Section 1 General.
1.1 Purpose and Applicability
It is the policy of the State of Vermont to identify and
protect significant wetlands and the values and functions which they serve in
such a manner that the goal of no net loss of such wetlands and their functions
is achieved.
These rules are adopted under the authority of the Secretary
of Natural Resources (Secretary) pursuant to
10 V.S.A.
§
905b(18). This
statute limits the applicability of these rules to those wetlands which are so
significant that they merit protection in this program. Wetlands that are not
significant should be assumed to have public value, and therefore may merit
protection under other statutory or regulatory authority.
Except as provided for below, these rules shall apply to all
other land uses occurring within a significant wetland or its associated buffer
zone that are commenced after February 23, 1990. These rules shall not apply to
any land use for which:
(1) a complete
application for all local, state and federal permits related to either the
regulation of land use or the protection of wetlands had been submitted as of
February 23, 1990, and where the applicant does not subsequently file an
application for a permit amendment in a way that would have an undue, adverse
impact on a protected function of a significant wetland, and substantial
construction of the project commences within two years of the date on which all
such local, state and federal permits become final;
(2) all local, state and federal permits
related to either the regulation of land use or the protection of wetlands had
been obtained as of February 23,1990 and where substantial construction of the
project commenced by February 23, 1992; or
(3) no local, state or federal permits
related to either the regulation of land use or the protection of wetlands are
required and where substantial construction was commenced prior to February 23,
1990.
1.2 Enforcement
Violations of these rules are subject to enforcement under
applicable Vermont law including, but not necessarily limited to, the
provisions of
10 V.S.A.
§§
1272,
1274,
1275,
8001-8016, and
8221 and
3 V.S.A. §2822.
Section 2 Definitions.
For the purposes of these rules, the terms below shall have
the following meanings unless a different meaning clearly appears from the
context. Examples are illustrative only and not exhaustive.
2.1 Alpine Peatland means a peat-accumulating
wetland occurring in small bedrock basins at or above 3,500 feet in elevation,
on only a few of Vermont's highest summits. Typical species include alpine
bilberry, leatherleaf, Labrador tea, black crowberry, cottongrass, Bigelow's
sedge, and Sphagnum.
2.2 Aquatic
Life means all organisms that, as a part of their natural life cycle, live in
or on waters. Aquatic life is synonymous with Aquatic Biota as defined in the
Vermont Water Quality Standards.
2.3 Board means the Natural Resources
Board.
2.4 Bog means an acidic
wetland that is isolated from mineral-rich groundwater sources by deep peat
accumulation and therefore receives most of its water and nutrients from
precipitation. Typical species include Sphagnum, leatherleaf, bog laurel, small
cranberry, stunted black spruce, pitcher plant, three-seeded sedge, and other
sedges.
2.5 Buffer zone means the
area contiguous with a significant wetland which serves to protect those values
and functions sought to be preserved by its designation, consistent with
10
V.S.A.§
902(9). The
buffer zone for a Class I wetland shall extend at least 100 feet from the
border of the wetland, unless the Department determines otherwise pursuant to
10 V.S.A.
§
915. 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
914 of Title 10.
2.6 Class I wetland means a wetland that:
(A) is identified on the Vermont significant
wetlands inventory maps as a Class I wetland;
(B) the former Water Resources Board
identified in rules of the Board as a Class I wetland; or
(C) the Secretary determines, based on an
evaluation of the extent to which the wetland serves the functions and values
set forth at
10 V.S.A.
§
905b(18)(A) and in
Section 5 of these rules, is exceptional
or irreplaceable in its contribution to Vermont's natural heritage,
and-therefore merits the highest level of protection. See
10 V.S.A.
§
902(6).
2.7 Class II wetland means a
wetland other than a Class I or Class III wetland that:
(A) is a wetland identified on the Vermont
significant wetlands inventory maps; or
(B) the Secretary determines merits
protection, based on an evaluation of the extent to which the wetland serves
the functions and values set forth at
10 V.S.A.
§
905b(18)(A) and
Section 5 of these rules, either taken
alone or in conjunction with other wetlands. See
10 V.S.A.
§
902(7).
2.8 Class III wetland is a wetland
that is neither a Class I nor a Class II wetland. See
10 V.S.A.
§
902(8).
2.9 Compensation means the mitigation of
undue adverse impacts on the protected functions of significant wetlands by the
replacement of those protected functions lost or impaired, through wetland
creation, restoration, enhancement or preservation. Compensation may also
include payment of fees to a federal "in-lieu fee" program or mitigation bank
that has been approved by the Secretary.
2.10 Contiguous means sharing a boundary or
touching. This shall include situations where a structure, such as a road or
railroad, divides a wetland and there is surface water connection over, through
or under that structure.
2.11
Dredge means lowering the bottom elevation or any cleaning, deepening,
widening, or excavating, either temporarily or permanently.
2.12 Emergent Vegetation means erect, rooted
herbaceous (nonwoody) plants that may be flooded at the base but do not
tolerate prolonged inundation of the entire plant. Typical species include
cattails, sedges, and bulrushes.
2.13 Environmental notice bulletin means the
website and e-mail notification system required by
3 V.S.A.
§
2826.
2.14 Fact sheet means a document that briefly
sets forth the principal facts and the significant factual, legal,
methodological, and policy questions considered in preparing a draft
decision.
2.15 Facultative Wetland
Species means plant species that sometimes occur in wetlands, but which may
also be found in uplands.
2.16 Fen
means a peat-accumulating wetland that receives mineral-rich groundwater, that
is weakly acidic to slightly basic. Acidic ("poor") fens are dominated by
Sphagnum, and basic ("rich") fens are dominated by brown mosses. Sedges and
grasses are abundant in these open peatlands.
2.17 Fill includes the placing of any
material that raises, either temporarily or permanently, the surface elevation
of any area.
2.18 Headwater Wetland
means a naturally occurring wetland that is above 2,500 feet in elevation and
contributes to a stream.
2.19
Hydric soils means soils that are saturated, flooded or ponded long enough
during the growing season to develop anaerobic conditions in the upper part
(U.S.D.A. Soil Conservation Service 1987). For the purpose of these rules,
hydric soils shall be synonymous with the terms saturated soils and seasonally
saturated soils as used in
10 V.S.A.
§
902(5).
2.20 Hydrophytic Vegetation means vegetation,
including obligate wetland species and facultative wetland species, growing in
water, soil or on a substrate that is at least periodically deficient in oxygen
as a result of excessive water content. For the purposes of these rules,
hydrophytic vegetation shall be synonymous with the term significant vegetation
as used in
10 V.S.A.
§
902(5).
2.21 Impaired Waters means surface waters
which have been identified by the Secretary as impaired pursuant to Section
303(d) of the
federal Clean Water Act and which have been listed on the most recent Vermont
303(d) list, approved by the federal Environmental Protection Agency, as waters
which may need a Total Maximum Daily Load (TMDL).
2.22 Impervious Surface[s] means manmade
surfaces, including paved and unpaved roads, parking areas, roofs, driveways,
and walkways, from which precipitation runs off rather than infiltrates. See
10 V.S.A.
§
1264(b)(6).
2.23 Marsh means any wetland that is
seasonally or continually inundated and is dominated by herbaceous vegetation.
Hydric mineral or organic soils may be present. Typical species include common
cattail, bluejoint grass, tussock sedge, broad-leaved arrowhead, wild rice, and
bulrush.
2.24 Mitigation means a
comprehensive effort to lessen impacts on wetlands through the application of a
sequence of avoidance and minimization efforts, and when appropriate,
compensation.
2.25 Obligate Wetland
Species means plant species that are almost always found in wetlands under
natural conditions.
2.26 Panel
means the former Water Resources Panel of the Natural Resources
Board.
2.27 Person means any
individual; partnership; company; corporation; association; joint venture;
trust; municipality; agency, department or subdivision of the state or federal
government, or any other legal or commercial entity.
2.28 Practicable or practicably means
available and capable of being done after taking into consideration logistics,
existing technology, and cost in light of the overall project
purpose.
2.29 Prevalence of
Vegetation means plants which are the dominant species comprising more than 50
percent of the plant community or communities. This is determined by aerial
cover.
2.30 Protected functions
means those functions identified in
10 V.S.A.
§
905b(18)(A) and
Section 5 of these rules that make a
wetland so significant that it merits protection under these rules.
2.31 Secretary means the Secretary of the
Agency of Natural Resources or his or her authorized representative.
