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Vermont Flood Hazard and River Corridor Permit (13-VT-b)

In Vermont, a developer may need to obtain a Flood Hazard and River Corridor Permit (Permit) for hydroelectric projects located in a flood hazard area or river corridor of a municipality that is exempted from municipal regulation. For example, if the hydroelectric project is regulated pursuant to 30 V.S.A. § 248 the activity is exempt from municipal regulation, and needs a Flood Hazard Area & River Corridor Permit if located within a flood hazard area or river corridor. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-103(a)(1). For more information regarding projects exempt from municipal regulation, see: Vermont Flood Hazard Area & River Corridor General Permit.


The policy in Vermont is to “balance the need to protect new and existing investments from flood hazards with the need to protect natural and beneficial floodplain functions to reduce property loss and damage. 10 V.S.A. § 751; 10 V.S.A. § 1421; Flood Hazard Area and River Corridor Rule, CVR 12-030-024 §102. The Agency of Natural Resources (ANR) is charged with regulating potential flood hazards within the State. 10 V.S.A. § 753. ANR has delegated permitting authority to the Department of Environmental Conservation’s (DEC) Watershed Management Division(WMD). The WMD regulates flood hazards and river corridors in accordance with 10 V.S.A. § 751; 10 V.S.A. § 1421; and Flood Hazard Area and River Corridor Rule, CVR 12-030-024.

The WMD must also regulate flood hazards and river corridors in connection with the Connecticut River Valley pursuant to the Connecticut River Flood Control Compact, 10 V.S.A. §§ 1151-1198(Compact). As a party to the Compact, Vermont must ensure that any hydroelectric power development in the Connecticut River Valley complies with the capacity levels set for designated flood control storage areas. Connecticut River Flood Control Compact, 10 V.S.A. §§ 1151-1198.


Flood Hazard and River Corridor Permit Process

13-VT-b.1 to 13-VT-b.2 — Does an Exemption Apply?

A developer does not need to obtain a General or Individual Permit or comply with reporting requirements for:

  • The removal of a structure or the removal of any other improvement to property in whole or in part that is located in a flood hazard area or river corridor, so long as the ground elevations under and adjacent to the removed structure or improvement remain unchanged;
  • Maintenance or repair of development in the usual course of business. This does not include substantial improvements to structures; and
  • Repair, maintenance, replacement, or reconstruction of transportation and utility networks provided that they are of approximately the same vertical and horizontal dimension. This exemption includes the repaving of transportation networks.

Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-302.

The developer should contact an ANR Regional Floodplain Manager to confirm or determine whether an exception or exemption applies. Flood Hazard Area & River Corridor Permit Guidance, at 2.

13-VT-b.3 — Is the Project Activity Prohibited?

The Vermont Watershed Management Division may authorize or permit certain project activities that are generally prohibited in a floodway or Vermont Agency of Natural Resources (ANR)-designated river corridor upon condition. If the project activity falls under a prohibition, that has a subsequent exception, the developer must comply with applicable conditions, in addition to applying for a permit or authorization under a General Permit.

Prohibitions

  • Development exempt from municipal regulation and located in the flood hazard area or river corridor must not have fully enclosed areas that are below grade on all sides (including below grade crawlspaces and basements). There are no exceptions to this prohibition;
  • Development in a Federal Emergency Management Agency (FEMA)-designated floodway or ANR-designated river corridor is generally prohibited unless it meets the exceptions specified below in 13-VT-b.4.

Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-303(a)-(c).


13-VT-b.4 — Is There an Exception to the Prohibited Project Activity?

Development in a FEMA-designated floodway or ANR-designated river corridor is generally prohibited unless it meets the exceptions specified below:

Floodway Exceptions

  • Hydrologic and hydraulic analyses performed in accordance with standard engineering practice, by a registered professional engineer, certifying that the proposed development will not increase base flood elevations or velocities. The Secretary of ANR has determined that hydrologic and hydraulic analyses conducted in accordance with FEMA's Guidelines and Standards for Risk Analysis and Mapping are standard engineering practices; or
  • Concurrence and approval from FEMA through the Conditional Letter of Map Revision review process confirming that the proposal meets the requirements of NFIP in 44 C.F.R. § 60.3(d)(3) or (d)(4).

