The following is a summary of H.526, the Lake Shorelands Protection Bill, as it was amended and passed out of the Senate Natural Resources and Energy Committee on January 24, 2014.

In H.526, the Vermont General Assembly makes numerous findings and declarations.  Vermont’s lakes are among the State’s most valuable and fragile economic and natural resources, and the protection of naturally vegetated shorelands adjacent to lakes is necessary to prevent water quality degradation, maintain healthy habitat and promote flood resilience.

Naturally vegetated shorelands and the implementation of best management practices in lands adjacent to lakes function to (1) intercept and infiltrate surface water runoff, wastewater, and groundwater flows from upland sources; (2) remove or minimize the effects of nutrients, sediment, organic matter, pesticides, and other pollutants; (3) moderate the temperature of shallow water habitat; (4) maintain the conditions that sustain the full support of aquatic biota, wildlife, and aquatic habitat uses; and (5) promote stability and flood resilience by protecting shoreline banks from erosion.

Healthy lakes and adjacent shorelands support Vermont’s tourism economy and promote widespread recreational opportunities, including swimming, boating, fishing, and hunting; support property values and tax base; and reduce human health risks.

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.  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.

The shorelands of the state owned by private persons remain private property, and this bill does not extend the common-law public trust doctrine to private shoreland that is not currently public trust land. 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 lake 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.

10 V.S.A. CHAPTER 49A – LAKE SHORELAND PROTECTION STANDARDS – will be added to Vermont’s state statutes. The purposes of the newly created chapter 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 the 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) accommodate creation of cleared areas and impervious surfaces in protected shoreland areas in a manner that allows for reasonable development of existing parcels; (7) protect shoreland owners’ access to, views of, and use of the State’s lakes; and (8) preserve and further the economic benefits and values of lakes and their adjacent shorelands.

10 V.S.A. Chapter 49A will establish a “protected shoreland area” within 250 feet of the mean water level of lakes larger than 10 acres.  An individual permit from the VT Agency of Natural Resources (VTANR) will be required to create cleared area or impervious surface in a protected shoreland area except for specific exempted activities and registered projects (see below).

Exempted Activities

Numerous activities outlined in 10 V.S.A. Chapter 49A will not require a permit:

(1) Management of vegetative cover conducted in compliance with the lake shoreland vegetation protection standards specified in 10 V.S.A. Chapter 49A (see below).

(2) The cutting or removal of no more than 250 square feet of the existing vegetation under three feet in height within 100 feet of the protected shoreland area to allow for recreational use in the protected shoreland area, provided that (A) the cutting or removal of vegetation occurs at least 25 feet from the mean water level; and (B) other ground cover, including leaf litter and the forest duff layer, are not removed from the area in which cutting occurs.

(3) The maintenance, but not the enlargement, of lawns, gardens, landscaped areas, and beaches in existence as of July 1, 4 2014.

(4) The creation of one footpath per parcel with a width of no greater than six feet that provides access to the mean water level. A footpath includes stairs, landings, or platforms within the authorized six-feet width.

(5) Construction within the footprint of an impervious surface, existing as of July 1, 2014, that does not result in a net increase in the amount of impervious surface on a parcel.

(6) Silvicultural activities in a protected shoreland area if the silvicultural activities are in compliance with an approved forest management plan for the land and the Accepted Management Practices adopted by the Department of Forests, Parks and Recreation.

(7) Agricultural activities on land in agricultural production on July 1, 2014, provided that (A) no impervious surface may be created or expanded in a protected shoreland area except the construction of a best management practice to abate an agricultural water quality issue when no other alternative exists outside the protected shoreland area and the practice is approved by the Agency of Agriculture, Food and Markets; and (B) the agricultural activity complies with the Agency of Agriculture, Food and Markets’ rules regarding agricultural water quality.

(8) The maintenance, repair, and replacement of transportation infrastructure by the Vermont Agency of Transportation or a municipality; and the maintenance, repair, and replacement of private roads provided the private road is managed according to the water quality requirements under the Agency of Transportation town road and bridge standards.

(9) Railroad activities and facilities within the jurisdiction of federal law.

(10) When a parcel is intersected by a public highway, the creation or expansion of impervious surface or cleared area on that portion of the parcel on the side of the highway away from the mean water level.

