Overview of the Vermont Wetlands Program

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Overview of the Vermont Wetlands Program
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Presentation Overview

• Vermont Statutory Overview
• Wetlands Section Overview
• Staffing and Resources
• Workload and Project Distribution
• Project Review
• Desk Review
• Field Visits
• CUD Process
• Recommendations

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Brief History of the Vermont Wetland Rules

• 1986 10 V.S.A Chapter 37, Section 905(a)
  (7-9) Established statutory framework for
  identifying and protecting Vermonts wetlands
• 1990 Vermont Wetland Rules adopted by the Water
  Resources Board
• 2002 Vermont Wetland Rules were updated
• 2004 Act 115 of the Vermont General Assembly
  was passed Natural Resourced Board was created
  to succeed the Environmental and Water Resources
  Boards on February 1, 2005.

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Investigations
The Panel may open an investigation and issue
such orders as it deems necessary to gather
information, identify policy issues, and
formulate strategies or means for addressing
issues within its jurisdiction.
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Water Resources Panel Authority 10 VSA 6025d
Identification Evaluation of Significant
Wetlands The water resources panel may adopt
rules, regarding the identification of wetlands
which are so significant that they merit
protection. Any determination that a
particular wetland is significant will result
from an evaluation of the enumerated functions
which a wetland serves (10 VSA 6025d(5))
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Identification Evaluation of Significant
Wetlands
The Vermont Wetland Rules recognize that
the statute limits the applicability of these
rules to those wetlands which are so significant
that they merit protection in this program (VWR
1.1).
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Wetland Reclassifications

• The water resources panel may adopt rules
  regarding the ability to reclassify wetlands, in
  general, or on a case-by-case basis (10 VSA
  6025d6).
• Section 7 of the VWR provides for the Panel, upon
  receipt of a petition or by its own motion, to
  determine whether to reclassify any wetland to a
  higher or lower classification.

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Wetland Reclassifications
VWR Section 7.5 provides for temporary
designation of wetland significance. Such
temporary designations shall be for a period of
60 days, unless otherwise specified by the Panel
for a good cause.
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Wetland Protection Rules
The water resources panel may adopt rules
protecting wetlands that have been determined to
be significant, including rules that provide for
the issuance or denial of conditional use
determinations by the Department of Environmental
Conservation (10 VSA 6025d7).
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Consent of Agency of Agriculture Required
The panel shall not adopt rules that restrain
agricultural activities without the consent of
the Secretary of the Agency of Agriculture, Food
Markets (10 VSA 6025d7).
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Consent of Department of Forests, Parks
Recreation Required
The panel shall not adopt rules that restrain
silvicultural activities without the consent of
the Commissioner of the Department of Forests,
Parks Recreation (10 VSA 6025d7).
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VSWI Maps

• VWR 3.2b provides that the VSWI maps denote
  the approximate location and configuration of
  significant wetlands.
• Actual boundaries of wetlands shown on the VSWI
  maps shall be determined in the field.

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VSWI Maps
VWR 4.5b pertains to the Use and
Limitations of VSWI maps. The VSWI maps should
not be relied upon to provide precise information
regarding the location or configuration of
significant wetlands (see Section 3.2). They are
intended to denote the approximate location and
configuration of significant wetlands.
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VSWI Maps
VWR 4.5a provides that the Secretary shall
revise the affected VSWI maps annually.
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Options for Local Input on VSWI Map Revisions

• 24 VSA 43254 authorizes municipal planning
  commissions to undertake capacity studies and
  make recommendations on matters of wetland
  protection.

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Options for Local Input on VSWI Map Revisions

• 24 VSA 43456 likewise authorizes regional
  planning commissions to do the same. A regional
  plan adopted pursuant to 24 VSA 4348a must
  include a map and statement of present and
  prospective land uses which require special
  consideration for aquifer protection, wetland
  protection, or for other conservation purposes
  (24 VSA 4348aa2A).

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Options for Local Input on VSWI Map Revisions

• 24 VSA 4382a2 provides a similar
  requirement for a municipality to adopt a
  municipal development plan. Some municipalities
  in Vermont have already mapped the wetlands in
  their jurisdiction.

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VTDEC Authority10 VSA 90518 and 1272

• Propose to the Panel specific wetlands to be
  designated as significant wetlands, and
• Implement through existing programs the rules
  adopted by the Panel governing significant
  wetlands, including the issuance or denial of
  conditional use determinations pursuant to 10 VSA
  1272 (10 VSA 905b18).
• Conditional Use Determinations 10 VSA
  1272Regulation of activities causing discharge
  or affecting significant wetlands.

