Section
2 Definitions
For the purposes of these rules, the terms below shall have
the following meanings unless a different meaning clearly appears from the
context. Examples are illustrative only and not exhaustive.
2.01 Alpine Peatland means a
peat-accumulating wetland occurring in small bedrock basins at or above 3,500
feet in elevation, on only a few of Vermont's highest summits. Typical species
include alpine bilberry, leatherleaf, Labrador tea, black crowberry,
cottongrass, Bigelow's sedge, and Sphagnum.
2.02 Aquatic Life means all organisms that,
as a part of their natural life cycle, live in or on waters. Aquatic life is
synonymous with Aquatic Biota as defined in the Vermont Water Quality
Standards.
2.03 Board means the
Natural Resources Board.
2.04 Bog
means an acidic wetland that is isolated from mineral-rich groundwater sources
by deep peat accumulation and therefore receives most of its water and
nutrients from precipitation. Typical species include Sphagnum, leatherleaf,
bog laurel, small cranberry, stunted black spruce, pitcher plant, three-seeded
sedge, and other sedges.
2.05
Buffer zone means the area contiguous with a significant wetland which serves
to protect those values and functions sought to be preserved by its
designation, consistent with
10 V.S.A. §
902(9).
2.06 Class I wetland means a wetland that:
(A) is identified on the Vermont significant
wetlands inventory maps as a Class I wetland; or
(B) the Panel determines, based on an
evaluation of the extent to which the wetland serves the functions and values
set forth at
10 V.S.A. §
6025(5)(A)-(K) and in
Section
5
of these rules, is exceptional or irreplaceable in its contribution to
Vermont's natural heritage and, therefore, merits the highest level of
protection. See
10 V.S.A. §
902(6).
2.07 Class II wetland means a wetland other
than a Class I or Class III wetland that:
(A)
is a wetland identified on the Vermont significant wetlands inventory maps;
or
(B) the Secretary determines
merits protection, based on an evaluation of the extent to which the wetland
serves the functions and values set forth at
10 V.S.A. §
6025(d)(5)(A)-(K) and
Section
5
of these rules, either taken alone or in conjunction with other wetlands. See
10 V.S.A. §
902(7).
2.08 Class III wetland is a wetland that is
neither a Class I nor a Class II wetland. See
10 V.S.A. §
902(8).
2.09 Compensation means the mitigation of
undue adverse impacts on the protected functions of significant wetlands by the
replacement of those protected functions lost or impaired, through wetland
creation, restoration, enhancement or preservation. Compensation may also
include payment of fees to a federal "in-lieu fee" program or mitigation bank
that has been approved by the Secretary.
2.10 Contiguous means sharing a boundary or
touching. This shall include situations where a structure, such as a road or
railroad, divides a wetland and there is surface water connection over, through
or under that structure.
2.11
Dredge means lowering the bottom elevation or any cleaning, deepening,
widening, or excavating, either temporarily or permanently.
2.12 Emergent Vegetation means erect, rooted
herbaceous (nonwoody) plants that may be flooded at the base but do not
tolerate prolonged inundation of the entire plant. Typical species include
cattails, sedges, and bulrushes.
2.13 Facultative Wetland Species means plant
species that sometimes occur in wetlands, but which may also be found in
uplands.
2.14 Fen means a
peat-accumulating wetland that receives mineral-rich groundwater, that is
weakly acidic to slightly basic. Acidic ("poor") fens are dominated by
Sphagnum, and basic ("rich") fens are dominated by brown mosses. Sedges and
grasses are abundant in these open peatlands.
2.15 Fill includes the placing of any
material that raises, either temporarily or permanently, the surface elevation
of any area.
2.16 Headwater Wetland
means a naturally occurring wetland that is above 2,500 feet in elevation and
contributes to a stream.
2.17
Hydric soils means soils that are saturated, flooded or ponded long enough
during the growing season to develop anaerobic conditions in the upper part
(U.S.D.A. Soil Conservation Service 1987). For the purpose of these rules,
hydric soils shall be synonymous with the terms saturated soils and seasonally
saturated soils as used in
10 V.S.A. §
902(5).
2.18 Hydrophytic Vegetation means vegetation,
including obligate wetland species and facultative wetland species, growing in
water, soil or on a substrate that is at least periodically deficient in oxygen
as a result of excessive water content. For the purposes of these rules,
hydrophytic vegetation shall be synonymous with the term significant vegetation
as used in
10 V.S.A. §
902(5).
2.19 Impaired Waters means surface waters
which have been identified by the Secretary as impaired pursuant to Section
303(d) of the federal Clean Water Act and which have been listed on the most
recent Vermont 303(d) list, approved by the federal Environmental Protection
Agency, as waters which may need a Total Maximum Daily Load (TMDL).
2.20 Impervious Surface[s] means manmade
surfaces, including paved and unpaved roads, parking areas, roofs, driveways,
and walkways, from which precipitation runs off rather than infiltrates. See
10 V.S.A. §
1264(a)(6).
2.21 Marsh means any wetland that is
seasonally or continually inundated and is dominated by herbaceous vegetation.
Hydric mineral or organic soils may be present. Typical species include common
cattail, bluejoint grass, tussock sedge, broad-leaved arrowhead, wild rice, and
bulrush.
2.22 Mitigation means a
comprehensive effort to lessen impacts on wetlands through a sequence of
avoidance and minimization, and when appropriate, compensation.
2.23 Obligate Wetland Species means plant
species that are almost always found in wetlands under natural
conditions.
2.24 Panel means the
Water Resources Panel of the Natural Resources Board.
2.25 Person means any individual;
partnership; company; corporation; association; joint venture; trust;
municipality; agency, department or subdivision of the state or federal
government,, or any other legal or commercial entity.
2.26 Prevalence of Vegetation means plants
comprising greater than 50 percent of the average percent areal cover of the
plant community.
2.27 Protected
functions means those functions identified in
10 V.S.A. §
6025(d)(5)(A)-(K) and
Section
5
of these rules that make a wetland so significant that it merits protection
under these rules.
2.28 Secretary
means the Secretary of the Agency of Natural Resources or his or her authorized
representative.
2.29 Seep means a
naturally occurring common, small wetland type occurring on slopes or at the
base of slopes in upland forests. It is fed by groundwater discharge and is
typically the headwaters of a perennial stream. This narrow wetland type is
often shaded by the adjacent upland forest. Typical species may include
rough-stemmed sedge, slender mannagrass, golden saxifrage, and spotted
touch-me-not.
