The newest version of the Shorelands Protection Bill: H.526

The House Fish, Wildlife and Water Resources Committee finished redrafting a Shorelands Protection Bill on Friday, March 22 and passed the bill (Draft 1.11) out of committee with a vote of 8-1 in favor of the bill. Draft 1.11 was posted on the Vermont Legislature’s Home web page http://www.leg.state.vt.us/ on March 22. On March 25, Draft 1.11 was given a new bill number - H.526 – which will be discussed by the full House of Representatives during the week of March 25. The following is a summary of the new proposed Shorelands Protection Bill (H.526).

Among other findings, H.526 finds that scientifically based standards for impervious surface and cleared area adjacent to lakes are necessary to protect and maintain the integrity of water quality and aquatic and shoreland habitat while also allowing for reasonable development of shorelands. 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. The state has an interest in protecting lakes and adjacent shorelands in a manner that respects existing rights of property owners to control access to land they own in shorelands, and the regulation of the creation of new impervious surface or cleared area in the shoreland areas should not and does not affect the ability of property owners to control access to their lands. In order 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 for the General Assembly to establish lake shoreland protection standards for impervious surface and cleared area in the shorelands adjacent to the state’s lakes.

The purposes of the newly created CHAPTER 49A. LAKE SHORELAND PROTECTION STANDARDS are to: 
(1) provide clear and adaptable standards for the creation of impervious surface or cleared area in lands adjacent to lakes; 
(2) prevent degradation of water quality in lakes and preserve natural stability of shoreline; (3) protect aquatic biota and protect habitat for wildlife and aquatic life; 
(4) mitigate, minimize, and manage any impact of new impervious surface and new cleared area on the lakes of the state; 
(5) mitigate the damage that floods and erosion cause to development, structures, and other resources in the lands adjacent to lakes; 
(6) protect shoreland owners’ access to, views of, and use of the state’s lakes; and 
(7) 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. Beginning January 1, 2015, a permit from the VT Agency of Natural Resources (VTANR) will be required to construct more than 500 square feet and less than one acre of new impervious surface [note: a stormwater permit is already required if an acre or more of impervious surface is created]; to create more than 500 square feet of new cleared area; and to expand impervious surface or cleared area if the expansion of existing impervious surface or cleared area in the protected shoreland area results in an increase of more than 500 square feet of impervious surface or cleared area. Impervious surface or cleared area may be expanded by up to 500 square feet without obtaining a permit, provided that the aggregate amount of all expansion does not exceed 20 percent of the protected shoreland area of the lot on which it is located. VTANR shall issue a permit under this section if the proposed impervious surface or cleared area does not negatively impact water quality and complies with the lake shoreland protection standards.

VTANR must adopt a general permit, consistent with the lake shoreland protection standards, to authorize classes or categories of construction of impervious surface or creation of cleared area that present low risk of harm to the water quality of surface waters or protected shoreland areas. Coverage under a general permit will be for an indefinite term, provided that the permittee complies with the terms of the permit and takes no action for which a permit is required. An applicant for coverage under the general permit must provide notice to the municipal clerk at the time the application is filed with VTANR. VTANR must provide an opportunity for written comment for 10 days following receipt of the application, and may require an applicant to file additional information. Individual permits may be required if the proposed activity presents a significant risk of harm to protected shoreland areas or the water quality of a lake adjacent to a protected shoreland area. Individual permits will be issued for an indefinite term provided the permittee complies with the individual permit and takes no subsequent action for which a permit is required. Coverage under a general permit or an individual permit shall run with the land and be recorded in the municipal land records.

VTANR is required to adopt by rule standards for the construction of impervious surface or the creation of cleared area in a protected shoreland area by January 1, 2015. The standards must be designed to achieve the purposes of the Chapter (outlined above) while also accommodating construction, creation, or expansion of impervious surface or cleared area in protected shoreland areas. The standards must establish best management practices for the construction of impervious surfaces or the creation of cleared area in a protected shoreland area, including standards for (1) managing vegetative cover required as a best management practice in order to ensure some level of the required cover is maintained; (2) allowing reasonable use of the area subject to a vegetative cover requirement for construction, creation or expansion of impervious surface or cleared area; (3) minimizing and mitigating the creation of impervious surface or cleared area; (4) minimizing and mitigating the impacts of impervious surfaces or cleared areas; and (5) designing and maintaining driveways, patios, and similar impervious surfaces so that stormwater runoff is minimized. The standards must authorize the establishment and maintenance of paths, recreational space, and gardens, provided they are designed and managed to minimize stormwater runoff. The standards must also authorize the construction and maintenance of accessory structures in a protected shoreland area subject to size requirements established by VTANR.

