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Vermont Department of Environmental Conservation
Rivers Program, Watershed
Management Division
Act 138, known as the Rivers
and Lakes Bill (S.202), was signed into law by Governor Peter Shumlin on May
14, 2012. The following summary
focusses primarily on the “Rivers Bill” components of the legislation. When fully implemented, Act 138 will promote:
1)
Natural floodplain function,
decreasing our reliance on expensive and increasingly vulnerable man-made
structures to protect us from flood hazards;
2)
River management practices to
minimize environmental impacts and river erosion hazard, especially in response
to the imminent public safety and infrastructure threats we address after a major
flood like Irene; and
3)
Natural stream and river stability
by helping towns identify and protect highly sensitive river corridors.
Unless otherwise specified,
the following statutory provisions and requirements are effective immediately.
Objective: Comply with the NFIP, and protect
floodplains in partnership with Vermont communities.
·
Increases
support for towns seeking technical reviews
of floodplain development proposals.
ANR has been given the authority to delegate to trained RPC and
municipal staff the authority to review development proposals requiring
municipal permits under the NFIP.
By creating a greater network of professionals to assist towns with
floodplain regulation, Vermont will
substantially increase municipal participation, awareness, and protection of their
floodplain assets.
·
Requires
State regulation of floodplain encroachments currently exempt from municipal
regulation (agriculture, silviculture,
transportation, utilities, schools, etc.). Importantly, this action will help bring Vermont into
compliance with the National Flood Insurance Program (NFIP). States that are not in compliance risk
suspension from the NFIP and loss of access to the federally subsidized
insurance (which paid out 49 million to Vermont policy holders after Irene). The rules must be in effect by July 1,
2014.
·
Allows for
State floodplain regulations that are more protective than those required by the
NFIP.
The ANR would be required to work with FEMA, sister agencies, and other
interested parties to adopt floodplain rules. The regulation of certain floodplain activities may be
delegated by the ANR to other state agencies of jurisdiction (e.g., floodplain
developments sought by farmers would be regulated by the Agency of
Agriculture).
·
Allows the
Agency to regulate floodplain developments through a General Permit, which would create an opportunity to spend limited state
resources on those floodplain activities which have the greatest potential to
impact floodplain functions.
·
Requires
the ANR to promote floodplain protections through an outreach program that would include helping towns adopt model floodplain protection
bylaws and ordinances that would exceed the minimum criteria of the NFIP in
terms of hazard mitigation.
Objective: Reduce the
vulnerability of private and public property and river ecosystems after floods.
·
Allows
the State to adopt stream alteration rules. Rule-making authority provides the
opportunity for the State to engage interested parties in codifying the
management criteria necessary to meet statutory intent.
·
Requires
the State to adopt rules for conducting emergency protective measures after a
flood. Starting
March 1, 2013 municipalities will be required to notify the Agency within 24
hours (instead of 72 hours) of taking an emergency protective measure in a
river. New rules and associated technical procedures will assist
town officials in identifying imminent threats and the emergency measures that
will reduce the vulnerability of town citizens and their property in future
floods. New Emergency River
Management Rules, in effect by March 1, 2013, will:
o Require an activity to be permitted either through an individual
permit or under the coverage of a General Permit;
o Prohibit the construction of berms unless deemed by the Agency to
be a necessary emergency protective measure;
o Provide activity specific criteria such that emergency protective measure
are conducted in manner consistent with the statutory criteria for stream
alterations:
(1) Will not adversely affect the public safety by
increasing flood or fluvial erosion hazards;
(2) Will not significantly damage fish life or wildlife;
(3) Will not significantly damage the rights of riparian
owners; and
(4) In case of any waters designated by the board as
outstanding resource waters, will not adversely affect the values sought to be
protected by designation.
o Address the management of large woody debris in stream channels
after floods.
·
Specifies
that the State regulates the movement, fill, of excavation of 10 cy or more of instream
material, which includes all
gradations of sediment, ledge rock, and large woody debris.
·
Requires
the ANR to establish and maintain a river management training program to help Vtrans, municipalities, consulting engineers, RPCs, and
ANR staff identify river instability and design river restoration and
protection measures that will both protect river ecosystems and minimize river
erosion hazards.