2.30 Significant
Wetland means any Class I or Class II wetland that merits protection under
these rules, either alone or in conjunction with other wetlands, based upon an
evaluation of the extent to which it serves one or more of the functions and
values pursuant to
10 V.S.A. §
6025(d)(5)(A)-(K) and
section
5
these rules. In making this determination, consideration shall be given to the
number of or the extent to which protected functions and values are provided by
a wetland or wetland complex.
2.31
Silvicultural activities means those activities associated with the sustained
management of land for silvicultural purposes including the planting,
harvesting, and removal of trees.
2.32 Source Protection Area means a surface
and subsurface area from or through which contaminants are reasonably likely to
reach a public water source as designated by the Secretary pursuant to the
Wastewater System and Water Supply Rules.
2.33 Surface Vegetation means plants with
vegetative parts principally on the water surface, including water lily and
spatterdock, and is synonymous with floating-leaved vegetation.
2.34 Swamp means any of the many wetland
types that are dominated by woody vegetation, either trees or shrubs. Hydric
mineral or organic soils may be present. Typical species include red maple,
black ash, northern white cedar, hemlock, red or black spruce, tamarack,
speckled alder, willow, sweet gale, and buttonbush.
2.35 Upland means land that is not
wetland.
2.36 Vernal Pool means a
small wetland in a shallow natural depression that typically fills with water
during the spring and/or fall and may dry during the summer. Vernal pools have
no permanent inlet stream and no viable populations of fish. Vernal pools are
typically sparsely vegetated with herbaceous plants and are shaded by trees
from the surrounding upland forest. Many vernal pools provide critical breeding
habitat for amphibians.
2.37
Waterfowl means all ducks, geese and swans.
2.38 Wetlands means those areas of the state
that are inundated by surface or ground water with a frequency sufficient to
support significant vegetation or aquatic life that depend on saturated or
seasonally saturated soil conditions for growth and reproduction. Such areas
include but are not limited to marshes, swamps, sloughs, potholes, fens, river
and lake overflows, mud flats, bogs, and ponds, but excluding such areas as
grow food or crops in connection with farming activities. See
10 V.S.A. §
902(5).
2.39 Wetland Hydrology means the sum total of
wetness characteristics in areas that are inundated by water or which have
hydric soils that are saturated or seasonally saturated for a sufficient
duration to support significant vegetation or aquatic life. Wetness
characteristics shall include the hydrologic cycle, water table levels, water
chemistry, hydrologic budget, and ground water flow patterns. Typical
indicators include: evidence of inundation, drift lines, sediment deposits, and
morphological plant adaptations.
Section 4
Classification of Significant Wetlands and Designation of Buffer Zones
4.1 Classification of Wetlands
For purposes of these rules wetlands in Vermont are
classified as Class I, Class II, or Class III wetlands, as defined at
10 V.S.A. §
902 and Section
2 of these
rules.
Class I wetlands when designated pursuant to Section 7 shall
be identified in Appendix A. All wetlands shown on the Vermont Significant
Wetland Inventory maps are Class I or Class II wetlands, unless determined
otherwise by the Secretary or Panel.
4.2 Buffer Zones
The purpose of a buffer zone is to protect those functions
that make a wetland significant. The Panel may designate a buffer zone
contiguous to any Class I wetland and the Secretary may designate a buffer zone
contiguous to any Class II wetland. Until otherwise designated by the Panel, a
one hundred (100) foot buffer zone is established contiguous to the boundaries
of a Class I wetland. Until otherwise designated by the Secretary, a fifty (50)
foot buffer zone is established contiguous to the boundaries of a Class II
wetland.
4.3 Designations
a. Class I Wetlands
The Panel on its own motion or acting on a rulemaking
petition filed in accordance with Section 7, shall determine whether to
classify any wetland as a Class I wetland or to reclassify a Class I wetland
pursuant to
10 V.S.A. §
915.
b. Other Wetlands
The Secretary on his or her own motion or upon petition may,
pursuant to
10 V.S.A. §
914:
1. Determine whether a wetland is a Class II
or Class III wetland.
2. Determine
which functions and values make a wetland significant.
3. Determine whether the size or
configuration of a buffer zone adjacent to a Class II wetland should be
increased or decreased.
4.
Determine the boundaries of a significant wetland.
5. Determine whether an area shown as a
wetland on the VSWI maps is not a wetland.
4.4 Vermont Significant Wetland Inventory
Maps
The VSWI maps should not be relied upon to provide precise
information regarding the location or configuration of wetlands (see Section
3.2). The VSWI maps are intended to denote the approximate location and
configuration of wetlands. The Secretary shall revise the VSWI maps to reflect
wetland determinations issued by the Secretary pursuant to
10 V.S.A. §
914 and by the Panel pursuant to
10 V.S.A. §
915. The Secretary may also adjust the
boundaries of wetlands shown on the VSWI maps to more accurately depict the
location of a wetland, as determined by aerial photos, field visits, field
delineations and other relevant information.
4.5 Delineation of Wetland Boundaries
a. The methodology for delineating the
boundaries of any wetland is described in Section 3.2.
b. Wetland boundaries shall be delineated in
accordance with the provisions of these rules.
c. Formal determinations of wetland
boundaries are made by the Secretary pursuant to
10 V.S.A. §
914, or the Panel pursuant to
10 V.S.A. §
915.
4.6 Presumptions
All wetlands contiguous to wetlands shown on the Vermont
Significant Wetland Inventory maps are presumed to be Class II wetlands, unless
identified as Class I or III wetlands, or unless determined otherwise by the
Secretary or Panel pursuant to Section 8. In addition, each of the following
wetlands shall be presumed to be Class II wetlands unless determined otherwise
by the Secretary or Panel:
a. The
wetland is of the same type and threshold size as those mapped on the VSWI
maps: i.e.; open water (pond); emergent marsh; shrub swamp; forested swamp; wet
meadow; beaver pond or beaver meadow; bog or fen; or greater than 0.5
acres.
b. The wetland contains
woody vegetation and is adjacent to a stream, river or open body of
water.
c. The wetland contains
dense, persistent non-woody vegetation and is adjacent to a stream, river or
open body of water.
d. The wetland
is a vernal pool that provides amphibian breeding habitat.
e. The wetland is a headwater
wetland.
f. The wetland is adjacent
to impaired waters and the impairment is related to wetland water quality
functions.
g. The wetland contains
a species that appears in the NNHP database as rare, threatened, endangered or
uncommon; or is a natural community type that is rare or uncommon.
h. The wetland has been previously designated
as a significant wetland.
i. It is
within sixty (60) days after the landowner has received notice of a preliminary
wetland determination pursuant to Section 8.1 of these rules.
