                                          STATE OF VERMONT
                      SUPERIOR COURT—ENVIRONMENTAL DIVISION
                                             }
In re Champlain Marina, Inc., Dock Expansion }    Docket No. 28-2-09 Vtec
                                             } (Appeal from ANR dock extension
                                             }             decision)
                                             }

                                           Decision on the Merits
        Champlain Marina, Inc. (“Applicant”) wishes to extend one of its pre-existing water-
borne docks that encroaches into the Spaulding Bay area of Lake Champlain in the Town of
Colchester and to add additional finger docks to the new dock extension. To gain authority to do
so, Applicant applied for an amendment to its public waters encroachment permit pursuant to
Chapter 11 of Title 29 of the Vermont Statutes Annotated, which concerns the management of
public lakes and ponds.1 When the Vermont Agency of Natural Resources (“ANR”) granted
conditional approval of the proposed dock extension, a group of neighbors (“Appellants”) filed a
timely appeal of that decision.2
        Applicant was assisted in this appeal by its attorney, Craig Weatherly, Esq. At the time
of trial, ANR was represented by Cielo Marie Mendoza, Esq., who was assisted by ANR staff
attorney Judith Dillon, Esq. The Vermont Natural Resources Board appeared through its staff
counsel, John H. Hasen, Esq., but did not actively participate in these proceedings. Pursuant to a
May 19, 2010 Entry Order, the Court authorized the Vermont Natural Resources Council
(“VNRC”) to intervene as an amicus curie (“friend of the court”) in this appeal. VNRC was
represented in these proceedings by David K. Mears, Esq., who was assisted by VNRC’s staff
counsel, Jon Groveman, Esq.


1
  Applicant also sought and received a determination from ANR that its proposed dock expansion would not have a
detrimental impact upon the public’s use of collective resources held in trust on behalf of the public, such as
navigable waters. This legal analysis is commonly referred to as the Public Trust Doctrine; it is addressed in more
detail in Part II of the Discussion section of this Decision.
2
   Originally, thirty-one individuals appealed the amended ANR encroachment permit. At the time of trial, twenty-
six individual Neighbors remained as appellants in this proceeding. While these Neighbors initially represented
themselves in this proceeding, they were represented at trial and during pre-trial motion practice by Stephen A.
Reynes, Esq. The Neighbors represented by Attorney Reynes are Thomas A. and Margaret A. Battey; David R.
Wood; Kenneth Brown; Marlene Williamson; Laurel Butler; Deborah Rabideau; Wes Weaver; Dennis Reichardt;
Linda and Sam Jackman; Renae Hance; John P., Susan R., Lindsey, and John R. Louchheim; Kathryn J. and Stephen
C. DePasquale, Jr.; Beverly I. and Gordon A. Watson; Bruce and Michelle Bouchard; Joseph H. Boyd; Ann
Burzynski; Neil Metzner; Frank Shea; and Catherine Rush.


                                                        1
        The parties filed fifteen motions prior to trial, including motions to dismiss parties or the
legal issues presented, to resolve discovery disputes, for summary judgment, and to establish and
challenge the participation by VNRC as an amicus curie. Our decisions and entry orders on
these pre-trial motions narrowed the legal issues presented in this appeal3 and defined the nature
of the Appellants’ status and standing to appeal.4
        When private negotiations between the parties did not resolve their disputes, the Court
conducted a site visit and de novo merits hearing. After the trial, parties sought permission to
and did file proposed Findings of Fact and Conclusions of Law, which the Court found very
helpful in its deliberations and drafting of this Decision.
        Based upon the evidence admitted at trial, including that which was put into context by
the site visit the Court conducted with the parties, the Court renders the following Findings of
Fact and Conclusions of Law.

                                                Findings of Fact
1.      Lake Champlain is the fresh water jewel of the states of Vermont, New York, and the
Province of Quebec, Canada. The general public and visitors to each of the three jurisdictions it
borders put the waters of Lake Champlain to a wide variety of uses, including fishing in all
seasons, swimming, and boating (by motor, sail, oar, and paddle).
2.      The Vermont shoreline of Lake Champlain runs from our northwestern boundary with
Quebec, Canada, to the southern reaches of Addison County. This area contains many inlets and
bays used to access the Lake. The evidence presented at trial represented that the Malletts Bay
area of the Lake, located in the Town of Colchester (“Town”), hosts the busiest marinas and
boating areas on the Lake within the State of Vermont. Malletts Bay is estimated to host 1,700
boat moorings and dock slips. The Court found these representations credible and convincing.
3.      Malletts Bay is identified as the portion of Lake Champlain lying between the Lake’s
eastern-most shores in the Town of Colchester and the land peninsula known as Malletts Head.
Common descriptions of Malletts Bay identify three separate areas: (1) Outer Malletts Bay,

3
   See Decision on Multiple Motions, filed July 31, 2009, which dismissed Questions 1, 2, and 3 of Appellants’
Revised Statement of Questions filed on May 4, 2009. Another Entry Order, issued on May 19, 2010, dismissed
Appellants’ Question 11. Appellants subsequently voluntarily withdrew their Question 4, thereby leaving Questions
5 through 10 and 12 through 14 to be resolved by trial.
4
   See Decision on Multiple Motions, filed July 31, 2009, which clarified that Appellants had standing to appeal as
individuals and that, even though they collectively identified themselves as “Save the Bay,” they had not appealed as
a single appellant under that group name.


                                                         2
which refers to the waters contained in the outer-most reaches of the Bay, between the tip of
Malletts Head and the western-most outcropping of Colchester shoreland; (2) Inner Malletts Bay,
which includes most of the Colchester shorelands within Malletts Bay, with the exception of
Spaulding Bay; and (3) Spaulding Bay, which encompasses the waters and shoreland between
the southeasterly shores of Malletts Head and another peninsula, known as Coates Island. See
Appellants’ Exhibit 3, which depicts the nautical mapping of this portion of Lake Champlain.
The marina at issue in these proceedings is located in Spaulding Bay.

