House Calendar

WEDNESDAY, APRIL 9, 2003

92nd DAY OF BIENNIAL SESSION

ORDERS OF THE DAY

ACTION CALENDAR

Third Readings

H. 450

An act relating to restructuring the agency of human services.

Amendment to be offered by Rep. Donahue of Northfield to H. 450

Moves the bill be amended in Sec. 3 (b)(11) by striking the words “and away from care and services without such measures of success”

H. 457

An act relating to capital construction, state bonding and the Department of Corrections.

Amendment to be offered by Rep. Otterman of Topsham to H. 457

Moves the bill be amended in Sec. 49, page 43, line 15, after the words “private ownership”, by inserting the words “and shall present this information to the house and senate committees on institutions for review and approval in the same manner as the committees address other proposed actions relating to state lands

Amendment to be offered by Rep. Cross of Winooski to H. 457

Moves the bill be amended as follows:

On page 43, line 7, by striking the word “designate” and inserting in lieu thereof identify , and on line 8, by striking the word “deems” and inserting in lieu thereof the following: suggests might be ,and then by striking all after the word “ownership” on line 8 to the period on line 18.

Amendment to be offered by Rep. Webster of Randolph to H. 457

Moves the bill be amended by  striking Sec. 50 in its entirety and inserting in lieu thereof a new Sec. 50 to read as follows:

Sec. 50.  32 V.S.A. § 4154a is added to read:

§ 4154a.  STATE-OWNED LAND

At least two months prior to each annual town meeting, the listers of each municipality in which the agency of natural resources or one of its subdivisions holds title to lands and premises shall report to the selectboard of the municipality regarding the percentage of acreage within the municipality that is owned or otherwise controlled by the agency.

Amendment to be offered by Rep. Webster of Randolph to H. 457

Moves the bill be amended on page 43, line 14, before the word “process” by inserting the word legislative and on line 15 by striking the word “will” and inserting in lieu thereof the word may

Amendment to be offered by Reps. Deen of Westminster, Jewett of Ripton and Peterson of Williston to H. 457

Moves the bill be amended by striking Secs. 39, 40, 41, 42, and 43 in their entirety and inserting in lieu thereof the following:

Sec. 39.  MUNICIPAL POLLUTION CONTROL PRIORITY SYSTEM     RULE; AMENDMENT

Subsection 310(a) of subchapter 300 of the municipal pollution control priority system rule, as adopted in amended form by the agency of natural resources as chapter 2 of its environmental protection rules on August 30, 2002, is amended to read:

“(a)  If the applicant for a grant or loan for the final design or construction of a POTW or MSPOWS project demonstrates that:  1) the project is designed to maintain, increase, or upgrade the environmental performance of an existing wastewater treatment facility; and 2) there is no planned extension of sewer lines, then no further demonstrations are required and the application will be considered in accordance with subchapter 400 of this rule.”

Sec. 40.  REPORT OF SECRETARY

The secretary of natural resources shall report to the general assembly on the administration and effectiveness of subchapter 300 of the municipal pollution control priority system rule, as amended by Sec. 39 of this act, no later than June 30, 2004, at which time the amendment shall be repealed and the language in force as of September 30, 2002 shall be in effect.

Secs. 41-43.  [DELETED]

H. 458

     An act relating to the creation of the department of information and innovation.

For Action Under Rule 52

     H. R. 19

     House resolution urging schools and school districts to purchase milk produced and processed in Vermont.

    J. R. S. 26

Joint resolution designating December 15 of each year as Bill of Rights Day.

(For text see House Journal 4/8/03)

NOTICE CALENDAR

Committee Bills for Second Reading

H. 471

An act relating to motor vehicles.

(Rep. McCullough of Williston will speak for the Committee on Transportation.)

                                                      H. 472

An act relating to executive branch fees.

(Rep. Webster of Randolph will speak for the Committee on Ways and Means.)

H. 473

An act relating to taxation of electric generation.

(Rep. Errecart of Shelburne will speak for the Committee on Ways and Means.)

Favorable with Amendment

H. 175

     An act relating to consolidated environmental appeals and revisions of land use development law.

Rep. Johnson of Canaan, for the Committee on Natural Resources and Energy, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

* * * Consolidated Environmental Appeals * * *

Sec. 1.  10 V.S.A. chapter 220 is added to read:

Chapter 220.  Consolidated Environmental Appeals

§ 8501.  PURPOSE

It is the purpose of this chapter to:

(1)  consolidate existing appeal routes for acts or decisions of the secretary, district commission, and environmental board, excluding enforcement actions brought pursuant to chapters 201 and 211 of this title and the adoption of rules under chapter 25 of Title 3;

(2)  standardize the appeal periods, the parties who may appeal these acts or decisions, and the ability to stay any act or decision upon appeal, taking into account the nature of the different programs affected;

(3)  encourage people to get involved in the Act 250 permitting process at the initial stages of review by a district commission by requiring participation as a prerequisite for an appeal of a district commission decision to the environmental court; and

(4)  assure that clear appeal routes exist for acts and decisions of the secretary.

§ 8502.  DEFINITIONS

As used in this chapter:

(1)  “District commission” means a district commission established under chapter 151 of this title.

(2)  “Environmental board” means the environmental board established under chapter 151 of this title.

(3)  “Environmental court” means the environmental court established under chapter 27 of Title 4.

(4)  “Person” means any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department or subdivision of the state, any federal agency, or any other legal or commercial entity.

(5)  “Person aggrieved” means any person who the environmental court determines meets the standard for intervention as of right under the Vermont Rules of Civil Procedure Rule 24(a) who demonstrates an interest which may be affected by the outcome of the proceeding and who is so situated that the disposition of the proceeding may as a practical matter impair or impede that person’s ability to protect his or her interest.

(6)  “Secretary” means the secretary of the agency of natural resources or the secretary’s duly authorized representative.  For the purposes of this chapter, “secretary” shall also mean the commissioner of the department of environmental conservation, the commissioner of the department of forests, parks, and recreation, and the commissioner of the department of fish and wildlife, with respect to those statutes that refer to the authority of that commissioner or department.

§ 8503.  APPLICABILITY

(a)  This chapter shall govern all appeals of an act or decision of the secretary, excluding enforcement actions under chapters 201 and 211 of this title and rulemaking, under the following authorities:

(1)  10 V.S.A. chapter 23 (air pollution control).

(2)  10 V.S.A. § 922 (aquatic nuisance control grants-in-aid).

(3)  10 V.S.A. chapter 41 (regulation of stream flow).

(4)  10 V.S.A. chapter 43 (dams).

(5)  10 V.S.A. chapter 47 (water pollution control).

(6)  10 V.S.A. chapter 48 (groundwater protection).

(7)  10 V.S.A. chapter 53 (beverage containers).

(8)  10 V.S.A. chapter 55 (aid to municipalities for water supply, pollution abatement and sewer separation).

(9)  10 V.S.A. chapter 56 (public water supply).

(10)  10 V.S.A. chapter 59 (underground liquid storage tanks).

(11)  10 V.S.A. chapter 64 (potable water supply and wastewater permit).

(12)  10 V.S.A. chapter § 2625 (regulation of heavy cutting).

(13)  10 V.S.A. chapter 123 (protection of endangered species).

(14)  10 V.S.A. chapter 159 (waste management).

(15)  29 V.S.A. chapter 11 (management of lakes and ponds).

(b)  This chapter shall govern all appeals from an act or decision of a district commission under chapter 151 of this title.

(c)  This chapter shall govern all appeals from an act or decision of the environmental board under chapter 151 of this title, excluding enforcement actions under chapters 201 and 211 of this title and rulemaking.

§ 8504.  APPEALS TO THE ENVIRONMENTAL COURT

(a)      Any person aggrieved by an act or decision of the secretary, district commission, or environmental board under the provisions of law listed in section 8503 of this title may appeal to the environmental court within 30 days of the date of the act or decision.

(b)  Upon filing an appeal from an act or decision of the district commission, the appellant shall notify all parties who had party status as of the end of the district commission proceeding that an appeal is being filed.

(1)  No aggrieved person may appeal an act or decision that was made by a district commission unless:

(A)  the person is a party pursuant to subdivisions 6085(c)(1)(A) through (D) of this title; or

(B)  the person was granted party status by the district commission pursuant to subdivision 6085(c)(1)(E) or (F), participated in the proceedings before the district commission, and retained party status at the end of the district commission proceedings.  In addition, the person may only appeal those issues under the criteria with respect to which the person was granted party status.

(2)  Notwithstanding subdivision (b)(1) of this section, an aggrieved person may appeal an act or decision of the district commission if the environmental judge determines that:

(A)  there was a procedural defect which prevented the person from obtaining party status or participating in the proceeding;

(B)  some other condition exists which would result in manifest injustice if the person’s right to appeal was disallowed.

(c)  The filing of an appeal shall not automatically stay the act or decision, except for acts or decisions involving stream alteration permits and shoreline encroachment permits issued by the secretary.

(d)  The environmental court shall have the authority to grant a stay of any act or decision that has been appealed, upon petition by a party or upon its own motion.  In addition, for the purposes of judicial economy, the court may delay the commencement of any appeal or the continued deliberation of any appeal in the event that more than one permit granted for the same project is appealed to the court.

(e)  The environmental court shall hold a de novo hearing on those issues which have been appealed, except under the following circumstances:

(1)  the act or decision of the secretary or the environmental board was the result of a contested case proceeding, in which case the review shall be on the record; or

(2)  the act or decision of the district commission has been conducted as a recorded hearing pursuant to section 6085a of this title, in which case the review shall be on the record.

(f)  Any appeal of an authorization to discharge under the terms of a general permit shall be limited in scope to whether the permitted activity complies with the terms and conditions of the general permit.

(g)  Notwithstanding any other provision of this section:

(1)  the environmental court shall not hear an appeal of a district commission decision when the commission has issued a permit and no hearing was requested;

(2)  a district commission’s decision to grant or deny a motion for a recorded hearing shall not be subject to appeal;

(3)  if a district commission issues a partial decision under subsection 6086(b) of this title, any appeal of that decision must be taken within 30 days of the date of that decision.

(h)  The secretary and the environmental board may represent themselves in all appeals under this section.

§ 8505.  APPEALS TO THE SUPREME COURT

(a)  Any person aggrieved by a decision of the environmental court pursuant to this subchapter may appeal to the supreme court within 30 days of the date of the entry of the judgment or order appealed from provided that the person was a party to the appeal before the environmental court.

(b)  Notwithstanding subsection (a) of this section, an aggrieved person may appeal a decision of the environmental court if the supreme court determines that:

(1)  there was a procedural defect which prevented the person from participating in the proceeding;

(2)  some other condition exists which would result in manifest injustice if the person’s right to appeal was disallowed.

(bc)    The supreme court’s review of the environmental courts decision shall be an on‑the‑record review.

(cd)  An objection that has not been raised before the environmental court may not be considered by the supreme court, unless the failure or neglect to raise that objection is excused by the court because of extraordinary circumstances.  The findings of the environmental court with respect to questions of fact, if supported by substantial evidence on the record as a whole, shall be conclusive.

(e)  The secretary and the environmental board may represent themselves in all appeals under this section.

Sec. 2.  3 V.S.A. § 2828 is added to read:

§ 2828.  PROJECT SCOPING PROCESS

(a)  Applicability.  This section shall govern all applications for permits, certifications, or other authorizations, except for professional licenses, issued by the department of environmental conservation or under chapter 151 of this title.

(b)  Determining project scope.  An applicant for any permit, certification, or other authorization, except for a professional license, issued by the department of environmental conservation or a district environmental commission may request to engage in a project scoping process.  If a project scoping request is made, the department of environmental conservation and, if appropriate, the district coordinator shall prepare a project review sheet based on information submitted by the applicant.  The project review sheet shall indicate:

(1)  a brief description of the project and all permits necessary for the project;

(2)  whether a land use permit is required by chapter 151 of this title; and

(3)  a project identification number assigned by the secretary, for use on all applications, notices, permits, and decisions issued by the secretary.