Section 5 Functional
Criteria for Evaluating a Wetland's Significance
In evaluating whether any wetland is a Class II or a Class I
wetland, the Secretary or Panel shall evaluate the functions that the wetland
serves both as a discrete wetland and in conjunction with other wetlands by
considering the following functional criteria. Consideration shall be given to
the number of and/or extent to which protected functions and values are
provided by a wetland or wetland complex.
5.1 Water Storage for Flood Water and Storm
Runoff
Wetlands that provide for the temporary storage of floodwater
or stormwater runoff to the extent that they make an important contribution to:
reducing risks to public safety, reducing damage to public or private property
reducing downstream erosion or enhancing the stability of habitat for aquatic
life, are significant wetlands. Examples of wetlands that provide storage for
floodwaters or stormwater runoff may include those that are located in the
upper portion of the watershed, have a constricted outlet, are located in a
relatively flat area with storage potential, densely vegetated, or are located
in a watershed with a large amount of impervious surfaces.
In determining whether a wetland is significant for this
function, the Secretary or Panel shall, at a minimum, consider the extent to
which it:
a. Reduces either the
magnitude or frequency of risks to public safety or of damage to public or
private property due to flood water or stormwater runoff after considering:
(1) Its significance relative to other water
storage capacity in its own watershed or in the watershed of any watercourse to
which it is tributary. In particular, available water storage capacity upstream
of the wetland should be considered.
(2) Whether it is contiguous to a lake or
pond which would provide storage benefits independent of the wetland.
(3) The extent of development and impervious
surface in the watershed.
(4) The
history of damage to public and private property and economic loss due to
flooding within the watershed downstream of the wetland.
(5) The characteristics of development and
resources in or near the floodplain downstream of the wetland.
(6) The extent to which the wetland's water
storage capacity is created by beaver dams and similar temporary
conditions
b. Attenuates
flood peaks and reduces water velocities, thereby reducing scouring and
erosion.
c. Maintains the
geomorphic stability of important habitat for aquatic life by attenuating peak
flows of flood waters or stormwater runoff, or reducing the scouring and
erosion of stream banks, or both.
Hydraulic and hydrologic analysis of the extent to which a
wetland serves this function shall utilize average annual, 10-year, 50-year and
100-year storm frequencies in generating hydrographs for the wetland's inlet,
outlet and at critical locations upstream and downstream.
5.2 Surface and Ground Water
Protection
Wetlands that make an important contribution to the
protection or enhancement of the quality of surface or of ground water are
significant wetlands. In determining whether a wetland is significant for this
function, the Secretary or Panel shall, at a minimum, consider the extent to
which it:
a. Recharges a drinking
water source, such as a well head or source protection area.
b. Reduces levels of contaminants in surface
waters which recharge underlying or adjacent groundwaters.
c. Contributes to the flows of Class A
surface waters.
d. Enhances or
protects water quality through chemical action, by the removal of nutrients, by
the retention or removal of sediments or organic matter, or by moderating the
adverse water quality effects of soil erosion or stormwater runoff.
e. Contributes to the protection or
improvement of water quality of any impaired water.
f. Is adjacent to surface waters, especially
impaired waters.
5.3
Fish Habitat
Wetlands that are used for spawning by northern pike or that
are important for providing fish habitat are significant wetlands. In
determining whether a wetland is significant for fish habitat the Secretary or
Panel shall, at a minimum, consider the extent to which it:
a. Provides spawning, nursery, feeding or
cover habitat for fish.
b. Lowers
or moderates the temperature of surface waters due to the discharge of cold
springs, the provision of shade or for other reasons.
5.4 Wildlife Habitat
Wetlands that support a significant number of breeding
waterfowl, including all species of ducks, geese and swans, or broods of
waterfowl or that provide important habitat for other wildlife and migratory
birds are significant wetlands. Wetlands that provide wildlife habitat are
extremely diverse and range from small isolated wetlands to large forested
swamps. In determining whether a wetland is significant for wildlife habitat,
the Secretary or Panel shall, at a minimum, consider the extent to which
it:
a. Birds
(1) Supports or provides the habitat to
support one or more breeding pairs of waterfowl or one or more broods of
waterfowl.
(2) Supports or provides
the resting, feeding, staging or roosting habitat to support waterfowl
migration.
(3) Supports a nest
site, provides a buffer for a nest site, or is used as feeding habitat for
wading birds, including: Great blue heron, black-crowned night-heron, snowy
egret, cattle egret, or green heron.
(4) Supports or has the habitat to support
one or more breeding pairs of any migratory bird that requires wetland habitat
for breeding, nesting, rearing of young, feeding, staging, roosting, or
migration, including: Virginia rail, common snipe, marsh wren, American
bittern, northern water thrush, northern harrier, spruce grouse, Cerulean
warbler, and common loon.
b. Mammals
(1) Supports winter habitat for white-tailed
deer, based on an assessment of winter use. Typical indicators include
browsing, bark stripping, worn trails, pellet piles, and softwood tree
cover.
(2) Provides important
feeding habitat for black bear, bobcat, or moose, based on an assessment of
use.
(3) Supports or has the
habitat to support muskrats, otter, or mink.
(4) Supports an active beaver dam, one or
more beaver lodges, or evidence of an adult population of beaver which have
used the site in two or more consecutive years.
c. Amphibians
(1) Supports or provides habitat to support
the reproduction of uncommon Vermont amphibian species including: Jefferson
salamander, blue-spotted salamander, spotted salamander, which are associated
with vernal pools for breeding habitat; the Northern dusky salamander and the
spring salamander, which are associated with headwater seeps, springs and
streams; the four-toed salamander; Fowler's toad, Western chorus frog, and
other amphibians found in Vermont of similar significance.