2.32 Seep means a naturally occurring common,
small wetland type occurring on slopes or at the base of slopes in upland
forests. It is fed by groundwater discharge and is typically the headwaters of
a perennial stream. This narrow wetland type is often shaded by the adjacent
upland forest. Typical species may include rough-stemmed sedge, slender
mannagrass, golden saxifrage, and spotted touch-me-not.
2.33 Significant Wetland means any Class I or
Class II wetland that merits protection under these rules, either alone or in
conjunction with other wetlands, based upon an evaluation of the extent to
which it serves one or more of the functions and values pursuant to
10 V.S.A.
§
905b(18)(A) and
section 5 these rules. In making this
determination, consideration shall be given to the number of or the extent to
which protected functions and values are provided by a wetland or wetland
complex.
2.34 Silvicultural
activities means those activities associated with the sustained management of
land for silvicultural purposes including the planting, harvesting, and removal
of trees.
2.35 Source Protection
Area means a surface and subsurface area from or through which contaminants are
reasonably likely to reach a public water source as designated by the Secretary
pursuant to the Wastewater System and Water Supply Rules.
2.36 Surface Vegetation means plants with
vegetative parts principally on the water surface, including water lily and
spatterdock, and is synonymous with floating-leaved vegetation.
2.37 Swamp means any of the many wetland
types that are dominated by woody vegetation, either trees or shrubs. Hydric
mineral or organic soils may be present. Typical species include red maple,
black ash, northern white cedar, hemlock, red or black spruce, tamarack,
speckled alder, willow, sweet gale, and buttonbush.
2.38 Upland means land that is not
wetland.
2.39 Vernal Pool means a
small wetland in a shallow natural depression that typically fills with water
during the spring and/or fall and may dry during the summer. Vernal pools have
no permanent inlet stream and no viable populations of fish. Vernal pools are
typically sparsely vegetated with herbaceous plants and are shaded by trees
from the surrounding upland forest. Many vernal pools provide critical breeding
habitat for amphibians.
2.40
Waterfowl means all ducks, geese and swans.
2.41 Wetlands means those areas of the state
that are inundated by surface or ground water 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. See
10 V.S.A.
§
902(5).
2.42 Wetland Hydrology means the sum total of
wetness characteristics in areas that are inundated by water or which have
hydric soils that are saturated or seasonally saturated for a sufficient
duration to support significant vegetation or aquatic life. Wetness
characteristics shall include the hydrologic cycle, water table levels, water
chemistry, hydrologic budget, and ground water flow patterns. Typical
indicators include: evidence of inundation, drift lines, sediment deposits, and
morphological plant adaptations.
Section 3 Exemptions; Identification of
Wetlands.
3.1 Exemptions
The following shall not be regulated as wetlands under the
Vermont Wetland Rules, but may be subject to regulation under federal
law:
a. Farming Exemption
(1) Statutory guidance
Section
902(5) Of 10
V.S.A. Defines wetlands to exclude "such areas as grow food or crops in
connection with farming activities." Section
905b(18)(c) of 10
V.S.A. requires that any rules "that restrain agricultural activities" must
have the consent of the Secretary of the Agency of Agriculture, Food and
Markets.
(2) Definition
Farming activities means the cultivation or other use of land
for growing food, fiber, Christmas trees, maple sap, or horticultural and
orchard crops; and the growing of food and crops in connection with the
raising, feeding, or management of livestock, poultry, equines, fish farms, or
bees for profit.
(3)
Limitation on Exemption.
The farming exemption shall apply to all areas used to grow
food or crops in connection with farming activities including areas in ordinary
rotation, as of the effective date of these rules. The exemption will expire
whenever the area is no longer used to grow food or crops or in ordinary
rotation.
b.
Existing Constructed Features
The following man-made features, which when constructed in
uplands may exhibit wetland characteristics:
(1) Stormwater conveyance, treatment and/or
control systems.
(2) Wastewater
treatment ponds and sludge lagoons.
(3) Manure storage and treatment
ponds.
(4) Irrigation and active
farming-related ponds.
(5)
Snowmaking ponds.
(6) Other similar
constructed ponds created in uplands.
c. Permitted Public Highway Projects
All public highway projects which have received an Act 250
permit prior to February 23, 1990 shall be exempt from the Vermont Wetland
Rules.
3.2
Methodology for Identifying Wetlands
a.
Wetland/Upland Boundary Delineation
The presence of a wetland and the boundary between a wetland
and upland shall be delineated by the methodology set forth in the Federal
Manual for Identifying and Delineating Jurisdictional Wetlands, as amended, and
supplemental guidance documents issued by the U.S. Army Corps of Engineers.
This methodology employs three parameters: vegetation, soils and hydrology. The
National List of Plant Species That Occur in Wetlands: Vermont, as amended by
the U.S. Army Corps of Engineers, shall be used to determine the frequency of
hydrophytic vegetation occurrence in wetlands.
b. Map Interpretation
The Vermont Significant Wetland Inventory (VSWI) maps denote
the approximate location and configuration of significant wetlands. The actual
boundaries of wetlands shown on the VSWI maps shall be determined in the field
in accordance with the methodology provided for in Section
3.2(a) and, where
applicable, the following provisions:
(1) Lakes, Ponds and Reservoirs
When adjacent to any lake, pond or reservoir that is a public
water a wetland's boundary shall extend to the maximum extent of a prevalence
of surface, emergent, or woody vegetation at any time during the growing
season. For all other lakes, ponds or reservoirs, a wetland's boundary shall
extend to a depth of two meters at mean water level.
(2) Rivers or Streams
For wetlands adjacent to a river or stream, the wetland shall
extend to either the edge of the river or stream channel or to the maximum
extent of a prevalence of surface, emergent or woody vegetation at any time
during the growing season, whichever is greater.
Section 4
Classification of Significant Wetlands and Designation of Buffer Zones.
4.1 Classification of Wetlands
For purposes of these rules wetlands in Vermont are
classified as Class I, Class II, or Class III wetlands, as defined at
10 V.S.A.
§
902 and Section
2 of these rules. The Secretary
has the authority to reclassify wetlands, in general or on a case-by-case
basis, based on an evaluation of the functions and values that the wetland
serves.
Class I wetlands when designated pursuant to Section
7 shall be identified in Appendix
A. All wetlands shown on the Vermont Significant Wetland Inventory maps are
Class I or Class II wetlands, unless determined otherwise by the Secretary.
Wetlands demonstrating the characteristics of a Categorical Class II wetland as
identified by the Secretary pursuant to Section
4.6 of this Rule shall be
protected as Class II wetlands, unless determined to be Class III through an
individual wetland determination issued by the Secretary.
4.2 Buffer Zones
The purpose of a buffer zone is to protect those functions
that make a wetland significant. The Secretary may designate a buffer zone
contiguous to any Class I wetland and the Secretary may designate a buffer zone
contiguous to any Class II wetland. Until otherwise designated by the
Secretary, a one hundred (100) foot buffer zone is established contiguous to
the boundaries of a Class I wetland. Until otherwise designated by the
Secretary, a fifty (50) foot buffer zone is established contiguous to the
boundaries of a Class II wetland.
4.3 Designations
a. Class I Wetlands
The Secretary on his or her own motion or acting on a
rulemaking petition filed in accordance with Section
7, shall determine whether to
classify any wetland as a Class I wetland or to reclassify a Class I wetland
pursuant to
10 V.S.A.
§
915.
b. Other Wetlands
The Secretary on his or her own motion or upon petition may,
pursuant to
10 V.S.A.
§
914:
1. Determine whether a wetland is a Class II
or Class III wetland.
2. Determine
which functions and values make a wetland significant.
3. Determine whether the size or
configuration of a buffer zone adjacent to a Class II wetland should be
increased or decreased.
4.
Determine the boundaries of a significant wetland.
5. Determine whether an area shown as a
wetland on the VSWI maps is not a wetland.
4.4 Vermont Significant Wetland Inventory
Maps
All wetlands shown on the Vermont Significant Wetland
Inventory (VSWI) maps or contiguous to wetlands shown on the VSWI maps are
Class II wetlands, unless identified as Class I or Class III by the Secretary
pursuant to Section
8 of this Rule. The VSWI maps
should not be relied upon to provide precise information regarding the location
or configuration of wetlands (see Section
3.2). The VSWI maps are intended
to denote the approximate location and configuration of wetlands. It is
critical to note that wetland characteristics and boundaries are not static;
wetland boundaries may change as a result of landscape and climatic changes.