(c)  Project review sheet.  The project review sheet shall be prepared based on the information submitted by the project applicant.  If, based on supplemental information, or for other good cause, the secretary determines that a project will require other permits or the district coordinator determines that a land use permit under chapter 151 of this title is required, notwithstanding the fact that the permit requirement did not appear on the initial project review sheet, the project review sheet shall be amended.  Any failure by the applicant, secretary, or a district coordinator to identify on the project review sheet a required permit or authorization issued by the secretary, or a land use permit issued under chapter 151 of this title, shall not constitute a waiver of jurisdiction.

(d)  Project scoping meeting.  If the applicant elects to initiate a project scoping process upon completion of the project review sheet or submittal of the first permit application at either the local or state level, the applicant shall schedule a project scoping meeting.

(e)  Notice of project scoping meeting.  The applicant shall notice the proposed project scoping meeting, at least 30 days prior to the date of the meeting, by sending a copy of the project review sheet by first class mail, postage prepaid, to each of the following:  the owner of the land where the project is located if the applicant is not the owner; the municipality in which the project is located; the municipal and regional planning commissions for any municipality in which the project is located; the municipal and regional planning commissions in any adjacent Vermont municipality if the project is located on a boundary; any state agency identified on the project scoping sheet as being directly affected by the project; and all adjoining landowners and residents.  In addition, the applicant shall assure that this notice is published in a newspaper of general circulation in the area of the proposed project.  The applicant shall furnish by affidavit to the secretary the names of those furnished notice.

(f)  Project scoping meeting.  The applicant or a representative of the applicant shall be present at the meeting.  The following persons should be present at the scoping meeting:  the secretary or the secretary’s designee; the district coordinator, if the proposed project will require a land use permit under chapter 151 of this title; and a representative of a local permitting authority or a member of the selectboard of the town in which the project is located, if no local permitting authority exists.  At the meeting, the applicant or a representative of the applicant shall present a description of the proposed project, and be available for questions from the public concerning the proposed project.  The purpose of the meeting shall be to provide public information and increase notice about the project, allow discussion of the proposed project, and to identify potential issues at the beginning of the project review process.  The applicant shall provide copies of the project review sheet to persons attending the meeting.

* * * Enhanced Environmental Court * * *

Sec. 3.  4 V.S.A. § 21a is amended to read:

§ 21a.  DUTIES OF THE ADMINISTRATIVE JUDGE

(a)  The administrative judge shall assign and specially assign superior and district judges, including himself or herself, and the environmental judge judges to the superior, environmental, district and family courts.  If the administrative judge determines that additional judicial time is needed to address cases filed in environmental court, the judge may assign or specially assign up to four judges on a part-time basis to the environmental court.  When assigning or specially assigning judges to the environmental court, the administrative judge shall give consideration to experience and expertise in environmental and zoning law, and shall assign or specially assign judges in a manner to provide appropriate attention to all geographic areas of the state.  All judges, except for one of the current environmental court judges, shall be subject to the requirements of rotation as ordered by the Supreme Court.

(b)  In making any assignment under this section, the administrative judge shall give consideration to the experience, temperament and training of a judge and the needs of the court.  In making an assignment to the environmental court, the administrative judge shall give consideration to experience and expertise in environmental and land use law.

Sec. 4.  4 V.S.A. § 22(a) and (b) are amended to read:

(a)  The chief justice may appoint and assign a retired justice or judge with his or her consent or a superior judge or district judge to a special assignment on the Supreme Court.  The chief justice may appoint and the administrative judge shall assign an active or retired justice or a retired judge, with his or her consent, to any special assignment in the district, family, environmental or superior courts.  The administrative judge shall assign a judge to any special assignment in the district, family, environmental or superior court.  Preference shall be given to superior judges to sit in superior courts.  Preference shall be given to district judges to sit in district courts. 

(b)  The administrative judge may appoint and assign a member of the Vermont bar residing within the state of Vermont to serve temporarily as:

(1)  an acting judge in a district, family, environmental, or superior court;

(2)  an acting magistrate; or

(3)  an acting hearing officer to hear cases in the judicial bureau.

Sec. 5.  4 V.S.A. § 1001 is amended to read:

§ 1001.  ENVIRONMENTAL COURT

(a)  An environmental court having statewide jurisdiction is created as a court of record subject to the authority granted to the supreme court.  The environmental court shall consist of the presiding judge sitting alone two judges.  The period of the assignment of the first, and then of the second, environmental judge to the environmental court shall be adjusted by the administrative judge as necessary so that after the first such assignment, no more than one assignment begins in any calendar year. 

(b)(1) One Two environmental judge judges shall be appointed within the judicial branch who shall hear matters arising under chapters 23 and 201 and 220 of Title 10 and matters arising under 24 V.S.A. chapter 117 and chapter 61, subchapter 12 in environmental court.

(2) The Until the expiration of the current term of the current environmental court judge, the current initial environmental judge shall sit in environmental court full time, and the other environmental judge shall sit in environmental court at least two‑thirds of his or her time.  After the initial environmental judge has been replaced, one of the environmental judges then sitting shall sit in environmental court full time and the other shall sit in environmental court at least two-thirds of his or her time.

(c)  An environmental judge shall be an attorney admitted to practice before the Vermont supreme court.  An Until the expiration of the current term of the current environmental judge, the current environmental judge shall be nominated, appointed, confirmed, paid, and retained, and shall receive all benefits in the manner of a superior court judge.

(d)  An environmental judge shall be appointed on April 1, for a term of six years or the unexpired portion thereof. 

(e)  Evidentiary proceedings in the environmental court shall be held in the county in which all or a portion of the land which is the subject of the appeal is located or where the violation is alleged to have occurred, unless the parties agree to another location; provided however, that the environmental judge court shall offer expeditious evidentiary hearings so that no such proceedings are moved to another county to obtain an earlier hearing.  Unless otherwise ordered by the court, all nonevidentiary hearings may be conducted by telephone using an audio or video tape record.  If a party objects to a telephone hearing, the court may require a personal appearance for good cause.

(f) The environmental court shall be provided with a minimum of one court manager, two staff attorneys, two law clerks, two case managers, two docket clerks, and two docket clerk stenographers.  The environmental court shall receive the same funding and provisions for security as provided to county courthouses.

(fg)  The supreme court may enact rules and develop procedures consistent with this chapter to govern the operation of the environmental court and proceedings in the court. In adopting these rules, the supreme court shall ensure that the rules provide for:

(1)  expeditious proceedings that give due consideration to the needs of pro se litigants;

(2)  the ability of the judge to hold pretrial conferences by telephone;

(3)  the use of scheduling orders under the rules of civil procedure in order to limit discovery to that which is necessary for a full and fair determination of the proceeding; and

(4)  the appropriate use of site visits by the presiding judge to assist the court in rendering a decision.

* * * Act 250 revisions * * *

Sec. 6.  10 V.S.A. § 6021(a) is amended to read:

(a)  An environmental board is created.  The board shall consist of nine members appointed in the month of February by the governor, with the advice and consent of the senate, so that alternating four or five appointments expire in each odd numbered year.  The members shall be appointed for terms of four years.  The governor shall appoint up to five persons, who shall be former water resources board, environmental board, or district commission members, with the advice and consent of the senate, to serve as alternates for board members.  Alternates shall be appointed for terms of four years, with initial appointments being staggered.  The board chair may assign alternates to sit on specific cases before the board, in situations where fewer than nine board members are available to serve.

Sec. 7.  10 V.S.A. § 6025 is amended to read:

§ 6025.  RULES

(a)  The board shall adopt rules under and only to the extent of the authority granted to agencies by 3 V.S.A., chapter 25, the Vermont Administrative Procedure Act, to interpret and carry out the provisions of this chapter; however, the board may not adopt emergency rules.  The board may adopt rules, in accordance with the provisions of chapter 25 of Title 3, in the following areas:

(1)  Rules that interpret and carry out the provisions of this chapter,

(b)  The including rules may that establish criteria under which applications for permits under this chapter may be classified in terms of complexity and significance of impact under the standards of section 6086(a) of this chapter.  In accordance with that classification the rules may:

(1)(A)  provide for simplified or less stringent procedures than are otherwise required under sections 6083, 6084 and 6085 of this chapter; and

(2)(B)  provide for the filing of notices instead of applications for the permits that would otherwise be required under section 6081 of this chapter; and

(3)(C)  provide a procedure by which a district commission may authorize a district coordinator to issue a permit that the district commission has determined under board rules is a minor application with no undue adverse impact.

(2)  Rules governing surface levels of lakes and ponds, which are public waters of Vermont.

(3)  Rules regarding classification of the waters of the state, in accordance with 10 V.S.A. chapter 47.

(4)  Rules regarding the establishment of water quality standards, in accordance with 10 V.S.A. chapter 47.

(5)  Rules regulating the surface use of public waters, in accordance with 10 V.S.A. chapter 49.

(6)  Rules regarding the identification of wetlands which are so significant that they merit protection.  Any determination that a particular wetland is significant will result from an evaluation of at least the following functions which a wetland serves:

(A)  provides temporary water storage for flood water and storm runoff;

(B)  contributes to the quality of surface and groundwater through chemical action;

(C)  naturally controls the effects of erosion and runoff, filtering silt and organic matter;

(D)  contributes to the viability of fisheries by providing spawning, feeding, and general habitat for freshwater fish;

(E)  provides habitat for breeding, feeding, resting, and shelter to both game and nongame species of wildlife;

(F)  provides stopover habitat for migratory birds;

(G)  provides for hydrophytic vegetation habitat;

(H)  provides for threatened and endangered species habitat;

(I)  provides valuable resources for education and research in natural sciences;

(J)  provides direct and indirect recreational value and substantial economic benefits; and

(K)  contributes to the open-space character and overall beauty of the landscape.

(7)  rules regarding petitions, including petitions on the board’s own motion, to designate specific wetlands as significant, when considered under the criteria established in subdivision (6) of this subsection;

(8)  Adopt rules protecting wetlands that have been determined under subdivision (6) or (7) of this subsection to be significant, including rules that provide for the issuance or denial of conditional use determinations by the department of environmental conservation; provided, however, that the rules may only protect the values and functions sought to be preserved by the designation.  The board shall not adopt rules that restrain agricultural activities without the consent of the commissioner of the department of agriculture, food and markets and shall not adopt rules that restrain silvicultural activities without the consent of the commissioner of the department of forests, parks and recreation.

(c)(1)(b)(1)  This subsection shall apply to lots within a subdivision:

(A)  that were created as part of a subdivision owned or controlled by a person who may have been required to obtain a permit under this chapter,; and

(B)  with respect to which a determination has been made that a permit was needed under this chapter,; and

(C)  that were sold to a purchaser prior to January 1, 1991 without a required permit.

(2)  The rules shall provide for a modified process by which the sole purchaser, or the group of purchasers, of one or more lots to which this subsection applies may apply for and obtain a permit under this chapter that shall be issued in light of the existing improvements, facts, and circumstances that pertain to the lots; provided, however, that the requirements of this chapter shall be modified only to the extent needed to issue those permits.  For purposes of these rules, a purchaser eligible for relief under this subsection must not have been involved in creating the lots, must not be a person who owned or controlled the land when it was divided or partitioned, as a person is defined in this chapter, and must not have known at the time of purchase that the transfer was subject to a permit requirement that had not been met.

(3)  Notwithstanding the provisions of subsection (a) of this section, the board may adopt emergency rules under this subsection.  Notwithstanding the provisions of 3 V.S.A. chapter 25, the board may adopt emergency rules under this subsection that these emergency rules may remain in effect for 180 days, before they must be replaced by permanent rules.