(2) Supports or provides the habitat to
support significant breeding populations of Vermont amphibian species including
the species listed in subsection (c)(1); and pickerel frog, northern leopard
frog, mink frog, and others found in Vermont of similar significance.
d. Reptiles
(1) Provides habitat that supports or has the
habitat to support uncommon Vermont reptile species, including: wood turtle,
northern map turtle, eastern musk turtle, stinkpot turtle, spotted turtle,
spiny softshell turtle, eastern ribbonsnake, northern watersnake, and others
found in Vermont of similar significance.
(2) Supports or provides the habitat to
support significant populations of Vermont reptile species, including the
species listed in subsection (d)(1), smooth greensnake, DeKay's brownsnake, and
other more common wetland-associated species.
e. Landscape Considerations
(1) Meets four or more of the following
conditions indicative of wildlife habitat diversity:
(a) Three or more wetland vegetation classes
(1/2 acre or greater in size) are present including: open water contiguous to
but not necessarily part of the wetland, deep marsh, shallow marsh, shrub
swamp, forested swamp, fen, or bog;
(b) The dominant wetland vegetation class is
one of the following types: deep marsh, shallow marsh, shrub swamp, or forested
swamp;
(c) The wetland is located
contiguous to a lake, pond, river, or stream;
(d) Fifty percent or more of the surrounding
habitat types are any combination of one or more of the following types:
forest, agricultural land, old field, or open land;
(e) Emergent or woody vegetation occupies 26
to 75 percent of the wetland area and open water occupies the remainder of the
wetland area;
(f) The wetland falls
into one of the following:
1. Hydrologically
connected to other wetlands of different dominant vegetation classes or open
water bodies within 1 mile; or
2.
Hydrologically connected to other wetlands of the same dominant vegetation
class within 1/2 mile; or
3. Within
1/4 mile of other wetlands of different dominant vegetation classes or within
1/4 mile of open water bodies; but not hydrologically connected.
(2) Is owned by the
state or federal government in fee or through easement and managed for purposes
of wildlife and habitat conservation as evidenced by a management plan filed
and approved by the Secretary or other appropriate governing
official;
(3) Contains evidence
that it is used by wetland-dependent wildlife species.
5.5 Exemplary Wetland Natural
Community
Wetlands that make an important contribution to Vermont's
natural heritage are significant wetlands. These include wetlands that are
identified as high quality examples of one of Vermont's recognized natural
community types. There are over forty wetland natural community types
recognized in Vermont by the Nongame and Natural Heritage Program of the
Vermont Fish and Wildlife Department. These include rare types such as dwarf
shrub bog, rich fen, alpine peatland, and red maple-black gum swamp, and more
common types such as deep bulrush marsh, cattail marsh, northern white cedar
swamp, spruce-fir-tamarack swamp, and red maple-black ash seepage swamp. In
determining whether a wetland is significant for this function the Secretary or
Panel shall, at a minimum, consider the extent to which it:
a. Is an example of a wetland natural
community type that has been identified and mapped by or meets the ranking and
mapping standards of the Nongame and Natural Heritage Program of the Vermont
Fish and Wildlife Department. When evaluating a wetland of a particular natural
community type, the rarity of the type is a primary consideration in
determining its importance to this function. More generally, larger wetlands in
undisturbed condition and in unfragmented landscapes are ranked as the better
examples.
b. Contains ecological
features that contribute to Vermont's natural heritage, including deep peat
accumulations reflecting thousands of years of history of wetland formation,
forested wetlands displaying very old trees and other old growth
characteristics, a wetland natural community that is at the edge of the normal
range for that type, a wetland mosaic containing examples of several to many
wetland community types, or a large wetland complex containing examples of
several wetland community types.
5.6 Rare, Threatened, and Endangered Species
Habitat
Wetlands that contain rare, threatened, or endangered species
of plants or animals are significant wetlands. In determining whether a wetland
is significant for this function the Secretary or Panel shall consider
whether:
a. There is creditable
documentation that the wetland provides important habitat for any species on
the federal or state threatened or endangered species list of animals or
plants.
b. There is creditable
documentation that the wetland has contained one or more threatened or
endangered species on the federal or state list in the past 10 years.
c. There is creditable documentation that the
wetland provides important habitat for any species listed as rare in Vermont
(S1 or S2 ranks), state historic (SH rank), or rare to uncommon globally (G1,
G2, or G3 ranks), by the Nongame and Natural Heritage Program of the Vermont
Fish and Wildlife Department.
d.
There is creditable documentation that the wetland provides habitat for
multiple uncommon species of species of plants or animals (S3 rank).
5.7 Education and Research in
Natural Sciences
Wetlands that provide, or are likely to provide valuable
resources for education or scientific research are significant wetlands. In
determining whether a wetland is significant for this function the Secretary or
the Panel shall, at a minimum, consider whether the wetland:
a. is owned by a public entity dedicated to
education or research or an easement for education or research has been
conferred to a public entity.
b.
has a history of use for education or research.
c. has one or more characteristics which make
it unique or valuable for education or scientific research purposes.
5.8 Recreational Value and
Economic Benefits
Wetlands that provide substantial recreational values or
economic benefits are significant wetlands. In determining whether a wetland is
significant for this function, the Secretary or Panel shall, at a minimum,
consider the extent to which it:
a. Is
used for, or contributes to, recreational activities.
b. Provides economic benefits.
c. Provides important habitat for fish or
wildlife which can be fished, hunted or trapped under applicable state
law.
d. Is used for the harvesting
of wild foods.
5.9 Open
Space and Aesthetics
Wetlands that contribute substantially to the open-space and
aesthetic character of the landscape are significant wetlands. In determining
whether a wetland is significant for this function, the Secretary or Panel
shall, at a minimum, consider the extent to which it:
a. Can be readily observed by the
public.
b. Possesses special or
unique aesthetic qualities.
c. Has
prominence as a distinct feature in the surrounding landscape.
d. Has been identified as important open
space in a municipal, regional or state plan.
5.10 Erosion Control through Binding and
Stabilizing the Soil
Wetlands that are important for erosion control are
significant wetlands. Such wetlands are typically located along stream, river,
pond or lake shorelines, where erosive forces are present. In determining
whether a wetland is significant for this function, the Secretary or Panel
shall, at a minimum, consider the extent to which it:
a. Protects a shoreline, riverbank or
streambank from excessive erosion by dissipation of wave and current energy or
by binding and stabilizing the soil.
b. Prevents erosion by binding or stabilizing
the soil.
c. Has been identified
through fluvial geomorphic assessment using methods approved by the Secretary
to be important in maintaining the natural condition of the stream or river
corridor.