VTANR must delegate permitting authority to municipalities with a shoreland bylaw or ordinance adopted on or before January 1, 2015, provided that the bylaw/ordinance requires vegetative cover or other best management practices designed to meet certain goals and also sets forth conditions on the construction and expansion of existing impervious surface or cleared area. VTANR may delegate permitting authority to municipalities that adopt a shoreland bylaw or ordinance after January 1, 2015, provided that the bylaw/ordinance is at least as stringent as the shoreland protection standards adopted by VTANR. In both cases, the delegation is accomplished through an agreement between VTANR and the delegated municipality. The delegation may be revoked. Under the delegation agreement, VTANR and the municipality may agree, in instances where a delegated municipality does not or cannot address non-compliance, that VTANR, after consultation with the municipality, may institute enforcement proceedings for failure to comply with the lake shoreland protection standards. Among other things, the delegation agreement must require the municipality to take timely and appropriate enforcement actions, to commit to reporting annually to VTANR, and to cure any defects in their bylaw/ordinance or in the administration or enforcement of the bylaw/ordinance upon notice of a defect from VTANR.

Municipalities that do not qualify for delegated permitting authority shall not require a permit for construction, creation, or expansion of impervious surface or cleared area if the project area has been designated by municipal bylaw for development according to historic development patterns or for redevelopment of land that has been subject to construction of impervious surface or disturbance prior to July 1, 2013 by industrial or urban development. The municipality must have adopted a shoreland bylaw or ordinance or implemented best management practices intended to prevent lake water quality degradation; minimize or mitigate disturbances in shorelands; or minimize or mitigate damage from floods and erosion.

Under specified conditions, silvicultural activities, agricultural activities, state and municipal transportation infrastructure, permitted wastewater systems and potable water supplies, permitted stormwater treatment, electric utility projects and utility lines, and dredge or fill activities permitted by the U.S. Army Corps of Engineers will not require a permit. Intra-Agency coordination with VTANR’s Lakes and Ponds Section is required when a wastewater system, potable water supply, stormwater discharge, or stormwater treatment facility is being permitted in a protected shoreland area.

The shoreland protection standards adopted by VTANR are in addition to existing municipal bylaws and ordinances. Proposed construction of impervious surface or creation of cleared area within the protected shoreland area must comply with all relevant, existing municipal, state, and federal requirements.

A lake shoreland protection permit will create a presumption before an Act 250 district commission that the permitted activity satisfies the requirements of subdivision (a)(1)(F) under Act 250 for shorelines in a protected shoreland area.

VTANR is required to begin rulemaking by September 1, 2013 to establish standards for the construction, creation, or expansion of impervious surface or cleared 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. On or before April 15, 2014, VTANR must submit a copy of the rules to the House Fish Wildlife and Water Resources Committee and to the Senate Natural Resources and Energy Committee along with a summary of the process followed in developing the rules.

The full text of H.526 is available for review here: http://www.leg.state.vt.us/docs/2014/bills/Intro/H-526.pdf

Summary of the latest version of the Shorelands Protection Bill (Draft 1.6)

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

UPDATE! H. 223 – Shoreland Protection Requirements for Lakes

A public hearing on H.223 is scheduled for Tuesday, March 12, from 6-8 PM in Room 11 at the State House in Montpelier.

The Federation of Vermont Lakes and Ponds has urged legislators to develop enforceable statewide regulations to protect and restore Vermont’s lakeshore buffers. Statewide regulations and enforcement are needed in addition to existing educational outreach. The VT Agency of Natural Resources, Vermont Natural Resources Council, Lake Champlain International, the Lake Champlain Committee, the Conservation Law Foundation and Vermont lakeshore property owners are among those who have spoken in favor of H.223. Legislators need to hear from even more Vermonters. Please attend the public hearing and offer your thoughts on the value of protecting and enhancing the quality of Vermont's lakes and ponds.

