that the request for extension must be filed at least

thirty days prior to the permit expiration, reads the permit to contemplate a reevaluation of the

boundary after the five-year time period marking the validity of the delineation expires, and

24
concludes that therefore these two conditions apply during distinct time periods. Ante, ¶ 21. But

there are two different five-year limitations in play here: the expiration of the CUD if the project

is not completed within five years and the five-year limitation on the validity of the wetland

boundary determination. Had the initial permit period been only three years, then no delineation

would be required for an extension of the permit for another two years. More important, Condition

D requires that an extension request be filed at least thirty days before expiration of the permit “in

order to prevent the termination of this Conditional Use Determination.” This language makes it

clear that the City’s timely filing of the request is necessary and sufficient to forestall the CUD’s

expiration, and that the Secretary is not required to actually issue a ruling extending the CUD

before its initial expiration date in order to prevent the permit’s termination. But the permit

contains no language requiring a ruling on the extension request in any particular time frame.

¶ 49. Given these considerations, the most sensible way to understand the interaction

between Conditions D and E is that the CUD requires the permittee to file an extension request at

least thirty days prior to the expiration of the CUD in order to, in effect, toll the expiration of the

permit, but requires reevaluation of the wetland boundaries before the Secretary may approve the

extension if doing so extends the CUD beyond the five-year validity of the boundary

determination.16 This construction harmonizes and gives effect to all of the terms of the permit.

¶ 50. The majority’s construction of the CUD also fails to consider the CUD as a whole.

On the majority’s view, the permit provides no guidance as to how the Secretary is to exercise the

discretion afforded under Condition D, and affords no avenue for reviewing the reevaluation

required by Condition E in the context of this permit proceeding.

16
Given this analysis, I reject Fortieth’s argument that the City’s failure to secure a
completed reevaluation of the wetland boundaries and buffer before the City requested an
extension of the CUD is fatal to the City’s request. By filing a timely request for extension, the
City effectively ensured that the existing CUD would not terminate pending further proceedings;
but the Secretary could not approve the extension without the required reevaluation of the wetland
boundaries.
25
 ¶ 51. Condition D does not require the Secretary to approve a timely filed request for

extension; instead, the Secretary’s authority to grant an extension is discretionary under the terms

of the CUD. Condition D does not expressly identify the factors that guide the Secretary’s exercise

of discretion. If the only relevant consideration were the timeliness of the request for an extension,

the permit would mandate an extension upon timely filing. It does not; it is discretionary.

Understood in light of Condition E and the purposes of the CUD in the first place, important

considerations include whether the existing delineation will become invalid before or during the

extended period of the permit, and whether the required reevaluation undermines the critical

findings that the project will have no undue adverse impact on the protected functions of the

wetland.

¶ 52. At the same time, understood as a free-floating requirement untethered to a permit

extension, Condition E appears to create an important but unreviewable requirement. If the

reevaluation is not a condition precedent to approval of a CUD extension beyond the period in

which the boundary determination is valid, how is that reevaluation reviewable in the context of

the CUD proceeding? The majority suggests that because the requirements of Condition E apply

in any event, a permittee will be required to undertake a reevaluation. If the reevaluation discloses

changes in the wetland boundaries or new harmful impacts from the projects, the Secretary could

initiate a new delineation proceeding pursuant to Section 8 of the Vermont Wetland Rules.

Vermont Wetland Rules § 8, Code of Vt. Rules 12 030 026 (2018) [hereinafter 2018 VWR],

https://dec.vermont.gov/sites/dec/files/documents/wsmd_VermontWetlandRules_2018.pdf [https

://perma.cc/G494-DC44].17 If the new delineation identified a new wetland, the majority asserts,

the Secretary could then address any project impacts to that new wetland through a new permitting

proceeding.