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Challenge to Maps VWR Rejected by Supreme
Court

• Sec'y, Agency of Natural Res. v. Irish, 738 A.2d
  571 1999
• Lake Bomoseen Ass'n v. Vermont Water Resources
  Bd., 886 A.2d 355, 2005

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Wetlands Section Overview
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• Wetlands Section Districts
• Full Staff is 5 DWE plus Coordinator
• Coordinator handles program oversight, plus AOT
  and Ag projects
• Districts have 100 projects/ year
• District Offices located in Barre, Essex and
  Rutland
• Districts change over time and are unique to the
  Wetlands Program

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Wetlands Section Yearly Average Workload
(2000-2006)
Regulation Enforcement
Education Monitoring
Education Presentations 30 Enforcement Comp
laints 68 Violations 41
Office and Field Work Phone Calls 7206 Field
Visits 914 Letters 1219 Regulatory CUD
Applications 79 CUD Issued 84
On average, work is split up by 5 staff members
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2004 Project Overview

• 512 New Projects
• 98 project carried over
• 88 CUDs received
• 84 CUDs issued
• 1 CUD denied
• 1 CUD terminated

lt 20 of Projects result in a CUD
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Wetlands Program Relationships
Collaborators

• Water Resources Panel
• Act 250 Coordinators
• Nongame Natural Heritage Program
• Fish and Wildlife Biologists
• Stormwater Section
• Rivers Section
• BASS
• Lakes and Ponds Section
• ANR Planning Section
• ANR Enforcement Section
• Wastewater Division
• Water Supply Division
• Towns
• Regional Planning Commissions
• Department of Forest, Parks and Rec

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Project Review
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Project Referrals

• Do I have a jurisdictional wetland on my
  property?
• General knowledge of the VT Wetlands Program
• Permit Specialists
• Referrals from other Regulatory Programs
• Complaints
• Town Referrals
• Consultants and Engineers

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Vermont Significant WetlandsInventory Map
Aerial Photos
National Wetland Inventory Maps
GIS Map of VT Significant Wetlands
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B
A
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B
A
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How are Wetlands Identified in the Field?
Manual 1987 Federal Manual for Identifying and
Delineating Jurisdictional Wetlands. To be a
wetland, the following three parameters must be
present
Hydrology
Soils
Vegetation
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Field Work

• Presence or absence of wetland
• Jurisdictional determination of wetland class
• General location of wetland
• Options for avoiding wetland/buffer impacts
• Options for minimizing wetland/buffer impacts
• Verification of wetland delineations
• Determination of function and value of wetland
• General information on the importance of that
  wetland in the landscape

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Contiguous Wetlands
Contiguous shall mean sharing a boundary or
touching and shall include such situations where
the water level of the wetland is directly
influenced by the water level of the adjacent
waterbody or wetland and where a man-made
structure (e.g. roadway) divides a wetland, if
surface water is able to flow over, under or
through that structure. Vermont Wetland Rules,
Section 2.07, page 2
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Interpretation of Contiguous
NOTE The following guidelines may not pertain
to every situation. ANR reserves the right to
make contiguous determinations on specific
projects within the parameters of the Vermont
Wetland Rules and these guidelines.
(1) There is a clear continuum of the three
wetland parameters between the mapped wetland and
the wetland in question. 1a)
1b)
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Interpretation of Contiguous
(2) A wetland is divided by a man-made structure
(e.g. ditch or roadway or other fill), where
surface water is able to flow over, under or
through that structure.
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Vermont Significant Wetland Inventory Maps

• Limitations
• Maps are not supposed to be used in lieu of a
  delineation
• Many Class Threes not on map but can be
  significant for many functions
• Contiguous issue is confusing to the public

• Advantages
• Gives a general idea of the location of wetlands
• Most of the wetlands that are mapped are
  significant
• Creates a jurisdictional threshold

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Conditional Use Determinations
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Which Uses Require Conditional Use Determinations
(CUDs)?
All uses in the wetland and buffer zone which are
not allowed uses, are conditional uses
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CUD Evaluation

• Use cannot result in undue, adverse impacts on
  protected wetland functions and values
• If there is an undue adverse impact on protected
  functions it must be mitigated before a CUD could
  be issued
• Cumulative and on-going impacts must also be
  considered

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CUD Evaluation
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Cumulative and On-going Impacts

• Impacts that are on-going such as stormwater,
  wastewater, human residence, etc.
• Case law suggests cumulative can include
  impacts to a wetland that occurred prior to the
  Vermont Wetland Rules (February 23, 1990),
• Allows a more holistic review of the wetland and
  previous impacts
• May be more important in the future

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Mitigation

• Avoidance No practicable upland alternative
• Minimization Reduction in wetland impacts
• Restoration Restore/ replace impacted functions
  
• Creation Restore/ replace impacted functions
  through wetland creation

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Recommendations
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Recommendations

• Informal Determinations by ANR become Formal
  Determinations

• Whether an area is in fact a wetland
• Wetland boundary determinations, delineations
• Determination of wetland functions and values
• Determination of size and configuration of the
  buffer zone
• Contiguity determinations

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Recommendations

• The Agency recognizes the utility of the VSWI
  maps
• Rules could allow for ANR Process to update,
  correct, and improve the maps

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Recommendations on Classification

• Class One Wetlands through Rule Making
• Class Two are presumed so significant
• Class Three are wetlands found to be not
  significant after field evaluation
• Unmapped wetlands that are significant will
  become Class Two through an administrative ANR
  process

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Recommendations on Rule Updates

• Thorough review and update of the Functions and
  Values section
• Review and update definitions
• Develop a clear standard of Significant
• Where do we set the Bar?

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General CUDs and Allowed Uses

• To filter out small, minimal impact projects
• Routine projects, such as utility line
  extensions, and highway improvements
• Recognize program resources vs. increased
  jurisdiction

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For additional information contact the State
Wetlands Program 802-241-3770, www.vtwaterquality.
org/wetlands