H.223 was introduced in response to the VT Agency of Natural Resources’ Act 138 Shorelands Report, a report mandated by the Vermont Legislature in 2012. In the Shorelands Report, the VTANR concluded that “the current shoreland management approach in Vermont – education, outreach, technical assistance and voluntary municipal participation – is not providing adequate protection of Vermont’s lakes. Comparing Vermont’s current shoreland management practices to other northeastern states’ programs reveals a major gap in Vermont’s management program: Vermont is the only northeastern state without state standards for shoreland development. New approaches are needed to ensure the long term health of Vermont lakes and shorelands.”

The following summary of H.223 is based on the bill as it was introduced in the Legislature on February 8, 2013. Over the past few weeks the House Fish, Wildlife and Water Resources Committee has been hearing testimony on the bill, and the final form of the bill is still under discussion. The next Legislative Update will summarize changes to the bill anticipated to be presented at the public hearing on March 12.

Among other findings, H.223 finds that the protection of shorelands is essential to maintain the integrity of lake waters and that under current law, the potential exists for development patterns along lake shorelands that could result in significant negative impacts on the lakes.

The bill establishes a “lakeside zone” within 100 feet of lakes and a “protected shoreland zone” within 250 feet of lakes. The bill requires VTANR to adopt rule standards for the permitting of disturbances and development in the lakeside zone and protected shoreland zone. The standards must be designed to minimize shoreland disturbance in order to protect lake waters, while accommodating reasonable levels of shoreland development adjacent to lakes. The bill requires the establishment and maintenance of a buffer within the lakeside zone, provides additional guidance regarding the standards, and authorizes paths to the lake and small clearings in the vegetative cover within the lakeside zone to allow for recreation and uses related to structures. In addition to other requirements, the standards must require new primary structures to be set back 25 feet from the lakeside zone and must establish maximum building heights for new primary structures and minimum lot sizes and lake frontage for new lots. The standards must also include requirements regarding the expansion, repair, renovation or amendment of existing primary and accessory structures.

Beginning January 1, 2016, a person shall not begin or conduct land development or a disturbance in the protected shoreland zone without a permit from VTANR under the required rules. Variances from the rules may be granted. A general permit may be established to authorize a specific land development or disturbance without notifying or reporting to VTANR.

Beginning January 1, 2016, a person shall not begin or conduct land development or a disturbance in the protected shoreland zone without a permit from VTANR under the required rules. Variances from the rules may be granted. A general permit may be established to authorize a specific land development or disturbance without notifying or reporting to VTANR.

As of January 1, 2016, those provisions of municipal bylaws or ordinances that regulate land development or disturbances within the lakeside zone and protected shoreland zone are superseded by the provisions of the bill and the rules adopted by VTANR. Permits issued under those ordinances remain in effect unless and until superseded by a permit issued under the new rules.

If a municipality requests delegation of the permitting required under this bill, VTANR must delegate authority to the municipality to implement the rules and enforcement if the municipality satisfies VTANR that it has adopted a bylaw or ordinance at least as stringent as the rules, has a permitting process and sufficient staff to implement it, will take enforcement action, and commits to annual reporting to VTANR. VTANR may review municipal implementation.

H. 356 – Prohibiting Littering In or On Waters of the State

Prohibits littering in or on Waters of the State and establishes a Marine Debris Cleanup Fund for cleanup activities in shorelands and river corridors in Vermont. Fees and fines collected for violations of the littering prohibition would be deposited into the Marine Debris Cleanup Fund.

February 22, 2013: Read First Time and Referred to the House Committee on Fish, Wildlife & WaterResources.

H. 223 – Shoreland Protection Requirements for Lakes

Authorizes the Agency of Natural Resources to adopt rule requirements for ground disturbances and development within shoreland zones adjacent to Vermont lakes.

February 8, 2013: Read First Time and Referred to the House Committee on Fish, Wildlife & WaterResources.

Final Version of Act 138 Shoreland Report

Help may be on the way for Vermont’s lakes.

A National Lakes Assessment conducted by the U.S. Environmental Protection Agency in 2007 found that of the stressors included in the assessment, poor lakeshore habitat (measured by the amount and type of lakeshore vegetation) is the biggest problem in the nation’s lakes.  Over one-third of the nation’s lakes exhibit poor lakeshore habitat, and poor biological health is three times more likely in these lakes.  Lake assessments in Vermont have shown that Vermont lakes rank worse than the northeast region and the national average (lower 48 states) in terms of shoreland disturbance.  Only 17% of Vermont lakeshores are in good condition as measured by the extent of disturbance and lawns along the shore, compared to 42% regionally and 35% nationally.  Vermont is the only northeastern state without state standards for shoreland development.