(11) Installation, maintenance, repair, or replacement of a wastewater system or potable water supply permitted by VTANR.

(12) Discharges of stormwater, stormwater treatment facilities or practices, including repair or maintenance, permitted by VTANR.

(13) The construction, repair, and maintenance of certain utility projects and utility lines.

(14) Projects that have received an Act 250 permit.

(15) Projects in designated downtowns and village centers.

(16) The construction, creation, or expansion of impervious surface or cleared area within a protected
shoreland area, provided that (1) the area in which the impervious surface/cleared area will be located has been designated by municipal bylaw for redevelopment, is urban or industrial in nature, and contains impervious surface or cleared area as of July 1, 2014; and (2) the municipality has adopted a shoreland bylaw/ordinance that is at least as stringent as the permitting requirements and exemptions of 10 V.S.A. Chapter 49A or that requires best management practices or other controls that are, as determined by VTANR, functionally equivalent to compliance with the permitting requirements and exemptions of 10 V.S.A. Chapter 49A.

(17) Where mosquito populations create a public health hazard, as that term is defined in statute, physical practices or activities approved by VTANR that create cleared area or remove vegetative cover in order to reduce mosquito breeding habitat, provided that the activity complies with the Vermont Wetlands Rules.

Activities authorized in (2) through (13) above will not be required to comply with the lake shoreland vegetation protection standards specified in 10 V.S.A. Chapter 49A (see below).

Registered Projects

The creation of no more than 100 square feet of impervious surface or cleared area within 100 feet of the mean water level will not require a permit provided that the property owner registers with VTANR, the impervious or cleared area is located at least 25 feet from the mean water level, and vegetative cover in the protected shoreland area is managed according to the lake shoreland vegetation protection standards specified in 10 V.S.A. Chapter 49A (see below for more details).

The creation of 500 square feet or less of impervious surface, cleared area, or a combination thereof, will not require a permit provided that the impervious surface/cleared area is at least 100 feet from the mean water level, the location for the impervious surface/cleared area has a slope of less than 20 percent, and after completion of the project no more than 20 percent of the protected shoreland area is impervious surface and no more than 40 percent of the protected shoreland area is cleared (including the area cleared to create impervious surface).

A person cannot use the registration process to create more than a maximum total per parcel of 100 square feet of impervious surface/cleared area within 100 feet of the mean water level and 500 square feet of impervious surface/cleared area within the protected shoreland area that is at least 100 feet from the mean water level.

A registration will take effect 15 days after being filed with VTANR unless VTANR requests additional information or notifies the person that an individual permit is required.  Registrations will be for an indefinite term provided that the person complied with the law and takes no action needing an individual permit. The registration must be recorded in the land records of the town and runs with the land.  There will be a registration fee of 50 cents per square foot of impervious or cleared area constructed or created.

Individual Permits

If the creation of cleared area or impervious surface in a protected shoreland area is not an exempt activity or registered project, an individual permit will be needed.  VTANR will be required to issue a permit if the proposed impervious surface or cleared area meets the standards set out in 10 V.S.A. Chapter 49A (see below).  Permit applications will be subject to a 30-day public comment period.  An issued permit may have permit conditions, including authorizing the permittee to clear vegetative cover within three feet of both sides of a footpath within the protected shoreland area, no more often than two times a year, to allow access to the mean water level for maintenance or repair of recreational structures or for other ANR-approved activity.  The term of permits will be indefinite, provided that the permittee complies with the permit requirements and takes no additional action needing an individual permit.  The permit must be recorded in the land records of the town and runs with the land.  There will be a permit fee of 50 cents per square foot of impervious or cleared area constructed or created.

Permit Standards for Conforming Parcels

(1) The cleared area/impervious surface must be located at least 100 feet from the mean water level, except for a public recreational access when this would be inconsistent with federal requirements for management of the parcel.

(2) The site must have a slope of less than 20 percent or the permit applicant must demonstrate that the site will have a stable slope with minimal erosion and minimal negative impact on water quality.

(3) No more than 20 percent of the protected shoreland area of the parcel may consist of impervious surface; or the permit applicant must demonstrate that best management practices will be used to manage, treat, and control erosion due to stormwater runoff from the portion of impervious surface that exceeds 20 percent of the protected shoreland area.