The Secretary shall revise the VSWI maps to reflect wetland determinations
issued pursuant to
10 V.S.A.
§§
914 and
915, and mapping corrections
pursuant to Section
8 of this Rule. The Secretary may
also adjust the boundaries of wetlands shown on the VSWI maps to more
accurately depict the location of a wetland, as determined by aerial photos,
field visits, field delineations and other relevant information. The VSWI map
layer is located on the Agency of Natural Resources Atlas and available for
download through the Vermont Center for Geographic Information (VCGI).
4.5 Delineation of Wetland
Boundaries
a. The methodology for delineating
the boundaries of any wetland is described in Section
3.2.
b. Wetland boundaries shall be delineated in
accordance with the provisions of these rules.
c. Formal determinations of wetland
boundaries are made by the Secretary pursuant to
10 V.S.A.
§§
914 and
915.
4.6 Categorical Class II Wetlands
All wetlands contiguous to wetlands shown on the Vermont
Significant Wetland Inventory maps are presumed to be Class II wetlands, unless
identified as Class I or III wetlands, or unless determined otherwise by the
Secretary pursuant to Section
8. Likewise, any wetland that was
determined to be Class II in a prior permitting action shall be considered
Class II unless determined otherwise by the Secretary. In addition, the
Secretary may determine that a general category of wetlands with certain
defined characteristics is significant, based on an evaluation of the functions
and values exhibited by this category of wetlands, pursuant to
10 V.S.A.
§
905b(18)(B). Notice
of a proposed categorical wetland determination shall be provided according to
Section 8.3 of this Rule.
Wetlands with the following characteristics have been
determined by the Secretary to be significant for one or more of the functions
and values listed in Section
5 of these Rules, and have been
determined to be categorical Class II wetlands. These categories of wetlands
shall be regulated as Class II wetlands unless determined otherwise by the
Secretary on a case-by-case basis:
a.
The wetland is of the same type and threshold size as those mapped on the VSWI
maps: i.e.; open water (pond); emergent marsh; shrub swamp; forested swamp; wet
meadow; beaver pond or beaver meadow; bog or fen; or greater than 0.5
acres.
b. The wetland contains
dense, persistent non-woody vegetation or a prevalence of woody vegetation; is
adjacent to a stream, river, or open body of water; and is over 2,500 square
feet in size.
c. The wetland is a
vernal pool that provides amphibian breeding habitat.
d. The wetland is a headwater
wetland.
e. The wetland contains a
species that appears in the Vermont Natural Heritage Inventory (VNHI) database
as rare, threatened, endangered or uncommon; or is an exemplary natural
community as mapped by VNHI.
Vegetated wetlands adjacent to streams, rivers, or any open
body of water that do not meet the 2,500 square foot size threshold in
subparagraph b above are often significant, and should be evaluated for
significance by a wetland ecologist before work is done that would impact the
wetland.
Section
5 Functional Criteria for Evaluating a Wetland's Significance.
In evaluating whether any wetland is a Class II or a Class I
wetland, the Secretary shall evaluate the functions that the wetland serves
both as a discrete wetland and in conjunction with other wetlands by
considering the following functional criteria. Consideration shall be given to
the number of and/or extent to which protected functions and values are
provided by a wetland or wetland complex.
5.1 Water Storage for Flood Water and Storm
Runoff
Wetlands that provide for the temporary storage of floodwater
or stormwater runoff to the extent that they make an important contribution to:
reducing risks to public safety, reducing damage to public or private property
reducing downstream erosion or enhancing the stability of habitat for aquatic
life, are significant wetlands. Examples of wetlands that provide storage for
floodwaters or stormwater runoff may include those that are located in the
upper portion of the watershed, have a constricted outlet, are located in a
relatively flat area with storage potential, densely vegetated, or are located
in a watershed with a large amount of impervious surfaces.
In determining whether a wetland is significant for this
function, the Secretary or Panel shall, at a minimum, consider the extent to
which it:
a. Reduces either the
magnitude or frequency of risks to public safety or of damage to public or
private property due to flood water or stormwater runoff after considering:
(1) Its significance relative to other water
storage capacity in its own watershed or in the watershed of any watercourse to
which it is tributary. In particular, available water storage capacity upstream
of the wetland should be considered.
(2) Whether it is contiguous to a lake or
pond which would provide storage benefits independent of the wetland.
(3) The extent of development and impervious
surface in the watershed.
(4) The
history of damage to public and private property and economic loss due to
flooding within the watershed downstream of the wetland.
(5) The characteristics of development and
resources in or near the floodplain downstream of the wetland.
(6) The extent to which the wetland's water
storage capacity is created by beaver dams and similar temporary
conditions
b. Attenuates
flood peaks and reduces water velocities, thereby reducing scouring and
erosion.
c. Maintains the
geomorphic stability of important habitat for aquatic life by attenuating peak
flows of flood waters or stormwater runoff, or reducing the scouring and
erosion of stream banks, or both.
Hydraulic and hydrologic analysis of the extent to which a
wetland serves this function shall utilize average annual, 10-year, 50-year and
100-year storm frequencies in generating hydrographs for the wetland's inlet,
outlet and at critical locations upstream and downstream.
5.2 Surface and Ground Water
Protection
Wetlands that make an important contribution to the
protection or enhancement of the quality of surface or of ground water are
significant wetlands. In determining whether a wetland is significant for this
function, the Secretary or Panel shall, at a minimum, consider the extent to
which it:
a. Recharges a drinking
water source, such as a well head or source protection area.
b. Reduces levels of contaminants in surface
waters which recharge underlying or adjacent groundwaters.
c. Contributes to the flows of Class A
surface waters.
d. Enhances or
protects water quality through chemical action, by the removal of nutrients, by
the retention or removal of sediments or organic matter, or by moderating the
adverse water quality effects of soil erosion or stormwater runoff.
e. Contributes to the protection or
improvement of water quality of any impaired water.
f. Is adjacent to surface waters, especially
impaired waters.
5.3
Fish Habitat
Wetlands that are used for spawning by northern pike or that
are important for providing fish habitat are significant wetlands. In
determining whether a wetland is significant for fish habitat the Secretary or
Panel shall, at a minimum, consider the extent to which it:
a. Provides spawning, nursery, feeding or
cover habitat for fish.
b. Lowers
or moderates the temperature of surface waters due to the discharge of cold
springs, the provision of shade or for other reasons.
5.4 Wildlife Habitat
Wetlands that support a significant number of breeding
waterfowl, including all species of ducks, geese and swans, or broods of
waterfowl or that provide important habitat for other wildlife and migratory
birds are significant wetlands. Wetlands that provide wildlife habitat are
extremely diverse and range from small isolated wetlands to large forested
swamps. In determining whether a wetland is significant for wildlife habitat,
the Secretary or Panel shall, at a minimum, consider the extent to which
it:
a. Birds
(1) Supports or provides the habitat to
support one or more breeding pairs of waterfowl or one or more broods of
waterfowl.
(2) Supports or provides
the resting, feeding, staging or roosting habitat to support waterfowl
migration.
(3) Supports a nest
site, provides a buffer for a nest site, or is used as feeding habitat for
wading birds, including: Great blue heron, black-crowned night-heron, snowy
egret, cattle egret, or green heron.
(4) Supports or has the habitat to support
one or more breeding pairs of any migratory bird that requires wetland habitat
for breeding, nesting, rearing of young, feeding, staging, roosting, or
migration, including: Virginia rail, common snipe, marsh wren, American
bittern, northern water thrush, northern harrier, spruce grouse, Cerulean
warbler, and common loon.
b. Mammals
(1) Supports winter habitat for white-tailed
deer, based on an assessment of winter use. Typical indicators include
browsing, bark stripping, worn trails, pellet piles, and softwood tree
cover.
(2) Provides important
feeding habitat for black bear, bobcat, or moose, based on an assessment of
use.
(3) Supports or has the
habitat to support muskrats, otter, or mink.
(4) Supports an active beaver dam, one or
more beaver lodges, or evidence of an adult population of beaver which have
used the site in two or more consecutive years.
c. Amphibians
(1) Supports or provides habitat to support
the reproduction of uncommon Vermont amphibian species including: Jefferson
salamander, blue-spotted salamander, spotted salamander, which are associated
with vernal pools for breeding habitat; the Northern dusky salamander and the
spring salamander, which are associated with headwater seeps, springs and
streams; the four-toed salamander; Fowler's toad, Western chorus frog, and
other amphibians found in Vermont of similar significance.