Section
6 Allowed Uses
The following uses shall be allowed in a Class I or Class II
wetland and in its buffer zone without a permit, provided that the
configuration of the wetland's outlet or the flow of water into or out of the
wetland is not altered and that no draining, dredging, filling, or grading
occurs except as may be provided for in sub sections 6.01, 6.02, 6.03, 6.04,
6.07, 6.08, 6.12, 6.13, 6.14, 6.15, 6.16, and 6.22 below. Designation of
allowed uses in these rules shall not provide relief from liability for
violations that commenced prior to the effective date of such allowed
use.
6.01 Silvicultural activities
which:
a. Comply with Acceptable Management
Practices for Maintaining Water Quality on Logging Jobs in Vermont adopted
pursuant to
10 V.S.A. §
1259;
b. Comply with silvicultural standards for
deer wintering yards, established jointly by the Departments of Fish and
Wildlife and Forests, Parks and Recreation, when occurring in significant
wetlands or adjacent buffer zones containing deer wintering yards mapped by the
Fish and Wildlife Department; and
c. Restrict equipment maintenance and the
storing or changing of oil, grease, or other petroleum products to log
landings; and
d. Restrict log
landings to uplands or buffer zones except that landings not requiring the
placement of fill may be located within the wetland when the ground is
frozen.
6.02 The
restoration, reconstruction, rehabilitation, or upgrading of existing roads
used solely for silvicultural purposes provided that such roads are not
increased in width by more than 20%.
6.03 The construction of new roads used
solely for silvicultural purposes in buffer zones.
6.04 The removal of beaver dams to the extent
necessary to prevent impairment of the use of existing logging roads or ongoing
silvicultural management practices.
6.05 Silvicultural activities including the
uses allowed by subsections b, c and d above, when occurring in any Class I
wetland, the buffer zone for any Class I wetland and in any Class II wetland
specifically designated by the Secretary or Panel to protect habitat for any
species on the state or federal list of threatened or endangered species, that
comply with a plan approved in writing by the Commissioner of the Department of
Forests, Parks and Recreation.
6.06. The growing of food or crops in
connection with farming activities when
a.
Threatened or endangered species are protected; and
b. No clearing of existing vegetation occurs
in deer wintering yards mapped by the Vermont Fish and Wildlife Department;
and
c. In compliance with the most
recent Acceptable Agricultural Practices adopted by the Agency of Agriculture,
Food and Markets.
6.07
The operation of existing hydroelectric facilities in accordance with all
applicable requirements established by federal and state agencies. This use may
involve dredging, draining and/or altering the flow of water into or out of a
wetland.
6.08 The routine repair
and maintenance of utility poles,lines and corridors in a manner which
minimizes adverse impacts and is accordance with Best Management Practices
developed by the Secretary.
6.09
Hunting, birdwatching, hiking, boating, trapping, fishing, horseback riding,
swimming, snowshoeing, skiing, and similar outdoor recreational
activities.
6.10 Snowmobiling on
trails designated by the Vermont Association of Snow Travelers.
6.11 Scientific research and educational
activities.
6.12 The maintenance,
reconstruction, or routine repair of structures and facilities (including ski
trails, public transportation facilities, bulkheads, docks, piers, pilings,
paved areas, houses, or other buildings) in compliance with the Vermont Wetland
Rules in existence as of the date of their construction or in existence as of
February 23, 1990 or additions to such structures or facilities which do not
involve substantial expansion or modification in a wetland or buffer.
6.13 Emergency repair, cleanup, or
maintenance of structures and facilities (including utility poles and lines,
public transportation facilities, bulkheads, docks, piers, pilings, paved
areas, houses, or other buildings), or emergency actions required to provide
for public health, safety and welfare for disaster relief in connection with a
federal or state-designated disaster.
6.14 The routine maintenance and upkeep,
including the removal of vegetation from, or maintenance dredging of,
constructed ponds in compliance with Best Management Practices developed by the
Secretary. This use may involve dredging, temporary draining, and/or
temporarily altering the flow of water into or out of a wetland.
6.15 Wildlife or fisheries management
activities, including the removal of beaver dams which pose a significant
hazard to public health or safety or to public or private property, conducted
in accordance with a written plan or procedure adopted by the Secretary. This
use may involve draining and/ or altering the flow of water into or out of a
wetland.
6.16 The placement,
maintenance or removal of duck blinds, ice fishing shanties, fences, catwalks,
footbridges, observation decks, docks exempt similar structures, in compliance
with Best Management Practices developed by the Secretary.
6.17 The harvesting of wild foods and the
collecting of scientific specimens, not on the state or federal threatened or
endangered species lists, for noncommercial purposes.
6.18 The control of non-native species of
nuisance plants including Eurasian milfoil, water chestnut, purple loosestrife
( Lythrum salicaria) and reed grass (Phragmites australis), where such control
is by hand pulling of plants or according to a written plan approved by the
Secretary and under any applicable state law.
6.19 Activities within existing lawns,
including mowing, the placement of barbecue pits, sand boxes, bird houses, and
other similar activities incidental to ordinary residential use.
6.20 The use of pesticides or other
biological agents to control mosquitoes when applied according to all
applicable state law.
6.21 The
operation of dams in accordance with the surface level rules for lakes and
ponds adopted under
10 V.S.A. §
6025(d)(1), provided that
prior to the adoption the Panel finds in writing that the surface level rules
will not result in any undue adverse effect on the protected wetland functions.
This use may involve draining or altering the flow of water into or out of a
wetland.
6.22 The installation of a
new overhead utility line that does not involve extensive tree clearing, with
three poles or fewer in the wetland or buffer zone, in compliance with Best
Management Practices developed by the Secretary
6.23 Wetland restoration or stream
restoration projects, including dam removals, in accordance with a plan
approved by the Secretary.
6.24 Dry
hydrants installed in constructed ponds, where the disturbance is limited to
the pond and previously disturbed or managed areas, such as lawns and mowed
fields.
6.25 Cleanup activities for
spills of oil or hazardous materials.