I.      General Characteristics of Spaulding Bay.
4.      Spaulding Bay may not be the busiest section of Malletts Bay, but it does host a large
number of developments, including commercial marinas, private docks, residential shorelines, a
girl scout camp, and some natural, undeveloped areas.           Spaulding Bay also hosts what is
estimated to be the busiest public boat launch in all of Vermont; this boat launch is managed and
operated by the Vermont Department of Fish and Wildlife.
5.      Spaulding Bay is roughly shaped like three quarters of an oblong oval. Its shores,
running from approximately 3:00 to 11:00, host the following developments or identified areas:
     a. At approximately 3:00 to 4:00 is located Coates Island Marina, a separate marina
        not affiliated with Applicant. Coates Island Marina, Inc. owns, manages and rents
        an unspecified number of dock slips and several boat moorings. Coates’ boat
        slips are located off of two docks, the longest of which extends about 400 feet into
        Spaulding Bay.
     b. Next to Coates Island Marina is an undeveloped area of marsh and wetlands.
     c. The public boat launch owned and operated by the Department of Fish and
        Wildlife is located at approximately 5:00. On its busiest days this public boat
        launch is used by up to 600 visiting boaters, making it the busiest public boat
        launch in Vermont. These facilities include two parallel docks that run in a
        general north/south direction on either side of the public launch and that extend
        into the Bay waters about 75 to 100 feet. There is also a public parking area for
        cars and boat trailers. Fishing is allowed in the vicinity of this public boat launch,
        but swimming is prohibited.
     d. At approximately 6:00 are located the existing facilities of Champlain Marina,
        Inc. The individual components of Applicant’s Marina are described in more
        detail below, beginning at ¶19.
     e. At approximately 7:00 are located two smaller, single dock marinas, also not
        affiliated with Applicant.
     f. A number of residential properties are located from about 7:30 to 9:00 along the
        southwest and westerly shore of Spaulding Bay. Most all of the appellants here


                                                  3
         own and occupy properties in this residential area; not all residents in this
         neighborhood have chosen to participate as appellants in this appeal. Of the
         shoreline homes in this area, most have rear yards facing the Bay, most with
         manicured lawns that are mown to the water’s edge, or to a beach area at the
         water’s edge. Of the homes in this area, twenty-one have private docks of various
         lengths that serve one or more boats on the Bay. There are also three water-borne
         private swim rafts located along this shoreline. No other swim rafts were
         identified at trial within Spaulding Bay.
     g. There are also several private water-borne moorings located in the vicinity of this
        westerly shoreline.
     h. The remainder of the westerly shoreline of Spaulding Bay is adjacent to a
        generally undeveloped area of Malletts Head. There is no shoreline, per se, as the
        land rises steeply from the water along rock cliffs.
     i. The Brown Ledge Girl Scout camp is located near the northerly tip of Malletts
        Head, above the northern reaches of the shoreline cliffs. Campers from this Scout
        Camp often swim, fish, and paddle in Spaulding Bay.
     j. In addition, a seaplane take-off/landing area, approved by the Town, the state, and
        the Federal Aviation Administration (“FAA”) is located within Spaulding Bay,
        measuring 300 feet wide and 4,000 feet long and located parallel to the westerly
        shoreline of the Bay. This area is principally used by Frank Shea and John
        Wilson and their invitees; Messrs. Shea and Wilson are area residents.

6.       Two other large marinas are located just outside of Spaulding Bay. The Moorings
Marina is located within Inner Malletts Bay, easterly of Coates Island; it was reported to contain
114 boat slips, although it appears from orthophotographic evidence that a large number of boats
are moored on individual moorings in Inner Malletts Bay, perhaps in excess of 200, which may
or may not be managed by The Moorings. (See Appellants’ Exhibit 2.)
7.       Marble Island Marina is located to the west of the Malletts Head peninsula; it hosts 140
dock slips, sixteen moorings, a breakwater, and a separate public fishing and service dock.
8.       There are a total of eleven private marinas in all of Malletts Bay, nearly all of which offer
services to the general public.
9.       Most boats travel in a general north/south direction within Spaulding Bay.5 While some
trial testimony spoke to east/west navigation within Spaulding Bay by some small boats and
kayaks, the vast majority of boaters do not use Spaulding Bay exclusively for their recreational
activities, but as an access point for recreation in the other portions of Malletts Bay and the outer


5
   The more exact description of this direction is northeasterly to southwesterly. We use north/south as a general
reference in this Decision for ease of reference, and to conform to the testimony offered by many witnesses at trial.


                                                         4
reaches of Lake Champlain. There are several exceptions to this general rule, including kayakers
who travel along the western shorelines of Spaulding Bay.
10.    When kayakers put in at the public boat launch they must paddle around the outer ends of
the Champlain Marina docks to reach the westerly shoreline.
11.    Kayakers try to avoid the open waters of Spaulding Bay, due to the wake created by boats
travelling into and out of the Bay.
12.    There are a fair number of boaters who do not travel outside of Spaulding Bay. It is not
that they recreate within the Bay generally; many boaters who occupy boat dock slips never
venture away from their dock slip, save for the seasonal rituals of putting their boats in the Bay
each May and withdrawing their boats each September. Appellants referred to such boats as
“floating camps.” A majority of the boats in dock slips at Champlain Marina follow this practice
and never leave their slips during the boating season.
13.    Boat travel originates from Spaulding Bay in one of three ways: (1) via the public boat
launch; (2) via rented dock slips at one of the various commercial or private docks within
Spaulding Bay; or (3) via moorings within Spaulding Bay.
14.    Boating activities from the public boat launch, marinas, and moorings in the southerly
portion of Spaulding Bay can be very heavy during the summer months. Swimmers, shoreline
fisherman, and paddlers are less likely to congregate in the southern portion of the Bay because
of the heavy boat activity.
15.    Of the 1,700 established boat slips and moorings in all of Malletts Bay, about 240 are
located in Spaulding Bay. These estimates do not include the hundreds of visiting boaters that
arrive during the busiest summer months.
16.    Slip docks generally offer several advantages over individual moorings, both from the
perspective of environmental impacts and efficiency of use for the boating public. Floating
docks do just that: they float. They are collectively secured by tie-ins to the land-based dock and
several pylons at the end of each dock finger.
17.    Moorings are individually anchored to the Lake bottom beneath the water; as a boat is
moved by wind and water current, the mooring anchors and connecting chains stir and shift the
sediment at the bottom of the Lake.