(2) Supports or provides the habitat to
support significant breeding populations of Vermont amphibian species including
the species listed in subsection (c)(1); and pickerel frog, northern leopard
frog, mink frog, and others found in Vermont of similar significance.
d. Reptiles
(1) Provides habitat that supports or has the
habitat to support uncommon Vermont reptile species, including: wood turtle,
northern map turtle, eastern musk turtle, stinkpot turtle, spotted turtle,
spiny softshell turtle, eastern ribbonsnake, northern watersnake, and others
found in Vermont of similar significance.
(2) Supports or provides the habitat to
support significant populations of Vermont reptile species, including the
species listed in subsection (d)(1), smooth greensnake, DeKay's brownsnake, and
other more common wetland-associated species.
e. Landscape Considerations
(1) Meets four or more of the following
conditions indicative of wildlife habitat diversity:
(a) Three or more wetland vegetation classes
(1/2 acre or greater in size) are present including: open water contiguous to
but not necessarily part of the wetland, deep marsh, shallow marsh, shrub
swamp, forested swamp, fen, or bog;
(b) The dominant wetland vegetation class is
one of the following types: deep marsh, shallow marsh, shrub swamp, or forested
swamp;
(c) The wetland is located
contiguous to a lake, pond, river, or stream;
(d) Fifty percent or more of the surrounding
habitat types are any combination of one or more of the following types:
forest, agricultural land, old field, or open land;
(e) Emergent or woody vegetation occupies 26
to 75 percent of the wetland area and open water occupies the remainder of the
wetland area;
(f) The wetland falls
into one of the following:
1. Hydrologically
connected to other wetlands of different dominant vegetation classes or open
water bodies within 1 mile; or
2.
Hydrologically connected to other wetlands of the same dominant vegetation
class within 1/2 mile; or
3. Within
1/4 mile of other wetlands of different dominant vegetation classes or within
1/4 mile of open water bodies; but not hydrologically connected.
(2) Is owned by the
state or federal government in fee or through easement and managed for purposes
of wildlife and habitat conservation as evidenced by a management plan filed
and approved by the Secretary or other appropriate governing
official;
(3) Contains evidence
that it is used by wetland-dependent wildlife species.
5.5 Exemplary Wetland Natural
Community
Wetlands that make an important contribution to Vermont's
natural heritage are significant wetlands. These include wetlands that are
identified as high quality examples of one of Vermont's recognized natural
community types. There are over forty wetland natural community types
recognized in Vermont by the Nongame and Natural Heritage Inventory of the
Vermont Fish and Wildlife Department. These include rare types such as dwarf
shrub bog, rich fen, alpine peatland, and red maple-black gum swamp, and more
common types such as deep bulrush marsh, cattail marsh, northern white cedar
swamp, spruce-fir-tamarack swamp, and red maple-black ash seepage swamp. In
determining whether a wetland is significant for this function the Secretary or
Panel shall, at a minimum, consider the extent to which it:
a. Is an example of a wetland natural
community type that has been identified and mapped by or meets the ranking and
mapping standards of the Natural Heritage Inventory of the Vermont Fish and
Wildlife Department. When evaluating a wetland of a particular natural
community type, the rarity of the type is a primary consideration in
determining its importance to this function. More generally, larger wetlands in
undisturbed condition and in unfragmented landscapes are ranked as the better
examples.
b. Contains ecological
features that contribute to Vermont's natural heritage, including deep peat
accumulations reflecting thousands of years of history of wetland formation,
forested wetlands displaying very old trees and other old growth
characteristics, a wetland natural community that is at the edge of the normal
range for that type, a wetland mosaic containing examples of several to. many
wetland community types, or a large wetland complex containing examples of
several wetland community types.
5.6 Rare, Threatened, and Endangered Species
Habitat
Wetlands that contain rare, threatened, or endangered species
of plants or animals are significant wetlands. In determining whether a wetland
is significant for this function the Secretary or Panel shall consider
whether:
a. There is creditable
documentation that the wetland provides important habitat for any species on
the federal or state threatened or endangered species list of animals or
plants.
b. There is creditable
documentation that the wetland has contained one or more threatened or
endangered species on the federal or state list in the past. 10
years.
c. There is creditable
documentation that the wetland provides important habitat for any species
listed as rare in Vermont (S1 or S2 ranks), state historic (SH rank), or rare
to uncommon globally (G1, G2, or G3 ranks), by the Natural Heritage Inventory
of the Vermont Fish and Wildlife Department.
d. There is creditable documentation that the
wetland provides habitat for multiple uncommon species of species of plants or
animals (S3 rank).
5.7
Education and Research in Natural Sciences
Wetlands that provide, or are likely to provide valuable
resources for education or scientific research are significant wetlands. In
determining whether a wetland is significant for this function the Secretary or
the Panel shall, at a minimum, consider whether the wetland:
a. is owned by a public entity dedicated to
education or research or an easement for education or research has been
conferred to a public entity.
b.
has a history of use for education or research.
c. has one or more characteristics which make
it unique or valuable for education or scientific research purposes.
5.8 Recreational Value and
Economic Benefits
Wetlands that provide substantial recreational values or
economic benefits are significant wetlands. In determining whether a wetland is
significant for this function, the Secretary or Panel shall, at a minimum,
consider the extent to which it:
a. Is
used for, or contributes to, recreational activities.
b. Provides economic benefits.
c. Provides important habitat for fish or
wildlife which can be fished, hunted or trapped under applicable state
law.
d. Is used for the harvesting
of wild foods.
5.9 Open
Space and Aesthetics
Wetlands that contribute substantially to the open-space and
aesthetic character of the landscape are significant wetlands. The aesthetic
contribution must be specific to the wetland itself, and not attributable to an
upland area. In determining whether a wetland is significant for this function,
the Secretary or Panel shall, at a minimum, consider the extent to which
it:
a. Can be readily observed by the
public.
b. Possesses special or
unique aesthetic qualities.
c. Has
prominence as a distinct feature in the surrounding landscape.
d. Has been identified as important open
space in a municipal, regional or state plan.
5.10 Erosion Control through Binding and
Stabilizing the Soil
Wetlands that are important for erosion control are
significant wetlands. Such wetlands are typically located along stream, river,
pond or lake shorelines, where erosive forces are present. In determining
whether a wetland is significant for this function, the Secretary shall, at a
minimum, consider the extent to which it:
a. Protects a shoreline, riverbank or
streambank from excessive erosion by dissipation of wave and current energy or
by binding and stabilizing the soil.
b. Prevents erosion by binding or stabilizing
the soil.
c. Has been identified
through fluvial geomorphic assessment using methods approved by the Secretary
to be important in maintaining the natural condition of the stream or river
corridor.
Section
6 Allowed Uses.
The following uses shall be allowed in a Class I or Class II
wetland and in its buffer zone without a permit, provided that the
configuration of the wetland's outlet or the flow of water into or out of the
wetland is not altered and that no draining, dredging, filling, or grading
occurs except as may be provided for in sub sections
6.01,
6.02,
6.03,
6.04,
6.07,
6.08,
6.12,
6.13,
6.14,
6.15,
6.16, and
6.22 below. Designation of allowed
uses in these rules shall not provide relief from liability for violations that
commenced prior to the effective date of such allowed use.
6.1 Silvicultural activities which:
a. Comply with Acceptable Management
Practices for Maintaining Water Quality on Logging Jobs in Vermont adopted
pursuant to
10 V.S.A.
§
1259;
b. Comply with silvicultural standards for
deer wintering yards, established jointly by the Departments of Fish and
Wildlife and Forests, Parks and Recreation, when occurring in significant
wetlands or adjacent buffer zones containing deer wintering yards mapped by the
Fish and Wildlife Department; and
c. Restrict equipment maintenance and the
storing or changing of oil, grease, or other petroleum products to log
landings; and
d. Restrict log
landings to uplands or buffer zones except that landings not requiring the
placement of fill may be located within the wetland when the ground is
frozen.
6.2 The
restoration, reconstruction, rehabilitation, or upgrading of existing roads
used solely for silvicultural purposes provided that such roads are not
increased in width by more than 20%.
6.3 The construction of new roads used solely
for silvicultural purposes in buffer zones.
6.4 The removal of beaver dams to the extent
necessary to prevent impairment of the use of existing logging roads or ongoing
silvicultural management practices.