Sec. 8.  10 V.S.A. § 6027(h) is added to read:

(h)  The board may hear petitions for permit revocation, petitions for outstanding resource waters designation, petitions for wetlands reclassification, appeals of application fee refund requests, as well as appeals from district coordinator jurisdictional opinions through petitions for declaratory rulings.  The board shall not hear appeals of district commission permitting decisions.

Sec. 9.  10 V.S.A. § 6046(b) is amended to read:

(b)  After approval by the governor, plans pursuant to section 6042 of this title shall be submitted to the general assembly when next in session for approval.  A plan shall be considered adopted for the purposes of section 6086(a)(9) of this title when adopted by the act of the general assembly.  No permit shall be issued or denied by a district commission or environmental board which is contrary to or inconsistent with a local plan, capital program or municipal bylaw governing land use unless it is shown and specifically found that the proposed use will have a substantial impact or effect on surrounding towns, the region or an overriding interest of the state and the health, safety and welfare of the citizens and residents thereof requires otherwise.

Sec. 10.  10 V.S.A. § 6083 is amended to read:

§ 6083.  APPLICATIONS

* * *

(b)  The board and district commission may conduct such investigations, examinations, tests and site evaluations, as they deem necessary to verify information contained in the application.  An applicant shall grant the board or district commission, or their its agents, permission to enter upon his the applicant’s land for these purposes.

* * *

(d)  The board and commissions shall make all practical efforts to process permits in a prompt manner.  The board shall establish time limits for permit processing as well as procedures and time periods within which to notify applicants whether an application is complete.  The board shall report annually by February 15 to the house and senate committees on natural resources and energy and government operations.  The annual report shall assess the performance of the board and commissions in meeting the limits; identify areas which hinder effective performance; list fees collected for each permit; summarize changes made by the board to improve performance; describe staffing needs for the coming year; and certify that the revenue from the fees collected is at least equal to the costs associated with those positions.

* * *

(g)(1)  A district commission, pending resolution of noncompliance, may stay the issuance of a permit or amendment if it finds, by clear and convincing evidence, that a person who is an applicant:

(A)  is not in compliance with a court order, an administrative order, or an assurance of discontinuance with respect to a violation that is directly related to the activity which is the subject of the application; or

(B)  has one or more current violations of this chapter, or any rules, permits, assurances of discontinuance, court order, or administrative orders related to this chapter, which, when viewed together, constitute substantial noncompliance.

(2)  Any decision under this subsection to issue a stay may be subject to an interlocutory appeal to the board environmental court.

(3)  If the same violation is the subject of an enforcement action under chapter 201 of this title, then jurisdiction over the issuance of a stay shall remain with the environmental court and shall not reside with the district commission.

Sec. 11.  10 V.S.A. § 6083a is amended to read:

§ 6083a.  FEES

* * *

(d)  All persons filing a petition for permit revocation, petition for outstanding resource waters designation, petition for wetlands reclassification, an appeal of application fee fund request, or an appeal, cross appeal or petition to the board from a district environmental commission decision or jurisdictional determination district coordinator’s jurisdictional opinion, through a petition for a declaratory ruling, shall pay a fee of $100.00, plus any associated publication costs.

* * *

(g)  A commission or the board may require any permittee to file a certification of actual construction costs and may direct the payment of a supplemental fee in the event that an application understated a project’s construction costs.  Failure to file a certification or to pay a supplemental fee shall be grounds for permit revocation.

Sec. 12.  10 V.S.A. § 6084(b) is amended to read:

(b)  The district commission shall forward notice and a copy of the application to the board and any state agency directly affected, the solid waste management district in which the land is located, if the development or subdivision constitutes a facility pursuant to subdivision 6602(10) of this title, and any other municipality, state agency, or person the district commission or board deems appropriate.  Notice shall also be published in a local newspaper generally circulating in the area where the land is located not more than 7 seven days after receipt of the application.

Sec. 13.  10 V.S.A. § 6085 is amended to read:

§ 6085.  HEARINGS; PARTY STATUS

(a)  Anyone required to receive notice by section 6084 of this title and any adjoining property owner may request a hearing by filing a request within 15 days of receipt of notice.  Upon receipt of notice the district commission shall treat the application pursuant to section 814 of Title 3.  The district commission may order a hearing without a request within 20 days of receipt of the application.

(b)  The hearing or a prehearing conference shall be held within 40 days of receipt of the application or notice of appeal.  The parties shall be given not less than 10 days notice.  Notice shall also be published in a local newspaper generally circulating in the area where the land is located not less than 10 days before the hearing date.

(c)(1)  Parties shall be those who have received notice, adjoining property owners who have requested a hearing, and such other persons as the board may allow by rule.  For the purposes of appeal to the supreme court, only the applicant, the landowner if the applicant is not the landowner, a state agency, the regional and municipal planning commissions and the municipalities required to receive notice shall be considered parties.  An adjoining property owner may participate in hearings and present evidence only to the extent the proposed development or subdivision will have a direct effect on his or her property under section 6086(a)(1) through (a)(10) of this title. In proceedings before the board and district commissions, the following persons shall be entitled to party status:

(A)  The applicant;

(B)  The landowner, if the applicant is not the landowner;

(C)  The municipality in which the project site is located, and the municipal and regional planning commissions for that municipality; and if the project site is located on a boundary, any Vermont municipality adjacent to that border and the municipal and regional planning commissions for that municipality; and the solid waste management district in which the land is located, if the development or subdivision constitutes a facility pursuant to section 6602(10) of Title 10;

(D)  Any state agency directly affected by the proposed project, and any state agency receiving notice of the proceedings through the interagency Act 250 review committee;

(E)  Any adjoining property owner who requests a hearing, or who requests the right to be heard by entering an appearance on or before the first prehearing conference or, if no prehearing conference is held, the first day of a hearing that has previously been scheduled, to the extent that the adjoining property owner demonstrates that the proposed development or subdivision may have a direct effect on the adjoiner’s property under the relevant criteria for the proceeding involved, or under any of the 10 criteria listed at subsection 6086(a) of this title; and

(F)  Any person who demonstrates an interest which may be affected by the outcome of the proceeding and who is so situated that the disposition of the proceeding may as a practical matter impair or impede the applicant’s person’s ability to protect that interest, unless the person’s interest is adequately represented by existing parties. 

(2)  Content of Petitions.  All persons seeking to participate in proceedings before the board or district commission as parties pursuant to subdivision (c)(1)(E) or (F) of this section must petition for party status.  Any petition for party status may be made orally or in writing to the district commission and shall be made in writing to the board, unless waived by the chair.  All petitions must include:

(A)  A detailed statement of the petitioner’s interest under the relevant criteria of the proceeding, including, if known, whether the petitioner’s position is in support of or in opposition to the relief sought by the permit applicant, appellant, or petitioner; and

(B)  In the case of an organization, a description of the organization, its purposes, and the nature of its membership

membership and its purposes; and

(C)  A statement of the reasons the petitioner believes the board or district commission should allow the petitioner party status in the pending proceeding.

(D)  In the case of an adjoining property owner:

(i)  A description of the location of the adjoining property in relation to the proposed project, including a map, if available;

(ii)  A description of the potential effect of the proposed project upon the adjoiner’s property with respect to each of the relevant criteria or subcriteria under which party status is being requested.

(E)  In the case of a person seeking party status under subdivision (c)(1)(F) of this section:

(i)  If applicable, a description of the location of the petitioner’s property in relation to the proposed project, including a map, if available;

(ii)  A description of the potential effect of the proposed project upon the petitioner’s interest with respect to each of the relevant criteria or subcriteria under which party status is being requested.

(3)  Timeliness.  A petition for party status pursuant to subdivision (c)(1)(E) or (F) of this section must be made at or prior to an initial prehearing conference held pursuant to board rule, or at the commencement of the hearing, whichever shall occur first, unless the board or district commission, within their respective jurisdictions, directs otherwise.  The board or district commission, within their respective jurisdictions, may grant an untimely petition if it finds that the petitioner has demonstrated good cause for failure to request party status in a timely fashion, and that the late appearance will not unfairly delay the proceedings or place an unfair burden on the parties.

(4)  Conditions.  Where a person has been granted party status pursuant to subdivision (c)(1)(E) or (F) of this section, the board or district commission, within their respective jurisdictions, shall restrict the person’s participation to only those issues in which it has demonstrated an interest, and may encourage the person to join with other persons with respect to representation, presentation of evidence, or other matters in the interest of promoting judicial expediency.  A person who has been granted party status as an adjoining property owner may participate in the hearings and present evidence only to the extent the proposed project will have a direct effect on the person’s property under any provision of subsection 6086(a) of this title, or under the relevant criteria of the proceeding involved.

(5)  Amicus Curiae.  The board or district commission, on its own motion or by petition, may appoint amicus curiae to participate in a any of its proceedings.  Participation may be limited to the filing of memoranda, proposed findings of fact and conclusions of law, and argument on legal issues.  However, if approved by the board or the district commission, participation may be expanded to include the provision of testimony, the filing of evidence, or the cross examination of witnesses.  A petition for leave to participate as amicus curiae shall identify the interest of the petitioner and the desired scope of participation and shall state the reasons why the participation of the petitioner will be beneficial to the board or the district commission.  Except where all parties consent, or as otherwise ordered by the board or district commissions, in their respective proceedings or their respective chairs, all amicus curiae shall file their memoranda, testimony, or evidence within the times allowed other parties.

(2)(6)  A district commission, according to the procedures established in the rules of the board, shall determine party status with respect to individuals and organizations at the commencement of the hearing process and shall re‑examine those party status determinations before the close of hearings and state the results of that re-examination in the district commission decision.  In the re-examination of party status coming before the close of district commission hearings, persons having attained party status up to that point in the proceedings shall be presumed to retain party status.  However, on motion of a party, or on its own motion, a commission shall consider the extent to which parties continue to qualify for party status.  Determinations made before the close of district commission hearings shall supersede any preliminary determinations of party status.

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Sec. 14.  10 V.S.A. § 6085a is amended to read:

§ 6085a.  PILOT PROJECT REGARDING APPEALS ON THE RECORD FROM DISTRICT ENVIRONMENTAL COMMISSION DETERMINATIONS

(a)  At the time of application, the applicant may file a motion for recorded hearings, which provides that any appeal to the board environmental court will consist of a review on that record. 

(b)  In the absence of a motion for recorded hearings properly filed by an applicant with the filing of a complete application and, within ten calendar days of the date that a district commission provides notice of a hearing under section 6084 of this title, any statutory party or any prospective party may file a motion for recorded hearings which provides that any appeal to the board environmental court will consist of a review on that record.

(c)  Within ten calendar days of its receipt of a motion for recorded hearings properly filed by an applicant or a prospective party and the receipt of a complete application, the commission shall provide notice of the motion.  If necessary, the commission shall cancel any previously scheduled hearings, and the commission shall schedule a prehearing conference.  The purpose of the prehearing conference includes, but need not be limited to, determining party status and affording an opportunity to object to the motion for recorded hearings.

(d)  After a final determination of preliminary party status is made, in determining whether to grant a motion for recorded hearings, the district commission shall consider the public interest, including, but not limited to:  the cost of recorded hearings, the efficiency of the application process, the anticipated value of the particular proceeding in evaluating the recorded hearing pilot project, relative costs or cost savings to the parties, and whether recorded hearings will likely result in providing more complete or less complete information for the commission’s consideration.  If it is clear that the public interest would be served, the commission may shall grant such motions for recorded hearings, with the consent of all parties.  The commission’s decision on this issue shall not be subject to appeal if made by the applicant.  The commission shall grant such motions by parties other than the applicant only with the consent of the applicant. 

(e)  Motions under this section for recorded hearings before the district commission may be granted no more than 12 times throughout the state, without further legislative authority, and no more than three motions for recorded hearings may be granted by the same district commission.

(f)  In situations in which recorded hearings are convened, the district commission shall extend the hearing schedule or take other appropriate action as necessary to provide a fair and reasonable opportunity for the parties to prepare, present, and respond to evidence presented, while preventing undue delay.  Parties may prefile testimony and exhibits.  If prefiled testimony is used, the applicant shall file its prefiled testimony, and then other parties shall be given the opportunity to file their prefiled testimony.  Any rebuttal testimony shall be filed in similar sequence.