                                                 5
18.     Boats on docks are aligned in a more compact fashion; boats on moorings are more
spaced out, based upon their length and the scope of the mooring line. Examples of the contrast
between boats at docks and those on individual moorings is shown on Appellants’ Exhibit 2

II.     Current Operations at Champlain Marina.
19.     Applicant is a privately-held, for-profit Vermont corporation, first incorporated
approximately twenty years ago, and established to operate Champlain Marina (“the Marina”). It
is owned by forty individual shareholders, and the corporation has the authority to issue a total of
fifty shares.
20.     Applicant’s Marina currently maintains two docks for boat slips that encroach into the
waters of Spaulding Bay. The two docks are parallel to one another, with a third, much smaller
dock in between the two slip docks; the internal dock is used for boat refueling and other marine
services.
21.     Each of the two slip docks has individual “finger” docks that allow boats to moor
perpendicular to the main docks. This arrangement allows for 107 boats to moor in individual
slips along the existing Marina docks.
22.     Shareholders are entitled to first priority to seasonally rent a boat slip at the Marina. If a
shareholder chooses to rent a boat slip, they may do so at a discounted rate (representing a
shareholder dividend, when the corporation’s financial position allows). In recent years, about
thirty-four shareholders have rented Marina boat slips each season, thereby leaving
approximately seventy-three slips available for rental by the general boating public, on either a
seasonal or transient basis.
23.     Applicant prefers to rent its boat slips on a seasonal basis. Thus, when Applicant is able
to seasonally rent most of its remaining boat slips to members of the general public, a minority of
slips are available for rental on a daily or weekly basis. However, when seasonally-rented slips
are unused, and with the consent of the seasonal renter, Applicant also makes those slips
available for rental on a daily or weekly basis.
24.     While Applicant’s shareholders have chosen to only rent thirty-four of the 107 boat slips
available during the recent boating seasons, nearly all of the Marina slips have been occupied
during nearly all of boating season. The remaining slips have been rented on a seasonal, weekly
or daily basis to individual members of the general public.




                                                   6
25.      The dock slips at Applicant’s Marina available to the general public also allow for less
congestion in Spaulding Bay, since a similar number of boats located on individual moorings
would occupy much more of the Bay area.                   The Inner Malletts Bay area, as depicted in
Appellants’ Exhibit 2, provides an example of individual moorings occupying a much greater
area than slip docks.
26.      In addition to offering boat slips for seasonal rental, Applicant makes the following
services available to its shareholders, slip renters, and the general public:
      a. motorized travel lift for launching boats;
      b. refueling for water-borne boats, at the service dock located between the two slip
         docks;
      c. fresh water supply and wastewater disposal, including sanitary pump-out of
         sewage holding tanks and depository facilities for recyclables;
      d. free dockage and discounted fuel for public services, such as those maintained by
         the Colchester Fire Department and Colchester Harbormaster;
      e. boat launching, hauling, and winter storage services (winter boat storage for about
         200 boats is located on Applicant’s land, adjacent to its docks);
      f. seasonal parking for over 200 vehicles and some daily summer parking and winter
         storage for trailers;
      g. marine store, where drink and food items are also offered for sale; and
      h. public showers, toilets, and telephones.

27.      Applicant has established service manuals and procedures for the handling of hazardous
materials, including gasoline, diesel, and motor oils; these procedures acknowledge the
dangerousness of allowing such materials to come in contact with public waters. When refueling
a boat, Marina employees require the boat owner or their designee to assist in the refueling
procedure, so that someone familiar with the vessel assists with the on-board procedures. Marina
employees operate the fuel pump.
28.      No fuel spills of a magnitude requiring reporting to any governmental entity have been
reported at the Marina in the last ten years. Applicant has nonetheless established fuel spill
response procedures and has fuel collection cloths, mats, and booms in place in case of spills.
Marina staff are trained in the use of these materials and have experience using them in the case
of minor spills.