Section 8 Wetlands Determinations by the
Secretary
8.1 General
The Secretary may, upon a petition or on his or her own
motion, determine whether any wetland is a Class II Wetland or a Class III
wetland, pursuant to
10 V.S.A. §
914 and these rules. Such determinations
shall be based on an evaluation of the functions and values set forth in
statute and these rules. The Secretary may establish the necessary width of a
buffer zone of any Class II wetland as part of any wetland determination
pursuant to these rules. Any wetland proposed by the Secretary to be designated
as a Class II wetland shall be presumed to be a significant wetland until the
Secretary determines otherwise. This presumption shall become effective upon
receipt by the landowner of a registered letter from the Secretary giving
notice of a preliminary wetland determination, and shall last sixty (60) days
thereafter.
8.2 Contents of
Petitions
Any request by a person for the Secretary to make a
determination pursuant to Section 8.1 shall be in writing and must contain the
following:
a. a description of the
specific location of the subject wetland or buffer zone and the location on a
USGS topographic map or the relevant portion of the VSWI map;
b. a detailed narrative of the action(s)
sought by the petitioner and why the action(s) are consistent with these rules,
including a description of the wetland and each wetland function and value (
Section
5
) at issue;
c. copies of all
documents which the petitioner intends to rely upon in support of the
request;
d. the names and complete
mailing addresses of all persons owning property within or adjacent to the
wetland area and buffer zone in question.
e. all determinations and decisions, if any,
issued by the Secretary, Panel or former Water Resources Board, pertaining to
the wetland or buffer at issue; and
f. such other information as the Secretary
may require.
8.3
Notification Requirements
a. The Petitioner
shall provide written notice of a petition for a determination under this
section to the owner of each parcel of land within or adjacent to the wetland
area or buffer zone being considered, and shall certify to the Secretary in
writing that such notice has been provided, and shall state in the written
certification the name and address of each person notified and the date and
manner that notice was provided.
b.
The Secretary shall provide by mail written notice of a proposed determination
to the owner of each parcel of land within or adjacent to the wetland area or
buffer zone being considered. The Secretary shall publish notice on the Agency
website and provide an electronic notice to persons who have requested to be on
a list of interested persons. Such notice shall include the date of the
Secretary's proposed determination and shall provide no fewer than thirty (30)
days from the date of the Secretary's proposed determination within which to
file written comments or to request that the Secretary hold a public meeting on
the proposed determination. The Secretary will provide notice of any public
meeting in the same manner as the proposed determination.
c. The Secretary shall provide, in person, by
mail, or by electronic notice, a written copy of a final wetland determination
under this Section to the petitioner and to those receiving notice pursuant to
Section 8.3.a.
8.4
Reconsideration of Wetland Determinations
Within 15 days of the date of the decision, the applicant,
any person entitled to notice under Section 8.3(a), or any person who filed
written comments regarding the permit application may request in writing
reconsideration by the Secretary. Such a request shall specify all action(s)
for which reconsideration is sought and shall provide an explanation of the
reason(s) why the request is filed. Where a request for reconsideration has
been properly filed, additional evidence may be submitted concerning the
functions and values of the wetland, and any other material issue as deemed
appropriate by the Secretary. The Secretary may appoint a designee who shall be
at the Division Director level or higher to render a decision on the request
for reconsideration. The Secretary's written reconsideration decision shall be
issued as expeditiously as possible under the circumstances, and shall be
distributed in accordance with Section 8.3(c). The Secretary's written
reconsideration decision shall constitute a final act or decision of the
Secretary, subject to appeal pursuant to
10 V.S.A. §
8504 and Section 10 of these Rules.
No request for reconsideration may be filed concerning or
resulting from a request for reconsideration. If the Secretary fails to act on
a request for reconsideration within 20 days of its filing, the request shall
be deemed to be denied.
Filing a timely request for reconsideration with the
Secretary tolls the 30-day period for filing an appeal with the Environmental
Court. The full time for appeal shall commence to run and shall be computed
from the date of the issuance of the Secretary's decision on the
reconsideration request.
8.5 Mapping Corrections
The Secretary shall have the authority to make the following
mapping corrections, which are not wetland determinations pursuant to
10 V.S.A. §
914. VSWI map updates based on these
determinations will be reflected on the VSWI map located on the Department of
Environmental Conservation's Environmental Interest Locator website.
a. The Secretary may, upon request or on his
or her own motion, determine whether a polygon on the VSWI map is not a
wetland. Such determinations shall be based on the methodology for identifying
wetlands in Section 3.2.a of these rules. Section 8.3 notification requirements
do not apply to such map corrections. The Secretary shall provide notice of
such map corrections to Town Clerk offices on a periodic basis, and to a list
of interested parties, if any
b.
The Secretary may determine that a polygon on the VSWI map is inaccurate and
may change the configuration of the polygon to more accurately reflect the
location of a wetland, as determined from aerial photos, field visits, field
delineations and other relevant information. Section 8.3 notification
requirements shall not apply to such changes. These types of changes do not
alter the classification of the wetland, but enhance the accuracy of the VSWI
maps. These map corrections generally fall into the following three categories:
i. Registration errors: Wetland polygons that
do not line up with the underlying base layers. The most common error in this
category are small ponds that do not line up with visible ponds on
ortho-photos. A notice of map changes made based on these determinations will
be sent to Town Clerk offices on a periodic basis and to a list of interested
parties, if any.
ii. Corrections
based on field verified contiguity: This type of mapping correction is based on
field verified information of the general size and location of the wetland, and
adjusts the wetland boundary of an already designated Class Two wetland.
Wetland delineations that are not part of a permitting action are included in
this category. A notice of map changes based on these determinations will be
sent to Town Clerk offices, to the affected landowners and to a list of
interested parties, if any.
iii.
Corrections based on wetland delineation associated with a permit action. This
type of mapping correction is based on a field delineated wetland boundary
location of an already designated Class Two wetland. The notice of map change
will be included in notifications required under Sections 9.2, 9.3 and
9.8.
Section
9 Permits
9.1 General
Activity in a Class I or Class II wetland or its associated
buffer zone is prohibited unless it is an allowed use or authorized by a
permit, conditional use determination or order issued by the Secretary The
Secretary may impose any conditions in such a permit that are deemed necessary
to achieve the purposes of these rules. The Secretary may issue a permit
authorizing an activity occurring within a Class I wetland only to meet a
compelling public need to protect public health or safety. A permit issued
under these rules shall not relieve any person of the responsibility to comply
with all other applicable federal, state or local laws. An individual wetland
permit shall remain valid for one year from the date of issuance unless the
Secretary specifies a longer period not to exceed five years. The Secretary may
extend a permit for up to a total of ten years beyond the date of issuance of
the original permit.