(g)  Recorded hearings before the commission shall maintain the procedural and evidentiary flexibility and informality characteristic of administrative proceedings.  Those standards shall be construed with particular flexibility in allowing the introduction of evidence.

(h)  The commission hearing shall be recorded on videotape, at the expense of the board district commission, to preserve the words and identity of the speakers, and to allow for the ready recovery of the testimony on the videotape by the parties and the board environmental court, if necessary to clarify the written record.  In the event that an appeal is taken to the board environmental court, the commission shall provide the board environmental court with the original videotape of the hearing and the complete commission written record.  The commission shall make and preserve a copy of the original tape for access and subsequent use by the parties and the board.

(i)  The board shall adopt emergency rules following one or more public hearings and a written comment period to guide the implementation of this section throughout the state.  In this adoption process, the board need not believe that there exists an imminent peril to public health, safety, and welfare.  Review of these emergency rules by the legislative committee on administrative rules shall not include the issue of whether or not the rules are necessitated by an imminent peril to public health, safety, or welfare.  These emergency rules shall remain in effect until the pilot project is terminated or the rules are amended through the normal rulemaking process.  Upon receipt of a request from a commission for additional assistance in managing a recorded hearing, the board shall provide temporary additional resources as necessary.

(j)  In the case of appeals taken on the record under this section, notwithstanding provisions to the contrary in section 6089 of this title, the following shall apply:

(1)  Parties to the appeal shall conform with the filing and procedural requirements in the board rules adopted in accordance with emergency rulemaking authority granted to the board under this section.

(2)  The board environmental court may require that additional evidence be presented, and may receive and consider evidence offered beyond that which was presented before the commission.

(3)  The board environmental court shall remand the case to the district commission if it is persuaded that the district commission improperly excluded evidence, did not provide adequate notice or opportunity to prepare or to be heard, or otherwise failed to comply with the requirements of 3 V.S.A. chapter 25 pertaining to contested cases.  The board environmental court need not remand for harmless error.  Party status disputes shall be resolved through interlocutory appeal to the board environmental court prior to the district commission’s convening hearings on the merits.

(4)  The board may, in its discretion, substitute its judgment for the judgment of the commission without finding that the commission erroneously applied the law.

(k)  The board shall provide interim reports on implementation of the recorded hearing pilot project this section to the general assembly, by no later than March 15, 2002 2005 and January 15, 2003 2006.  The executive director of the board shall present to the legislative committees on natural resources and energy those interim reports, which shall detail the range of projects for which there were recorded hearings, the districts where the recorded hearings took place, the time required and the outcome of completed commission hearings, whether appeals were taken, and if so, by which party, and the time required for and outcome of appellate proceedings before the board.  The reports shall indicate the number of instances in which requests for recorded hearings were duly filed, but consent of all the parties was not obtained, and shall describe the nature of the projects involved, what were the concerns of the parties applicant that refused to consent, and other circumstances regarding each case.  In addition, the reports shall address the following, both from the perspective of the board and from the perspective of the commissions:  the timeliness of the process, manageability of the process, any perceived effects on public participation, and any additional resource demands or resource efficiencies.  The board shall provide the general assembly with a final report on the implementation of this section following the date for sunset and after all proceedings before the board are completed.

(l)  This section shall be repealed on September 1, 2004 2007, although proceedings pursuant to a motion for recorded hearings that is filed prior to that date shall continue under those sections until all of these proceedings before the board are completed.

Sec. 15.  10 V.S.A. § 6086 is amended to read:

§ 6086.  ISSUANCE OF PERMIT; CONDITIONS AND CRITERIA

(a)  Before granting a permit, the board or district commission shall find that the subdivision or development;

(1)  Will not result in undue water or air pollution.  In making this determination it shall at least consider: the elevation of land above sea level; and in relation to the flood plains, the nature of soils and subsoils and their ability to adequately support waste disposal; the slope of the land and its effect on effluents; the availability of streams for disposal of effluents; and the applicable health and environmental conservation department regulations.

(A)  Headwaters.  A permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria, the development or subdivision will meet any applicable health and environmental conservation department regulation regarding reduction of the quality of the ground or surface waters flowing through or upon lands which are not devoted to intensive development, and which lands are:

(i)  headwaters of watersheds characterized by steep slopes and shallow soils; or

(ii)  drainage areas of 20 square miles or less; or

(iii)  above 1,500 feet elevation; or

(iv)  watersheds of public water supplies designated by the Vermont department of health agency of natural resources; or

(v)  areas supplying significant amounts of recharge waters to aquifers.

* * *

(G)  Wetlands.  A permit will be granted whenever it is demonstrated by the applicant, in addition to other criteria, that the development or subdivision will not violate the rules of the water resources board, as adopted under section 905(9) of this title, relating to significant wetlands.

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(9)  Is in conformance with a duly adopted capability and development plan, and land use plan when adopted.  However, the legislative findings of sections subdivisions 7(a)(1) through 7(a)(19) of this act shall not be used as criteria in the consideration of applications by a district commission or the environmental board.

(A)  Impact of growth.  In considering an application, the district commission or the board shall take into consideration the growth in population experienced by the town and region in question and whether or not the proposed development would significantly affect their existing and potential financial capacity to reasonably accommodate both the total growth and the rate of growth otherwise expected for the town and region and the total growth and rate of growth which would result from the development if approved.  After considering anticipated costs for education, highway access and maintenance, sewage disposal, water supply, police and fire services and other factors relating to the public health, safety and welfare, the district commission or the board shall impose conditions which prevent undue burden upon the town and region in accommodating growth caused by the proposed development or subdivision.  Notwithstanding section 6088 of this title the burden of proof that proposed development will significantly affect existing or potential financial capacity of the town and region to accommodate such growth is upon any party opposing an application, excepting however, where the town has a duly adopted capital improvement program the burden shall be on the applicant.

(B)  Primary agricultural soils.  A permit will be granted for the development or subdivision of primary agricultural soils only when it is demonstrated by the applicant that, in addition to all other applicable criteria, either, the subdivision or development will not significantly reduce the agricultural potential of the primary agricultural soils; or,

(i)  the applicant can realize a reasonable return on the fair market value of his the applicant’s land only by devoting the primary agricultural soils to uses which will significantly reduce their agricultural potential; and

(ii)  there are no nonagricultural or secondary agricultural soils owned or controlled by the applicant which are reasonably suited to the purpose; and

(iii)  the subdivision or development has been planned to minimize the reduction of agricultural potential by providing for reasonable population densities, reasonable rates of growth, and the use of cluster planning, except that cluster planning shall not be required within an area exclusively designated by a municipality as an industrial park, and by providing for new community planning designed to economize on the cost of roads, utilities and land usage.  For the purposes of this subdivision (a)(9)(B)(iii), “industrial park” means an area designated as such in the approved town plan of a town with a confirmed planning process, or in the case of an approved plan that has expired, the area shall be designated as such in duly adopted zoning bylaws; and

(iv)  the development or subdivision will not significantly interfere with or jeopardize the continuation of agriculture or forestry on adjoining lands or reduce their agricultural or forestry potential.

(C)  Forest and secondary agricultural soils.  A permit will be granted for the development or subdivision of forest or secondary agricultural soils only when it is demonstrated by the applicant that, in addition to all other applicable criteria, either, the subdivision or development will not significantly reduce the potential of those soils for commercial forestry, including but not limited to specialized forest uses such as maple production or Christmas tree production, and will not significantly reduce the potential of those or adjacent primary agricultural soils for commercial agriculture; or

(i)  the applicant can realize a reasonable return on the fair market value of his the applicant’s land only by devoting the forest or secondary agricultural soils to uses which will significantly reduce their forestry or agricultural potential; and

(ii)  there are no nonforest or secondary agricultural soils owned or controlled by the applicant which are reasonably suited to the purpose; and

(iii)  the subdivision or development has been planned to minimize the reduction of forestry and agricultural potential by providing for reasonable population densities, reasonable rates of growth, and the use of cluster planning, except that cluster planning shall not be required within an area exclusively designated by a municipality as an industrial park, and by providing for new community planning designed to economize on the cost of roads, utilities and land usage.  For the purposes of this subdivision (a)(9)(C)(iii), “industrial park” means an area designated as such in the approved town plan of a town with a confirmed planning process, or in the case of an approved plan that has expired, the area shall be designated as such in duly adopted zoning bylaws

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(E)  Extraction of earth resources.  A permit will be granted for the extraction or processing of mineral and earth resources, including fissionable source material:

(i)  when it is demonstrated by the applicant that, in addition to all other applicable criteria, the extraction or processing operation and the disposal of waste will not have an unduly harmful impact upon the environment or surrounding land uses and development; and

(ii)  upon approval by the district commission or the board of a site rehabilitation plan which insures that upon completion of the extracting or processing operation the site will be left by the applicant in a condition suited for an approved alternative use or development.  A permit will not be granted for the recovery or extraction of mineral or earth resources from beneath natural water bodies or impoundments within the state, except that gravel, silt and sediment may be removed pursuant to the regulations of the water resources board agency of natural resources, and natural gas and oil may be removed pursuant to the rules of the natural gas and oil resources board.

* * *

(H)  Costs of scattered development.  The district commission or board will grant a permit for a development or subdivision which is not physically contiguous to an existing settlement whenever it is demonstrated that, in addition to all other applicable criteria, the additional costs of public services and facilities caused directly or indirectly by the proposed development or subdivision do not outweigh the tax revenue and other public benefits of the development or subdivision such as increased employment opportunities or the provision of needed and balanced housing accessible to existing or planned employment centers.

* * *

(10)  Is in conformance with any duly adopted local or regional plan or capital program under chapter 117 of Title 24.  In making this finding, if the board or district commission finds applicable provisions of the town plan to be ambiguous, the board or district commission, for interpretive purposes, shall consider bylaws, but only to the extent that they implement and are consistent with those provisions, and need not consider any other evidence.

(b)  At the request of an applicant, or upon its own motion, the district commission or the board shall consider whether to review any criterion or group of criteria of subsection (a) of this section before proceeding to or continuing to review other criteria.  This request or motion may be made at any time prior to or during the proceedings.  The district commission or the board, in its sole discretion, shall, within 20 days of the completion of deliberations on the criteria that are the subject of the request or motion, either issue its findings and decision thereon, or proceed to a consideration of the remaining criteria.  If the district commission or the board first issues a partial decision under this subsection, the applicant or a party may appeal that decision within 30 days under section 6089 of this title, or may appeal it after the final decision on the complete application.  If the applicant or party has not taken a prior appeal of a partial decision under this subsection with respect to particular criteria, then any findings on the complete application, relating to those criteria, may be appealed under section 6089 of this title.

(c)  A permit may contain such requirements and conditions as are allowable proper exercise of the police power and which are appropriate within the respect to (1) through (10) of subsection (a) subdivisions (a)(1) – (10) of this section, including but not limited to those set forth in sections 4407(4), (8) and (9), 4411(a)(2), 4415, 4416, and 4417 of Title 24, the dedication of lands for public use, and the filing of bonds to insure compliance.  The requirements and conditions incorporated from Title 24 may be applied whether or not a local plan has been adopted.  General requirements and conditions may be established by rule.

