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BILL AS INTRODUCED 2007-2008

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H.119

Introduced by   Representative Deen of Westminster

Referred to Committee on

Date:

Subject:  Conservation; minimum waterfront protection standards

Statement of purpose:  This bill proposes to establish minimum waterfront protection standards that would apply to lands located within the protected waterfront, which is defined as being that area within 250 feet from the ordinary or mean high watermark of the navigable public waters of the state.  The standards include provisions that prohibit certain activities within the protected waterfront.

AN ACT RELATING TO ESTABLISHING MINIMUM WATERFRONT PROTECTION STANDARDS

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  LEGISLATIVE FINDINGS AND LEGISLATIVE INTENT

(a)  The general assembly finds that:

(1)  The shorelands of the state are among its most valuable and fragile natural resources, and their protection is essential to maintain the integrity of public waters.

(2)  The public waters of Vermont are valuable resources held in trust by the state.  The state has an interest in protecting those waters, and has the jurisdiction to control the use of the public waters and the adjacent shorelands for the greatest public benefit.

(3)  There is great concern throughout the state relating to the utilization, protection, restoration, and preservation of shorelands because of their effect on state waters.

(4)  Under current law, the potential exists for uncoordinated, unplanned, and piecemeal development along the state’s shorelines, which could result in significant negative impacts on the public waters of Vermont.

(b)  To fulfill the state’s role as trustee of its waters and to promote public health, safety, and the general welfare, the general assembly declares that the public interest requires the establishment of standards for the subdivision, use, and development of the shorelands of the state’s public waters.  The development standards provided in this act shall be the minimum standards necessary to protect the public waters of the state of Vermont.  These standards shall serve to:

(1)  Further the maintenance of safe and healthful conditions.

(2)  Provide for the wise utilization of water and related land resources.

(3)  Prevent and control water pollution.

(4)  Protect fish spawning grounds, aquatic life, and bird and other wildlife habitats.

(5)  Protect buildings and lands from flooding and accelerated erosion.

(6)  Protect archaeological and historical resources.

(7)  Protect wetlands.

(8)  Control building sites, placement of structures, and land uses.

(9)  Conserve shoreline cover and points of access to waters.

(10)  Promote wildlife habitat, scenic beauty, and scientific study.

(11)  Prevent the spread of invasive exotic species.

(12)  Protect public use of waters, including recreation.

(13)  Conserve natural beauty and open spaces.

(14)  Provide for economic development in proximity to waters.

Sec. 2.  10 V.S.A. § 1421 is amended to read:

§ 1421.  POLICY

To aid in the fulfillment of the state’s role as trustee of its navigable waters and to promote public health, safety, convenience, and general welfare, it is declared to be in the public interest to make studies, establish policies, make plans, make rules, establish minimum waterfront protection standards, and authorize municipal shoreland zoning bylaws, all for the efficient use, conservation, development, and protection of the state’s water resources.  The purposes of the rules shall be to further the maintenance of safe and healthful conditions,; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses,; preserve shore cover and natural beauty,; and provide for multiple use of the waters in a manner to provide for the best interests of the citizens of the state.

Sec. 3.  10 V.S.A. § 1422 is amended to read:

§ 1422.  DEFINITIONS

In this chapter, unless the context clearly requires otherwise:

(1)  “Agency” means the agency of natural resources;.

(2)  “Board” means water resources panel of the natural resources board;.

(3)  “Department” means department of environmental conservation;.

(4)  “Navigable water” or “navigable waters” means Lake Champlain, Lake Memphremagog, the Connecticut River, all natural inland lakes within Vermont, and all streams, ponds, flowages, and other waters within the territorial limits of Vermont, including the Vermont portion of boundary waters, which are boatable under the laws of this state;.

(5)  “Public shorelands” means state-owned lands adjacent to navigable waters;.

(6)  “Public waters” means navigable waters excepting those waters in private ponds and private preserves as set forth in sections 5204, 5205, 5206, and 5210 of this title;.

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

(8)  “Shorelands” means the lands being between the normal mean water mark watermark of a lake, pond, or impoundment exceeding twenty 20 acres and a line not less than five hundred 500 feet nor more than one thousand 1,000 feet from such mean water mark watermark.

(9)  “Outstanding resource waters” mean waters of the state designated by the board as having exceptional natural, recreational, cultural, or scenic values.

(10)  “Accessory structure” means a structure detached from the primary building on the same lot and customarily incidental and subordinate to the primary building or use, such as a pump house, gazebo, or woodshed.

(11)  “Basal area” means the cross-sectional area of a tree measured at a height of 4-1/2 feet above the ground, usually expressed in square feet per acre for a stand of trees.

(12)  “Disturbed area” means an area in which native vegetation is removed, exposing the underlying soil.