Objective: Increase
incentives for river corridor planning and protection.
·
Allows
for the adoption of rules and requires the adoption of procedures to delineate
and protect river corridors and reduce fluvial erosion hazards. The rules would promote the public
interest by encouraging municipal shoreland and river corridor protection area
zoning bylaws. A River Corridor Protection Area is an
area within a river corridor subject to fluvial erosion and may occur as a
river establishes and maintains the dimension, pattern, and profile associated
with dynamic equilibrium condition
and that would represent a hazard to life, property, and infrastructure placed
within the area.
·
Establishes
the River Corridor and Floodplain Management Program. This change
acknowledges the importance of combining the State policy, planning, and
regulation of the landforms critical to the management of inundation and
fluvial erosion hazards. For
instance the legislation requires the Agency to develop recommended best
management practices for river corridors, floodplains, and buffers.
·
Requires
ANR to conduct stream geomorphic assessments and provide river corridor plans,
maps, and model protection bylaws to municipalities. Statutory changes
require that river corridors to be delineated and mapped based on river
sensitivity where a river poses a probable risk of harm to life, property, and
infrastructure. River sensitivity
means the potential of the river, given its inherent characteristics and
present geomorphic conditions to be subject to a high rate of fluvial erosion
and other river channel adjustments, including erosion, deposits of sediment,
and flooding. This statutory
definition creates an important link between the vertical stability of a river (equilibrium
conditions) and the public’s interest in safety and property protection, which
are primary objectives in regulating stream alterations.
·
Requires
the ANR, RPCs, and municipality to post completed river corridor maps of public
web sites. The maps will include and recommend best management practices
for river corridor protection areas, flood hazard areas (NFIP floodplains), and
buffers. In addition to providing
maps, the State will provide municipalities with alternative river corridor
protection area bylaws and ordinances.
·
Requires
the Secretary of Administration to establish a Flood Resilient Communities
Program. Through
this Program the State would provide increasing financial incentives to those
municipalities that have taken greater and greater steps to protect river
corridors and floodplains and mitigate other flood and fluvial erosion hazards.
·
Provides
authority for municipalities to regulate development within river corridor
protection areas. Towns may now adopt freestanding bylaws to protect river
corridor protection areas.
Act 138 also contains
provisions for:
Stormwater: Provide the ANR the authority to adopt rules regulating stormwater
discharges during an emergency; and requires ANR to report to the legislature
by January 15, 2014 regarding the use of voluntary credits for stormwater
discharges from renewable energy projects located at an elevation above 1,500
feet (i.e. wind energy projects).
ANR
Water Quality Remediation, Implementation, and Funding Report: On or before December 15, 2012, require the
Secretary to report to the legislative committees with recommendations on how
to remediate or improve the water quality of the state’s surface waters, how to
implement remediation or improvement of water quality, and how to fund the
remediation or improvement of water quality. The Report must include a
description of how the state should regulate development in shorelands of
lakes, including whether the state should enact statewide regulation for
activities within shorelands of lakes and whether any regulation of activities
within shorelands should be based on site-specific criteria.
Transfer
of Rulemaking from the Water Resources Panel to the ANR: including the authority to establish mixing
zones, adopt water quality standards, make declaratory rulings; establish water
quality classifications; establish rules to regulate the use of the public
waters, rules to govern the surface levels of lakes, ponds, and reservoirs that
are public waters of the state, and rules for considering the size and flow of
the navigable waters.
Vermont
Housing And Conservation Trust Fund: The Bill would add “the
protection of lands for multiple conservation purposes, including the
protection of surface waters and associated natural resources” to the list of
eligible land conservation activities supported by the Conservation Trust Fund.
Lake
Champlain TMDL Implementation Plan: Establish that within 12
months after the issuance of a phosphorus total maximum daily load plan (TMDL)
for Lake Champlain by the U.S. Environmental Protection Agency, the ANR shall
issue a revised Vermont-specific implementation plan for the Lake Champlain
TMDL and update it every 4 years thereafter.
