Vermont Pre-Existing State Land Use Assessment (13-VT-a)
Pre-Existing State Land Use Assessment Process
13-VT-a.1 to 13-VT-a.2 — Is the Project Located within a Flood Hazard or River Corridor and Exempted from Municipal Regulation?
A developer may need to obtain a General or Individual Flood and River Corridor Permit (Permit) and/or comply with reporting requirements if (1) the project is located in a flood hazard area or river corridor of a municipality that has adopted a flood hazard bylaw or ordinance under 24 V.S.A. § 4302, 4321-4328 and (2) the project is exempted from municipal regulation (most energy projects). Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-103(a)(1).
A flood hazard is the land in a floodplain within a community subject to a one percent or greater chance of flooding in any given year. 10 V.S.A. § 752(3). A flood hazard area is the area as shown on the most current flood insurance studies and maps published by the Department of Homeland Security, the Federal Emergency Management Agency (FEMA), the National Flood Insurance Program (NFIP), and as provided by the Secretary of the Vermont Agency of Natural Resources (ANR) pursuant to 10 V.S.A. § 753. A flood plain means any land area susceptible to being inundated by water from any source. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-201.
A river corridor is defined in accordance with the Vermont Department of Environmental Conservation (DEC) Vermont Flood Hazard Area and River Corridor Protection Procedure pursuant to 10 V.S.A. § 1427.
An exempted project, for the purposes of a Permit, is a development or substantial improvement to structures that a municipality is prohibited from regulation including:
- Public utility power generating plants and transmission facilities regulated under
- Telecommunications facilities regulated under 30 V.S.A. § 248a, (30 V.S.A. § 248a(h));
- Accepted agricultural practices and silvicultural practices, including farm structures as defined by 24 V.S.A. § 4413(d)(1), (24 V.S.A. § 4413(d)); and
- State-owned and operated institutions and facilities. 24 V.S.A. § 4413(a)(2).
13-VT-a.3 to 13-VT-a.4 — Will the Project Disturb a Significant Wetland or Its Associated Buffer Zones?
A developer must obtain an Individual Wetland Permit or General Wetland Permit for projects that will disturb a significant wetland or its associated buffer zone where the project is not an allowed use. 10 V.S.A. § 913(a). A significant wetland is any Class I or Class II wetland, designated by the Vermont Agency of Natural Resources (ANR), pursuant to 10 V.S.A. § 915 and Wetland Rules, CVR 12-030-026 § 2.06-2.08. 10 V.S.A. § 902(11); 10 V.S.A. § 905(b). A wetland includes those “areas of the State that are inundated by surface or groundwater with a frequency sufficient to support significant vegetation or aquatic life, including marshes, swamps, ponds, bogs, and river and lake overflows.” 10 V.S.A. § 902 (5). “A 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). A buffer zone for a Class I wetland extends at least 100 feet from the border of the wetland and 50 feet from the border of a Class II wetland. 10 V.S.A. § 902(9).
A Class I wetland is a wetland that is:
- Identified on the Vermont significant wetlands inventory maps as a Class I wetland; or
- The former Water Resources Board identified in rules of the Board as a Class I wetland; or
- The Secretary of the Agency of Natural Resources (ANR) determines, based on an evaluation of the extent to which the wetland serves the functions and values of 10 V.S.A. § 6025(5)(A)-(K) and Wetland Rules, CVR 12-030-026 § 5, is exceptional or irreplaceable in its contribution to Vermont’s natural heritage and, therefore merits the highest level protection.
See 10 V.S.A § 902(6).
A Class II wetland is a wetland:
- Identified on the Vermont significant wetlands inventory maps; or
- The Secretary of ANR determines to merit protection pursuant to 10 V.S.A. § 914, based upon an evaluation of the extent to which it serves the functions and values set forth in 10 V.S.A. § 905b(18)(A) and the rules of the Department of Environmental Conservation (DEC).
For a complete description of the Vermont Wetland Permit process, see:
13-VT-a.5 to 13-VT-a.7 — Will the Project Encroach Beyond the Mean Water Level of a Lake or Pond?
The developer may need to obtain a Individual Lake Encroachment Permit for any encroachment beyond the mean water level of a lake or pond. 10 V.S.A. § 401. Lakes and ponds that are public waters are a public trust and must be managed to serve the public good. 10 V.S.A. § 401. Encroachments are “any material or structure in any lake or pond…or [material or structure] that alter or cause to be altered the lands underlying any waters.” 10 V.S.A. § 402(3). ANR’s authority to regulate encroachments extends to public waters and the land lying thereunder, but not to land uses that may be ancillary to the encroachment. In re Kent Pond, No MLP-03-10, 8 (Vt. Water Res. Bd. 2004). For more information, see:
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- Wetlands Protection and Water Resources Management, 10 V.S.A. § 901 et seq.
- Municipal Planning and Development, 24 V.S.A. § 4301 et seq.
- Flood Hazard Areas, 10 V.S.A. § 701 et seq.
- Protection of Navigable Waters and Shorelands, 10 V.S.A. § 1401 et seq.
- Certificate of Public Good, 30 V.S.A. § 248
- State Land Use and Development Plans, 10 V.S.A. § 6001
- Flood Hazard Area and River Corridor Rule, CVR 12-030-024
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Vermont Watershed Management Division
River Corridor and Floodplain Manager