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BILL AS INTRODUCED 2007-2008

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H.173

Introduced by   Representatives Atkins of Winooski, Baker of West Rutland, Pillsbury of Brattleboro and Trombley of Grand Isle

Referred to Committee on

Date:

Subject:  Conservation; water resources; wetlands

Statement of purpose:  This bill proposes to amend the regulation of wetlands in the state by requiring a permit to conduct activities in naturally occurring wetlands, but allowing activities in manmade wetlands unless otherwise prohibited by rule.  The bill would also authorize the water resources panel of the natural resources board to adopt rules regarding both naturally occurring wetlands and manmade wetlands.  In addition, the bill would exempt a person that had transferred property on which a wetland is located from liability for a violation of state wetlands law if the violation occurs subsequent to transfer, and notice of transfer had been filed in the land records.

AN ACT RELATING TO WETLANDS MANAGEMENT

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


Sec. 1.  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 water resources panel of the natural resources board;.

(2)  "Department" means department of environmental conservation;.

(3)  "Waters" means any and all rivers, streams, brooks, creeks, lakes, ponds or stored water, and groundwaters, excluding municipal and farm water supplies;.

(4)  "Water resources" means the waters and the values inherent or potential in waters and their uses.

(5)  "Wetlands Naturally-occurring wetlands" means those areas of the state that are naturally inundated by surface or groundwater with a frequency sufficient to support significant vegetation or aquatic life that depend on saturated or seasonally saturated soil conditions for growth and reproduction. Such areas include but are not limited to naturally-occurring marshes, swamps, sloughs, potholes, fens, river and lake overflows, mud flats, bogs, and ponds, but excluding manmade wetlands and such areas as grow food or crops in connection with farming activities.

(6)  “Manmade wetland" means a wetland which was created solely as a result of human activity, such as scraping, ditch digging, or contouring of uplands.  Such areas include swales and drainage ditches.

Sec. 2.  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 naturally occurring wetlands and manmade wetlands, propose to the board specific naturally occurring wetlands to be designated as significant wetlands, and implement through existing programs the rules adopted by the board panel governing significant wetlands naturally occurring wetlands and manmade wetlands, including the issuance or denial of conditional use determinations wetlands permits pursuant to section 1272 915 of this title;

* * *


Sec. 3.  10 V.S.A. chapter 37, subchapter 4 is added to read:

Subchapter 4.  Wetlands

§ 915.  NATURALLY OCCURRING WETLANDS

(a)  Except for those allowed uses adopted by the panel by rule, no person shall conduct or allow to be conducted an activity in a naturally occurring wetland without first obtaining a permit from the secretary.

(b)  The secretary may issue a permit to conduct an activity in a naturally occurring wetland according to rules adopted by the panel to accomplish the purposes of this subchapter.  The rules adopted by the panel under this subsection may authorize the secretary to issue individual permits or general permits under this section for discrete categories of activities conducted in a naturally occurring wetland.  A general permit issued under this section shall have a term of no more than 10 years.

(c)  Application for an individual permit to conduct activities in a naturally occurring wetland shall be made on a form prescribed by the secretary.  The secretary may issue, condition, modify, revoke, or deny a permit to conduct activities in a naturally occurring wetland in order to carry out the purposes of this subchapter.  An applicant for a permit shall pay a fee in accordance with

3 V.S.A. § 2822.  The secretary shall provide notice of each application for a permit to conduct activities in a naturally occurring wetland pursuant to rules adopted by the panel.

(d)  It shall be a violation of this section if any unpermitted activity that is not an allowed use occurs within a naturally occurring wetland.

§ 916.  MANMADE WETLANDS

A permit is not required to conduct an activity in a manmade wetland, unless the panel has prohibited such activity by rule.  If there is not sufficient evidence to prove that a wetland is manmade, the wetland shall be considered naturally occurring and subject to the requirements of section 915 of this title.

Sec. 4.  Sections 921–924 of 10 V.S.A. chapter 37 are recodified within subchapter 5, which is added to read:

Subchapter 5.  Aquatic Nuisance Control

Sec. 5.  10 V.S.A. § 6025(d) is amended to read:

(d)  The water resources panel may adopt rules, in accordance with the provisions of chapter 25 of Title 3, in the following areas:

* * *

(5)  Rules regarding the identification and protection of naturally occurring wetlands which are so significant that they merit protection and rules regarding the identification and use of manmade wetlands.  The panel shall not adopt rules that restrain agricultural activities without the consent of the secretary of the agency 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.  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.

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(7)  Rules protecting wetlands that have been determined under subdivision (5) or (6) 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 panel shall not adopt rules that restrain agricultural activities without the consent of the secretary of the agency 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.

* * *

Sec. 6.  10 V.S.A. § 8003(a) is amended to read:

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

* * *

(3)  10 V.S.A. chapters 37, 47, and 56, relating to wetlands, water pollution control, water quality standards, water resources management, and public water supply;

* * *


Sec. 7.  10 V.S.A. § 8503(a) is amended to read:

(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 and under the rules adopted under those authorities:

(1)  The following provisions of this title:

* * *

(O)  chapter 37 (wetlands).

* * *

Sec. 8.  27 V.S.A. § 614 is added to read:

§ 614.  TRANSFER OF PROPERTY SUBJECT TO WETLANDS

            PERMITS

A person who completely transfers ownership and control of property that is subject to the requirements for wetlands under section 915 of Title 10 and the rules adopted under subdivision 6025(d)(5) of Title 10 shall not be liable for a later violation of such requirements by another person, provided that:

(1)  If the property transferred is subject to a valid wetlands permit under section 915 of Title 10 or the rules adopted under subdivision 6025(d)(5) of Title 10, the person transferring ownership notifies the secretary of natural resources in writing of the change of ownership; and

(2)  The person transferring ownership records in the land records a notice indincating that the property has been transferred.  



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us