Overview: Wetland Rules

1. Overview: Wetland Rules • Act 31 and Rule Overview: • New Determination Process: • New Application: • CUD now is a Wetland Permit

2. Vermont Wetland Rules • 2005: Creation of NRB Water Resources Panel Appeals to Environmental Court Lake Bomoseen Ruling • Wetlands Investigative Docket Complete review of the Rules by Wetland Investigative Group

3. H. 447 (2009): Act 31 • Authorized Secretary of ANR to classify certain wetlands (Class II and III) • Provides for appeals to Env. Court • Authorized VSWI Map revisions • Changed “hydrophytic vegetation habitat” • Violations not an encumbrance on title

4. Policy Statement: • Preserve, protect and conserve significant wetlands; • Prevent degradation and destruction of wetlands; • Protect and enhance the quality.... of surface waters…; • To regulate use and development of…

5. RetainsClassificationSystem: • Class I: exceptional and irreplaceable in contribution to VT’s natural heritage • Class II: identified on VSWI maps or merits protection based on an evaluation of functions and values in Sec. 6025(5)(A)-(K) and Rules of the NRB Water Resources Panel • Class III: neither Class I or Class II

6. Buffer Zones • Default buffer zones remain the same • The Panel can change Class I buffers through Rulemaking • ANR can change Class II wetland buffer zones through an Administrative determination process

7. Allows for Wetland Permits • Pursuant to Sec. 6025 and Rules of the Panel • Individual Wetland Permit replaces the Conditional Use Determination • New General Permit: for minimal impact activities

8. Effective dates: • New maps effective January 1, 2010 • Changes effective 45 days after final Rules are filed with the Sec. of State (Aug. 1, 2010) = • September (14) 15.

9. New Wetland Rules • Effective Date: September 15, 2010

10. Sec. 1 Purpose and Applicability • Interpretation Sec. 1.3 eliminated • ANR now makes interpretations and formal determinations: Class II or III; buffer zone widths; mapping updates and corrections; boundary determinations

11. Sec. 2. Definitions: • Some new or updated definitions: headwater wetland, marsh, swamp, vernal pool, seep, significant wetland; • Class I, II, and III defined • Definition of wetland stays the same

12. Sec. 3. Wetland Exemptions : • Stays the same for Agricultural activities • Existing constructed features erroneously mapped as wetlands; i.e. snowmaking ponds, sewage lagoons, etc. • Permitted public highway projects with an Act 250 permit prior to Feb.23, 1990

13. Sec. 3. Identification of Wetlands: • Wetland delineation: follows the Corps Manual (1987) and supplements (2010) • Uses vegetation, soils, hydrology • New plant list to replace 1988 List of Plant Species That Occur in Wetlands • Map interpretation stays the same • ANR makes formal determinations

14. Sec. 4. Classification of Significant Wetlands • Class I Wetland determinations remain with the NRB Water Resources Panel through rulemaking • Establishes procedures for ANR determinations for Class II and III wetlands, and designation of buffer zones

15. Sec. 4.6. Presumptions • Presumes wetlands similar in type and size to those already mapped are presumed to be Class II wetlands • Contains a list of wetland types and characteristics that contribute to significant wetland functions

16. Sec. 5. Functional Criteria…. • Stays the same with some minor additions or tweaks; • 5.5 eliminates “hydrophytic vegetation habitat” replaces with “exemplary wetland natural community”

17. Sec. 6. Allowed Uses: • Adds BMP’s to some Allowed Uses i.e. cleaning of ponds, repair and maintenance of utility lines and corridors • Adds: wetland restoration projects, certain dry hydrant projects, cleanup for spills and hazardous materials

18. Sec. 7. Rulemaking Petitions: • Applies to Rulemaking by the Natural Resources Board, Water Resources Panel • Essentially follows previous petition guidance for the Water Resources Board content of petitions and distribution • Adds Rulemaking section.

19. Sec. 8. Wetlands Determinations by the Secretary: • Applies to Class II and Class III Wetlands • Includes a 30-day Notice period • Allows for Reconsideration • Allows ANR to make mapping corrections • Allows ANR to update the VSWI Maps

20. Sec. 9. Permits: • Follows the existing CUD process • Replaces Conditional Use Determination with Wetland Permit • Allows for Individual and General Permits • Allows Permit approval in Class I wetlands only for activities that meet a compelling public need or protect public health and safety

21. Sec. 9. Permits: • Contains grandfathered activites • Contains a provision to dismiss applications for failing to provide requested information within 60 days • Allows for “in-lieu fee” or mitigation bank approved by the Secretary. • Changes General CUD to General Permit

22. Sec. 9.7 General Permits • For discrete categories of Class II wetlands • For discrete categories of activities • Not to exceed 5 years • Authorizations under the GP not to exceed 5 years • 45 day Notice period • NOI – 10 day notice

23. Sec. 9.8 Application for Authorization (Notice of Intent) • May deny if requested info is not received within 60 days • 10 day notice period • May require coverage under an Individual Permit

24. Sec. 10. Appeals: • Fixes the Rules; appeals have gone to Environmental Court since 2005. • Appeals from any act or decision of the Secretary under these rules are governed by 10 VSA §8504.

25. Act 138 • Transfers rulemaking authority: • Vermont Wetland Rules • Rulemaking to designate Class 1 wetlands

26. Sec. 5: Wetland Functions • Sec. 5.1 Water Storage for Flood Water and Storm Runoff: • Reduce risks to public safety • Reduce damage to property • Reduce downstream erosion • Enhance the stability of habitat for aquatic life

27. Otter Creek and Tropical Storm Irene example Over to Ethan Swift