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BILL AS INTRODUCED 2007-2008

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H.219

Introduced by Representative Deen of Westminster

Referred to Committee on

Date:

Subject:  Conservation; water resources; wetlands

Statement of purpose:  This bill proposes to amend the requirements related to significant wetlands and associated buffers in the state.  The bill would authorize the secretary of natural resources to identify and review wetlands and to regulate most significant wetlands in the state and to use that information to update the Vermont significant wetlands inventory maps.  The bill would authorize the secretary of natural resources to issue a permit for activities in a wetland that are not otherwise allowed by statute or rule.  The bill would also authorize the water resources panel to adopt rules regarding the identification and protection of significant wetlands.

AN ACT RELATING TO WETLANDS CONSERVATION

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

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  The significant wetlands of Vermont are valuable natural resources that require protection and preservation from despoliation and unregulated alteration.

(2)  Wetlands are productive ecosystems and provide a variety of important functions and values, including serving to detain stormwater runoff, reduce flooding, protect the quality of groundwater, improve surface water quality, stabilize soil, provide a wide diversity of habitat for fish and wildlife, provide representative and rare examples of natural communities, provide educational and research resources, provide a diversity of recreational economic benefits, and contribute to the open space character and overall beauty of the state.

(3)  The determination of whether a wetland merits protection under state statute should be based upon an evaluation of the extent to which the wetland serves one or more of the functions set forth in subdivisions 6025(d)(5)(A)–(K) of this title.

(4)  It is the policy of the state to preserve, protect, and conserve wetlands and the functions and values derived therefrom to prevent the despoliation and destruction of wetlands, to protect and enhance the quality, character, and usefulness of surface waters, and to regulate the use and development of such wetlands in a manner consistent with beneficial and environmentally sound development, private property interests, and the economic, agricultural, and silvicultural needs of the state.

Sec. 2.  10 V.S.A. chapter 37 (Water Resources Management) is amended to read:

CHAPTER 37.  WETLANDS PROTECTION AND WATER RESOURCES MANAGEMENT

Sec. 3.  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 broad context:

* * *

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

(5)  “Wetlands” means those areas of the state that are 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 marshes, swamps, sloughs, potholes, fens, river and lake overflows, mud flats, bogs and ponds, but excluding such areas as grow food or crops in connection with farming activities.

(6)  “Allowed use” means any activity that the panel determines, by rule, may occur within a wetland or its buffer zone without the need to obtain a permit from the secretary.

(7)  “Buffer zone” means an area contiguous to a significant wetland that protects those functions and values that make a wetland significant.  The buffer zone for a Class I wetland shall extend at least 100 feet from the border of the wetland, unless the panel determines otherwise under section 918 of this title.  The buffer zone for a Class II wetland shall extend at least 50 feet from the border of the wetland unless the secretary determines otherwise under section 917 of this title.

(8)  “Class I wetland” means a wetland that the panel, based upon an evaluation of the extent to which the wetland serves the functions and values set forth in subdivisions 6025(d)(5)(A)--(K) of this title, determines is exceptional or irreplaceable in its contribution to Vermont’s natural heritage and, therefore, merits the highest level of protection.  The panel shall designate all Class I wetlands pursuant to rulemaking under chapter 25 of Title 3.

(9)  “Class II wetland” means a wetland, other than a Class I or Class III wetland, that is a mapped wetland, is contiguous to a mapped wetland, or which serves at least one of the functions and values set forth in subdivisions 6025(d)(5)(A)–(K) of this title and the rules of the panel.

(10)  “Class III wetland” means a wetland that is not a Class I wetland nor a Class II wetland.

(11)  “Mapped wetland” means any wetland identified on the Vermont significant wetland inventory maps in existence as of  September 1, 2007, and as such maps are amended under sections 917 and 918 of this title.

(12)  “Panel” means the water resources panel of the natural resources board.

(13)  “Person” is as defined in section 128 of Title 3.

(14)  “Secretary” means the secretary of natural resources or his or her authorized representative.

