Wednesday, September 22, 2010

New Vermont Wetlands Statute and Wetlands Rules

In May of 2009, the Vermont Legislature passed a bill making substantial changes to laws regarding Vermont wetlands; however, the bill stated that the new law would not take effect until 45 days after the state’s Water Resources Panel updated the Vermont significant wetlands inventory (VSWI) maps and the Vermont wetland rules. These rule updates were recently completed and became effective on August 1, 2010, thus, the statutory changes passed in 2009 became effective on September 14, 2010.

The new rules are available through the Water Resources Panel’s website at:
http://www.nrb.state.vt.us/wrp/rulemaking/wetlands2010/wetlands.htm#adopted.

The new VSWI maps are available through the Agency of Natural Resources (ANR) website at:
http://www.vtwaterquality.org/wetlands/htm/wl_vermontsigwetinvmaps.htm.


Notable changes to the Wetlands Statutes include the following:

10 V.S.A. § 902. DEFINITIONS.
  • Class I, Class II, and Class III wetlands are defined by statute
  • Definitions specify that Class I and Class II wetlands are not only those that appear on a VSWI map, but also any that are designated by the appropriate agency; the Water Resources Panel is responsible for designating wetlands as Class I wetlands and ANR is responsible for designating wetlands as Class II wetlands
  • Class I wetland buffer zone is set at 100 feet, unless changed by the Water Resources Panel via rulemaking
  • Class II wetland buffer zone is set at 50 feet, unless ANR determines otherwise
  • The term “significant wetland” includes any Class I or Class II wetland, which implies (as noted above) that significant wetlands are no longer limited to only those wetlands that appear on a VSWI map
10 V.S.A. § 913. PROHIBITION.
  • Aside from “allowed uses” adopted by the Water Resources Panel, no activities are allowed in significant wetlands or significant wetland buffer zones unless they are in compliance with a permit, conditional use determination (CUD), or ANR order
  • Only a small set of activities are grandfathered in and do not need a permit: construction that was completed prior to February 23, 1992 (with no additional action that would require a permit taken after that date); and activity that occurred before September 14, 2010 unless that activity was in a wetland identified on the VSWI maps, in a wetland contiguous to a VSWI-mapped wetland, or in a buffer zone of either of those types of wetlands.
10 V.S.A. § 914. WETLANDS DETERMINATIONS.
  • ANR is responsible for determining whether a wetland is a Class II or Class III wetland, and can do so on its own motion or upon being petitioned; ANR must make its determinations based on the functions and values criteria set out in 10 V.S.A. § 6025(d)(5)(A)-(K) and the Water Resources Panel’s regulations
  • Consistent with the definition of “buffer zone” in § 902(9), ANR has the authority to establish a different buffer zone width for a Class II wetland as part of a wetland determination
  • ANR may recommend to the Water Resources Panel that certain wetlands be classified as Class I

10 V.S.A. § 915. CLASS I WETLANDS.
  • Classifying any wetland as a Class I wetland, or reclassifying any wetland either to or from Class I wetland status, can happen only by rulemaking by the Water Resources Panel
27 V.S.A. § 615. WETLAND PERMIT.
  • This new section under the Vermont statutes dealing with property and real estate transactions specifies that the failure to obtain or comply with an ANR wetlands permit shall not be an encumbrance on any real estate title or otherwise affect marketability
Notable changes to the Wetlands rules include the following:

Section 3.1 Exemptions. Exemptions from the Vermont Wetland Rules are maintained for farming, and new exemptions are created for: stormwater conveyance, treatment, and control systems; wastewater treatment ponds and sludge lagoons; manure storage and treatment ponds; irrigation and active farming-related ponds; snowmaking ponds; and other “similar constructed ponds created in uplands”; and public highway projects that received an Act 250 permit prior to February 23, 1990.

Section 4.6 Presumptions. This is a new subsection that describes features of wetlands that will cause the wetland to be presumed to be a Class II (and therefore significant) wetland. The presumption applies to all wetlands that are contiguous to VSWI-mapped wetlands, and to any wetland that has one of nine listed characteristics. ANR or the Water Resources Panel may determine that such a wetland is not a Class II wetland under the procedures detailed in Section 8.

Section 5: Functional Criteria for Evaluating a Wetland’s Significance. There are many updates and changes to the functions and values in this section. Perhaps most notably, there is a subsection for a new function called “Exemplary Wetland Natural Community” (Section 5.5), which adopts language and criteria from the Nongame and Natural Heritage Program of the Fish and Wildlife Department regarding natural community types.


Section 6: Allowed Uses. This section details activities that are allowed in Class I or II wetlands and their buffer zones without a permit. It maintains the categories that existed under the former regulations, including silvicultural activities, crop growth, hydroelectric facilities, routine repair of utility corridors, and recreational and scientific pursuits, but adds several new uses, including: emergency repair, cleanup, or maintenance of existing structures or facilities (§ 6.13); installation of new overhead utility lines meeting certain conditions (§ 6.22); wetland or stream restoration projects approved by ANR (§ 6.23); installation of dry hydrants in constructed ponds meeting certain conditions (§ 6.24); and cleanup activities for spills of hazardous materials (§ 6.25).
Section 8: Wetlands Determinations by the Secretary. This section describes the new process by which ANR determines whether a wetland is a Class II or Class III wetland.

Section 9: Permits. This section has been substantially expanded, mainly due to the addition of sections allowing for reconsideration requests for individual wetland permit decisions, and considerably more detail regarding general permits. Additionally, one of the more notable changes is that the term “conditional use determination” has been replaced with the term “individual permit.”