17
As noted in the majority, ante, ¶ 23 n.8, a new set of VWR took effect on August 15,
2018.
26
 ¶ 53. This answer to the question of how the redelineation pursuant to Condition E may

be reviewed is flawed on multiple levels. First, it’s not at all clear procedurally how the Secretary

could initiate a new permitting proceeding regarding this project at some unspecified date in the

future, especially if the project is partially or even completely constructed. Second, the majority

describes a path for dealing with entirely new wetlands (initiate a new permitting proceeding) that

would not make sense in the context of changes to the contours of wetlands that have already been

identified and made the subject of permitting proceedings. And finally, initiation of the review

process described by the majority falls entirely to the Secretary. 2018 VWR § 8.1. The review

process posited by the majority would not only be clunky and circuitous; it would leave established

parties to this permitting proceeding without a mechanism to challenge the conclusions of the

reevaluation in the context of this permit.

¶ 54. Understanding the permit conditions as requiring a reevaluation of the wetland

boundaries if an extension will extend the CUD beyond the period of time when the existing

boundary delineation is valid avoids these pitfalls. It provides considerations to guide the

Secretary’s discretionary decision whether to extend the CUD pursuant to Condition D, and

recognizes a framework for enforcing, reviewing, and making relevant the reevaluation required

pursuant to Condition E in the context of this permitting proceeding.

¶ 55. Finally, a CUD extension that simply adopted the terms of the underlying permit

but inserted a new effective date could completely write the reevaluation requirement of Condition

E out of the permit; if the delineation is only valid for five years from the date of the permit, then

substituting a new permit date by way of extension would effectively discharge the reevaluation

requirement.

III. The Underlying Statute and Regulations Reinforce This Construction

¶ 56. Requiring a reevaluation before extending the permit beyond the period during

which the prior boundary delineation is valid also best promotes the purposes of the wetland-

27
protection laws. The VWR make the policy underlying the statute and associated rules clear,

expressly stating that “[i]t is the policy of the State of Vermont to identify and protect significant

wetlands and the values and functions which they serve in such a manner that the goal of no net

loss of such wetlands and their functions is achieved.” 2010 VWR § 1.1.18 In pursuit of this

policy, the wetlands protection statute expressly prohibits activities in a significant wetland or

buffer zone of a significant wetland “except in compliance with a permit, conditional use

determination, or order issued by the Secretary.” 10 V.S.A. § 913(a). It defines “[s]ignificant

wetland” to include any Class I or Class II wetland, id. § 902(11), and “[b]uffer zone” as “an area

contiguous to a significant wetland that protects the wetland’s functions and values,” id. § 902(9).

The statute establishes a buffer zone for Class I wetlands that “extend[s] at least 100 feet from the

border of the wetland, unless the Department determines otherwise,” and for Class II wetlands that

“extend[s] at least 50 feet from the border of the wetland unless the Secretary determines

otherwise.” Id. § 902(9). The VWR, past and present, reinforce the statutory requirements. See

2010 VWR § 9.1 (prohibiting activity in a Class I or Class II wetland or associated buffer zone

“unless it is an allowed use or authorized by a permit, conditional use determination, or order

issued by the Secretary”).19

¶ 57. Given the dynamic nature of wetlands, see U.S. Army Corps of Eng’rs, Regulatory

Guidance Letter ¶¶ 2(a)-3(a), if the Secretary can extend a CUD for activity in a wetland when the

boundaries of the wetland are not validly established, there is a reasonable likelihood that activity

within significant wetlands or protected buffer zones that the VWR prohibits unless permitted will

18
Both superseding revisions to the VWR maintained this statement of purpose. See 2018
VWR § 1.1; Vermont Wetland Rules § 1.1, Code of Vt. Rules 12 030 026 (2017) [hereinafter 2017
VWR], https://dec.vermont.gov/sites/dec/files/documents/wsmd_Vermont_Wetland_Rules_2017
.pdf [https://perma.cc/H4SP-L857].
19
Both superseding revisions to the VWR reflect this statutory requirement. See 2018
VWR § 9.1; 2017 VWR § 9.1.
28
be allowed without any review of its impacts. Such a result would squarely undermine the purpose

and intent of the statutory and regulatory scheme.