(13)  “Groundcover” means any native herbaceous plant which normally grows to a mature height of four feet or less.

(14)  “Natural woodland buffer” means a forested area consisting of various native species of trees, saplings, shrubs, and groundcovers in any combination and at any stage of growth.

(15)  “Ordinary high watermark” means the line on the shore, running parallel to the main stem of the stream, established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the immediate bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.  Where the ordinary high watermark is not easily discernable, the ordinary high watermark may be determined by the secretary of natural resources.

(16)  “Primary building line” means a setback from the reference line.

(17)  “Primary structure” means a structure other than one which is used for purposes wholly incidental or accessory to the use of another structure on the same premises.

(18)  “Protected waterfront” means all land located within 250 feet of the reference line of public waters.

(19)  “Reference line” means:

(A)  For natural freshwater bodies without artificial impoundments, the natural mean high water level as determined by the secretary of natural resources.

(B)  For artificially impounded freshwater bodies with established flowage rights, the limit of the flowage rights, and for water bodies without established flowage rights, the waterline at full pond as determined by the elevation of the spillway crest.

(C)  For streams, the ordinary high watermark.

(20)  “Removal or removed” means cut, sawed, pruned, girdled, felled, pushed over, buried, burned, killed, or otherwise destructively altered.

(21)  “Residential unit” means a structure, or portion of a structure, providing complete and independent living facilities, including permanent facilities for living, sleeping, eating, cooking, and sanitation which are used in common by one or more persons.

(22)  “Sapling” means any woody plant which normally grows to a mature height greater than 20 feet and has a diameter less than six inches at a point 4-1/2 feet above the ground.

(23)  “Shrub” means any multistemmed woody plant which normally grows to a mature height of less than 20 feet.

(24)  “Structure” means anything built for the support, shelter, or enclosure of persons, animals, goods, or property of any kind, as well as anything constructed or erected with a fixed location on or in the ground, exclusive of fences.

(25)  “Tree” means any woody plant which normally grows to a mature height greater than 20 feet and which has a diameter of six inches or more at a point 4-1/2 feet above the ground.

Sec. 4.  10 V.S.A. § 1427 is added to read:

§ 1427.  MINIMUM WATERFRONT PROTECTION STANDARDS;

              PROTECTED WATERFRONT

(a)  Purpose.  The standards in this section are designed to minimize waterfront disturbance so as to protect the public waters, while still accommodating reasonable levels of development in the protected waterfront.  Development outside the protected waterfront shall conform to local zoning and local ordinances and shall not be subject to standards established in this section.

(b)  Basic requirements within protected waterfront.  Within the protected waterfront, the following restrictions shall apply:

(1)  The establishment or expansion of salt storage yards, junkyards, and solid or hazardous waste facilities shall be prohibited.

(2)  Primary structures shall be set back behind the primary building line. This line shall initially be set back 75 feet from the reference line.

(3)  A water-dependent structure, meaning one which is a dock, wharf, pier, breakwater, or other similar structure, or any part thereof, built over, on, or in the waters of the state, shall be constructed only as approved by the secretary, pursuant to 29 V.S.A. chapter 11.

(4)  No fertilizer, except limestone, shall be used within 25 feet of the reference line of any property.  Twenty-five feet beyond the reference line, low phosphate, slow‑release nitrogen fertilizer, or limestone may be used on lawns or areas with grass.

(c)  Public water systems.  Public water systems regulated under chapter 56 of this title, including water supply intakes, pipes, water treatment facilities, pump stations, and disinfection stations, shall be permitted by the secretary as necessary, consistent with the purposes of this section and other state law. Private water supply systems shall not require a permit under this section.

(d)  Public water and sewage treatment facilities.  The placement and expansion of public water and sewage treatment facilities shall be permitted by the secretary as necessary, consistent with the purposes of this chapter and other state law.

(e)  Hydroelectric facilities.  Hydroelectric facilities, including dams, dikes, penstocks, and powerhouses, shall be recognized as water dependent, and shall be permitted by the secretary as necessary, consistent with the purposes of this chapter and other state law.

(f)  Public utility lines.  Public utility lines and associated structures and facilities shall be permitted by the secretary as necessary, consistent with the purposes of this chapter and other state law.

(g)  Solid waste facilities. 

(1)  An existing solid waste facility which is located within 250 feet of the reference line of public waters under this chapter may continue to operate under an existing certification, provided it does not cause degradation to an area in excess of that area under certification.

(2)  No solid waste facility shall place solid waste within 250 feet of the reference line of public waters under this chapter except as expressly permitted under subdivision (1) of this subsection.  However, any solid waste facility may be allowed, subject to certification conditions under chapter 159 of this title, to erect accessory structures and conduct other activities consistent with the operation of the facility within 250 feet of the reference line of public waters under this chapter, such as filling, grading, and installing monitoring wells and other drainage structures as is consistent with its solid waste certification as issued by the secretary.  Under no circumstances shall the toe of any slope encroach within 150 feet of the reference line.