Studies in Vermont and nationally show a strong correlation between cleared shoreland and loss of shallow water habitat for fish and other organisms.  After learning of these studies, in 2012 the Vermont Legislature passed Act 138, which in part directed the Vermont Agency of Natural Resources to report back to the Legislature with recommendations on how the state should work toward the restoration and protection of lake shorelands, including how the state should regulate development in shorelands, whether the state should enact statewide regulation for activities within shorelands, and whether any regulation of activities within shorelands should be based on site-specific criteria.

The resulting Act 138 Shorelands Report, Lake Shoreland Protection and Restoration Management Options, can be viewed at the following link:

http://www.anr.state.vt.us/dec/waterq/lakes/docs/lp_act138shorelandreport.pdf

 

An Executive Summary of the report can be found at:

http://www.anr.state.vt.us/dec/waterq/lakes/docs/lp_act138shorelandexsummary.pdf

It is anticipated that a bill will be introduced in the Vermont Legislature this session to improve lake water quality in Vermont through a new approach to the management of Vermont’s lakeshores.  As the Act 138 Shorelands Report states, “This is an opportunity for the Vermont Legislature to implement a fair and effective program for lakeshore management and protection to ensure that the state’s economic, social, and ecological values are protected for current and future generations.”

2012 Vermont Lake Shorelands Status

Susan Warren from the Lakes and Ponds Section of the Vermont Agency of Natural Resources is looking for input from people interested in the health of Vermont lakes and ponds in reference to ACT 138. Please review the following information about the current status of lakeshores in Vermont.

For further information or to provide input, contact the Lakes and Ponds Section Manager, Susan Warren:      susan.warren@state.vt.us or 802-490-6134 

Vermont Lake Health is Threatened

Many Vermonters are becoming increasingly concerned about the manner in which our lakeshores are being developed. Enhancements and/or additions to lakeshore programs are needed to ensure lake health and people’s use and enjoyment of lakes continue into the future. The 2012 Vermont Legislature required the Agency of Natural Resources to report on lakeshore management and protection in Vermont, specifically including whether the state should enact statewide shoreland regulations. During the summer and fall of 2012, VTANR will conduct this study and look at: 

-How we might improve existing lakeshore management and protection programs;
-How statewide regulations for lakeshore protection could be structured and administered;

-The benefits and drawbacks of different regulatory and non-regulatory approaches, based on experience in Vermont and in other states; and

-Strategies for building support for improved lakeshore protection.

Vermont’s Lakeshore Conditions

Vermont lakes are threatened by excessive shoreland clearing and lawns to the water’s edge. When a lake’s natural vegetation (woodlands) is removed and replaced by lawns and impervious surfaces, aquatic habitat degrades, shores erode, and the lake is more vulnerable to water quality problems such as blue-green algae blooms. The science is clear that naturally vegetated shores protect lakes’ water quality, ecology, and bank stability; and healthy lakes benefit people’s use and enjoyment of the lakes, property values, as well as our vital tourism economy. However, increasingly, new development or redevelopment on Vermont lakeshores involves nearly complete removal of the native vegetation.
There are a few tools currently available to protect Vermont lakeshores, including education, outreach and technical assistance, municipal zoning (only about 20% of towns have standards that protect lakes), and Act 250 (only a minor amount of shoreland development is covered). Additionally, some shoreland is protected through land conservation projects such as those through a land trust.

According to a US EPA study of lake conditions across the country, Vermont’s lakes rank worse than both the northeast region and the national average in terms of percent of shoreland that is either in fair or poor condition (as measured by the extent of clearing and lawns near the shoreline). VTANR plans to use this study to clearly lay out the shoreland and lake protection choices before Vermonters. 

Since Vermont science clearly indicates degraded lake conditions statewide, our discussion needs to focus on how we can strengthen shoreland protection for all of Vermont's lakes. -Perry Thomas, Past-president, Federation of VT Lakes and Ponds

2012 Status of Vermont Lakeshores

Thirty years of lake monitoring and assessment, including a new study linking cleared shorelands with degraded lake habitat, leave little doubt that healthy lakeshores are critical for healthy lakes. Healthy lakes are essential to our state’s long-term prosperity, both in terms of the economy and environmental sustainability.

Did you know? Only a small percentage of shoreland development is reviewed by either a state program or a municipality to ensure lake-friendly development is practiced.

Shoreland development has increased in intensity such that most property is completely cleared of native vegetation prior to development or redevelopment. Vermont lakeshores are becoming increasingly “suburbanized.”