IV. The History of This Proceeding and Subsequent Changes to the VWR Reinforce This
Understanding

¶ 58. The conduct of all parties to this proceeding prior to the Secretary’s change of

position before the Environmental Division reinforces that the construction adopted in this dissent

best captures the intent of the permit and the expectations of all parties involved based on the terms

of the permit and the statutory framework. Although my analysis does not rest in any part on the

2017 (and now the 2018) revisions to the VWR, the suggestion that the revision imposed more

onerous requirements, rather than providing greater clarity as to the existing scheme, is

inconsistent with the record.

¶ 59. The only representation the City’s agent included in requesting an extension of the

2010 CUD was that “[t]he proposed project’s wetland areas and impacts outlined in the original

permit authorization have not changed. The proposed project will result in unavoidable impacts

to 20,620 [square feet] of Class II wetland and 33,585 [square feet] of buffer zone along Englesby

Brook.” The City’s agent apparently understood the changes to the wetland areas and impacts, or

lack thereof, as considerations pertinent to its request to extend the CUD.

¶ 60. Fortieth likewise understood the changes, or lack thereof, to the wetland boundaries

as relevant, commenting to the Wetlands Program Manager that the City’s representation that the

wetlands areas and impacts had not changed was unsupported by “any field summaries, data

sheets, maps, site visit memoranda, photographs, or other documents demonstrating that” a

wetland consultant evaluated the wetland to be protected by the CUD.

¶ 61. And the Secretary acknowledged that a redelineation of the wetlands on the project

site was required by Condition E, requesting additional information from the City to support its

claim that the wetland areas and wetland impacts approved in the original CUD had not changed.

29
The Secretary continued the proceeding until the City’s consultants were able to reevaluate the

wetlands on the site and provide updated delineations; agency staff participated in site visits with

the City’s consultant; previously delineated wetlands were redelineated and field-verified; and

delineations were provided for two additional wetlands found on the project site. The Secretary’s

ultimate approval of the CUD rested on findings that expressly took into account the redetermined

boundaries. In short, the Secretary proceeded exactly as required by the CUD and the applicable

statutes and rules.

¶ 62. My analysis of the CUD does not turn on this history. Our job is to construe the

permit as written and intended, regardless of the parties’ understandings. But it’s telling that all

three of these stakeholders apparently shared the same understanding of the relationship between

a request to extend the permit and the need to reevaluate the wetland boundary—even though this

understanding was directly counter to the City’s interests and involved a regulatory regime

administered by the Secretary. To the extent that the majority describes the 2017 amendments to

the VWR as providing an “enhanced” standard, ante, ¶ 25, I believe that characterization is belied

by this record.

¶ 63. The 2017 rules, adopted well before the proceedings at the Environmental Division

were done, make it crystal clear that the Secretary may only extend a permit “if the permittee re-

evaluates and redelineates the wetland resources impacted by the authorized activity and the

Secretary determines there will be no impact to Class I or Class II wetland or buffer beyond those

impacts permitted under the original permit.” 2017 VWR § 9.1.20 In so providing, for all the

reasons set forth above, the rules do not create a more onerous burden for a permittee seeking an

extension; rather, they make even clearer the longstanding requirements of the VWR. See Doe v.

Vt. Office of Health Access, 2012 VT 15A, ¶ 26, 191 Vt. 517, 54 A.3d 474 (“We presume that the

20
The superseding 2018 VWR maintain this requirement. 2018 VWR § 9.1.
30
Legislature intended to change the meaning of a statute when it amends it, but we will recognize

clarification of the law where the circumstances clearly indicate it was intended.” (quotation

omitted)).

¶ 64. For the above reasons, I respectfully dissent.

¶ 65. I am authorized to state that Justice Skoglund joins this dissent.

Associate Justice

31