(d)  The board may by rule allow the acceptance of a permit or permits or approval of any state agency with respect to (1) through (5) of subsection (a) subdivisions (a)(1) – (5) of this section or a permit or permits of a specified municipal government with respect to (1) through (7) and (9) and (10) of subsection (a) subdivisions (a)(1) – (7) and (9) and (10) of this section, or a combination of such permits or approvals, in lieu of evidence by the applicant.  In the case of approvals and permits issued by the agency of natural resources with respect to subdivisions (a)(1) – (5) of this section, determinations of the agency shall be dispositive for any issue addressed in the agency permits or approvals under the relevant criteria of subsection (a) of this section in district commission proceedings.  The board district commission shall accept determinations issued by a development review board under the provisions of 24 V.S.A. § 4449, with respect to local Act 250 review of municipal impacts.  The acceptance of such approval, positive determinations, permit, or permits shall create a presumption that the application is not detrimental to the public health and welfare with respect to the specific requirement for which it is accepted.  In the case of approvals and permits issued by the agency of natural resources, technical determinations of the agency shall be accorded substantial deference by the commissions and the board.  The acceptance of negative determinations issued by a development review board under the provisions of 24 V.S.A. § 4449, with respect to local Act 250 review of municipal impacts shall create a presumption that the application is detrimental to the public health and welfare with respect to the specific requirement for which it is accepted.  Any determinations, positive or negative, under the provisions of 24 V.S.A. § 4449 shall create presumptions only to the extent that the impacts under the criteria are limited to the municipality issuing the decision.  The district commission shall accept determinations issued, after opportunity for comment by the parties, by the department of agriculture, food and markets, with respect to whether or not particular soils are primary agricultural soils, and those determinations shall be presumed to be accurate.  Such a rule may be revoked or amended pursuant to the procedures set forth in 3 V.S.A., chapter 25, the Vermont Administrative Procedure Act.  The board district commission shall not approve the acceptance of a permit or approval of such an agency or a permit of a municipal government unless it satisfies the appropriate requirements of subsection (a) of this section.

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(f)  Prior to any appeal of a permit issued by a district commission, any aggrieved party may file a request for a stay of construction with the district commission together with a declaration of intent to appeal the permit.  The stay request shall be automatically granted for seven days upon receipt and notice to all parties and pending a ruling on the merits of the stay request pursuant to board rules.  The automatic stay shall not extend beyond the 30-day appeal period unless a valid appeal has been filed with the board environmental court.  The automatic stay may be granted only once under this subsection during the 30-day appeal period.  Following appeal of the district commission decision, any stay request must be filed with the board pursuant to board rules environmental court.  A district commission shall not stay construction authorized by a permit processed under the board’s minor application procedures.

Sec. 16.  10 V.S.A. § 6087(a) is amended to read:

§ 6087.  DENIAL OF APPLICATION

(a)  No application shall be denied by the board or district commission unless it finds the proposed subdivision or development detrimental to the public health, safety or general welfare.

Sec. 17.  10 V.S.A. § 6089 is amended to read:

§ 6089.  APPEALS

(a)(1)  An appeal from the district commission shall be to the board and shall be accompanied by a fee prescribed by section 6083a of this title.

(2)  An appellant to the board, under this section, shall file with the notice of appeal a statement of the issues to be addressed in the appeal, a summary of the evidence that will be presented, and a preliminary list of witnesses who will testify on behalf of the appellant.

(3)  The board shall hold a de novo hearing on all findings requested by any party that files an appeal or cross appeal, according to the rules of the board.

(4)  Notice of appeal shall be filed with the board within 30 days.  The board shall notify the parties set forth in section 6085(c) of this title of the filing of any appeal.  The board shall proceed as in section 6085(b) and (c) of this title and treat the applicant pursuant to section 814 of Title 3.

(b)  An appeal from a decision of the board under subsection (a) of this section shall be to the supreme court by a party as set forth in section 6085(c) of this title.

(c)  No objection that has not been urged before the board may be considered by the supreme court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.  The findings of the board with respect to questions of fact, if supported by substantial evidence on the record as a whole, shall be conclusive.

(d)  An appeal from the board will be allowed for all usual reasons, including the unreasonableness or insufficiency of the conditions attached to a permit.  An appeal from the district commission will be allowed for any reason except no appeal shall be allowed when an application has been granted and no preliminary hearing requested.

Appeals of any act or decision of a district commission or the board under this chapter shall be made in accordance with chapter 220 of this title.

Sec. 18.  10 V.S.A. § 6091 is amended to read:

§ 6091.  RENEWALS AND NONUSE

(a)  Renewal. At the expiration of each permit, it may be renewed under the same procedure herein specified for an original application.

(b)  Nonuse of permit.  Nonuse of a permit for a period of three years following the date of issuance shall constitute an abandonment of the development or subdivision and the permit shall be considered expired.  For purposes of this section, for a permit to be considered “used,” construction must have commenced and substantial progress toward completion must have occurred within the three-year period, unless construction is delayed by litigation or proceedings to secure other permits or to secure title through foreclosure, or unless, at the time the permit is issued or in a subsequent proceeding, the district commission or board environmental court provides that substantial construction may be commenced more than three years from the date the permit is issued.

(c)  Extensions.  If the application is made for an extension prior to expiration the district commission may grant an extension and may waive the necessity of a hearing.

(d)  Completion dates for developments and subdivisions.  Permits shall include dates by which there shall be full or phased completion.  The board, by rule, shall establish requirements for review of those portions of developments and subdivisions that fail to meet their completion dates, giving due consideration to fairness to the parties involved, competing land use demands, and cumulative impacts on the resources involved.  If completion has been delayed by litigation, proceedings to secure other permits, proceedings to secure title through foreclosure, or because of market conditions, the district commission or board environmental court shall provide that the completion dates be extended for a reasonable period of time.

Sec. 19.  10 V.S.A. § 6093 is added to read:

§ 6093.  AGRICULTURAL LANDS OFF-SITE MITIGATION

(a)  An applicant for a permit under this chapter for a development or subdivision that is proposed to take place on primary agricultural soils may enter into an agricultural off-site mitigation agreement with the department of agriculture, food and markets, in which the applicant agrees to pay a calculated contribution into the Vermont housing and conservation trust fund established under section 312 of this title, from which it is used to protect other farmlands.  An executed mitigation agreement shall be presented to the district commission with jurisdiction where the development or subdivision is proposed to occur; the commission then shall consider the mitigation agreement in evaluating whether a project satisfies subdivision 6086(a)(9)(B) of this title.

(b)  The department will not enter a mitigation agreement unless the following all apply to an applicant’s project:

(1)  the project complies with the requirements of subdivision 6086(a)(9)(B)(ii), (iii), and (iv);

(2)  designs minimizing the reduction in soils agricultural potential  have been considered and an on-site cluster development or subdivision would not result in the conservation of agricultural land with the ability to contribute to commercial agricultural enterprise; and

(3)  the lands are in an area which is being or is likely to be converted to uses incompatible with farming or which will not support farming.

(c)  The amount of money that must be contributed by a developer to a mitigation agreement shall be derived by:

(1)  determining the number of acres of primary agricultural soils that would suffer potential reduction as a result of a particular development or subdivision;

(2)  multiplying that number by a value determined by the commissioner of agriculture, food, and markets based on the quality of the agricultural soils lost through the proposed development.  The quality of agricultural soils shall be determined by the commissioner in conformance with the United States department of agriculture value groups for Vermont soils.  In no case shall this value be less than two in order to achieve a 2:1 (protected acres: acres of primary agricultural soils whose potential has been reduced) ratio, and then multiplying that result by a “price per acre” factor.  The “price per acre” for primary agricultural soils shall be based on the amount that the department of agriculture, food and markets has determined to be the average, per-acre cost to acquire conservation easements on productive farmland in the county in which the development or subdivision is to occur.

* * * ANR revisions and conforming changes * * *

Sec. 20.  3 V.S.A. § 2802(b) is amended to read:

(b)  The environmental board and the water resources board are is attached to the agency for the purpose of receiving administrative support.

Sec. 21.  3 V.S.A. § 2803(b) is amended to read:

(b)  Notwithstanding subsection (a) of this section or any other provision of this chapter the fish and wildlife board, and the environmental board and the water resources board shall retain and exercise all powers and functions given to them by law which are of regulatory or quasi-judicial nature, including the power to adopt, amend and repeal rules and regulations, to conduct hearings, to adjudicate controversies and to issue and enforce orders, in the manner and to the extent to which those powers are given to those respective boards by law.

Sec. 22.  3 V.S.A. § 2826 is amended to read:

§ 2826.  ENVIRONMENTAL NOTICE BULLETIN; PERMIT HANDBOOK;

NOTICE BY SIGN

(a)  The secretary shall establish procedures for the publication of an environmental notice bulletin, in order to provide for the timely public notification of permit applications, notices, comment periods, hearings, and permitting decisions.  The secretary shall begin publication of the bulletin by no later than July 1, 1995 on the agency’s website.  At a minimum, the bulletin shall contain the following information:

(1)  notice of administratively complete permit applications submitted to the department of environmental conservation;

(2)  notice of the comment period on the application and draft permit, if any, for those applications which were noticed;

(3)  notice of the issuance of draft permit, if required by law, for those applications that were noticed;

(4)  information on how to request a public hearing or meeting, if one is provided for by law, for those applications that were noticed;

(5)  notice of all public hearings or meetings that are scheduled for those applications that were noticed; and

(6)  notice of the issuance or denial of a permit for those applications that were noticed.

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(c)  In addition to any notice required for a permit issued by the department of environmental conservation, the secretary shall require each applicant to post a sign provided by the secretary, at cost, along the public road or highway, unless it is a limited access highway, that is the closest to the exact location of the project to be permitted.  The applicant shall post the sign upon filing the application.  This signage requirement shall not apply to applications for professional licenses or to potable water supply and wastewater permits for single‑family residences on their own individual lots.

Sec. 23.  4 V.S.A. § 2878 is amended to read:

§ 2878.  INDEPENDENT BOARDS BOARD

The environmental board and the water resources board are is created and are is attached to the agency of natural resources for the purpose of receiving administrative support.  These boards This board shall be constituted as provided by law and shall perform the duties and functions specified by law.

Sec. 24.  10 V.S.A. § 552 is amended to read:

§ 552.  DEFINITIONS

As used in this chapter:

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(4)  “Board” means the solid waste and air quality variance board.

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(7)  “Secretary” means the secretary of the agency of natural resources or such person as the secretary may designate the secretary’s duly authorized representative.

* * *

Sec. 25.  10 V.S.A. § 553 is amended to read:

§ 553.  AGENCY AND BOARD

(a)  The agency is designated as the air pollution control agency for the state.  The secretary or his or her the secretary’s duly designated authorized representative, within the agency, shall perform the functions vested in the agency, as specified in the following sections of this chapter.

     (b)  A solid waste and air quality variance board shall be appointed by the governor, with the advice and consent of the senate.  The board shall consist of five members, none of whom is otherwise employed by the state.  The board shall consist of a lawyer, a manufacturer, a professional engineer, a businessman and a member representing the public at large.  The governor shall designate the chairman.  The terms of office shall be five years except that the initial members shall be appointed so that the term of one member shall expire in each of the succeeding five years.

Sec. 26.  10 V.S.A. § 561 is amended to read:

§ 561.  VARIANCES

(a)  A person who owns or is in control of any plant, building, structure, process or equipment may apply to the board secretary for a variance from the rules of the secretary adopted under this chapter.  If a request for a variance is related to an application for a permit under this chapter, the applicant may file that request only after the secretary has issued a declaratory ruling that makes it clear that the applicant would not be eligible for the permit or after the secretary has granted or denied the permit, according to the provisions of subsection 562(e) of this title.  The board secretary may grant a variance if it the secretary finds that:

(1)  The emissions occurring or proposed to occur do not endanger or tend to endanger human health or safety; and

(2)  Compliance with the rules from which variance is sought would produce serious hardship without equal or greater benefits to the public.

(b)  No variance shall be granted pursuant to this section except after public hearing on due notice notice and an opportunity for a public meeting and until the board secretary has considered the relative interests of the applicant, other owners of property likely to be affected by the discharges, and the general public.

(c)  Any variance or renewal thereof shall be granted within the requirements of subsection (a) of this section and for time periods and under conditions consistent with the reasons therefore, and within the following limitations:

(1)  If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, abatement or control of the air pollution involved, it shall be only until the necessary practicable means for prevention, abatement or control become known and available, and subject to the taking of any substitute or alternate measures that the board secretary may prescribe.