6.5 Silvicultural activities including the
uses allowed by subsections b, c and d above, when occurring in any Class I
wetland, the buffer zone for any Class I wetland and in any Class II wetland
specifically designated by the Secretary or Panel to protect habitat for any
species on the state or federal list of threatened or endangered species, that
comply with a plan approved in writing by the Commissioner of the Department of
Forests, Parks and Recreation.
6.6.
The growing of food or crops in connection with farming activities when
a. Threatened or endangered species are
protected; and
b. No clearing of
existing vegetation occurs in deer wintering yards mapped by the Vermont Fish
and Wildlife Department; and
c. In
compliance with the most recent Required Agricultural Practices adopted by the
Agency of Agriculture, Food and Markets.
6.7 The operation of existing hydroelectric
facilities in accordance with all applicable requirements established by
federal and state agencies. This use may involve dredging, draining and/or
altering the flow of water into or out of a wetland.
6.8 The routine repair and maintenance of
utility poles, lines and corridors in a manner which minimizes adverse impacts
and is accordance with Best Management Practices developed by the
Secretary.
6.9 Hunting,
birdwatching, hiking, boating, trapping, fishing, horseback riding, swimming,
snowshoeing, skiing, and similar outdoor recreational activities.
6.10 Snowmobiling on trails designated by the
Vermont Association of Snow Travelers.
6.11 Scientific research and educational
activities.
6.12 The maintenance,
reconstruction, or routine repair of structures and facilities (including ski
trails, public transportation facilities, bulkheads, docks, piers, pilings,
paved areas, houses, or other buildings) in compliance with the Vermont Wetland
Rules in existence as of the date of their construction or in existence as of
February 23, 1990 or additions to such structures or facilities which do not
involve substantial expansion or modification in a wetland or buffer.
6.13 Emergency repair, cleanup, or
maintenance of structures and facilities (including utility poles and lines,
public transportation facilities, bulkheads, docks, piers, pilings, paved
areas, houses, or other buildings), or emergency actions required to provide
for public health, safety and welfare for disaster relief in connection with a
federal or state-designated disaster.
6.14 The routine maintenance and upkeep,
including the removal of vegetation from, or maintenance dredging of
constructed ponds in compliance with Best Management Practices developed by the
Secretary. This use may involve dredging, temporary draining, and/or
temporarily altering the flow of water into or out of a wetland.
6.15 Wildlife or fisheries management
activities, including the removal of beaver dams which pose a significant
hazard to public health or safety or to public or private property, conducted
in accordance with a written plan or procedure adopted by the Secretary. This
use may involve draining and/or altering the flow of water into or out of a
wetland.
6.16 The placement,
maintenance or removal of duck blinds, ice fishing shanties, fences, catwalks,
footbridges, observation decks, docks exempt similar structures, in compliance
with Best Management Practices developed by the Secretary.
6.17 The harvesting of wild foods and the
collecting of scientific specimens, not on the state or federal threatened or
endangered species lists, for noncommercial purposes.
6.18 The control of non-native species of
nuisance plants including Eurasian milfoil, water chestnut, purple loosestrife
(Lythrum salicaria) and reed grass (Phragmites australis), where such control
is by hand pulling of plants or according to a written plan approved by the
Secretary and under any applicable state law.
6.19 Activities within existing lawns,
including mowing, the placement of barbecue pits, sand boxes, bird houses, and
other similar activities incidental to ordinary residential use.
6.20 The use of pesticides or other
biological agents to control mosquitoes when applied according to all
applicable state law.
6.21 The
operation of dams in accordance with the surface level rules for lakes and
ponds adopted under
10 V.S.A.
§
1424, provided that prior to the
adoption the Panel finds in writing that the surface level rules will not
result in any undue adverse effect on the protected wetland functions. This use
may involve draining or altering the flow of water into or out of a
wetland.
6.22 The installation of a
new overhead utility line that does not involve extensive tree clearing, with
three poles or fewer in the wetland or buffer zone, in compliance with Best
Management Practices developed by the Secretary
6.23 Wetland restoration or stream
restoration projects, including dam removals, in accordance with a plan
approved by the Secretary.
6.24 Dry
hydrants installed in constructed ponds, where the disturbance is limited to
the pond and previously disturbed or managed areas, such as lawns and mowed
fields.
6.25 Cleanup activities for
spills of oil or hazardous materials.
Section 7 Rulemaking Petitions.
7.1 General
Any person may petition the Secretary to classify any wetland
as a Class I wetland, or to reclassify any Class I wetland to a lower
classification, in accordance with the Vermont Administrative Procedures Act,
3 V.S.A.
§§ 800-849 and these rules.
7.2 Content of Petitions
Any petition shall be in writing and must contain the
following information unless waived in writing by the Secretary.
a. The nature and purpose of the
petition.
b. A narrative providing
a detailed summary of the circumstances prompting the petition and describing
the specific action sought.
c. A
description of the specific location of the subject wetland or buffer zone and
the location on a USGS topographic map or the relevant portion of the VSWI
map.
d. A detailed narrative of why
the petitioner believes the action(s) sought by the petition is consistent with
state and federal statute and these rules, including a discussion of each
wetland function (see Section
5) at issue.
e. Copies of all documents which the
petitioner intends to rely upon in support of the petition;
f. The names and complete mailing addresses
of all persons owning property within or adjacent to the wetland and the
existing and proposed buffer zone.
g. The signature, printed name, and complete
mailing address of each person signing the petition.
h. The name, address, and telephone number of
a designated representative.
i. All
determinations or decisions, if any, issued by the Secretary, Panel, or former
Water Resources Board pertaining to the wetland or wetlands in
question.
j. Such other information
as the Secretary may require.
7.3 Petition Distribution
The Petitioner shall file the petition with the Department of
Environmental Conservation, Watershed Management Division. The Petitioner shall
file a copy of the petition, as well as all supporting documents and exhibits.
The petition and all supporting documents and exhibits, including any documents
or exhibits filed to complete or supplement a petition, shall be accompanied by
a certificate of service signed by the petitioner or a representative. Unless
waived in writing by the Secretary, the petitioner shall also serve the
petition upon each person owning property within or adjacent to the wetland and
the existing and proposed buffer zone.
7.4 Rulemaking Process
a. Notice
The Secretary shall consider petitions in accordance with the
Administrative Procedure Act,
3 V.S.A.
§
806. If the Secretary grants the
petition, the Secretary shall commence rulemaking within 30 days of receiving
the petition, pursuant to 3 V.S.A. Chapter 25.
b. Review Standards
The Secretary shall determine whether a wetland is a Class I
wetland, on the basis of the criteria set forth in Section
5. The Secretary shall decide
whether to modify the size or configuration of any buffer zone associated with
any Class I wetland on the basis of the need to protect those values and
functions sought to be preserved by the designation.
7.5 Emergency Rulemaking
Where the Secretary believes that there exists an imminent
peril to public health, safety or welfare, it may adopt an emergency rule
pursuant to
3 V.S.A.
§
844.
Section 8 Wetlands Determinations by the
Secretary.
8.1 General
The Secretary may, upon a petition or on his or her own
motion, determine whether any wetland is a Class II Wetland or a Class III
wetland, pursuant to
10 V.S.A.
§
914 and these rules. Such
determinations shall be based on an evaluation of the functions and values set
forth in statute and these rules. The Secretary may establish the necessary
width of a buffer zone of any Class II wetland as part of any wetland
determination pursuant to these rules. Any wetland proposed by the Secretary to
be designated as a Class II wetland shall be presumed to, be a significant
wetland until the Secretary determines otherwise. This presumption shall become
effective upon receipt by the landowner of a registered letter from the
Secretary giving notice of a preliminary wetland determination, and shall last
sixty (60) days thereafter.
8.2 Contents of Petitions
Any request by a person for the Secretary to make a
determination pursuant to Section
8.1 shall be in writing and must
contain the following:
a. a
description of the specific location of the subject wetland or buffer zone and
the location on a USGS topographic map or the relevant portion of the VSWI
map;
b. a detailed narrative of the
action(s) sought by the petitioner and why the action(s) are consistent with
these rules, including a description of the wetland and each wetland function
and value ( Section
5) at issue;
c. copies of all documents which the
petitioner intends to rely upon in support of the request;
d. the names and complete mailing addresses
of all persons owning property within or adjacent to the wetland area and
buffer zone in question.
e. all
determinations and decisions, if any, issued by the Secretary, Panel or former
Water Resources Board, pertaining to the wetland or buffer at issue;
and
f. such other information as
the Secretary may require.