Lakeshore disturbance (removal of natural vegetation) is the most serious stressor on Vermont lakes, threatening water quality, in-lake habitat and shoreline stability. Of the 203 Vermont lakes assessed for shoreland condition, 24% are in either “fair” condition or “reduced” condition, significantly more than those affected by phosphorus pollution and invasive species combined. There is a strong link between lake water quality and surrounding property values.

The majority of lakeshore erosion that occurred during the Lake Champlain spring floods of 2011 occurred where trees and shrubs had been removed and replaced with grass or lawn.

It is possible to develop a lakeshore property and enjoy the lake in a lake-friendly way!

Lake-friendly shoreland development 
At this shoreland home, the shore has been left in native trees and shrubs, and the clearing for a lawn is set further back from the lake.

This property owner can enjoy the lake and know the lake and shallow water habitat are protected by:  

-Providing bank stability

-Shading the water with overhanging branches

-Avoiding direct runoff from developed areas into the lake

-Providing fallen trees, leaves and other important shallow water habitat features

Lake-shore development that threatens long-term lake health
People choose to clear their shoreland property often to enjoy a view of the lake, however this style of development puts the lake and property at risk by exposing it to:

-Bank erosion Increased sediment and phosphorus pollution of the lake
-Reduced fish and wildlife habitat
-Increased nuisance plant and algae growth -Direct runoff from lawn and driveway into the lake

Goals for the Vermont Statewide Water Quality Trust Fund Report

The Vermont Statewide Water Quality Trust Fund Report needs to accomplish the following tasks in their meetings over the next few weeks.  Please keep them in mind if you plan to attend any of these meetings or if you plan to submit written or electronic comments:

Task One: Identify priority needs for a statewide water quality restoration and preservation program; 

Task Two: Estimate the costs to restore and preserve water quality; 

Task Three: Evaluate options for administering a statewide water quality trust fund; and, 

Task Four: Identify funding sources for water quality restoration and preservation projects.

Consultation Meetings to Prepare The Vermont Statewide Water Quality Trust Fund Report, 2012

The Vermont Agency of Natural Resources (VANR) will consult with interested parties in the development of recommendations for the Vermont Statewide Water Quality Report as described in Act 138.

Here is a list of the meeting dates the VANR anticipates holding this fall:

The timeline for preparing this report is tight, but the VANR is committed to meeting with each sector to gain input, and will update this table when meetings are scheduled. Please contact Kari Dolan, Ecosystem Restoration Program Manager, at: (802) 338-4847 if you have any questions about this report. 
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UPDATED Consultation Meetings to Prepare The Vermont Statewide Water Quality Trust Fund Report, 2012
Meetings	Proposed Date & Time	Proposed Venue
Internal VANR Meetings	Bi-Monthly	VANR
Legislators Meetings	Monthly	VANR

General Meeting – St. Johnsbury	October 9; 9:30am-11:30am	St. Johnsbury State Office Building, 1229 Portland Street, Ste. 201
General Meeting – Ascutney	October 10; 1:00pm-3:00pm	South Windsor Regional Planning Commission Office, Ascutney Professional Bldg, 38 Ascutney Park Road, 2nd Fl  (no elevator access)
General Meeting – Brattleboro	October 11; 10:00am-12:00pm	Marlboro College Graduate School. Conference room 2NE,  Rte. 142 South / Vernon Street

General Meeting – Rutland	October 12; 10:00am-12:00pm	Rutland Regional Planning Commission, 67 Merchants Row, 3Floor
Champlain Islands Chamber of Commerce	October 23; 6:30pm-8pm	Grand Isle Lake House 34 East Shore North, Grand Isle
Green Mountain Water Environment Association Fall Conference	November 2; 1:30-2:30pm (Session D)	Sheraton Hotel & Conference Center Burlington

If you cannot attend one of these meetings but will like to comment, please feel free to submit written or electronic comments by COB, Friday, October 26, 2012 to:

Kari Dolan, Manager, Ecosystem Restoration Program

Department of Environmental Conservation Watershed Management Division

1 National Life Drive, Main 2

Montpelier, VT 05620-3522

kari.dolan@state.vt.us

All written or electronic comments MUST include the following information in order to be considered:

Name

Organization you are representing

Address

Phone number

Email address

Which Task is your comment addressing?

Summary of “Rivers Bill” Components of Act 138

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.