(4) No more than 40 percent of the protected shoreland area of the parcel may consist of cleared area, including area cleared to create impervious surface; or the permit applicant must demonstrate that best management practices will be used to provide erosion control, bank stability, and wildlife habitat functionally equivalent to having less than 40 percent of the shoreland protection area cleared.

(5) Within 100 feet of the mean water level, vegetative cover must be managed according to the lake shoreland vegetation protection standards specified in 10 V.S.A. Chapter 49A (see below).

The size of impervious surface/cleared area must be measured on a horizontal plane.

When the repair or replacement of a private road or highway results in the creation or expansion of impervious surface/cleared area on an adjacent property, the impervious surface/cleared area created on the adjacent property will not be calculated as part of the square footage for permitting and registration purposes.

Permit Standards for Non-Conforming Parcels

On a parcel of land in existence on July 1, 2014, VTNAR may issue a permit to an applicant who complies with the following standards if the applicant can’t meet the above standards due to parcel size; site characteristics or site limitations including the presence of highway or rights-of-way and soil type; or the application of the setback requirements of a municipal bylaw adopted on or before July 1, 2014.

(1) For a parcel on which there is no habitable structure, the cleared area/impervious surface must be as far as possible from the mean water level, and at a minimum shall be no less than 25 feet from the mean water level.

(2) For a parcel on which a habitable structure is located, the expansion of any portion of the structure within 100 feet of the mean water level must be on the side of the structure farthest from the lake, unless VTANR determines that (A) expansion on the side of the structure farthest from the lake is not possible due to site characteristics, site limitations, or limitations under a municipal bylaw in existence on July 1, 2014; (B) expansion on an alternate side of the structure will not negatively impact water quality; and (C) the structure is not expanded toward the mean water level.

(3) Cleared area/impervious surface within the protected shoreland area must be located on a site with a slope of less than 20 percent or the permit applicant must demonstrate that the site will have a stable slope with minimal erosion and minimal negative impact on water quality.

(4) No more than 20 percent of the protected shoreland area of the parcel may consist of impervious surface; or the permit applicant must demonstrate that best management practices will be used to manage, treat, and control erosion due to stormwater runoff from the portion of impervious surface that exceeds 20 percent of the protected shoreland area.

(5) No more than 40 percent of the protected shoreland area of the parcel may consist of cleared area, including area cleared to create an impervious surface; or the permit applicant must demonstrate that best management practices will be used to provide erosion control, bank stability, and wildlife habitat functionally equivalent to having less than 40 percent of the protected shoreland area cleared.

A permit issued for creation of cleared area or impervious surface on a non-conforming parcel will not require compliance with the lake shoreland vegetation protection standards specified in 10 V.S.A. Chapter 49A (see below).

Lake Shoreland Vegetation Protection Standards  

Within 100 feet of the mean water level, cutting of trees will be allowed provided that a well-distributed stand of trees and “other natural vegetation” is maintained.  Vegetation management that occurs within the protected shoreland area that is conducted according to the lake shoreland vegetation protection standards will not be counted toward the cleared area on a parcel.

A “well-distributed stand of trees adjacent to a lake” is defined as maintaining a minimum rating score of 12, in each 25-foot by 25-foot area within 100 feet of the mean water level, as determined by the following rating system.

Diameter of tree at 4-1/2 feet above ground level (inches)
2 inches to less than 4 inches: 1 point
4 inches to less than 8 inches: 2 points
8 inches to less than 12 inches: 4 points
12 inches or greater: 8 points

The following will govern in applying this point system:

– 25-foot by 25-foot plots must be established within 100 feet of the mean water level for vegetation management purposes.

– Each successive plot must be adjacent to but not overlap a previous plot.

– Any plot not containing the required points must have no vegetative cover removed unless the removal is allowed by a registration or individual permit.

– Any plot containing the required points may have trees removed down to the minimum points allowed.

– Existing vegetation under three feet in height and other ground cover, including leaf litter and the forest duff layer, must not be cut, covered, or removed, except to provide for a footpath or as allowed by a registration or individual permit.

– Pruning of tree branches on the bottom one-third of a tree’s height will be allowed.

– Removal of dead, diseased, or unsafe trees will be allowed regardless of points.