(2)  If the variance is granted on the ground that compliance with the particular requirement or requirements from which variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the board secretary is requisite for the taking of the necessary measures.  A variance granted on the ground specified herein shall contain a time schedule for the taking of action in an expeditious manner and shall be conditioned on adherence to the time schedule.

(3)  If the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in subdivisions (1) and (2) of this subsection, it shall be for not more than one year.

(d)  Any variance granted pursuant to this section may be renewed on terms and conditions and for periods, which would be appropriate on initial granting of a variance.  If complaint is made to the board secretary on account of the variance, no renewal thereof shall be granted, unless following public hearing on the complaint on due notice and an opportunity for a public meeting on the complaint, the board secretary finds that renewal is justified.  No renewal shall be granted except on application therefore.  The application shall be made at least sixty 60 days prior to the expiration of the variance. Immediately upon receipt of an application for renewal, the board secretary shall give public notice of the application in accordance with rules of the board.

(e)  A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the board secretary.  However, any person adversely affected by a variance or renewal granted or denied by the board may obtain judicial review thereof by appealing that decision within 30 days to the environmental court established under 4 V.S.A. chapter 27, according to the provisions of section 562 of this title.

(f)  Nothing in this section and no variance or renewal granted pursuant hereto shall be construed to prevent or limit the application of the emergency provisions and procedures of section 560 of this chapter to any person or his the person’s property.

(g)  On application from a person who is subject to an increased air emission fee caused by amendments to the provisions of 3 V.S.A. § 2822(j), (k) and (l), the board secretary may grant an amendment in fee amount.  A fee amendment under this subsection may be granted only if the applicant establishes that payment of fees would produce serious hardship.  Fee amendments granted under this subsection shall not be subject to the findings required for the issuance of a variance under subsection (a) of this section, but fee amendments shall otherwise be subject to the provisions of this chapter regarding variances.

Sec. 27.  10 V.S.A. § 562 is amended to read:

§ 562.  HEARINGS AND JUDICIAL REVIEW APPEALS

(a)  No rule or regulation and no amendment or repeal thereof shall take effect except after public hearing.  The secretary shall appoint a time and place for the hearing and shall order the publication of the substance thereof and of the time and place of hearing two weeks successively in the daily newspapers of the state, the last publication to be at least seven days before the day appointed for the hearing Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title.

(b)  Nothing in this section shall be construed to require a hearing before issuance of an emergency order pursuant to section 560 of this chapter.

(c)  [Repealed.]

(d)  Any person aggrieved by the issuance, denial, suspension, termination, revocation, annulment, withdrawal or renewal of an individual or general permit pursuant to this chapter may appeal that decision within 30 days to the environmental court established under 4 V.S.A. chapter 27, except as otherwise provided in section 6104 of this title.  The environmental court shall hold a de novo hearing and shall issue an order affirming, revising or reversing the decision of the secretary.  An appeal filed pursuant to this section shall not stay the decision of the secretary.  For the purposes of an appeal pursuant to this subsection, the environmental court shall have and may exercise all powers and authorities of the superior court in a proceeding under Rule 75 of the Vermont Rules of Civil Procedure. V.R.C.P. 76 shall not apply to appeals filed pursuant to this section.  A person appealing an issue under this subsection may not request a variance on that same issue under subsection (e) of this section.  A person requesting a variance under subsection (e) of this section may not appeal the same issue under this subsection.

(e)  As a mutually exclusive alternative to appealing an issue as provided in subsection (d) of this section, a person aggrieved by the issuance, denial, suspension, termination, revocation, annulment, withdrawal or renewal of an individual or general permit may request a variance under section 561 of this title, if the action in question involved a rule adopted under this chapter, and if the person is entitled to request a variance under the terms of section 561.  A request for a variance shall be filed within 30 days.  If an action on a permit results in an appeal on one issue under subsection (d) and a request for a variance under this subsection with respect to a different issue, the court shall stay the appeal until the board has granted or denied the variance.

(f)  With respect to appeals from variance decisions under subsection (e) of this section, the environmental court shall hold a hearing based on the record developed before the variance board, and shall issue an order affirming, revising or reversing the decision of the board.  An appeal filed pursuant to this subsection shall not stay the decision of the secretary.  For the purposes of an appeal pursuant to this subsection, the environmental court shall have and may exercise all powers and authorities of the superior court in a proceeding under V.R.C.P. 74.

(g)  If a permit is denied under this section, and that denial is the subject of either an appeal or a request for a variance, the applicant need not commence application proceedings anew, once those issues are resolved.

Sec.  28.  10 V.S.A. § 752 is amended to read:

§ 752.  DEFINITIONS

For the purposes of this chapter:

* * *

(9)  “Secretary” means the secretary of the agency of natural resources or the secretary’s duly authorized representative.

Sec. 29.  10 V.S.A. § 902 is amended to read:

§ 902.  DEFINITIONS

Wherever used or referred to in this chapter, unless a different meaning clearly appears from the context:

(1)  “Board” means the Vermont water resources board;

* * *

Sec. 30.  10 V.S.A. § 905b is amended to read:

§ 905b.  DUTIES; POWERS

The department shall protect and manage the water resources of the state in accordance with the provisions of this subchapter and shall:

* * *

(18)  study and investigate the wetlands of the state and cooperate with other agencies and the board in collecting and compiling data relating to wetlands, propose to the board specific wetlands to be designated as significant wetlands, and implement through existing programs the rules adopted by the board governing significant wetlands, including the issuance or denial of conditional use determinations pursuant to section 1272 of this title;

(19)  cooperate with the agencies of the federal government and of the province of Quebec, adjoining states and states through which water from Vermont streams flows in all matters relating to interstate streams;

(20)  cooperate with the state board of health in matters of stream pollution where public health is involved;

(21)  act as the Vermont water resources board mentioned in the act of Congress entitled, “An act authorizing the construction of certain public works on rivers and harbors for flood control and for other purposes,” approved December 22, 1944.  In this connection, the department shall carry out the policy of the state as defined by section 1100 of this title.

Sec. 31.  10 V.S.A. § 1002 is amended to read:

§ 1002.  DEFINITIONS

Wherever used or referred to in this chapter, unless a different meaning clearly appears from the context:

* * *

(4)  “Board” means the Vermont water resources environmental board;

* * *

(9)  “Person” means applies to an individual, partnership, corporation, municipality, state agency or other legal entity any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department or subdivision of the state, any federal agency, or any other legal or commercial entity;

* * *

Sec. 32.  10 V.S.A. § 1004 is amended to read:

§ 1004.  STATE’S AGENT

The secretary shall be the agent to coordinate the state interest before the Federal Energy Regulatory Commission in all matters involving water quality and regulation or control of natural stream flow through the use of dams situated on streams within the boundaries of the state, and it shall advise the Federal Energy Regulatory Commission of the amount of flow considered necessary in each stream under consideration.  The agency of natural resources shall be the certifying agency of the state for purposes of section 401 of the federal Clean Water Act and the secretary’s determinations on these certifications shall be final action by the secretary appealable to the water resources board environmental court.  The secretary shall be the agent of the state and shall represent the state’s interest under the provisions of the Federal Power Act, including those that protect state-designated outstanding resource waters.  However, the secretary’s authority shall not infringe upon the powers and duties of the public service board or the relations of that board to the Federal Energy Regulatory Commission as set forth in the Federal Power Act respecting water used for the development of hydro-electric power or projects incident to the generation of electric energy for public use as part of a public utility system.

Sec. 33.  10 V.S.A. § 1024 is amended to read:

§ 1024.  Appeals

(a)  Any person aggrieved by the decision of the secretary under section 1023 or section 1004 of this title may file an appeal with the board within fifteen days of issuance of notice of the secretary’s action.  The filing of an appeal shall stay the action of the secretary.  Within five days of receipt of an appeal, the board shall schedule a hearing giving notice to all persons required to receive notice under section 1023.  The hearing before the board shall be de novo and shall be conducted as a contested case.

(b)  Any party aggrieved by a final order of the board, pursuant to subsection (a) of this section, may appeal from a final order of the board to the Supreme Court within 30 days of the date of the order.  An appeal filed pursuant to this section shall not stay the effectiveness of any order of the board pending determination by the court, unless the court so orders.

Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title.

Sec. 34.  10 V.S.A. § 1032 is amended to read:

§ 1032.  RULEMAKING ON SNOWMAKING WITHDRAWALS

The secretary shall adopt rules to determine conservation flow standards for snowmaking, to be used in relevant agency of natural resources regulatory processes governing water withdrawals, diversions, impoundments, and the construction of appurtenant facilities, and to be used in developing positions to be asserted by the agency in other state regulatory processes governing conservation flows for snowmaking.  These rules shall not supersede water quality standards adopted by the water resources environmental board pursuant to chapter 47 of this title.  These rules shall achieve the purposes of this subchapter, and shall provide for the periodic review of any decision issued under the rules.  All existing water withdrawals, diversions, and impoundments for snowmaking which are permitted at instream flows below the standards shall be reviewed by July 1, 2000.

Sec. 35.  10 V.S.A. § 1080(2) is amended to read:

(2)  “Person” means an individual, firm, partnership, cooperative electric association, governmental body, state agency or domestic or foreign corporation any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department or subdivision of the state, any federal agency, or any other legal or commercial entity;

Sec. 36.  10 V.S.A. § 1099 is amended to read:

§ 1099.  APPEAL APPEALS

(a)  A person aggrieved by a decision of the department under this chapter may appeal that decision to the water resources board within 30 days from its date.  The water resources board shall hold a de novo hearing at which all persons and parties in interest may appear and be heard, and shall issue an order affirming, reversing or modifying the act or decision of the department within 10 days following the conclusion of the hearing.  The order shall be binding upon the department.  Filing an appeal shall not automatically stay the effectiveness of any act or decision of the department pending determination by the water resources board.  Any party aggrieved by a final order of the water resources board pursuant to this subsection may appeal to the supreme court within 30 days of the date of the order.  An appeal filed pursuant to this subsection shall not stay the effectiveness of any order of the board pending determination by the court, unless the court so orders Appeals of any act or decision of the department under this chapter shall be made in accordance with chapter 220 of this title.

(b)  Appeals from actions or orders of the public service board may be taken in the Supreme Court in accord with section 12 of Title 30.

Sec. 37.  10 V.S.A. § 1251 is amended to read:

§ 1251.  DEFINITIONS

Whenever used or referred to in this chapter, unless a different meaning clearly appears from the context:

(1)  “Board” means the Vermont water resources environmental board;

* * *

(8)  “Person” means an individual, partnership, public or private corporation, municipality, institution or agency of the state or federal government and includes any officer or governing or managing body of a partnership, association, firm or corporation any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department, or subdivision of the state, any federal agency, or any other legal or commercial entity;

* * *

Sec. 38.  10 V.S.A. § 1251a(b) is amended to read:

     (b)  The secretary shall establish by rule requirements for the issuance of permits under subsection 1259(e) of this title, including in-stream water quality parameters necessary to establish permit conditions and performance monitoring; however these in-stream water quality parameters shall not supersede water quality standards adopted by the water resources board.

Sec. 39.  10 V.S.A. § 1263(b) is amended to read:

(b)  Except for applications for permission to discharge under the terms of a previously issued general permit, the secretary shall provide for notice of each application to the public and any appropriate officials of another state and the federal government including the administrator of the United States Environmental Protection Agency, and shall provide an opportunity for written comments or a public hearing or both on the application before making a final ruling on the application.  Prior to issuing a general permit, the secretary shall give notice as provided in this subsection and provide for written comments or a public hearing or both as provided in this subsection.  For applications for permission to discharge under the terms of a previously issued general permit, the applicant shall provide notice, on a form provided by the secretary, to the municipal clerk of the municipality in which the discharge is located at the time the application is filed with the secretary, and the secretary shall provide an opportunity for written comment, regarding whether the application complies with the terms and conditions of the general permit, for ten days following receipt of the application.  The secretary may require any applicant to submit any additional information, which the secretary considers necessary and may refuse to grant a permit, or permission to discharge under the terms of a general permit, until the information is furnished and evaluated.  Any person or party in interest aggrieved by a final ruling of the secretary on an application for permission to discharge under the terms of a previously issued general permit may appeal to the board pursuant to section 1269 of this title, provided, however, that this appeal shall be limited in scope to whether the discharge complies with the terms and conditions of the general permit.

