Tuesday, March 26, 2013
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