(15)  “Significant wetland” means:

(A)  A Class I or Class II wetland;

(B)  A mapped wetland, until classified by the secretary as a non-regulated Class III wetland under section 917 of this title;

(C)  A wetland that is contiguous, pursuant to the rules of the panel, to a mapped wetland; or

(D)  A wetland that is determined by the secretary to be significant under section 917 of this title.

(16)  “Stop work order” means an order to cease construction or other activity.

(17)  “Wetland identification and classification (WIC)” means a determination by the secretary of natural resources under section 917 of this title.

Sec. 4.  10 V.S.A. § 905b(18) is amended to read:

(18)  study and investigate the wetlands of the state and cooperate with municipalities, the general public, and other agencies and the board in collecting and compiling data relating to wetlands, propose to the board specific wetlands to be designated as significant Class I wetlands, and implement through existing programs the rules adopted by the board panel governing significant wetlands, including the issuance or denial of conditional use determinations wetlands permits pursuant to section 1272 916 of this title and the issuance of wetland identifications and classifications pursuant to section 917 of this title;

Sec. 5.  10 V.S.A. § 911 is amended to read:

§ 911.  ENTRANCE UPON LANDS; RECORDS, MAINTENANCE

The department employee or agent may enter upon lands for the purposes of inspecting and investigating conditions relating to wetland determinations pursuant to section 917 of this title, sources of pollution of the waters of the state or the potential pollution thereof, and to determine whether the rules and orders of the department are being complied with.  Any authorized representative of the department may examine any records or memoranda pertaining to the operation of disposal systems or related water quality projects.  The department may require the maintenance of records relating to the operation of disposal systems.  Copies of these records shall be submitted to the department on request.

Sec. 6.  10 V.S.A. chapter 37, subchapter 4 is added to read:

Subchapter 4.  Wetlands Protection Act

§ 915.  PROHIBITIONS

(a)  No person shall conduct or allow to be conducted an activity in a significant wetland or buffer zone of a significant wetland except in compliance with a wetland permit or order issued by the secretary or except for allowed uses as defined in this chapter of rules adopted by the water resources panel.

(b)  For the purpose of conducting a wetland identification and classification under section 917 of this title, the secretary may issue a stop work order prohibiting work or activities on the property until a wetland identification and classification is issued under section 917 of this title or a necessary wetland permit is issued under section 916 of this title.  An appeal of a stop work order under chapter 220 of this title shall not stay the effectiveness of the order pending a determination by the environmental court unless the environmental court so orders.

(c)  The secretary may issue a stop work order in his or her sole discretion based upon information obtained by or made available to the secretary.

(d)  The secretary shall issue a WIC within five business days of the issuance of the stop work order.  In issuing such an order, the secretary shall consider the economic effect of the order on individuals other than the respondent.

(e)  A stop work order shall include:

(1)  A statement of the facts which provide the basis for claiming the particular wetland may be significant and thus merits protection;

(2)  A statement that the respondent has a right to appeal the stop work order to the environmental court;

(3)  A statement that the order is effective on receipt unless stayed by the environmental court pursuant to section 8504(f)(2) of this title, and;

(4)  If applicable, a directive that the respondent take actions necessary to abate potential or existing environmental or health hazards.

(f)  The stop work order shall be served in person or by certified mail, return receipt requested.

(g)  The authority established by this section shall supplement any other authority of the secretary.

(h)  No permit shall be required under this section for any activity that occurred before September 1, 2007 within an area that was not identified as a wetland on the Vermont significant wetland inventory maps.

(i)  Notwithstanding any other provision of this chapter, no permit shall be required under this section for activity that occurs within a wetland or its buffer:

(1)  That the secretary determines not to be a significant wetland under section 917 of this title;

(2)  That is within an area that has been designated as a growth center pursuant to chapter 76A of title 24, which included wetland identification and delineation pursuant to that act, and that has not been identified as a significant wetland; or

(3)  For which a conditional use determination has been issued prior to September 1, 2007, provided that any conditions of the conditional use determination required to be taken after September 1, 2007, shall remain in effect, including conditions concerning operation and maintenance.