8.3 Petition and Determination Notice
Requirements
a. The Petitioner shall provide
written notice of a petition for a determination under this section to the
owner of each parcel of land within or adjacent to the wetland area or buffer
zone being considered, and shall certify to the Secretary in writing that such
notice has been provided, and shall state in the written certification the name
and address of each person notified and the date and manner that notice was
provided.
b. The Secretary shall
provide notice of a proposed wetland determination according to the provisions
of 10
V.S.A. §
914(c).
c. The Secretary shall provide notice of a
proposed categorical wetland determination through the Environmental Notice
Bulletin, according to the requirements of
10 V.S.A.
§
7714.
d. The Secretary shall provide notice of the
final decision through the environmental notice bulletin and shall post the
final decision to the bulletin. When the Secretary issues the final decision,
the Secretary shall provide a response to comments.
8.4 Reconsideration of Wetland Determinations
Within 15 days of the date of the decision, the applicant,
any person entitled to notice under Section
8.3(a), or any
person who filed written comments regarding the permit application may request
in writing reconsideration by the Secretary. Such a request shall specify all
action(s) for which reconsideration is sought and shall provide an explanation
of the reason(s) why the request is filed. Where a request for reconsideration
has been properly filed, additional evidence may be submitted concerning the
functions and values of the wetland, and any other material issue as deemed
appropriate by the Secretary. The Secretary may appoint a designee who shall be
at the Division Director level or higher to render a decision on the request
for reconsideration. The Secretary's written reconsideration decision shall be
issued as expeditiously as possible under the circumstances, and shall be
distributed in accordance with Section
8.3(c). The
Secretary's written reconsideration decision shall constitute a final act or
decision of the Secretary, subject to appeal pursuant to
10 V.S.A.
§
8504 and Section
10 of these Rules.
No request for reconsideration may be filed concerning or
resulting from a request for reconsideration. If the Secretary fails to act on
a request for reconsideration within 20 days of its filing, the request shall
be deemed to be denied.
Filing a timely request for reconsideration with the
Secretary tolls the 30-day period for filing an appeal with the Environmental
Court. The full time for appeal shall commence to run and shall be computed
from the date of the issuance of the Secretary's decision on the
reconsideration request.
8.5 VSWI Mapping Corrections and Revisions
The Secretary shall have the authority to make the following
mapping corrections, which are not wetland determinations pursuant to
10 V.S.A.
§
914. The Secretary shall provide
notice of such map corrections on the Environmental Notice Bulletin according
to the requirements of
10 V.S.A.
§
7714. The VSWI map layer is located on
the Agency of Natural Resources Atlas and available for download through the
Vermont Center for Geographic Information (VCGI).
a. The Secretary may, upon request or on
their own motion, determine whether a polygon on the VSWI map is not a wetland.
Such determinations shall be based on the methodology for identifying wetlands
in Section
3.2.a of these rules. Section
8.3 notification requirements do
not apply to such map corrections. The Secretary shall provide notice of such
map corrections according to the requirements of
10 V.S.A.
§
7714.
b. The Secretary may determine that a polygon
on the VSWI map is inaccurate and may change the configuration of the polygon
to more accurately reflect the location of a wetland, as determined from aerial
photos, field visits, field delineations and other relevant information.
Section 8.3 notification requirements
shall not apply to such changes.
These types of changes do not alter the classification of the
wetland, but enhance the accuracy of the VSWI maps.
The Secretary shall provide notice of such map corrections
according to the requirements of
10 VSA
§
7714. These map corrections generally
fall into the following three categories:
i. Registration errors: Wetland polygons that
do not line up with the underlying base layers. The most common error in this
category are small ponds that do not line up with visible ponds on
ortho-photos. A notice of map changes made based on these determinations will
be sent to Town Clerk offices on a periodic basis and to a list of interested
parties, if any.
ii. Corrections
based on field verified contiguity: This type of mapping correction is based on
field verified information of the general size and location of the wetland, and
adjusts the wetland boundary of an already designated Class Two wetland.
Wetland delineations that are not part of a permitting action are included in
this category. A notice of map changes based on these determinations will be
sent to Town Clerk offices, to the affected landowners and to a list of
interested parties, if any.
iii.
Corrections based on wetland delineation associated with a permit action. This
type of mapping correction is based on a field delineated wetland boundary
location of an already designated Class Two wetland. The notice of map change
will be included in notifications required under Sections
9.2,
9.3 and
9.8.
c. The Secretary shall provide notice of map
revisions associated with an individual wetland determination concurrently with
the wetland determination, according to the provisions of
10 V.S.A.
§
914(c).
d. The Secretary may determine that a general
category of wetlands is significant for one or more functions and values and
therefore meets the definition of a Class II wetland according to Sections
4.1 and
4.6 of this rule. The Secretary
shall revise the VSWI to identify those wetlands that have been categorically
determined to be Class II, as determined from aerial photos, field visits,
field delineations and other relevant information. The Secretary shall provide
notice of such statewide map revisions in accordance with
10 VSA
§
7714.
Section 9 Permits.
9.1 General
Activity in a Class I or Class II wetland or its associated
buffer zone is prohibited unless it is an allowed use or authorized by a
permit, conditional use determination or order issued by the Secretary. The
Secretary may impose any conditions in such a permit that are deemed necessary
to achieve the purposes of these rules. The Secretary may issue a permit
authorizing an activity occurring within a Class I wetland only to meet a
compelling public need to protect public health or safety. A permit issued
under these rules shall not relieve any person of the responsibility to comply
with all other applicable federal, state or local laws. An individual wetland
permit shall remain valid for one year from the date of issuance unless the
Secretary specifies a longer period not to exceed five years.
The Secretary may extend a permit for up to a total of ten
years beyond the date of issuance of the original permit if the permittee
re-evaluates and re-delineates the wetland resources impacted by the authorized
activity and the Secretary determines there will be no impact to Class I or
Class II wetland or buffer beyond those impacts permitted under the original
permit. If any additional wetland or buffer will be impacted, an amendment must
be applied for, concurrent with a permit extension. An application for a permit
extension is subject to the same notice and comment requirements listed in
Section 9.3 of these rules.
A permit shall not be required for:
1. Any activity that occurred before the
effective date of
10 V.S.A.
§
913 unless the activity occurred
within:
a. an area identified as a wetland on
the VSWI maps as they existed on the date the activity commenced;
b. a wetland that was contiguous to an area
identified as a wetland on the VSWI maps; or
c. the buffer zone of a wetland referred to
in a. or b. above.
2.
Any construction within a wetland that is identified on the VSWI maps as they
existed on the date the activity commenced, or within the buffer zone of such a
wetland, provided that the construction was completed prior to February 23,
1992, and no action for which a permit or conditional use determination was
required under these rules was taken or caused to be taken on or after February
23, 1992.
9.2 Individual
Permit Application; Distribution
a. The
applicant shall, in addition to filing an original copy with the Secretary,
file a complete copy of the application for an individual permit with the
following:
1. the clerk of each Vermont
municipality in which the wetland or buffer zone is located,
2. each regional planning commission serving
the geographical area in which the wetland or buffer zone is located.
b. In addition, copies of the
location map, the description of the specific action(s) for which a permit is
sought, the supporting narrative and a listing of where complete copies of the
request have been filed shall be provided to the municipal planning commission
and/or conservation commission and to all persons owning property within or
adjacent to the affected wetland area or buffer zone in question.
c. The Secretary may require an applicant to
submit any additional information that the Secretary considers necessary in
order to make a decision on the issuance or denial of a permit. The Secretary
may deny the application without prejudice if the requested information is not
provided to the Secretary within sixty (60) days of the Secretary's request.
Denials of an application shall be issued in writing, stating the reasons for
the denial. If an application is denied for lack of technical or other
information, the Secretary will provide appropriate information to help the
applicant correct the deficiencies and re-apply for a permit.
d. Revocation of an Individual Permit: The
Secretary may, after notice and opportunity for a hearing, revoke or suspend,
in whole or in part, an individual permit for cause, including:
1. violation of the terms or conditions of
the individual permit;
2. obtaining
a permit by misrepresentation or failure to fully disclose all relevant
facts;
3. a change in any condition
that requires either a temporary or permanent reduction or elimination of the
authorized activity.