 Sec. 40.  10 V.S.A. § 1264 is amended to read:

§ 1264.  STORMWATER MANAGEMENT

* * *

(b)  The secretary shall prepare a plan for the management of collected stormwater runoff found by the department to be deleterious to receiving waters.  The plan shall recognize that the runoff of stormwater is different from the discharge of sanitary and industrial wastes because of the influence of natural events of stormwater runoff, the variations in characteristics of those runoffs, and the increased stream flows and natural degradation of the receiving water quality at the time of discharge.  The plan shall be cost effective and designed to minimize any adverse impact of stormwater runoff to waters of the state.  By no later than February 1, 2001, the secretary shall prepare an enhanced stormwater management program and report on the content of that program to the house committees on fish, wildlife and water resources and on natural resources and energy and to the senate committee on natural resources and energy.  In developing the program, the secretary shall consult with the water resources board, affected municipalities, regional entities, other state and federal agencies, and members of the public.  The secretary shall be responsible for implementation of the program.  The secretary’s stormwater management program shall include, at a minimum, provisions that:

* * *

(g)(1)  The secretary may issue a permit consistent with the requirements of subsection (f) of this section, even where a Total Maximum Daily Load (TMDL) or wasteload allocation has not been prepared for the receiving water.  In any appeal to the board pursuant to section 1269 of this title: under this chapter,

(A)  an individual permit meeting the requirements of subsection (f) of this section shall have a rebuttable presumption in favor of the permittee that the discharge does not cause or contribute to a violation of the Vermont water quality standards for the receiving waters with respect to the discharge of collected stormwater runoff.  This rebuttable presumption shall only apply to permitted discharges into receiving waters on the Section 303(d) list that are principally impaired by sources other than collected stormwater runoff; and

(B)  the review of an individual discharge seeking coverage under a general permit issued pursuant to the requirements of subsection (f) of this section shall be limited in scope as specified in subsection 1263(b) of this chapter.

(2)  This subsection shall apply to stormwater permits issued under the federally delegated NPDES program only to the extent allowed under federal law. 

* * *

Sec. 41.  10 V.S.A. § 1269 is amended to read:

§ 1269.  APPEALS TO BOARD

Any person or party in interest aggrieved by an act or decision of the secretary pursuant to this subchapter may appeal to the board within thirty days.  The board shall hold a de novo hearing at which all persons and parties in interest as determined by board rule may appear and be heard and shall issue an order affirming, reversing or modifying the act or decision of the secretary within 10 days following the conclusion of the hearing.  The order shall be binding upon the department.  An appeal filed pursuant to this section shall not stay the effectiveness of any act or decision of the department pending determination by the board Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title.

Sec. 42.  10 V.S.A. § 1272 is amended to read:

§ 1272.  REGULATION OF ACTIVITIES CAUSING DISCHARGE OR

              AFFECTING SIGNIFICANT WETLANDS

If the secretary finds that any person’s action, or an activity, results in the construction, installation, operation or maintenance of any facility or condition which reasonably can be expected to create or cause a discharge to waters in violation of this subchapter, or to violate the board’s rules under section 905(9) 6025 of this title relating to significant wetlands, the secretary may issue an order establishing reasonable and proper methods and procedures for the control of that activity and the management of substances used therein which cause discharges or violations of board rules with respect to significant wetlands in order to reduce or eliminate those discharges and rule violations with respect to significant wetlands.  Any person who receives an order pursuant to this section may appeal to the board as provided in section 1269 of this title.

Sec. 43.  10 V.S.A. § 1381 is amended to read:

§ 1381.  DEFINITIONS AS USED IN THIS SUBCHAPTER

* * *

(5)  “Secretary” means the secretary of the agency of natural resources or his or her the secretary’s duly authorized representative;

(6)  “Person” means any proprietor of a commercial establishment, corporation, municipality, the state of Vermont or any department, agency or subdivision of the state, and any partnership, unincorporated association or other legal entity any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department or subdivision of the state, any federal agency, or any other legal or commercial entity.

Sec. 44.  10 V.S.A. § 1392(d) is amended to read:

(d)  The groundwater management strategy, including groundwater classification and associated technical criteria and standards, shall be adopted as a rule in accordance with the provisions of 3 V.S.A., chapter 25.  The secretary shall file any final proposed rules regarding the groundwater management strategy, with the water resources environmental board not less than 30 days prior to filing with the legislative committee on administrative rules.  The board shall review the final proposed rules and comment regarding their compatibility with the Vermont water quality standards and the objectives of the Vermont Water Pollution Control Act.  The secretary shall include the water resources environmental board’s comments in filing the final proposed rules with the legislative committee on administrative rules.

Sec. 45.  10 V.S.A. § 1400 is amended to read:

§ 1400.  APPEALS

(a)  A person aggrieved by a decision of the commissioner under section 1402 of this title may appeal the decision to the water resources board and from there to Washington superior court or the superior court of the county in which the person’s principal place of business is located.

(b)  A person aggrieved by a decision or order of the commissioner under section 1403 of this title may appeal the decision or order to the water resources board and from there to the superior court for the county in which he or she resides or the well is located.

Appeals of any act or decision of the commissioner or secretary under this chapter shall be made in accordance with chapter 220 of this title.

Sec. 46.  10 V.S.A. § 1422 is amended to read:

§ 1422.  DEFINITIONS

In this chapter, unless the context clearly requires otherwise:

* * *

(2)  “Board” means water resources environmental board;

* * *

(7)  “Secretary” means the secretary of natural resources or the secretary’s duly authorized representative;

* * *

Sec. 47.  10 V.S.A. § 1571 is amended to read:

§ 1571.  DEFINITIONS

As used in this chapter:

* * *

(2)  “Board” means the water resources board.

* * *

(8)  “Secretary” means the secretary of the agency of natural resources or the secretary’s duly authorized representatives.

* * *

Sec. 48.  10 V.S.A. § 1629 is amended to read:

§ 1629.  APPEAL APPEALS

Any municipality aggrieved by an act or decision of the department in establishing the priority system and the priority of awards to projects under this chapter may appeal to the board within 30 days.  The board shall hold a hearing at which all persons and parties in interest may appear and be heard to determine whether the decision of the department complies with the priority system adopted pursuant to section 1628 of this title.  The board shall issue an order affirming, reversing or modifying the decision of the department.  The order shall be binding upon the department.  An appeal filed pursuant to this section shall not stay the effectiveness of any decision of the department pending determination by the board.  Appeals from the decisions of the board shall be taken de novo to the superior court Appeals of any act or decision of the department under this subchapter shall be made in accordance with chapter 220 of this title.

Sec. 49.  10 V.S.A. § 1680 is amended to read:

§ 1680.  APPEALS

Any person or party in interest who is aggrieved by the secretary’s decision to issue, renew, deny, suspend or revoke a permit or certification pursuant to this chapter may appeal such decision, pursuant to Rule 74 of the Vermont Rules of Civil Procedure, within 30 days of the date thereof to the superior court of the county in which the public water supply is located or the county where the certificate holder’s principal place of business is located.  An appeal shall not stay the effectiveness of the secretary’s decision unless the court so orders Appeals of any act or decision of the department under this subchapter shall be made in accordance with chapter 220 of this title.

Sec. 50.  10 V.S.A § 1683 is amended to read:

§ 1683.  FILTRATION REQUIREMENTS

* * *

(b)  The department of environmental conservation shall grant waivers to requirements for water filtration and exemptions to public and private water systems as provided under the federal Safe Drinking Water Act, surface water rule, when a water system owner demonstrates that the water system has a proven record of delivering adequate quantities of clean and safe drinking water and that adequate protection of the surface water source is or may be assured.  In the event that the department denies an application for a waiver, the water system owner may appeal the decision to the water resources board within 30 days of such decision.  The water system owner may appeal a decision of the water resources board to the superior court within 30 days of the board’s decision, following the same procedure provided by section 1680 of this title for an appeal from a decision by the secretary.

Sec. 51.  10 V.S.A. § 1933 is amended to read:

§ 1933.  APPEALS

Any person or party in interest aggrieved by an act or decision of the secretary pursuant to this chapter may appeal within 30 days to the superior court of the county where the tanks are located.  The court shall hold a de novo hearing at which all persons and parties in interest as determined by court rule may appear and be heard and shall issue an order affirming, reversing or modifying the act or decision of the secretary.  The order shall be binding on the secretary.  An appeal filed pursuant to this section shall not stay the effectiveness of any act or decision of the department, unless the court specifically grants that stay upon petition or its own motion Appeals of any act or decision of the department under this subchapter shall be made in accordance with chapter 220 of this title.

Sec. 52.  10 V.S.A. § 1977 is amended to read:

§ 1977.  APPEALS; STAYS

(a)  A person aggrieved by an act or decision, other than an enforcement decision, of the secretary under this chapter, may appeal to the water resources board within 30 days of the date of the act or decision.  The filing of an appeal shall not stay the effectiveness of an act or decision of the secretary, unless the board so orders in accordance with board rule.  The board shall hold a de novo hearing at which all parties, as determined by board rule, may appear and be heard, and shall issue an order that shall be binding on the secretary and all parties.

(b)  Any party aggrieved by a final order of the water resources board pursuant to this section may appeal to the Supreme Court within 30 days of the date of the order.  An appeal filed pursuant to this section shall not stay the effectiveness of any order of the board pending determination by the court, unless the court so orders.

Appeals of any act or decision of the department under this subchapter shall be made in accordance with chapter 220 of this title

Sec. 53.  10 V.S.A. § 2625 is amended to read:

§ 2625.  REGULATION OF HEAVY CUTTING

* * *

(f)  Appeals.  If the exemption is denied or if authorization to proceed is denied, the landowner shall have 30 days in which to file an appeal with the commissioner.

(1)  Upon the filing of an appeal, the commissioner may appoint a review team of natural resources professionals to visit the site, gather information about the proposed heavy cut, and make recommendations to the commissioner.  The commissioner may also appoint a hearing officer to take sworn statements of the landowner, the review team, and other witnesses called by the landowner or the hearing officer, and make recommendations to the commissioner.

(2)  The commissioner shall issue a decision in writing within 30 days of the receipt of an appeal.

(3)  The landowner may appeal the commissioner’s decision within 30 days to the environmental court.  The court shall review the case on the record, and affirm the decision, unless it finds that the commissioner did not have reasonable grounds on which to base the decision Appeals of the commissioner’s decision shall be made in accordance with chapter 220 of this title.

* * *

Sec. 54.  10 V.S.A. § 6602 is amended to read:

§ 6602.  DEFINITIONS

For the purposes of this chapter:

* * *

(15)  “Board” means the solid waste and air quality variance board established by section 553 of this title.

* * *

(22)  “Panel” means the waste facility panel established by section 6101 of this title.

* * *

Sec. 55.  10 V.S.A. § 6606a(f) is amended to read:

(f)  Appeals from a determination of the secretary regarding a certificate of need shall be to the waste facility panel under 10 V.S.A. chapter 151, subchapter 5.

Sec. 56.  10 V.S.A. § 6606b(b) is amended to read:

(b)  Review of a permit, certification, classification action, or endangered species variance issued by the secretary for the construction, operation, maintenance, closure and post-closure of a hazardous waste management facility shall be governed by subchapter 5 of chapter 151 of this title.  A request for review shall be filed with the waste facility panel within 30 days of the secretary’s determination.