                                                      7
29.    The sewage pump-out is vacuum operated and delivers the wastewater to an on-site
septic tank and leach field. There was no evidence presented of land- or water-based spills from
this waste disposal system, nor any reports of system failure.
30.    The two docks are aligned in a parallel, general north/south direction. The easterly dock
is about 515 feet long with twenty-six finger docks attached; the westerly dock is about 385 feet
long with nineteen finger docks. Because the westerly dock extends from an earthen pier that is
just over 100 feet long, the two docks currently extend about the same distance into the public
waters of Spaulding Bay.
31.    The service dock, located between the two slip docks and upon which the fuel service
facilities are located, extends about forty-eight feet into the public waters.
32.    Each of the two slip docks is about eight feet wide; the existing finger docks attached to
the slip docks are about four feet wide and twenty-four feet long. The finger docks are spaced
about twenty-four feet apart, so as to accommodate two boats between each set of finger docks,
provided the boats each have a beam (width) of no more than ten to twelve feet.
33.    At the water-borne end of each slip dock is a twelve-foot wide dock, perpendicular to the
main dock and extending thirty-two feet in each direction (seventy-two feet in total), thereby
establishing a “T” at the end of each main dock to which additional boats may be moored.
34.    Water-borne fuel supply is in high demand at the Marina, especially during high use
periods on the summer weekends and holidays. During this time, boats moored at the various
marinas, launched from the public boat launch, and simply visiting the Bay will queue up at the
water-borne end of the Marina slip docks, waiting their turn to refuel. Applicant provides a
signaling for boats awaiting fuel through a marine radio frequency channel. Queued boats
awaiting refueling can number up to ten on the busiest of summer days. During less busy days
there is sometimes no need for boats to queue.
35.    Queued boats maintain their place by circling in the water, since it is difficult or
impossible for water-borne boats to remain in a static location, even in calm waters.
36.    When boats are queued up for refueling, boaters navigating from the public boat launch
to the westerly shoreline of Spaulding Bay must navigate around or between the circling boats
awaiting fuel. This practice has caused concern for some boaters, especially those in small boats,
such as kayaks or canoes, and especially on busy summer weekends when the public boat launch
and the refueling dock are very busy.



                                                  8
37.    The congestion sometimes caused at the end of the Marina docks during busy weekends
when more than a few boats are queued for refueling is aggravated by congestion at the public
boat launch and the proximity of the Coates Island Marina facilities to the east. While these
concerns were expressed by small boat owners and kayakers, there were no boating accidents or
injuries caused by this boat traffic and queuing reported at trial.
38.    The area available for boats to pass through after being launched from the public boat
launch, at its most narrow point, measures about 170 feet in width. This narrowest width is
between the easterly Marina slips and a land outcropping from Coates Island. The area available
for boats from the public launch to pass thereafter widens, so that there is about 245 feet in width
between the end of the easterly Marina slips and the closest point of the Coates Island Marina
slips. After that, boats departing from the public boat launch are able to enter into the expanse of
the outer portions of Spaulding Bay.

III.   Current Environmental Impacts.
39.    Some areas of Lake Champlain in general and Malletts Bay in particular evidence the
detrimental effects of shoreland development and stormwater discharges.           In fact, the area
adjacent to the neighbors’ shoreland beach areas sometimes experience water-borne, free-
floating plant growth that inhibits recreational uses, including boating, swimming, and fishing.
Some Appellants testified to a regular practice of raking or otherwise collecting water-borne
vegetation so that their docks, beaches, and swimming rafts could be used.
40.    The credible evidence presented at trial was that the boats docked at Applicant’s Marina
do not materially contribute to the excessive plant growth in Spaulding Bay.
41.    Not all water-borne plant growth in a fresh water lake is detrimental or evidence of an
unhealthy environment. In fact, the most credible evidence presented was that the sections of
Spaulding Bay around and under Applicant’s docks evidenced a healthy aquatic environment.
One example of this evidence is the existence of subaquatic vegetation rooted in the lake bed that
draws its nourishment from the underwater soils. This subaquatic vegetation also supports a
variety of invertebrate life forms that provide food for small fish.
42.    The presence of Applicant’s existing slip docks (which have been in their current form
for more than a decade) provides an historical experiment of their environmental impact,
detrimental or otherwise. There was little credible evidence presented at trial of a material




                                                  9
detrimental environmental impact from the presence and use of Applicant’s docks in this section
of Spaulding Bay.
43.    In fact, one beneficial impact of Applicant’s slip docks has been to provide shelter and
screening for fish and other aquatic organisms.
44.    The Lake bottom in the vicinity of Applicant’s docks consists of a dense earthen material,
similar to composted soil. This underwater soil composition is a further indication of a healthy
local aquatic environment.
45.    There was no credible evidence presented that Applicant’s existing docks and marina
operations have adversely affected area wildlife habitat or shoreland vegetation.

IV.    Proposed Dock Expansion.
46.    Applicant proposes to attach a 177-foot extension to its westerly dock.         This dock
extension will have finger docks attached to it perpendicularly, in a pattern so as to accommodate
sixteen additional boats.
47.    The new slips created by the proposed dock extension will accommodate bigger (i.e.,
wider and longer) boats. The finger docks will be four feet wide, thirty feet long, and spaced
forty feet apart, so as to accommodate two boats of nearly twenty feet in width each, and forty
feet in length, perhaps longer.
48.    The existing “T” at the end of the current dock will be removed and relocated to the end
of the expanded dock, thereby allowing larger boats to moor at the end of the extended dock.
49.    As with the existing dock, the proposed dock extension will be a floating dock, anchored
to pilings at the end of each finger dock. The new dock extension will be constructed wholly on
land; its construction will not cause the surrounding lakebed to be disturbed. The docks will
remain in the Bay for the off-season.
50.    Applicant has experienced increased demand, both from shareholders and members of the
general public, for boat slips that can accommodate bigger boats, particularly boats of forty feet
or more in length and having a wider beam. Applicant agreed with Appellants’ characterization
of some of these boats as “floating camps” and opined that current market pressures have
brought about a widening of boats, so as to accommodate more amenities (and wider boaters).
Most, although not all, of the larger boats in Applicant’s current marina remain in the dock slips
for the duration of the boating season.