9.3 Notice of Request for Public Comment on
Individual Permit Application
a) The
applicant shall provide notice of their permit application to adjoining
property owners. Adjoining property owner means a person who owns land in fee
simple, if that land:
1. Shares a property
boundary with a tract of land where proposed or actual activity regulated by
the Department is located; or
2. Is
adjacent to a tract of land where such activity is located and the two
properties are separated only by a river, stream, or public highway.
b) The Secretary shall provide
notice of an administratively complete application through the environmental
notice bulletin.
c) The Secretary
shall provide notice of a draft decision through the environmental notice
bulletin and shall post the draft decision and a fact sheet to the
bulletin.
d) The Secretary shall
provide a public comment period of no less than 30 days.
e) Any person may request a public meeting on
the draft decision issued under this section within 14 days of the issuance of
the draft decision. The Secretary shall hold a public meeting whenever any
person files a written request for such a meeting. The Secretary otherwise may
hold a public meeting at his or her discretion.
f) The Secretary shall provide at least 14
days' notice of the public meeting through the environmental notice bulletin.
If the notice of the public meeting is not issued at the same time as the draft
decision or draft general permit, the Secretary also shall provide notice of
the public meeting in the same manner as required for the draft decision or
permit.
9.4 Notice of
Decision
The Secretary shall provide notice of the final decision
through the environmental notice bulletin and shall post the final decision or
permit to the bulletin. When the Secretary issues the final decision, the
Secretary shall provide a response to comments.
9.5 Individual Permit Review Standards
a. Burden of Proof
Applicants for an individual wetland permit shall have the
burden to show that a proposed activity in any Class I or Class II wetland or
its buffer zone complies with these rules and will have no undue adverse effect
on protected functions and values. In determining whether this burden has been
met, the potential effect of any proposed activity shall be evaluated on the
basis of both its direct and immediate effects as well as on the basis of any
cumulative or on-going effects on the significant wetland.
b. Mitigation Sequencing
An adverse effect on any protected function, other than a
minimal impact, shall be presumed to constitute an undue adverse effect unless
the Applicant can demonstrate each of the following, sequentially:
(1) The proposed activity cannot practicably
be located outside the wetland or on another site owned or controlled by the
applicant or reasonably available to satisfy the basic project purpose;
and
(2) If the proposed activity
cannot practicably be located outside the wetland, all practicable measures
have been taken to avoid adverse impacts on protected functions; and
(3) If avoidance of adverse effects on
protected functions cannot be practically achieved, the proposed activity has
been planned to minimize adverse impacts on the protected functions and a plan
has been developed for the prompt restoration of any adverse impacts on
protected functions.
c.
Compensation
Compensation may be considered only when full compliance with
the requirements of subsection b (1-3) is insufficient to achieve no net undue
adverse effect on any protected function. Such compensation measures may
include establishing new wetlands or enlarging the boundaries of an existing
wetland to compensate for the adverse impact of the proposed activity. The
compensation may also include payment of fees to a federal "in- lieu fee"
program or mitigation bank approved by the Secretary.
Compensation to avoid undue adverse impacts on protected
functions in Class I wetlands or their buffer zones may only be considered upon
the showing that the adverse impacts are necessary in the course of meeting a
compelling public need to protect public health or safety.
Compensation will be allowed for impacts to either Class I or
Class II wetlands only to reduce adverse impacts on those protected functions
that are compensable.
Compensation is presumed to be possible for adverse impacts
on the functions specified in Sections
5.1,
5.2(d),
5.4(a) (1 and 2),
and 5.9. For any of the remaining functions and values specified in Section
5 the applicant must show that
compensation will be successful in achieving no net loss in any protected
function. Any compensation plan must demonstrate that:
(1) there will be no net loss of the
protected functions or acreage of significant wetlands;
(2) the compensation measures will be fully
implemented prior to, or concurrently with, the proposed activity;
(3) the compensation measures shall be
monitored and managed for a period necessary to insure full replacement of the
protected functions in question and any additional period that may be required
by subsequent remedial measures but in no event for less than five
years;
(4) measures shall be
designed to be self-sustaining following the period for which monitoring or
management is required;
(5)
adequate financial surety is provided to carry out the proposed compensation
including any necessary remedial measures; and
(6) any replacement wetland will be
permanently preserved by a conservation easement or deed restriction conveyed
to a suitable party or by other appropriate means.
9.6 Reconsideration of Individual
Wetland Permit Decisions
Within 15 days of the date of the decision, the applicant,
any person entitled to notice under Section
9.2, or any person who filed
written comments regarding the permit application may request in writing
reconsideration by the Secretary. Such a request shall specify all action(s)
for which reconsideration is sought and shall provide an explanation of the
reason(s) why the request is filed. Where a request for reconsideration has
been properly filed, additional evidence may be submitted concerning the
adequacy of the permit application, the adequacy of mitigation measures, and
any other material issue as deemed appropriate by the Secretary. The Secretary
may appoint a designee who shall be at the Division Director level or higher to
render a decision on the request for reconsideration. The Secretary's written
reconsideration decision shall be issued as expeditiously as possible under the
circumstances, and shall be distributed in accordance with Section
9.4. The Secretary's written
reconsideration decision shall constitute a final act or decision of the
Secretary, subject to appeal pursuant to
10
V.S.A.§
8504 and Section
10 of these Rules.
No request for reconsideration may be filed concerning or
resulting from a request for reconsideration. If the Secretary fails to act on
a request for reconsideration within 20 days of its filing, the request shall
be deemed to be denied.
Filing a timely request for reconsideration with the
Secretary tolls the 30-day period for filing an appeal with the Environmental
Court. The full time for appeal shall commence to run and shall be computed
from the date of the issuance of the Secretary's decision on the
reconsideration request.
9.7 Amending an Individual Wetland Permit
Decision
A permittee shall notify the Secretary of any changes to the
permitted project. The Secretary may authorize a major, minor, or
administrative amendment to an individual wetland permit when the proposed
amendment:
(a) Does not involve a
change to the overall project purpose
(b) Does not impact any additional
properties, unless the applicant is applying for a major amendment, in which
case impacts to additional properties may be permitted.
(1) An administrative amendment may be
granted for any proposed change to an individual permit that corrects
typographical errors, changes the name or mailing address of a permittee, or
makes other similar changes to a permit that do not require technical review of
the permitted activity or any changes to conditions or requirements. The
transfer of an individual wetland permit constitutes an administrative
amendment. No notice and comment is required for an administrative
amendment.
(2) A minor amendment
may be granted for any change to a proposed individual permit that entails a
change to a condition or requirement, does not necessitate technical review,
and is not an administrative amendment. Changes that meet all of the following
criteria may constitute minor amendments to a permit:
(a) Involve the same delineated wetland
area
(b) Are within the same
property
(c) Consist of no more
additional impact
(d) Are within
the same or lesser cover type in wetland or buffer
(e) Activity does not move from a managed
area to a natural area
(f) Activity
does not move to areas with rare, threatened or endangered species habitat or
an exemplary wetland natural community
(g) Have no further encroachment into
wildlife habitat, and
(h) Are no
closer to surface water bodies Before a minor amendment can be granted, the
Secretary shall:
1. provide notice of an
administratively complete minor amendment application through the environmental
notice bulletin,
2. provide notice
of the draft decision through the environmental notice bulletin and shall post
the draft decision to the bulletin,
3. provide a public comment period of at
least 14 days on the draft decision,
4. provide notice of the final decision
through the environmental notice bulletin and shall post the decision to the
bulletin, and
5. provide a response
to all comments.
(3) A major amendment may be granted for any
proposed change to an individual permit that necessitates technical review. A
major amendment shall be subject to the same individual permit review standards
and public notice and comment requirements applicable to the original permit
application.
To secure an amendment to a valid permit, the Permittee must
submit to the Secretary an amendment application that includes a description of
the proposed change, a site plan that depicts the amended project, any other
information as required by the Secretary, and the Permittee must pay any
applicable application fees, including fees covering any additional proposed
impacts to wetlands or wetland buffer, according to the fee schedule
established in
3 V.S.A.
§
2822.
An amendment or modification to a project that does not meet
the conditions described above requires the submittal of a new wetland permit
application for all of the project activities.
9.8 General Permits
The Secretary may issue general permits for discrete
categories of Class II wetlands and for discrete categories of activities or
uses in accordance with the provisions of this section. A general permit shall
be issued for a specified period of time not to exceed five (5) years from the
date of issuance. Authorizations issued by the Secretary pursuant to a general
permit shall be valid for a specified period of time not to exceed five (5)
years.
a. Proposed General Permits
Any proposed general permit shall include the following
information:
(1) A detailed
description of the activities or uses to be authorized.