River Corridor Exception

  • The redevelopment and infill development is within designated centers and farm production areas provided that the distance between the redevelopment or infill development and the river or stream is no less than the shortest distance between immediately adjacent existing above ground development and such river or stream or, pursuant Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-303(a)-(b), if the Secretary of ANR determines that the proposed redevelopment or infill development will not cause or contribute to fluvial erosion hazards. Outside of designated centers and farm production areas, development is allowed within the river corridor if the Secretary of ANR determines that the proposed development will not cause or contribute to fluvial erosion hazards. The Secretary of ANR must find that a proposed development will not:
    • cause the river reach to depart from or further depart from the channel width, depth, meander pattern, and slope associated with natural stream process and equilibrium conditions; and
    • result in an immediate need or anticipated future need for stream channelization, as a result of the proposed development, that would increase flood elevations and velocities or alter the sediment regime triggering channel adjustments and erosion in adjacent and downstream locations.
  • Bridges, culverts, utility crossings, and associated transportation and utility networks; dams; and functionally dependent uses that must be placed in or over rivers and streams. "Associated transportation and utility networks" means those transportation and utility networks connected to a bridge, culvert, or utility for the purpose of crossing a river or stream and do not include transportation or utility networks within the river corridor that merely run parallel to a river or stream;
  • Public water accesses, if the applicant (developer) demonstrates and the Secretary of ANR finds that the recreational area provides access to the water for the general public and promotes the public trust uses of the water. The Secretary of ANR may require additional permit conditions that further the purpose of Flood Hazard Area and River Corridor Rule, CVR 12-030-024, including conditions that prohibit the State from actively managing the section of river associated with the public water access and requiring that the river be allowed to attain the channel width, depth, meander pattern, and slope associated with its equilibrium condition; and


Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-303.

The developer should contact an ANR Regional Floodplain Manager to confirm or determine whether an exception or exemption applies. Flood Hazard Area & River Corridor Permit Guidance, at 2.

13-VT-b.5 to 13-VT-b.6 — Does the Project Qualify as a Non-Reporting Activity?

Vermont has adopted a General Permit to streamline permitting of activities subject to the Flood Hazard Area & River Corridor Rule. Activities fall into the categories of non-reporting, reporting without application, and reporting with application, depending on the scale and potential impact of a proposed activity. Activities not eligible for coverage under the General Permit will require an Individual Permit. The General Permit, and associated permit application forms may be found at the Vermont Watershed Management Rivers Program Website.

The developer does not need to submit a General or Individual Permit application for projects that qualify as a non-reporting activity. A non-reporting activity is considered a very low impact activity that meets the Flood Hazard and River Corridor Standards, CVR 12-030-024 § 29-401 with a high degree of certainty. If the project is considered a non-reporting activity and is conducted in compliance with all the applicable terms and conditions of a General Permit, the project is automatically covered by a General Permit. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-502(b). Projects that are considered non-reporting activities include, but are not limited to, the following:

  • Fencing that will not impede floodwater movement;
  • Construction and maintenance of temporary erosion and sediment control practices that do not result in fill material placed within the flood hazard area and river corridor;
  • At-grade driveways, trails, and sidewalks or other at-grade development within the flood hazard area that is not located in the river corridor. At-grade development includes development that does not alter existing ground elevations and will have a minimal effect on floodwater storage and conveyance;
  • Activities, including farming, forestry, tree planting, and landscaping, when such activities do not involve the placement of structures or other above ground improvements, or earthwork that permanently alters ground elevations (e.g. fill, retaining walls, and terraces); and
  • Recreational vehicles, equipment and boat trailers, portable toilets, and construction trailers placed in the flood hazard area that are currently registered, licensed, and ready for highway use.