§ 916.  WETLANDS PERMITS

(a)  The secretary may issue a permit to conduct an activity in a Class I or Class II wetland or its buffer zone according to rules adopted by the panel to accomplish the purposes of this subchapter.  The secretary shall issue a permit to conduct an activity in a Class I wetland or its buffer zone only to meet a compelling public need or to protect the public health or safety.  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 Class I or Class II wetlands and the buffer zones of such wetlands.  A general permit issued under this section shall have a term of no more than 10 years.

(b)  Application for an individual permit to conduct activities in a significant wetland or buffer zone 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 wetland or a buffer zone 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.

(c)  The secretary shall provide notice of each application for an individual permit to conduct activities in a significant wetland or a buffer zone pursuant to rules adopted by the panel.  For applications to conduct activities in a significant wetland or buffer zone under the terms of a previously issued general wetland permit, the applicant shall provide notice, on a form provided by the secretary, to the municipal clerk of the municipality or municipalities in which the wetland or buffer zone 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 wetland permit for 10 days following receipt of the application.

§ 917.  WETLAND IDENTIFICATION AND CLASSIFICATION REVIEW

(a)  The secretary may, on his or her own motion, at the request of the panel or upon submission of a petition by any person, conduct a wetland identification and classification (WIC) review on any parcel of property pursuant to rules adopted by the panel.  A petitioner for a WIC review shall pay a processing fee in accordance with 3 V.S.A. § 2822.

(b)  A petitioner for a wetland identification and classification shall send notice and a copy of the petition to the owner of the relevant parcel of land; the municipality or municipalities in which the land is located.  The secretary shall notify a petitioner of its decision to conduct a WIC review within 30 days of receipt of the petition.

(c)  A WIC review may include:

(1)  A determination of the existence of a wetland on a parcel of land.  A determination under this subdivision may include a determination as to whether a wetland identified on the Vermont significant wetlands inventory maps is present on a parcel of land;

(2)  A determination of whether a wetland is a significant wetland based on an evaluation of the functions and values set forth in subdivisions 6025(d)(5)(A)–(K) of this title;

(3)  A delineation of a significant wetland;

(4)  A determination of whether the size or configuration of a buffer zone for a Class II wetland should be increased or decreased;

(5)  A determination of whether a wetland is contiguous to a mapped wetland; or

(6)  A recommendation to the panel that a wetland be classified as a Class I wetland under section 917 of this title.

(d)  The secretary shall provide, in person or by mail, a written copy of a final WIC determination issued under subsection (c) of this section to the owner of the relevant parcel of land and to the requesting petitioner.  Upon completion of a final WIC determination, the secretary may recommend to the panel that a wetland be classified as a Class I wetland under section 918 of this title.

§ 918.  CLASS I WETLANDS

The classification of a Class I wetland, the reclassification of a wetland as a Class I wetland, and the modification of the buffer zone of a Class I wetland shall occur only after rulemaking by the panel pursuant to 3 V.S.A. chapter 25.

§ 919.  AMENDMENT OF VERMONT SIGNIFICANT WETLANDS

             INVENTORY MAPS

The secretary shall amend the Vermont significant wetland inventory maps to reflect a final WIC determination issued under section 917 of this title, the result of a final appeal of a WIC determination, or a panel rulemaking under section 918 of this title.

§ 919a.  APPEALS

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

Sec. 7.  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. 8.  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 wetlands which are so significant that they and merit protection.  Any determination that a particular wetland is significant will result from an evaluation of at least the following functions and values which a wetland serves:

* * *

(G)  provides for hydrophytic vegetation habitat contributes to Vermont’s natural heritage;

* * *

(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 wetland permits and wetland identification and classification determinations under chapter 37 of this title 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. 9.  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. 10.  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 protection and water resources management).

* * *

Sec. 11.  APPROPRIATIONS

In addition to any other funds appropriated to the agency of natural resources in fiscal year 2007, there is appropriated from the general fund to the agency $100,000.00 in fiscal year 2007 for the purpose of hiring 2 full-time employees to issue wetlands permits and conduct wetlands identifications and classification review under subchapter 4 of chapter 37 of Title 10.

Sec. 12.  EFFECTIVE DATE

This act shall take effect September 1, 2007.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us