(h)  Minimum standards within protected waterfront.  The following minimum standards shall apply to the protected waterfront, provided the following shall be exempt from the provisions of this section:  forest management associated neither with waterfront development nor land conversion but conducted in compliance with accepted silvicultural practices as defined by the commissioner of forests, parks and recreation; forestry involving water supply reservoir watershed management; and accepted agricultural practices as defined by the secretary of agriculture, food and markets.

(1)  Where existing, a natural woodland buffer shall be maintained within 150 feet of the reference line.  The purpose of this buffer shall be to protect the quality of public waters by minimizing erosion, preventing siltation and turbidity, stabilizing soils, preventing excess nutrients and chemical pollution, maintaining natural water temperatures, maintaining a healthy tree canopy and understory, discouraging invasions of exotic species, preserving fish and wildlife habitat, and respecting the overall natural condition of the protected waterfront.

(2)  Within the natural woodland buffer of the protected waterfront under conditions defined in this subsection, the following prohibitions and limitations shall apply:

(A)  Not more than a maximum of 50 percent of the basal area of trees and a maximum of 50 percent of the total number of saplings shall be removed for any purpose in a 20-year period.  A healthy, well-distributed stand of trees, saplings, shrubs, and groundcovers and their living, undamaged root systems shall be left in place.  Replacement planting with native species may be permitted to maintain the 50 percent level.

(B)  Trees, saplings, shrubs, and groundcovers which are removed to clear an opening for building construction, accessory structures, septic systems, roadways, pathways, and parking areas shall be excluded when computing the percentage limitations under this subsection.

(C)  Dead, diseased, unsafe, or fallen trees, saplings, shrubs, or groundcovers may be removed.  Their removal shall not be used in computing the percentage limitations under this subsection.

(D)  Stumps and their root systems which are located within 50 feet of the reference line shall be left intact in the ground, unless removal is specifically approved by the secretary.

(E)  Dead and living trees that provide dens and nesting places for wildlife are encouraged to be preserved.

(F)  Planting efforts that are beneficial to wildlife are encouraged to be undertaken.

(G)  Removal of exotic, non-native species and replacement with native species is encouraged.

(3)  All new structures within the protected waterfront shall be designed and constructed in accordance with rules adopted by the secretary pursuant to this section, establishing requirements for controlling erosion, the siltation of public waters, and growth of exotic plant species, during and after construction.

(4)  New structures within the protected waterfront shall be designed and constructed to prevent the release of surface runoff across exposed soils.

(5)  A permit pursuant to subdivision (3) of this subsection shall be required for improved, developed, or subdivided land within the protected waterfront whenever there is a contiguous disturbed area exceeding 50,000 square feet.

(i)  Minimum lots and residential development.  In the protected waterfront:

(1)  The minimum size for new lots in areas dependent upon on-site septic systems shall be determined by soil type lot size determinations, as established by the secretary.

(2)  Lots in areas serviced by municipal sewers shall conform to municipal minimum lot standards, and shall not be subject to any waterfront frontage requirements, except as provided by municipal standards.

(3)  Lots and residential units outside the protected waterfront shall not be subject to this chapter.

(j)  Minimum lots and nonresidential development.  In the protected waterfront:

(1)  The minimum size for new nonresidential lots in areas dependent upon on-site septic systems shall be determined by soil type lot size determinations, as established by the secretary.

(2)  Nonresidential lots in areas serviced by municipal sewers shall conform to municipal minimum lot standards.

(3)  Nonresidential lots outside the protected waterfront shall not be subject to this section.

(k)  Common owners and residential or nonresidential development.  In the protected waterfront, waterfront parcels held in common by one or more owners of contiguous interior parcels may be developed, but only in a manner consistent with the provisions of this section.  Care shall be taken for the adequate provision of parking, toilet facilities, and related support systems to minimize the project’s impact on the public waters.

(l)  Variances.  The secretary shall have the authority to grant variances from the minimum standards of this section.  Such authority shall be exercised subject to the criteria which govern the grant of a variance by a zoning board of adjustment under 24 V.S.A. § 4468.

Sec. 5.  10 V.S.A. § 8003(a) is amended to read:

(a)  The secretary may take action under this chapter to enforce the following statutes:

* * *

(17)  10 V.S.A. § 2625, relating to heavy cutting of timber; and

(18)  10 V.S.A. chapter 164, relating to comprehensive mercury management; and

(19)  10 V.S.A. § 1427, relating to minimum waterfront protection standards.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us