Flood Hazard Area & River Corridor Permit Guidance, at 3; Flood Hazard and River Corridor Standards, CVR 12-030-024 § 29-504(b)(2).


The developer should contact an ANR Regional Floodplain Manager if they are unsure whether their project will be in compliance with the Flood Hazard and River Corridor Standards, CVR 12-030-024 § 29-401.

13-VT-b.7 — Does the Project Qualify as a Reporting Activity Not Requiring a Permit Application?

The developer does not need to submit a General Permit or Individual Permit application, but only a Notice-Reporting without Application Category Form for certain projects considered a reporting activity. The following reporting activities are eligible for an expedited permitting process and the developer only has to submit a Notice-Reporting without Application Category Form:

  • Temporary storage (< 180 days) of materials and temporary construction staging areas that are not located in the floodway. For the purposes of a General Permit, “materials” means those items that are not enclosed in a structure or anchored, and may be mobilized during a flood. Examples include stockpiles of topsoil, sand, gravel, crushed asphalt, lumber, or loose construction or demolition material;
  • Recreational vehicles, equipment and boat trailers, portable toilets, and construction trailers placed in the flood hazard area temporarily (< 180 days) and are not currently registered, licensed, and ready for highway use;
  • Temporary fuel storage containers (onsite for < 180 days) that are that are not located in the floodway;
  • Replacement fuel storage tanks in the flood hazard area or river corridor that are not closer to the river than the pre-existing fuel storage tank and, if in the flood hazard area, meet the Flood Hazard and River Corridor Standards, CVR 12-030-024 § 29-401;
  • New below grade utility networks located in a flood hazard area that do not change the ground elevations and that are not located in the river corridor;
  • Renovations or repairs to existing structures with a value less than $5,000 that do not include exterior additions;
  • Streambank armoring and stabilization that does not reduce the cross-sectional flow area of the river or stream channel and, where applicable, meets the requirements of the Stream Alteration Rule, CVR 12-030-022;
  • New bridges and culverts, or replacement bridges and culverts that do not qualify for the exemption in Flood Hazard and River Corridor Standards, CVR 12-030-024 § 29-302, that are in the river corridor and not within a mapped flood hazard area and meet the requirements of the Stream Alteration Rule, CVR 12-030-022;
  • New utility network crossings that aerially span the width of the river corridor and are within the flood hazard area and that meet the Flood Hazard and River Corridor Standards, CVR 12-030-024 § 29-401; and
  • New below grade utility network crossings that meet the following requirements:
    • for streams draining greater than two square miles, the crossing will be set below grade at a minimum depth of 10 feet below the depth of the stable longitudinal profile of the stream bed for the width of the meander belt component of the river corridor, pursuant to Vermont Flood Hazard Area and River Corridor Protection Procedure; and
    • for streams draining less than two square miles, the crossing will be set below grade a minimum depth of five feet below the depth of the stable longitudinal profile of the stream bed for the width of the river corridor. For streams draining less than two square miles, a fifty-foot set back from each side of the stream’s top of bank shall constitute the river corridor.

Flood Hazard Area & River Corridor Permit Guidance, at 4-5.


13-VT-b.8— Notice-Reporting without Application Form

The developer must submit a Notice-Reporting without Application Category Form (Notice Form) to the Watershed Management Division (WMD). The Notice Form must, at minimum, include:

  • A map clearly showing the location of the proposed activity. To expedite review and authorization, the developer should provide a map generated from the ANR Natural Resources Atlas showing the river corridor and flood hazard area;
  • A written description of the proposed project, landowner, contractors, and consultants with contact information. The written description should clearly indicate which project activity will be conducted as a report activity not requiring an application and how it will meet the Flood Hazard and River Corridor Standards, CVR 12-030-024 § 29-401.

Flood Hazard Area & River Corridor Permit Guidance, at 5.

13-VT-b.9 — Does the Project Qualify as a Reporting Activity Requiring a General Permit Application?