A permit shall not be required for:
1. Any activity that occurred before the
effective date of
10 V.S.A. §
913 unless the activity occurred within:
a. an area identified as a wetland on the
VSWI maps as they existed on the date the activity commenced;
b. a wetland that was contiguous to an area
identified as a wetland on the VSWI maps; or
c. the buffer zone of a wetland referred to
in a. or b. above.
2.
Any construction within a wetland that is identified on the VSWI maps as they
existed on the date the activity commenced, or within the buffer zone of such a
wetland, provided that the construction was completed prior to February 23,
1992, and no action for which a permit or conditional use determination was
required under these rules was taken or caused to be taken on or after February
23, 1992.
9.2 Individual
Permit Application; Distribution
a. The
applicant shall, in addition to filing an original copy with the Secretary,
file a complete copy of the request for an individual permit with the
following:
1. the clerk of each Vermont
municipality in which the wetland or buffer zone is located,
2. each regional planning commission serving
the geographical area in which the wetland or buffer zone is located.
b. In addition, copies of the
location map, the description of the specific action(s) for which a permit is
sought, the supporting narrative and a listing of where complete copies of the
request have been filed shall be provided to the municipal planning commission
and/or conservation commission and to all persons owning property within or
adjacent to the affected wetland area or buffer zone in question.
c. The Secretary may require an applicant to
submit any additional information that the Secretary considers necessary in
order to make a decision on the issuance or denial of a permit. The Secretary
may dismiss the application without prejudice if the requested information is
not provided to the Secretary within sixty (60) days of the Secretary's
request.
9.3 Notice of
Request for Public Comment on Individual Permit Application
The Secretary shall provide an opportunity for public comment
by sending a notice of a permit application to all towns wherein the affected
wetland area or buffer zone is located and to all persons owning property
within or adjacent to the affected wetland area or buffer zone with a request
that the notice be posted for no less than 15 days. The Secretary may provide
additional notice of the permit application and may conduct a public meeting to
receive additional public comment.
9.4 Notice of Decision
The Secretary shall provide notice of any decision made under
Section 9 to all persons entitled to receive notice under Section 9.2
above.
9.5 Individual
Permit Review Standards
a. Burden of Proof
Applicants for an individual wetland permit shall have the
burden to show that a proposed activity in any Class I or Class II wetland or
its buffer zone complies with these rules and will have no undue adverse effect
on protected functions and values. In determining whether this burden has been
met, the potential effect of any proposed activity shall be evaluated on the
basis of both its direct and immediate effects as well as on the basis of any
cumulative or on-going effects on the significant wetland.
b. Mitigation Sequencing
An adverse effect on any protected function, other than a
minimal impact, shall be presumed to constitute an undue adverse effect
unless:
(1) The proposed activity
cannot practicably be located outside the wetland or on another site owned or
controlled by the applicant or reasonably available to satisfy the basic
project purpose; and
(2) If the
proposed activity cannot practicably be located outside the wetland, all
practicable measures have been taken to avoid adverse impacts on protected
functions; and
(3) If avoidance of
adverse effects on protected functions cannot be practically achieved, the
proposed activity has been planned to minimize adverse impacts on the protected
functions and a plan has been developed for the prompt restoration of any
adverse impacts on protected functions.
c. Compensation
Compensation may be considered only when full compliance with
the requirements of subsection b (1-3) is insufficient to achieve no net undue
adverse effect on any protected function. Such compensation measures may
include establishing new wetlands or enlarging the boundaries of an existing
wetland to compensate for the adverse impact of the proposed activity. The
compensation may also include payment of fees to a federal "in- lieu fee"
program or mitigation bank approved by the Secretary.
Compensation to avoid undue adverse impacts on protected
functions in Class I wetlands or their buffer zones may only be considered upon
the showing that the adverse impacts are necessary in the course of meeting a
compelling public need to protect public health or safety.
Compensation will be allowed for impacts to either Class I or
Class II wetlands only to reduce adverse impacts on those protected functions
that are compensable.
Compensation is presumed to be possible for adverse impacts
on the functions specified in Sections 5.1, 5.2(d), 5.4(a) (1 and 2), and 5.9.
For any of the remaining functions and values specified in Section
5
the applicant must show that compensation will be successful in achieving no
net loss in any protected function. Any compensation plan must demonstrate
that:
(1) there will be no net loss of
the protected functions or acreage of significant wetlands;
(2) the compensation measures will be fully
implemented prior to, or concurrently with, the proposed activity;
(3) the compensation measures shall be
monitored and managed for a period necessary to insure full replacement of the
protected functions in question and any additional period that may be required
by subsequent remedial measures but in no event for less than five
years;
(4) measures shall be
designed to be self-sustaining following the period for which monitoring or
management is required;
(5)
adequate financial surety is provided to carry out the proposed compensation
including any necessary remedial measures; and
(6) any replacement wetland will be
permanently preserved by a conservation easement or deed restriction conveyed
to a suitable party or by other appropriate means.
9.6 Reconsideration of Individual
Wetland Permit Decisions
Within 15 days of the date of the decision, the applicant,
any person entitled to notice under Section 9.2, or any person who filed
written comments regarding the permit application may request in writing
reconsideration by the Secretary. Such a request shall specify all action(s)
for which reconsideration is sought and shall provide an explanation of the
reason(s) why the request is filed. Where a request for reconsideration has
been properly filed, additional evidence may be submitted concerning the
adequacy of the permit application, the adequacy of mitigation measures, and
any other material issue as deemed appropriate by the Secretary. The Secretary
may appoint a designee who shall be at the Division Director level or higher to
render a decision on the request for reconsideration. The Secretary's written
reconsideration decision shall be issued as expeditiously as possible under the
circumstances, and shall be distributed in accordance with Section 9.4. The
Secretary's written reconsideration decision shall constitute a final act or
decision of the Secretary, subject to appeal pursuant to
10 V.S.A. §
8504 and Section 10 of these Rules.
No request for reconsideration may be filed concerning or
resulting from a request for reconsideration. If the Secretary fails to act on
a request for reconsideration within 20 days of its filing, the request shall
be deemed to be denied.
Filing a timely request for reconsideration with the
Secretary tolls the 30-day period for filing an appeal with the Environmental
Court. The full time for appeal shall commence to run and shall be computed
from the date of the issuance of the Secretary's decision on the
reconsideration request.