                                                  10
51.    Appellants expressed reasonable concerns that if larger boats with deeper drafts were
allowed to occupy Applicant’s expanded dock slips, there could be a greater risk of disturbance
of the Lake bottom in the vicinity of Applicant’s docks.          However, the credible evidence
presented showed that the wider-beamed boats, even those seventy feet or more in length, that
Applicant anticipates will occupy its expanded dock slips, will tend to draw less than six feet of
water. A wider-beamed boat does not necessarily require more water draft; in fact, it might draw
less water than a narrower-beamed boat of a similar length. (See Applicant’s Exhibit E.)
52.    Spaulding Bay has some shallow areas, especially near its shorelines, particularly the
southwesterly shoreline that is part of the residential areas along the Bay. However, the Bay
waters are deeper near Applicant’s Marina; nautical maps evidence depths near the Champlain
and Coates Island Marinas of twenty-three feet or more. (See Appellants’ Exhibit 3.)
53.    The credible evidence presented showed that the sixteen additional boats that will be
moored at the Marina’s extended dock are unlikely to have deeper drafts than the boats currently
moored at the Marina’s existing docks. No credible evidence was presented at trial that the
drawing of water by the boats visiting the existing Marina docks has caused a material
detrimental environmental impact.
54.    Neither the dock expansion, nor the sixteen additional boats to be hosted, will cause a
disturbance or environmental impact in Spaulding Bay. This estimated lack of adverse impact
will be especially true if Applicant’s expectation proves correct: that a majority of the additional
boats will generally remain in their dock slips for the boating season, just as has historically been
true for the boats located at the existing dock slips in Applicant’s Marina.

                                            Discussion
       Our analysis in this de novo appeal of Applicant’s request for authority to further
encroach into the public waters of Spaulding Bay is governed both by statutory and case law
recognition of the Public Trust Doctrine, the foundation of which originates in both our state and
federal constitutions. We address these authorities separately due to their separate importance,
even though there is much overlap in the method of our review.

I.     Will the proposed dock expansion adversely affect the public good?
       When reviewing this application for an amendment to Applicant’s public waters
encroachment permit, we are reminded that water-borne development must be reviewed quite
differently than land-based development, since the developer does not own the water on which it


                                                 11
proposes its development. In fact, our laws recognize that water bodies such as Lake Champlain
are held for the public good: “Lakes and ponds which are public waters of Vermont and the lands
lying thereunder are a public trust, and it is the policy of the state that these waters and lands
shall be managed to serve the public good . . . .” 29 V.S.A. § 401.
        So much importance is placed upon protecting public water bodies and lands for the
public good that the starting point of our analysis is the following statutory directive: that “no
person shall encroach on any of those [public] waters and lands . . . without first” proving to the
permit-granting authority that their planned encroachment will not adversely affect the public
good. 29 V.S.A. §§ 403(a), 405(b). Thankfully, we are provided standards for how to assess an
encroachment’s impact upon the public good: we are directed to “consider the effect of the
proposed encroachment as well as the potential cumulative effect of existing encroachments on
water quality, fish and wildlife habitat, aquatic and shoreline vegetation, navigation and other
recreational and public uses, including fishing and swimming, consistency with the natural
surroundings and consistency with . . . any applicable state plans.” 29 V.S.A § 405(b).6
        As noted above at footnote 3, the Questions remaining from Appellants’ Revised
Statement of Questions are Questions 5–10 and 12–14. By their Questions 5 and 13, Appellants
pose the general challenge of whether Applicant’s proposed dock expansion and its cumulative
effect with other developments/encroachments within Spaulding Bay will adversely impact the
public good. To answer those general Questions, we review the specific legal standards taken
from 29 V.S.A. § 405(b) that are highlighted in Appellants’ Questions 6–10 and 12. For the
reasons detailed below, we conclude that Applicant’s dock expansion, as proposed, will not have
a detrimental impact on the public good under the legal standards codified in 29 V.S.A. § 405(b).
        We first wish to note an important procedural standard. While our initial focus is on the
legal questions that Appellants have preserved for our de novo review of the pending

6
   Even though our review of the pending appeal is de novo, it is limited to the legal issues that have been
specifically preserved for our review by Appellants in their Statement of Questions. See V.R.E.C.P. 5(f), 10 V.S.A.
§ 8504(h).
   Since Appellants’ remaining Statement of Questions (listed above at footnote 3) raise nearly all of the legal
standards listed in 29 V.S.A. § 405(b), we have quoted those standards in total here and will address them each
below, with the exception of a portion of the final standard: “consistency with municipal shoreland zoning
ordinances.” We have omitted that standard from our analysis since we have concluded that Appellants failed to
present any factual allegations upon which we could determine that shoreland activities or development would be
impacted by the proposed water-borne dock expansion; thus, we granted summary judgment to Applicants on
Appellants’ Question 11, which challenged the proposed dock expansion’s conformance with Town of Colchester
Zoning Ordinance § 7.03(F)(5). In re Champlain Marina Dock Expansion, No. 28-2-09 Vtec, slip op. at 5 (Vt.
Envtl. Ct. May 19, 2010) (Durkin, J.)


                                                        12
encroachment application, it is Applicant who bears the initial burden of production and the
ultimate burden of persuasion. Within the context of a public waters encroachment application,
the former Vermont Water Resources Board, the entity which had jurisdiction over such appeals
prior to this Court, defined the respective burdens of proof as follows:
       The burden of proof consists of the burden of production and persuasion. Under
       the burden of production, there must be sufficient evidence for the Board to make
       positive findings with regard to the Project on the public good and public trust
       issues. Under the burden of persuasion, the Board must be persuaded, by a
       preponderance of the evidence, that the weight of the evidence is in favor of the
       Project, notwithstanding the evidence presented in opposition to the Project.