“Other natural vegetation” means retaining existing vegetation under three feet in height and other ground cover and retaining at least five saplings less than two inches in diameter at 4-1/2 feet above ground level for each 25-foot by 25-foot area. If five saplings do not exist, no woody stems less than two inches in diameter can be removed until five saplings have been planted or rooted in the plot.

Municipal Delegation

VTANR may delegate authority to permit the construction, creation, or expansion of impervious surface or
cleared area to a municipality that has adopted a shoreland bylaw or ordinance if (1) the municipality adopts a bylaw/ordinance regulating construction of impervious surface or creation of cleared area in a protected shoreland area; and (2) the municipal bylaw/ordinance is at least as stringent as the permitting requirements and exemptions in 10 V.S.A. Chapter 49A, upon a determination by ANR that it is functionally equivalent to the requirements in 10 V.S.A. Chapter 49A.

Delegation is accomplished through an agreement between VTANR and the delegated municipality. The delegation agreement will set the terms for revocation of the delegation, and VTANR and the municipality may agree, in instances where a delegated municipality does not or cannot address noncompliance, that VTANR may institute enforcement proceedings after consultation with the municipality.  The delegation agreement must require the municipality to have or establish a permit process for the construction of impervious surface or creation of cleared area in protected shoreland areas; take timely and appropriate enforcement actions; commit to reporting annually to VTANR; comply with all other requirements of rules adopted under 10 V.S.A. Chapter 49A; and cure any defects in their bylaw/ordinance or in the administration or enforcement of the bylaw/ordinance upon notice of a defect from VTANR.

A municipality will be presumed to satisfy the requirements for a permit process and enforcement if it has designated a zoning administrator or official as responsible for the permitting and enforcement of the construction, creation, or expansion of impervious surface or cleared area within the municipality.

Other

The requirements of 10 V.S.A. Chapter 49A 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.

During the technical review of a permit application for a wastewater system, potable water supply, stormwater discharge, or stormwater treatment facility that is proposed to be located in a protected shoreland area and that does not require a permit under 10 V.S.A. Chapter 49A, the permit-issuing division within VTANR must consult with VTANR’s Lakes and Ponds Section regarding practices or activities that could reduce the impact of the proposed activity on the protected shoreland area or the water quality of lakes adjacent to the protected shoreland area.

All VTANR lands within a protected shoreland area must be managed in accordance with the requirements of 10 V.S.A. Chapter 49A unless this would be inconsistent with federal requirements for management of the parcel of land.

Construction of impervious surface or creation of cleared area outside a protected shoreland area must conform to municipal zoning bylaws/ordinances and will not be subject to regulation by VTANR under 10 V.S.A. Chapter 49A.

A decision or action of VTANR with regard to the lake shoreland protection standards will be appealable to the Environmental Division of the Superior Court.

Transition

A permit or registration under 10 V.S.A. Chapter 49A for the creation of impervious surface/cleared area within a protected shoreland area will not be required on a parcel of land for a project for which (1) all necessary State, local, or federal permits have been obtained prior to the effective date of this bill and the permit holder takes no subsequent act that would require a permit or registration; or (2) a complete application for all applicable local, State, and federal permits has been submitted on or before the effective date of this bill, provided that the applicant does not subsequently file an application for a permit amendment that would require a permit under 10 V.S.A. Chapter 49A and substantial construction of the impervious surface/cleared area commences within two years of the date on which all applicable local, State, and federal permits become final.

Transport of Aquatic Nuisance Species

A section at the end of H.526 would enable any law enforcement officer to bring a violation of the existing aquatic nuisance species transport law in the Environmental Division of the Superior Court.  When a violation is brought by an enforcement officer other than a VTANR environmental enforcement officer, the officer must provide VTANR with a copy of the citation for compliance with existing enforcement public participation requirements.  Currently, the prohibition on the transport of aquatic nuisance species is only enforceable by VTANR’s environmental enforcement officers.

The full text of H.526 as it was amended and passed by the Senate Natural Resources and Energy Committee is available for review here: Current summary of H.526.

Share

Recent Posts

  • Vermont DEC Lake Wise Info Sheet, Lakeshore Buffers - Page 1
  • The Federation of Vermont Lakes and Ponds 2022 Annual Meeting
  • The 2022 Robert Arnold Award