The House Fish, Wildlife and Water Resources Committee held a public hearing on H.223 on March 12, 2013. Following the hearing the Committee heard additional testimony and redrafted a new Shorelands Protection Bill. Version 1.6 of the draft bill was posted on the Vermont Legislature’s Home web page http://www.leg.state.vt.us/ on March 15 as Draft 1.6. The following is a summary of this latest version of the Shorelands Protection Bill (Draft 1.6).
Among other findings, Draft 1.6 finds that scientifically based standards for impervious surfaces and disturbed areas adjacent to lakes are necessary to maintain the integrity of lakes while also allowing for reasonable development of shorelands. According to the U.S. Environmental Protection Agency’s 2007 National Lake Assessment, over 80 percent of Vermont’s lakes larger than 25 acres have been degraded by a lakeshore disturbance occurring within 50 feet of the shoreline. A lake or pond of more than 10 acres is located in 184 of Vermont’s 251 municipalities. However, only 48 municipalities have shoreland zoning that requires vegetative cover. To fulfill the State’s role as trustee of its waters and promote public health, safety and the general welfare, it is in the public interest to establish standards for impervious surfaces and disturbed areas in the shorelands of Vermont’s lakes.
The purposes of the lake shoreland protection standards are to:
(1) provide clear standards for the creation of impervious surface or disturbed area in shorelands;
(2) prevent degradation of lake water quality;
(3) protect aquatic biota, wildlife and aquatic habitat;
(4) minimize the creation of new impervious surface and new disturbed area in the protected shoreland areas of the state;
(5) mitigate any impact of new impervious surface and new disturbed area on Vermont’s lakes;
(6) mitigate the damage that floods and accelerated erosion cause to development, structures, and other resources in shorelands;
(7) protect shoreland owners’ access to, views of, and use of Vermont’s lakes; and
(8) preserve and further the economic benefits and values of lakes and their adjacent shorelands.
The bill establishes a “protected shoreland area” within 250 feet of the mean water level of lakes larger than 10 acres. The VT Agency of Natural Resources (VTANR) is required to adopt rule standards for the management of protected shoreland areas by July 1, 2015. The standards must require that the owner of an undeveloped lot created after January 1, 2013 maintain the lakeside area as a 100-foot wide area of vegetative cover from the mean water level of the lake. The standards must authorize the cutting, pruning or other management of vegetation in a lakeside area in a manner that ensures that some level of vegetative cover is maintained while also allowing for reasonable use of the lakeside area. Paths, recreational space, other small clearings, and gardens must be authorized in the vegetative cover provided they are designed to avoid being a conduit of surface water runoff.
Among other requirements, on a lot created after January 1, 2013, no more than 20 percent of the portion of the lot within the protected shoreland area may consist of impervious surface or disturbed area created after January 1, 2013. Beginning July 1, 2015, a permit from VTANR will be required to construct impervious surface or create new disturbed area on an undeveloped lot created on or after January 1, 2013. A permit will also be required to expand impervious surface or disturbed area on a lot created prior to January 1, 2013 if the expansion of the surface or area results in an increase of more than 500 square feet of impervious surface or disturbed area. Impervious surface or disturbed area in existence in the protected shoreland area prior to January 1, 2013 may be expanded up to 500 square feet over the duration of the lot’s existence without a permit, provided that the aggregate amount of all expansion does not exceed 20 percent of the protected shoreland area of the lot. A general permit may be established to authorize categories of construction of impervious surface or creation of disturbed area that present low risk of harm to the water quality or protected shoreland areas of lakes.
VTANR must delegate permitting authority to municipalities with existing bylaws (adopted as of July 1, 2013) provided that the bylaws require vegetative cover or other management practices designed to meet certain goals and also restrict the expansion of existing impervious surface or disturbed area. VTANR may delegate permitting authority to municipalities that adopt shoreland bylaws after July 1, 2013, provided that the requirements of the municipal bylaw are at least as stringent as the shoreland protection standards adopted by VTANR. In both cases, the delegation is accomplished through a delegation agreement between VTANR and the delegated municipality. The delegation may be revoked. Under the delegation agreement, VTANR and the municipality may agree to concurrent enforcement, and the municipality must commit to reporting annually to VTANR.
Municipalities not delegated permitting authority may request a variance for areas designated in their municipal bylaws for development according to historic development patterns or redevelopment of land that has been disturbed by industrial or urban development. VTANR may grant the variance if the municipality has adopted a shoreland bylaw or ordinance or has implemented management practices intended to prevent lake water quality degradation; protect aquatic biota, wildlife and aquatic habitat; minimize or mitigate disturbances in shorelands; or minimize or mitigate damage from floods and erosion.
Under specified conditions, silvicultural activities, agricultural activities, and certain proposed construction projects will not require a permit. The routine maintenance, repair and replacement of existing transportation infrastructure by the state or a municipality will not require a permit.
The shoreland protection standards adopted by VTANR are in addition to existing municipal bylaws and ordinances. The requirements of existing municipal bylaws remain in effect.
VTANR is required to begin rulemaking by September 1, 2013 to establish standards for the construction of impervious surface or creation of disturbed area in protected shoreland areas of lakes. VTANR must engage in an expanded public participation process with affected stakeholders and other interested people in a dialogue about intent, method, and content of the rules. VTANR is encouraged to use workshops, focused work groups, dockets, meetings, or other forms of communication to meet the participation requirements. A copy of the rules must be submitted to the Legislature by January 15, 2015, along with a summary of the process followed in developing the rules.
By September 1, 2013, VTANR must issue by procedure an interim standard for the permitting of construction of impervious surface or creation of disturbed area on an undeveloped lot created on or after January 1, 2013, and VTANR is authorized to permit such construction or creation under the interim standard.
The full text of Draft 1.6 is available for review here:
http://www.leg.state.vt.us/misc/0312Shorelands/FWCommitteeDraft16.pdf
FOVLAP 2013 Vermont Legislative Updates