In re Dean Leary (Point Bay Marina, Inc.), No. MLP-96-04, Findings of Fact, Conclusions of
Law and Order, at 10 (Vt. Water Res. Bd. Aug. 1, 1997). With this procedural standard in mind,
we review the adequacy of the evidence presented by Applicant in relation to the remaining
Questions posed by Appellants.
       By their Question 6, Appellants challenge Applicant’s contention that the proposed dock
expansion, and the cumulative effect of encroachments into Spaulding Bay, will not have an
adverse effect on water quality. We conclude that there will be no adverse effect on water
quality attributable to the 177-foot dock extension, its adjoining finger docks, and the additional
sixteen larger boats that will use the new dock slips. We approach this issue with caution, since
the Court is aware that Lake Champlain in general and Malletts Bay in particular have already
felt the adverse impact on impaired waters. See generally In re Stormwater NPDES Petition
(Conservation Law Foundation Appeal), No 14-1-07 Vtec (Vt. Envtl. Ct. Aug 28, 2008) (Durkin,
J.). However, even in light of this caution, the credible evidence presented directs us to conclude
that the Marina dock expansion, as proposed, will not have an adverse impact on water quality.
       The proposed docks will all be constructed on land and do no harm to the public waters
during the construction process. Once installed, they will float upon the waters and not disturb
the land beneath the waters. Additionally, the proposed additional docks will be managed by
Applicant, whose staff has shown an environmental sensitivity during over a decade of operating
the Marina. Most likely, the boats that will occupy these additional slip docks will remain in
place for the boating season and will not operate in a manner that would adversely affect the
waters. Applicant’s evidence was not credibly refuted on this legal standard; we must therefore
answer Appellants’ Question 6 in Applicant’s favor.



                                                13
       Similarly, in connection with Appellants’ Question 7, the credible evidence convinces us
that the proposed dock expansion, and the cumulative effect from encroachments into Spaulding
Bay, will not have an adverse effect on fish and wildlife habitat. We are persuaded again by the
evidence tending to show that Applicant’s staff have operated its current 107-slip marina in an
environmentally safe manner, showing respect to the surrounding fish and wildlife habitat. We
recognize that the dock extensions and addition of sixteen large, wide-beamed boats to
Applicant’s Marina will contribute to the size and water-bound traffic in the Bay. But these
increases in encroachments and boat traffic will be relatively small and have negligible impact
upon the existing operations within the Bay.           No credible evidence was presented of a
detrimental impact, from current operations and anticipated future operations, on the nearby
wetland and undeveloped areas to the east of Applicant’s Marina. The most credible evidence
also showed that the nearby fish and wildlife habitat, including that around and under
Applicant’s existing Marina, are currently healthy. While the dock extension, associated finger
docks and boats moored to them will add another 200 feet to the existing encroachments into the
Bay, we anticipate no adverse impacts to fish and wildlife habitat from the design or planned
operation of these marina improvements. We therefore must answer Appellants’ Question 7 in
Applicant’s favor.
       Appellants’ Question 8 asks whether the planned marina improvements will adversely
impact aquatic and shoreline vegetation. We must answer this question in the negative as well.
Trial evidence convincingly showed that aquatic vegetation around and under Applicant’s
existing docks and the area of its planned docks is healthy. The aquatic vegetation in the vicinity
of Applicant’s Marina tends to be root-bound to the soils under the water and not free-floating; it
does not exhibit the invasiveness of the free-floating vegetation in the vicinity of the Neighbors’
residences. No aquatic or shoreline vegetation will be disturbed by the dock expansion or by the
additional boats that will use these new dock slips.
       We find it important to repeat at this juncture that the marina improvements proposed are
limited to the 177-foot dock extension, associated finger docks, and the sixteen boats that will
use these dock expansions. No extension is proposed for the adjoining Marina dock to the east,
where the Department of Fish and Wildlife public boat launch and associated public docks are
located. Also, no expansion is proposed for the other services at Applicant’s Marina. Thus,
there is no additional potential source, beyond the proposed improvements, for adverse impacts



                                                14
to fish and wildlife habitat or aquatic and shoreline vegetation proposed by this application. We
do not anticipate adverse impacts to fish and wildlife habitat or aquatic and shoreline vegetation,
particularly in light of the limited nature of this expanded encroachment.
        Appellants’ Question 9 expresses the concerns that Applicant’s proposed marina
improvements will adversely affect navigation and other recreational and public uses within
Spaulding Bay, particularly since the dock “extension is designed for accommodation of large
boats with deep drafts in a shallow, narrow bay, immediately adjacent to one of the State’s
largest and busiest public boat ramps, and where there already exists three marinas, a recreational
camp for water-related activities, a sea plane base, and many private moorings and docks”7
(Appellants’ Revised Statement of Questions 3, filed May 4, 2009).                     We first note some
inaccuracies in this Question. The credible evidence presented at trial tended to show that the
larger boats (both by length and beam) that Applicant anticipates will use its proposed dock slips
will not have materially deeper drafts than the boats that currently occupy its existing dock slips.
(See Applicant’s Exhibit E and Appellants’ Exhibit 3.) The evidence also showed that the
affected area of the Bay is neither shallow nor narrow. (Id.) For the reasons detailed below, we
must also answer Question 9 in Applicant’s favor.
        While Applicant’s docks are adjacent to the undisputed busiest public boat launch in the
state, the planned dock expansion is farthest away from the public launch and will not narrow the
area available to boaters who depart from that launch. The proposed improvements will not
inhibit these boaters’ abilities to safely traverse the Bay in a general north/south direction.
Additionally, while the proposed dock extension and its use will increase the length of the
westerly dock by nearly 200 feet, we conclude that this expansion (alone or when considered in
conjunction will all Bay encroachments) will not adversely materially impact navigation for
kayakers or other small boat operators in the Bay.
        Most navigation in Spaulding Bay travels in a generally north/south direction; there was
little evidence of kayakers or other small boaters regularly traversing the Bay in an east/west
direction. Those that do must be careful, especially during busy summer weekends, as the wakes
from larger boats can make east/west traversing more difficult. However, such traverses have a

7
  Most of Appellants’ Questions in their Revised Statement of Questions use this same qualifying language,
including reference to the adverse impacts of both the proposed dock expansion and the cumulative impact of all
encroachments into the Bay. We have considered the full language of each of Appellants’ Questions in each of our
legal conclusions.