The developer must submit a General Permit Application for the following project activities:

  • Improvements or repairs to structures in the flood hazard area, costing less than 50% of the fair market value of the structure;
  • Construction or placement of accessory structures less than 500 square feet in size in the flood hazard area, but not in the floodway or river corridor and that meet the Flood Hazard Area Standard pursuant to Flood Hazard Area & River Corridor Permit Guidance, at 6;
  • New development that is located outside of the flood hazard area, but within the river corridor that complies with the requirements of Appendices A or B of the Vermont Flood Hazard Area and River Corridor Protection Procedure or that is within a designated center or farm production area and is not any closer to the river than the immediately adjacent development. The Secretary of ANR has determined that projects that meet the criteria of Appendices A or B of the Vermont Flood Hazard Area and River Corridor Protection Procedure also meets the “no adverse impact” River Corridor Performance Standard, pursuant to Flood Hazard Area & River Corridor Permit Guidance, at 6.
  • Restoration projects to restore natural floodplain function including berm removal, natural channel design, floodplain excavations, wetland habitat improvements, and dam removal.

Flood Hazard Area & River Corridor Permit Guidance, at 5.

13-VT-b.10 — General Permit Application

A developer must submit a General Permit Application with all necessary attachments and fees for reporting activities that require an application. Flood Hazard and River Corridor Standards, CVR 12-030-024 § 29-502(b)(4). The application must, at minimum, include:

  • A map clearly showing the location of the proposed activity. To expedite review and authorization, the developer should provide a map generated from the ANR Natural Resources Atlas showing the river corridor and flood hazard area;
  • A written description of the proposed project, landowner, abutting landowners, contractors, and consultants with contact information. The written description should clearly indicate which project activity will be conducted as a reporting activity requiring an application and how it will meet the Flood Hazard and River Corridor Standards, CVR 12-030-024 § 29-401; and
  • For improvements or repairs to existing structures, the costs of materials, labor, and, for work in excess of $5000, an estimate of fair market value (recent appraisal or tax assessment).

General Permit Application.

13-VT-b.11 — Individual Permit Application

A developer must submit a Individual Permit Application, all necessary attachments, and fees to WMD for any project activity where an exemption or exception does not apply (Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-302, 303) and the project does not otherwise qualify for a General Permit. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-601. An Individual Permit application must, at minimum, include:

  • The applicant’s (developer) name, address, and contact information;
  • The landowner’s (if different than applicant (developer)) name, address, and contact information;
  • Consultant or designer and contractor name, and contact information;
  • The physical location of the project, including flooding source;
  • A general description of the proposed project;
  • Estimated cost of improvements or repairs (materials and labor);
  • A map clearly showing the location of the proposed activity. To expedite review and authorization, the developer should provide a map generated from the ANR Natural Resources Atlas showing the river corridor and flood hazard area;
  • Site plan(s) and schematics showing the following:
    • existing and proposed contours/elevations on the property in the same elevation datum as the most recent and effective NFIP Flood Insurance Rate Map (FIRM);
    • location of any proposed fill and/or excavation for the project;
    • NFIP Floodway delineation; NFIP Flood Fringe delineation boundary, Base Flood Elevation, ANR River Corridor Boundary;
    • a scale bar, evaluation datum conversions (where appropriate), and north arrow;
    • clearly labeled features including relevant landmarks, roadway names, stream names, and existing and/or proposed: buildings, utility/water infrastructure, and roads or driveways;
    • foundation and anchoring details, including extent of foundation walls and footings below grade, anchoring design specifications, and size and location of flood opening/vents;
  • A FEMA Elevation Certification for proposals involving new or substantially improved structures;
  • A FEMA Floodproofing Certification for proposals involving dry-floodproofing in lieu of elevation; and
  • Mechanical, electrical, and plumbing details.

Individual Permit Application, at 1-2.

13-VT-b.12 to 13-VT-b.13 — Review Application Materials for Completeness

Upon receipt of the application, the WMD reviews the developer’s Individual or General Permit application materials and determines if the application is administratively and technically complete.

The WMD will notify the developer if the application is complete or incomplete, and whether additional information is needed. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-601(b)(2); Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-506(b)(5).