9.7 General Permits
The Secretary may issue general permits for discrete
categories of Class II wetlands and for discrete categories of activities or
uses in accordance with the provisions of this section. A general permit shall
be issued for a specified period of time not to exceed five (5) years from the
date of issuance. Authorizations issued by the Secretary pursuant to a general
permit shall be valid for a specified period of time not to exceed five (5)
years.
a. Proposed General Permits
Any proposed general permit shall include the following
information:
(1) A detailed
description of the activities or uses to be authorized.
(2) Any conditions or limitations on the
activities or uses authorized.
(3)
The expiration date of the general permit.
(4) A detailed narrative explaining the
rationale for the proposed general permit and the basis on which the Secretary
has determined that activities eligible for authorization pursuant to the
general permit will comply with these rules and will have no undue adverse
effect on protected functions and values In making this determination, the
Secretary shall evaluate both the direct and immediate effects of any proposed
activity as well as the cumulative or ongoing effects on the significant
wetland. An adverse effect on protected functions, other than a minimal impact,
shall be presumed to constitute an undue adverse effect unless:
(a) The proposed activity cannot practicably
be located outside the wetland or on another site owned, controlled or
available to satisfy the basic project purpose; and
(b) If the proposed activity cannot
practicably be located outside the wetland, all practicable measures have been
taken to avoid adverse impacts on protected functions; and
(c) If avoidance of adverse effects on
protected functions cannot be practically achieved, the proposed activity has
been planned to minimize adverse impacts on the protected functions and a plan
has been developed for the prompt restoration of any adverse impacts on
protected functions.
b. Copies of any documents which the
Secretary has relied upon in the preparation of the proposed general permits
shall be available to the public upon request unless exempt from public
inspection and copying pursuant to
1 V.S.A.
§
317(c).
c. Notice
The Secretary shall publish notice of any proposed general
permit in no fewer than three daily newspapers that collectively circulate
throughout the state. The Secretary shall also provide notice by email to the
Panel and by direct mail or email to all persons requesting such notice prior
to or during the comment period. Copies of any proposed general permit shall be
posted on the Agency of Natural Resources website, and shall be available for
review during normal office hours at the Wetlands Office of the Department of
Environmental Conservation in Waterbury, each regional office of the Agency of
Natural Resources and such other location as the Secretary may direct. The
notice shall:
(1) accurately summarize
the proposed general permit(s);
(2)
indicate where copies can be obtained; and
(3) provide at least 45 days in which to file
written comments and/or to file a written request that the Secretary hold a
public meeting.
d.
Public Meeting Requests
Any request for a public meeting shall be submitted to the
Secretary in writing during the public comment period. The Secretary shall hold
a public meeting if there is a demonstrated interest in such a meeting. The
Secretary shall publish notice of any public meeting at least thirty (30) days
prior to the meeting. Notice shall be given in the same manner as notice of the
draft general permit.
e.
Decision
The Secretary shall provide copies by direct mail or email of
any final general permit and a responsiveness summary addressing all
substantial comments in the final decision to the Panel, to all persons
receiving notice prior to or during the comment period and to all persons who
file timely written comments.
f. Modification of General Permit
The Secretary may modify a general permit after providing an
opportunity for public participation in the same manner as described in Section
9.7(b).
9.8
Application for Authorization Under a General Permit
a. Application.
An applicant for authorization under a general permit shall
submit a completed Notice of Intent (NOI) form with all necessary attachments
and fees, if any, and all other application information required by the general
permit and the Secretary.
The Secretary may require an applicant to submit any
additional information that the Secretary considers necessary in order to make
a decision on the issuance or denial of an authorization under the general
permit. The Secretary may deny coverage if the requested information is not
provided within sixty (60) days of the Secretary's request.
b. Public Notice of Application
Once the Secretary determines that an application for
authorization under a general permit is complete, the Secretary shall provide
public notice to the clerk of the municipality in which the proposed activity
and affected wetland area and buffer are located, shall post notice on the
Environmental Notice Bulletin, and shall provide notice to a list of interested
persons, if any. The Secretary shall request that the notice be posted by the
municipality for no less than ten (10) days.
For a period of ten (10) days following the Secretary's
completion of the public notice requirements specified above, the Secretary
shall provide an opportunity to the public to provide written comment regarding
whether the application complies with the terms and conditions of the general
permit.
The Secretary shall maintain an interested persons list for
those individuals/groups that wish to receive copies of notices of all general
permit applications within the State or within a certain geographic area. Such
notices may be distributed electronically instead of via regular mail.
The period for public comment may be extended at the sole
discretion of the Secretary.
The applicant shall comply with any additional notice
requirements specified in the general permit.
c. Issuance or Denial of Authorizations
If the Secretary determines that an application is complete
and that the proposed activity meets the terms and conditions of the general
permit, the Secretary shall issue an authorization unless the Secretary
determines that an individual permit is required pursuant to Section
9.8(e).
Denials of an authorization shall be issued in writing,
stating the reasons for the denial. If an application is denied for lack of
technical or other information, the Secretary will provide appropriate
information to help the applicant correct the deficiencies and re-apply for an
authorization.
d.
Revocation of an Authorization
The Secretary may, after notice and opportunity for a
hearing, revoke or suspend, in whole or in part, an authorization under a
general permit for cause, including:
1. violation of the terms or conditions of
the general permit;
2. obtaining
authorization by misrepresentation or failure to fully disclose all relevant
facts;
3. a change in any condition
that requires either a temporary or permanent reduction or elimination of the
authorized activity.
e.
Requiring Coverage under an Individual Permit
The Secretary may require a person applying for an
authorization under a general permit to apply for an individual permit. Cases
where an individual permit may be required include the following:
1. the applicant is not in compliance with
the terms and conditions of the general permit;
2. the activity does not qualify for
authorization under a general permit taking into account the location of the
activity, the size of the activity, or the impact of the activity on the
functions of the wetland or buffer zone in question.
f. Requiring Authorization under a General
Permit
The Secretary may require a person applying for an individual
permit to apply for authorization under a general permit provided the Secretary
finds that the activity complies with all conditions of the general permit and
the activity is more appropriately covered under the general permit.
g. Nonreporting General Permits.
The Secretary may, at his or her discretion, issue a nonreporting general
permit.