                                                      15
specific purpose in mind: to arrive at the westerly shores of the Bay and to travel up and down
that shore, taking in the beauty of the neighborhood area and the undeveloped cliff section
beyond. We received no credible evidence of kayakers, small boaters, or fisherman who desire
to simply occupy the middle of the Bay beyond Applicant’s docks. Those kayakers and small
boaters that do traverse in front of Applicant’s docks will now need to venture 200 additional
feet into the Bay to pass the extended westerly dock, but we do not anticipate this action to be
anything more than a minor and brief inconvenience.
       The proposed dock extension did give the Court some initial concerns in regards to the
queuing of boats awaiting refueling, but any Court concern was alleviated by Applicant’s pledge
to abide by recommendations from the Colchester Harbormaster, so that any possible
interference with navigation will be addressed.      We condition our approval of Applicant’s
encroachment application upon cooperation and compliance with the Harbormaster’s
recommendations.
       Additionally, while the planned dock extension is nearest to the FAA-approved seaplane
take-off/landing zone, the extension and its associated boat traffic will not encroach into or near
the take-off/landing zone. Given that the FAA-approval does not isolate this area of the Bay for
exclusive seaplane use, and that a condition of the FAA permit requires seaplane operators to
give way to boating traffic, we see no adverse impacts upon seaplane use from the proposed
dock expansion.
       Applicant also proposed that its dock extension remain in the public waters during the
winter months. Appellants assert that this practice will further inhibit winter navigation, since
ice fisherman and others use the Bay area during the winter. We cannot agree with Appellants.
Applicant’s existing docks have not inhibited winter navigation; we cannot conclude that a 177-
foot extension will create a new impediment, given the historical practice.
       If Applicant was proposing sixteen or more individual moorings for large boats in the
Bay area north of its docks, our determination here may have been different. But the credible
evidence is that dock slips provide a compact area for boat mooring. The anticipated use of the
proposed new boat slips (i.e., use by boats that will rarely sail away from the slips) will have no
adverse impact upon area navigation, nor will the proposed dock expansion or its use contribute
to a cumulative adverse impact upon navigation. We answer Question 9 in Applicant’s favor.




                                                16
        Applicant’s proposed dock expansion is entirely consistent with its natural surroundings;8
we therefore conclude in Applicant’s favor in regards to Appellants’ Question 10 as well. This
section of Malletts Bay and its surrounding sections serve as home for over 1,700 boat moorings,
many of which are dock slips. On a beautiful, busy summer day, there are possibly several
thousand other boating visitors to all areas of Malletts Bay.                    The proposed expansion of
Applicant’s public waters encroachment will bring sixteen additional boats to the Bay, most all
of which will rarely leave their dock slips. While being in Spaulding Bay during one of these
busy summer days will not be as tranquil as boating in the open Lake, the proposed dock
extension and its sixteen additional large boats are unlikely to add materially to any navigation
impediments experienced in the Bay.
        Appellants’ Question 12 seeks review of the conformance of Applicant’s proposed dock
extension with “applicable state plans.” This Question is similar in concept to Appellants’
former Question 11 concerning a provision of the Town of Colchester Zoning Ordinance, which
Question was summarily decided by the Court in its Entry Order of May 19, 2010.9 See In re
Champlain Marina Dock Expansion, No. 28-2-09 Vtec, slip op. at 5 (Vt. Envtl. Ct. May 19,
2010) (Durkin, J.) For reasons similar to our summary judgment analysis of Question 11, we
also answer Appellants’ Question 12 in Applicant’s favor.
        We note that Applicants did not make the Court aware of a specific state plan to which
we may refer in our analysis of their Question 12. Absent the general Public Trust Doctrine
addressed below, we know of no “state plan” that should be considered in our review of
Applicant’s water-borne dock expansion. With no state plan to reference, we conclude that
Applicant’s proposed dock extension will not adversely impact any state plan.
        Given these conclusions as to the specific legal standards of 29 V.S.A. § 405(b) that
Appellants have preserved for our review in this appeal, we conclude that Applicant’s proposed
dock expansion, and the cumulative effect of encroachments into Spaulding Bay, will not
adversely impact the public good and that the requested amendment to Applicant’s public waters
encroachment permit should issue pursuant to 29 V.S.A. § 403(a) and § 405.



8
   We consider each of the following components of Spaulding Bay to make up the natural surroundings that we
must consider under 29 V.S.A. § 405(b): the public and private boating facilities, the residential development along
its westerly shores, the Girl Scout Camp, and the undeveloped wetlands and cliff areas.
9
   See footnote 6, above.


                                                        17
II.    Public Trust Doctrine
       The importance of the general public’s right to the use and enjoyment of public land and
waters is recognized in our Constitution, Vt. Const., ch. II, § 67, but has origins that date back
centuries. See State v. Central Vt. Ry., Inc., 153 Vt. 337, 342 (1989) (referencing the public trust
doctrine as “having its roots in the Justinian Institutes of Roman law.”). Lands submerged
beneath navigable waters in our state have long been regarded as being held for the benefit of the
general public, and “[t]itle to these [submerged] lands is deemed to be ‘held in trust for the
people of State that they may enjoy the navigation of the waters, carry on commerce over them,
and have liberty of fishing therein freed from the obstruction or interference of private parties.’”
Central Vt. Ry., 153 Vt. at 341 (quoting Ill. Central R.R. v. Ill., 146 U.S. 387, 452 (1892)). In
the appeal at bar, it is agreed that the waters of Lake Champlain in general and Spaulding Bay in
particular are subject to the Public Trust Doctrine. We therefore must determine whether the
proposed dock extension to Champlain Marina violates that Doctrine before concluding whether
Applicant is entitled to the requested amendment to its encroachment permit.
       Prior to the Permit Reform Act of 2004 that transferred jurisdiction over encroachment
permits to this Court, the former Vermont Water Resources Board considered these appeals and
applications. While that Board no longer exists, and its successor—the Water Resources Panel
of the Vermont Natural Resources Board—no longer is vested with appellate responsibilities, we
are directed to give some weight and precedent to prior decisions of the Board, given its broad
prior experience in these areas. 10 V.S.A. § 8504(m). We therefore look to and rely upon the
former Board and its decisions for guidance.
       Fifteen years ago, the former Board was presented with several challenges by a Mr. Leary
to the proposed expansion of water-borne docks at the Point Bay Marina, also located in the
waters of Lake Champlain, but at a more southerly location in the Town of Charlotte. In
response to Mr. Leary’s appeal, the former Board issued several decisions, findings, and legal
conclusions during the period from 1994 through 1997. Those decisions provide much guidance
and historical perspective on the overlapping notions of the public good and the Public Trust
Doctrine.
       We have previously referenced the former Board’s August 1, 1997 Findings, Conclusions
and Order within our analysis of the impact of Applicant’s proposed dock extension on the
public good pursuant to 29 V.S.A. §§ 401–409. By that 1997 decision, the former Board