If additional information is requested, the developer has sixty days (60) to provide the information. If the developer does not provide the requested information within sixty (60) days the Secretary of ANR has the authority to deny the permit application. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-601(b)(2); Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-506(b)(5).

13-VT-b.14 to 13-VT-b.15 — Publish Public Notice of Application

General and Individual Permit Applications

The "developer must provide a copy of the permit application to:

  • The clerk of the municipality in which the project is proposed;
  • The local and regional planning commissions; and
  • The owners of land adjoining the site of the proposed project activity.”

By signing the permit application form, the developer is certifying that a copy of the application has been provided to the above parties.

Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-505(c)(1) and (c)(2) and § 29-601(c).

Following receipt of the notice, the Secretary of ANR must post the notice on the ANR’s website and provide an opportunity for at least a ten (10) working day written comment period regarding whether the application complies with the terms and conditions of the General permit under which coverage is sought or whether an Individual permit application complies with the requirements of the Flood Hazard Area and River Corridor Rule. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-505(c)(3).

Any interested party may submit written comments to the WMD within the ten business (10) day public notice period, regarding whether the application complies with the terms and conditions of the General or Individual permit. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-505(c)(3). Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-601(d). The Secretary of ANR may extend the period for public comment. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-505(c)(3). Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-601(d).

For Individual Permit applications, the Secretary of ANR has the discretion to provide additional notice of the permit application and may conduct a public meeting to receive additional public comment. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-601(d).

13-VT-b.16 — Does WMD Approve the Permit?

The WMD must approve an Individual Permit or authorize an activity covered by the the General Permit if a project:

Flood Hazard Area & River Corridor Permit Guidance.

The WMD must follow the standards pursuant to Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-401(c) to determine whether the project meets the permit issuance criteria above. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-401(c)(1)-(6), (d).

General Permit

The developer has the burden to show that the proposed project complies with Flood Hazard Area and River Corridor Rule, CVR 12-030-024, the standards set forth in the Flood Hazard Area and River Corridor Rule, CVR 12-030-024, and any requirements in the General Permit applicable to the proposed project. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-506(d). The Secretary of ANR may issue an authorization for an activity eligible under the General Permit after determining that each of the following applies:

  • The activity is eligible for coverage under and will meet the terms and conditions of the General Permit; and

The Secretary of ANR may deny a request for a General Permit authorization and require application for an Individual Permit as provided in Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-601.

13-VT-b.17 to 13-VT-b.18 — Permit Authorization

The Secretary of ANR will notify the developer of an issuance or denial of an authorization under a General or Individual Permit in writing. If the Secretary of ANR denies the authorization under a General or Individual Permit, the Secretary ANR must state the reasons for the denial in writing. The Secretary of ANR must also provide notice of the issuance or denial of the permit to the clerk of the town in which the project is located and each abutting landowner and to any person who files written comments on the application.

Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-506(d)-(e). Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-601(e)(2)-(f).

Authorizations under a General Permit are valid for a period of three (3) years from the date of issuance, unless the Secretary of ANR specifies a shorter time period. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-504(b). An Individual Permit is valid for five (5) years, unless the Secretary of ANR specifies a shorter time period.

13-VT-b.19 to 13-VT-b.20 — Record Permit Authorization in Local Land Records (if applicable)

A developer must record the authorization of a General Permit in the land records of the municipality in which the permitted project is located, if the authorization is for an indefinite term. General Permits are currently issued for three-year periods. The developer must record the authorization within thirty (30) days of the issuance of the authorization. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-504(b).

The developer must, also provide a copy of the recording to the Secretary of ANR within thirty (30) days of the developer’s receipt of the copy of the recording from the local land records. Flood Hazard Area & River Corridor Permit Guidance, at 9-10.

13-VT-b.21 — Appeal Decision (if applicable)

The developer and any interested person may appeal a permit authorization decision within thirty (30) days of the determination by WMD to the clerk of the Environmental Division of the Superior Court. Appeals to the Environmental Division, 10 V.S.A. § 8504(a); Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-701.




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