Sec. 57.  10 V.S.A. § 6613 is amended to read:

§ 6613.  VARIANCES

(a)  A person who owns or is in control of any plant, building, structure, process or equipment may apply to the board secretary for a variance from the rules of the secretary adopted under this chapter.  The board secretary may grant a variance if it he or she finds that:

(1)  The variance proposed does not endanger or tend to endanger human health or safety; and

(2)  Compliance with the rules from which variance is sought would produce serious hardship without equal or greater benefits to the public.

(3)  The variance granted does not enable the applicant to generate, transport, treat, store, or dispose of hazardous waste in a manner which is less stringent than that required by the provisions of Subtitle C of the Resource Conservation and Recovery Act of 1976, and amendments thereto, codified in 42 U.S.C. Chapter 82, subchapter 3, and regulations promulgated under such subtitle.

(b)  No variance shall be granted pursuant to this section except after public hearing on due notice notice and an opportunity for a public meeting and until the board secretary has considered the relative interests of the applicant, other owners of property likely to be affected, and the general public.

(c)  Any variance or renewal thereof shall be granted within the requirements of subsection (a) of this section and for time periods and under conditions consistent with the reasons therefore, and within the following limitations:

(1)  If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, abatement or control of the air and water pollution involved, it shall be only until the necessary practicable means for prevention, abatement or control become known and available, and subject to the taking of any substitute or alternate measures that the board secretary may prescribe.

(2)  If the variance is granted on the ground that compliance with the particular requirement or requirements from which variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the board secretary, is requisite for the taking of the necessary measures.  A variance granted on the ground specified herein shall contain a time schedule for the taking of action in an expeditious manner and shall be conditioned on adherence to the time schedule.

(3)  If the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in subdivisions (1) and (2) of this subsection, it shall be for not more than one year, except that in the case of a variance from the siting requirements for a sanitary landfill solid waste management facility, the variance may be for as long as the board secretary determines necessary, including a permanent variance.

(d)  Any variance granted pursuant to this section may be renewed on terms and conditions and for periods, which would be appropriate on initial granting of a variance.  If complaint is made to the board secretary on account of the variance, no renewal thereof shall be granted, unless following public hearing on the complaint on due notice notice and an opportunity for a public meeting on the complaint, the board secretary finds that renewal is justified.  No renewal shall be granted except on application therefore.  The application shall be made at least 60 days prior to the expiration of the variance.  Immediately upon receipt of an application for renewal, the board secretary shall give public notice of the application in accordance with rules of the board.

(e)  A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the board.  However, any person adversely affected by a variance or renewal granted or denied by the board may obtain judicial review thereof in the Supreme Court secretary.

(f)  This section does not limit the authority of the secretary under section 6610 of this title concerning imminent hazards from solid waste, nor under section 6610a of this title concerning hazards from hazardous waste and violations of statutes, rules or orders relating to hazardous waste.

Sec. 58.  10 V.S.A. § 6620(b) is amended to read:

(b)  Review of a permit, certification, provisional certification, classification action, or endangered species variance issued by the secretary for the construction, operation, maintenance, closure and post-closure of a waste management facility shall be governed by subchapter 5 of chapter 151 of this title.  A request for review shall be filed with the waste facility panel within 30 days of the secretary’s determination.

Sec. 59.  10 V.S.A. § 6622b is added to read:

§ 6622b.  APPEALS

Appeals of any act or decision of the secretary under this chapter shall be made in accordance with chapter 220 of this title.

Sec. 60.  29 V.S.A. § 401 is amended to read:

§ 401.  POLICY

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, as defined by section 405 of this title, to the extent authorized by statute.  For the purposes of this chapter, the exercise of this management shall be limited to encroachments subject to section 403 of this title.  The management of these waters and lands shall be exercised by the department of environmental conservation in accordance with this chapter and the rules of the water resources environmental board.  For the purposes of this chapter, jurisdiction of the department shall be construed as extending to all lakes and ponds which are public waters and the lands lying thereunder, which lie beyond the shoreline or shorelines delineated by the mean water level of any lake or pond which is a public water of the state, as such mean water level is determined by the board.  No provision of this chapter shall be construed to permit trespass on private lands without the permission of the owner.

Sec. 61.  29 V.S.A. § 402 is amended to read:

§ 402.  DEFINITIONS

Whenever used in this chapter, unless a different meaning clearly appears from the context:

(1)  “Board” means the Vermont water resources board;

* * *

(5)  “Person” means an individual, partnership, public or private corporation, municipality, institution or agency of the state, and any other legal or commercial entity any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont or any agency, department, or subdivision of the state, any federal agency, or any other legal or commercial entity;

* * *

Sec. 62.  29 V.S.A. § 406 is amended to read:

§ 406.  APPEALS

(a)  Any person aggrieved by the decision of the department under section 405(c) of this title may appeal to the board within 10 days from the date of notice of action.  The filing of an appeal shall stay the action of the department Appeals of any act or decision of the department under this chapter shall be made in accordance with chapter 220 of Title 10.

(b)  Within five days of receipt of an appeal, the board shall give notice to all persons required to receive notice under section 405(a) of this title and to other persons as it considers appropriate.  Within 20 days of the receipt of an appeal, the board shall schedule a hearing and give notice to all persons required to receive notice.  The hearing by the board shall be de novo and shall be conducted as a contested case.

(c)  Parties shall be the applicant, the municipality in which the project is located, the department and other persons whom the board allows by rule.  Within a reasonable period of time after the conclusion of the hearing, the board shall issue an order affirming, modifying or reversing the action of the department.  The board shall send copies of its order to all parties and the appropriate city or town clerk.

Sec. 63.  29 V.S.A. § 408 is amended to read:

§ 408.  PERMIT

(a)  A permit may contain any conditions that the department or board considers necessary to protect the public good.

(b)  No person granted a permit under this chapter is relieved of his responsibility to comply with any other applicable federal, state and local laws, regulations and permits.

(c)  A permit may be revoked by the board or the department in the event of violation of any condition attached to the permit.

Sec. 64.  29 V.S.A. § 409 is amended to read:

§ 409.  INJUNCTION

Any person aggrieved by any violation of this chapter, or the attorney general at the request of the department or board, may institute any appropriate action in the superior court of the county in which a proposed or existing encroachment is located, to prevent, restrain, correct or abate any violation of this chapter or of the conditions of any permit issued under this chapter.

Sec. 65.  REPEAL

10 V.S.A. §§ 903 (creation of water resources board), 904 (records, assistants), 905 (duties; powers), 1270 (appeals from water resources board), 6104 (waste facility panel), 6102 (parties), 6103 (review of provisional certifications), 6103a (review of certifications of need), 6104 (review of agency determinations), 6105 (appeal of district commission decisions), 6106 (consolidation of Act 250 and agency permits), and 6107 (appeals to the supreme court), 6108 (transition), and 29 V.S.A. § 407 (appeals to supreme court) are repealed.

Sec. 66.  TRANSITION AND IMPLEMENTATION

(a)(1)  Continued jurisdiction.  Notwithstanding the repeal of their respective enabling authorities, the environmental board, water resources board, waste facility panel, and the air and solid waste variance board shall continue to exist and have jurisdiction with their preexisting membership to complete their consideration of any action pending before them as of July 1, 2003, except that appeals, petitions, and requests for variances received before July 1, 2003 where the respective boards and panel have not yet initiated proceedings shall be transferred to the environmental court.

(2)  Notwithstanding the repeal of its jurisdictional authority under this act, the applicable superior court shall continue to have jurisdiction to complete its consideration of any action pending before it as of July 1, 2003, except that any filing received before July 1, 2003 where the court has not initiated proceedings shall be transferred to the environmental court.

(b)  Existing rules.  All rules adopted by the water resources board prior to July 1, 2003 shall be deemed to be rules adopted by the environmental board and shall remain in effect until amended or repealed by the environmental board.

(c)  Upon enactment of this act, the environmental board shall consist of 14 members, comprised of the combined membership of the current environmental board and the water resources board.  As the terms of water resources board members and preexisting environmental board members end, alternating between the members of the two boards, the newly constituted environmental board shall decrease in number until it again consists of nine members.

Sec. 67.  POSITIONS AND APPROPRIATIONS

(a)  The establishment of eight new full-time positions – one case manager, one docket clerk, two docket clerk/stenographer, two staff attorney, one law clerk, and one superior court judge – is authorized exclusively for the environmental court in the judicial branch.

(b)  For fiscal year 2004, two positions which supported the waste facility panel are eliminated.  For fiscal year 2005, three positions which supported the water resources board are eliminated.

(c)  For fiscal year 2004, there is appropriated to the judicial branch the amount of $290,026.00 from the general fund and $120,000.00 from the solid waste management assistance account of the waste management assistance fund to fill the positions described above and provide for other personal service expenses and operating expenses necessary for the operation of the enhanced environmental court described in this act.  This appropriation is two‑thirds of the base budget necessary for the enhanced environmental court and is made in anticipation that not all positions need to be fully funded as of July 1, 2003 and that full funding of the court will be provided in fiscal year 2005.

(Committee vote: 7-4-0)

Rep. Helm of Castleton, for the Committee on Appropriations, recommends the bill ought to pass when amended as recommended by the Committee on Natural Resources and Energy and when further amended as follows:

By striking Sec. 67, and inserting in lieu thereof the following:

SEC. 67   POSITIONS AND APPROPRIATIONS.

(a)  The establishment of six new full-time positions – two case managers, two courtroom operators, one law clerk, and one environmental court judge – is authorized exclusively for the environmental court in the judicial branch.

(b)  For fiscal year 2004, as of January 1, 2004, two positions, which supported the waste facility panel, are eliminated.  For fiscal year 2005, as of January 1, 2005, four positions, which supported the combined environmental board, are eliminated.

(c) For fiscal year 2004, there is appropriated to the judicial branch the amount of $261,011.37 from the general fund and $65,320.73 from the solid waste management assistance account of the waste management assistance fund to fill the positions described above and provide for other personal service expenses and operating expenses necessary for the operation of the enhanced environmental court described in this act.   $45,843 of the funds appropriated in this section shall be available to be used for contractual personal service expenses regarding the use of special masters and the hiring of independent expert witnesses.  This appropriation funds the six positions described in subsection (a) of this section for only one-half of fiscal year 2004. 

(Committee Vote: 11-0-0)

H. 466

An act relating to the captive insurance tax.

(Rep. Young or Orwell will speak for the Committee on Commerce.)

Rep. Peterson of Williston, for the Committee on Ways and Means, recommends the bill be amended as follows:

First:  In Sec. 1, 8 V.S.A. § 6014, by striking subsection (c) in its entirety, and inserting in lieu thereof a new subsection (c) to read as follows:

(c)  If the aggregate taxes The annual minimum aggregate tax to be paid by a captive insurance company calculated under subsections (a) and (b) of this section amount to less than $5,000.00 in any year, such captive insurance company shall pay a tax of $5,000.00 for such year shall be $7,500.00, and the maximum aggregate tax shall be $200,000.00.  The maximum aggregate tax to be paid by a sponsored insurance company shall apply to each protected cell only and not to the sponsored captive insurance company as a whole.

Second:  In Sec. 1, 8 V.S.A. § 6014(k), in the first sentence, by striking the word “multilayer” and inserting in lieu thereof “multiyear”

(Committee vote: 11-0-0)

Ordered to Lie

H. 73

     An act relating to a student member of a school board.

     Pending Action: Second reading of the bill.

H. 176

An act relating to clarification of Act 200 (1994) defining the scope of railroad development subject to Act 250.

     Pending Action: Second reading of the bill.

H. 460

An act relating to implementing the federal Help America Vote Act.

Pending Question: Shall the bill be amended as recommended by Rep. Hingtgen of Burlington?

PUBLIC HEARING

Wednesday, April 9, 2003 7:00 - 9:00 P M - Room 10 - House Committee on Transportation - Special motor vehicle plates.