                                                18
ultimately approved Point Bay Marina’s planned dock expansion. See In re Dean Leary (Point
Bay Marina, Inc.), No. MLP-96-04, Findings of Fact, Conclusions of Law and Order (Vt. Water
Res. Bd. Aug. 1, 1997).        In an earlier Memorandum of Decision, the former Board provided
perspective and guidance on the appropriate review of such projects under the Public Trust
Doctrine. See In re: Dean Leary (Appeal of DEC Permit No. 93-29 Point Bay Marina, Charlotte,
Vermont), No. MLP-94-08, Mem. of Decision, at 4–5 (Vt. Water Res. Bd. Apr. 13, 1995). The
Board concluded that it had “a duty, independent of the public good determination under 29
V.S.A. § 405, to assure the protection of public trust uses” and stated the following:
                  As a part of State government, the Board has a fiduciary obligation under
          the public trust doctrine to determine that encroachments will not have a
          detrimental effect on public trust uses. Hazen v. Perkins, 92 Vt. 414 (1918); State
          v. Malmcuist, 114 Vt. 96 (1944); In re Establishment of Water Levels of Lake
          Sevmour, 117 Vt. 367 (1952); State of Vermont v. Central Vermont Railway,
          Inc., 153 Vt. 337 (1989). In making this determination, the Board may rely on the
          guidance provided by case law both from this jurisdiction and other jurisdictions
          recognizing the public trust doctrine. In many instances, the uses identified in 29
          V.S.A. § 405 are identical to the uses protected by the public trust.
Id. at 4–5.
          While the protection of public trust uses is held in high regard, it does not act as an
absolute barrier to private development or encroachment into public waters; the interest to be
protected is the use, and not the public resource itself. Re: Kent Pond (Vt. Dept. of Fish §
Wildlife), Nos. MLP-03-10 and MLP-03-11 (Cons.), Findings of Fact, Conclusions of Law, and
Order, at 12 (Vt. Water Res. Bd. May 12, 2004). Once we have identified the public trust uses at
issue in this appeal, we must balance the impact of the encroachment on public trust uses with
the encroachment’s public benefits. Id. (citing Re: Killington, Ltd., Nos. MLP-97-09 and WQ-
97-10, Findings of Fact, Conclusions of Law, and Order, at 55–57 (Vt. Water Res. Bd. Aug. 14,
1998)).
          The parties here agree that the public trust uses at issue here relate to the ability to boat,
fish, and swim in the waters of Spaulding Bay, as well as to ice fish and ice skate during the
winter months. The most active and frequent uses within the vicinity of the proposed dock
expansion are public boating and kayaking; swimming, fishing, sea planing, and winter activities
occur to a lesser extent, and to that extent outside the dock expansion areas.
          We do not dispute that if no marinas were located in Spaulding Bay it would appear more
tranquil, but we do not automatically equate tranquility in all public areas with encouragement of


                                                   19
their use by the public. In fact, the absence of marina services in Spaulding Bay, including the
additional docks planned by Applicant, would discourage use of the Bay by a significant number
of the general public. The presence of Champlain Marina and the other marinas in Spaulding
Bay encourages and assists the use and enjoyment of the Bay by many members of the public.
While we recognize that unchecked marina expansion would frustrate public use and enjoyment,
we cannot conclude that the 177-foot dock expansion and sixteen additional large boats will have
a detrimental impact on the overall use of the Bay by members of the public. We conclude that
the dock expansion, as proposed, will have an overall beneficial impact on the public trust use of
boating in the Bay by expanding its availability. We also conclude that the cumulative beneficial
impacts of Champlain Mariana and the other marinas in Spaulding Bay outweigh any possible
detrimental impact on public boating, kayaking, and other public uses in the Bay. We therefore
conclude that Applicant’s proposed dock expansion conforms to the Public Trust Doctrine.

                                           Conclusion
       For all the reasons more fully discussed above, we conclude that Applicant’s proposed
expansion of its westerly dock that encroaches into the waters of Spaulding Bay in the Town of
Colchester should be APPROVED, since as designed it will conform to the provisions of 29
V.S.A. §§ 401–409 and the Public Trust Doctrine. To assure that the dock expansion does not
adversely impact navigation in Bay waters, particularly when a number of boats have queued up
for refueling at the end of its easterly dock, this approval is conditioned upon Applicant, and its
successors and assigns, complying with the directives as to queuing and navigation by the Town
of Colchester Harbormaster and his successors and assigns.

       A Judgment Order accompanies this Decision on the Merits. This completes the current
proceedings before this Court concerning the pending application.

       Done at Berlin, Vermont, this 10th day of January, 2011.



                                             ___________________________________
                                              Thomas S. Durkin, Environmental Judge




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