(2) Any conditions or limitations on the
activities or uses authorized.
(3)
The expiration date of the general permit.
(4) A detailed narrative explaining the
rationale for the proposed general permit and the basis on which the Secretary
has determined that activities eligible for authorization pursuant to the
general permit will comply with these rules and will have no undue adverse
effect on protected functions and values In making this determination, the
Secretary shall evaluate both the direct and immediate effects of any proposed
activity as well as the cumulative or ongoing effects on the significant
wetland. An adverse effect on protected functions, other than a minimal impact,
shall be presumed to constitute an undue adverse effect unless:
(a) The proposed activity cannot practicably
be located outside the wetland or on another site owned, controlled or
available to satisfy the basic project purpose; and
(b) If the proposed activity cannot
practicably be located outside the wetland, all practicable measures have been
taken to avoid adverse impacts on protected functions; and
(c) If avoidance of adverse effects on
protected functions cannot be practically achieved, the proposed activity has
been planned to minimize adverse impacts on the protected functions and. a plan
has been developed for the prompt restoration of any adverse impacts on
protected functions.
b. Copies of any documents which the
Secretary has relied upon in the preparation of the proposed general permits
shall be available to the public upon request unless exempt from public
inspection and copying pursuant to
1 V.S.A.
§
317(c).
c. Notice
The Secretary shall provide notice of a draft general permit
through the environmental notice bulletin and shall post the draft decision or
permit to the bulletin. The notice shall:
(1) accurately summarize the proposed general
permit(s);
(2) indicate where
copies can be obtained; and
(3)
provide at least 30 days in which to file written comments and/or to file a
written request that the Secretary hold a public meeting.
d. Public Meeting Requests
Within 14 days of issuance of the draft general permit, any
person may request a public meeting on the draft general permit issued under
this section. The Secretary shall hold a public meeting whenever any person
files a written request for such a meeting. The Secretary otherwise may hold a
public meeting at his or her discretion. The Secretary shall provide at least
14 days' notice of the public meeting through the environmental notice
bulletin. If the notice of the public meeting is not issued at the same time as
the draft general permit, the Secretary also shall provide notice of the public
meeting in the same manner as required for the draft decision or permit under
subsection (c) of this section.
e. Decision
The Secretary shall provide notice of the final decision or
final general permit through the environmental notice bulletin and shall post
the final decision or permit to the bulletin. When the Secretary issues the
final decision or final general permit, the Secretary shall provide a response
to comments.
f.
Modification of General Permit
The Secretary may modify a general permit after providing an
opportunity for public participation in the same manner as described in Section
9.8(c) and
(d).
9.9 Application for Authorization Under a
General Permit
a. Application.
An applicant for authorization under a general permit shall
submit a completed Notice of Intent (NOI) form with all necessary attachments
and fees, if any, and all other application information required by the general
permit and the Secretary.
The Secretary may require an applicant to submit any
additional information that the Secretary considers necessary in order to make
a decision on the issuance or denial of an authorization under the general
permit. The Secretary may deny coverage if the requested information is not
provided within sixty (60) days of the Secretary's request.
b. Public Notice of Application
Once the Secretary determines that an application for
authorization under a general permit is complete, the Secretary shall provide
public notice through the Environmental Notice Bulletin.
For a period of fourteen (14) days following the Secretary's
completion of the public notice requirements specified above, the Secretary
shall provide an opportunity to the public to provide written comment regarding
whether the application complies with the terms and conditions of the general
permit.
The period for public comment may be extended at the sole
discretion of the Secretary.
The applicant shall comply with any additional notice
requirements specified in the general permit.
c. Issuance or Denial of Authorizations
If the Secretary determines that an application is complete
and that the proposed activity meets the terms and conditions of the general
permit, the Secretary shall issue an authorization unless the Secretary
determines that an individual permit is required pursuant to Section
9.9(e). The
Secretary shall provide notice of the final decision through the environmental
notice bulletin and shall post the decision to the bulletin. The Secretary
shall provide a response to comments.
Denials of an authorization shall be issued in writing,
stating the reasons for the denial. If an application is denied for lack of
technical or other information, the Secretary will provide appropriate
information to help the applicant correct the deficiencies and re-apply for an
authorization.
d.
Revocation of an Authorization
The Secretary may, after notice and opportunity for a
hearing, revoke or suspend, in whole or in part, an authorization under a
general permit for cause, including:
1. violation of the terms or conditions of
the general permit;
2. obtaining
authorization by misrepresentation or failure to fully disclose all relevant
facts;
3. a change in any condition
that requires either a temporary or permanent reduction or elimination of the
authorized activity.
e.
Requiring Coverage under an Individual Permit
The Secretary may require a person applying for an
authorization under a general permit to apply for an individual permit. Cases
where an individual permit may be required include the following:
1. the applicant is not in compliance with
the terms and conditions of the general permit;
2. the activity does not qualify for
authorization under a general permit taking into account the location of the
activity, the size of the activity, or the impact of the activity on the
functions of the wetland or buffer zone in question.
f. Requiring Authorization under a General
Permit
The Secretary may require a person applying for an individual
permit to apply for authorization under a general permit provided the Secretary
finds that the activity complies with all conditions of the general permit and
the activity is more appropriately covered under the general permit.
g. Nonreporting General Permit.
The Secretary may, at his or her discretion, issue a nonreporting general
permit.
Section
10 Appeals.
Appeals from any act or decision of the Secretary under these
rules are governed by
10 V.S.A.
§
8504.
Appendix A Class One Wetlands.
This appendix lists those wetlands that have been designated
as Class I wetlands as provided for in Section
7 of the Vermont Wetland Rules.
The relative locations of these wetlands are depicted on the Vermont
Significant Wetlands
Inventory maps.
Addison County
Beaver Meadows, Ripton, (44.041609, -73.057337). Established
2019, Wetland file 2017-396. The wetland buffer extends 400 feet from the
delineated wetland boundary.
Bennington County
Dorset Marsh, Dorset, (43.23793, -73.09057), Established
April 22, 1992, Wetland file 1990-03. The wetland buffer extends 100 feet from
the delineated wetland boundary.
Caledonia County
Peacham Bog, Peacham, (44.297015, -72.239732), Wetland file
2017-009. The wetland buffer extends 500 feet from the delineated wetland
boundary.
Chittenden County
Northshore Wetland, Burlington, (44.52465, -73.27132)
Established September 18, 2009, Wetland file 2000-03. The wetland buffer
extends 300 feet from the delineated wetland boundary except where the easterly
side of such buffer would encroach upon the City of Burlington recreational
path, in which areas the buffer shall extend from the delineated boundary
parallel to, and 25 feet westerly from, the centerline of the City of
Burlington recreational path as it existed September 18, 2000.
Sandbar Wetlands, Colchester and Milton, (44.61165, -73.23203
and; 44.62095, -73.23306). Established in 2017, Wetland file 2016-346. The
wetland buffer extends 100 feet from the delineated wetland boundary.
LaPlatte River Wetlands, Shelburne, (44.396131, -73.232501),
Wetland file 2016- 699. The Class I wetland's extent is defined by the Class I
map. The wetland buffer extends 100 feet from the mapped Class I area.
Essex County
Dennis Pond Wetlands, Brunswick, (44.73288, -71.66231).
Established in 2017, Wetland file 2016-351. The wetland buffer extends 300 feet
from the delineated wetland boundary.
Franklin County
NONE
Grand Isle County
NONE
Lamoille County
NONE
Orleans County
NONE
Rutland County
Tinmouth Channel Wetland, Tinmouth, (43.45911, -73.03860),
Established December 13, 2001, Wetland file 200107, The wetland buffer extends
100 feet from the delineated wetland boundary except in the portion of the
wetland which is north of route 140 where a 300 foot buffer is
designated.
Wards Marsh, West Haven, (43.5767492, -73.3882424),
Established in 2022, Wetland File 2018-787. The wetland buffer extends 100 feet
from the delineated wetland boundary.
Washington County
Chickering Fen, Calais, (44.32453, -72.48114). Established in
2017, Wetland file 2016-209. The wetland buffer extends 300 feet from the
delineated wetland boundary except where 300 feet extends past the watershed at
a ridgeline to the northwest of the wetland.
Windham County
NONE
Windsor County
Eshqua Bog, Hartland (43.5961439, -72.4874471). Established
in 2022, Wetland File 2020-214. The wetland buffer extends 200 feet from the
delineated wetland boundary.
