Transcript Vermont Wetland Rules - Vermont Bar Association

Overview: Wetland Rules
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Act 31 and Rule Overview:
New Determination Process:
New Application:
CUD now is a Wetland Permit
Vermont Wetland Rules
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2005: Creation of NRB Water Resources
Panel
Appeals to Environmental Court
Lake Bomoseen Ruling
Wetlands Investigative Docket
Complete review of the Rules by
Wetland Investigative Group
H. 447 (2009): Act 31
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Authorized Secretary of ANR to classify
certain wetlands (Class II and III)
Provides for appeals to Env. Court
Authorized VSWI Map revisions
Changed “hydrophytic vegetation habitat”
Violations not an encumbrance on title
Policy Statement:
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Preserve, protect and conserve significant
wetlands;
Prevent degradation and destruction of
wetlands;
Protect and enhance the quality.... of
surface waters…;
To regulate use and development of…
Retains Classification System:
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Class I: exceptional and irreplaceable in
contribution to VT’s natural heritage
Class II: identified on VSWI maps or merits
protection based on an evaluation of functions
and values in Sec. 6025(5)(A)-(K) and Rules of
the NRB Water Resources Panel
Class III: neither Class I or Class II
Buffer Zones
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Default buffer zones remain the same
The Panel can change Class I buffers
through Rulemaking
ANR can change Class II wetland buffer
zones through an Administrative
determination process
Allows for Wetland Permits
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Pursuant to Sec. 6025 and Rules of the
Panel
Individual Wetland Permit replaces the
Conditional Use Determination
New General Permit: for minimal impact
activities
Effective dates:
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New maps effective January 1, 2010
Changes effective 45 days after final Rules
are filed with the Sec. of State (Aug. 1,
2010) =
September (14) 15.
New Wetland Rules
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Effective Date: September 15, 2010
Sec. 1 Purpose and Applicability
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Interpretation Sec. 1.3 eliminated
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ANR now makes interpretations and formal
determinations: Class II or III; buffer zone
widths; mapping updates and corrections;
boundary determinations
Sec. 2. Definitions:
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Some new or updated definitions:
headwater wetland, marsh, swamp,
vernal pool, seep, significant wetland;
Class I, II, and III defined
Definition of wetland stays the same
Sec. 3. Wetland Exemptions :
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Stays the same for Agricultural activities
Existing constructed features erroneously
mapped as wetlands; i.e. snowmaking
ponds, sewage lagoons, etc.
Permitted public highway projects with an
Act 250 permit prior to Feb.23, 1990
Sec. 3. Identification of Wetlands:
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Wetland delineation: follows the Corps
Manual (1987) and supplements (2010)
Uses vegetation, soils, hydrology
New plant list to replace 1988 List of Plant
Species That Occur in Wetlands
Map interpretation stays the same
ANR makes formal determinations
Sec. 4. Classification of
Significant Wetlands
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Class I Wetland determinations remain with
the NRB Water Resources Panel through
rulemaking
Establishes procedures for ANR
determinations for Class II and III wetlands,
and designation of buffer zones
Sec. 4.6. Presumptions
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Presumes wetlands similar in type and size
to those already mapped are presumed to
be Class II wetlands
Contains a list of wetland types and
characteristics that contribute to significant
wetland functions
Sec. 5. Functional Criteria….
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Stays the same with some minor additions
or tweaks;
5.5 eliminates “hydrophytic vegetation
habitat” replaces with “exemplary wetland
natural community”
Sec. 6. Allowed Uses:
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Adds BMP’s to some Allowed Uses
i.e. cleaning of ponds, repair and
maintenance of utility lines and corridors
Adds: wetland restoration projects, certain
dry hydrant projects, cleanup for spills and
hazardous materials
Sec. 7. Rulemaking Petitions:
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Applies to Rulemaking by the Natural
Resources Board, Water Resources Panel
Essentially follows previous petition
guidance for the Water Resources Board
content of petitions and distribution
Adds Rulemaking section.
Sec. 8. Wetlands Determinations by
the Secretary:
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Applies to Class II and Class III Wetlands
Includes a 30-day Notice period
Allows for Reconsideration
Allows ANR to make mapping corrections
Allows ANR to update the VSWI Maps
Sec. 9. Permits:
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Follows the existing CUD process
Replaces Conditional Use Determination
with Wetland Permit
Allows for Individual and General Permits
Allows Permit approval in Class I wetlands
only for activities that meet a compelling
public need or protect public health and
safety
Sec. 9. Permits:
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Contains grandfathered activites
Contains a provision to dismiss applications
for failing to provide requested information
within 60 days
Allows for “in-lieu fee” or mitigation bank
approved by the Secretary.
Changes General CUD to General Permit
Sec. 9.7 General Permits
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For discrete categories of Class II wetlands
For discrete categories of activities
Not to exceed 5 years
Authorizations under the GP not to exceed
5 years
45 day Notice period
NOI – 10 day notice
Sec. 9.8 Application for Authorization
(Notice of Intent)
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May deny if requested info is not received
within 60 days
10 day notice period
May require coverage under an Individual
Permit
Sec. 10. Appeals:
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Fixes the Rules; appeals have gone to
Environmental Court since 2005.
Appeals from any act or decision of the
Secretary under these rules are governed
by 10 VSA §8504.
Act 138
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Transfers rulemaking authority:
Vermont Wetland Rules
Rulemaking to designate Class 1 wetlands
Sec. 5: Wetland Functions
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Sec. 5.1 Water Storage for Flood Water
and Storm Runoff:
Reduce risks to public safety
Reduce damage to property
Reduce downstream erosion
Enhance the stability of habitat for aquatic
life
Otter Creek and
Tropical Storm Irene
example
Over to Ethan Swift