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Vermont Wetland Permit (13-VT-c)

In Vermont, a developer may need to obtain a wetland permit for new hydroelectric facilities, hydroelectric transmission extension projects and any other project that disturbs “a significant wetland or its associated buffer zone.”10 V.S.A. § 913(a). The Vermont Department of Environmental Conservation (DEC), a department within Agency of Natural Resources (ANR), is charged with protecting and managing the waters of the State. 10 V.S.A. § 905(b). The DEC’s Watershed Management Division’s(WMD) Wetland Program regulates wetlands in accordance with 10 V.S.A. § 901 et seq., 3 V.S.A. § 2822(j)(26), and Wetland Rules, CVR 12-030-026.


Wetland Permit Process

13-VT-c.1 to 13-VT-c.2 — Is the Project Activity a Allowed Use?

A developer does not need a permit for allowed use activities within a Class I or Class II wetland and their associated buffer zones as determined by the DEC. 10 V.S.A. § 913(a); Wetland Rules, CVR 12-030-026 § 6. Allowed uses include:

  • The operation of existing hydroelectric facilities in accordance with Wetland Rules, CVR 12-030-026 § 6.07. This use may involve dredging, draining and/or altering the flow of water into or out of a wetland;
  • The routine repair and maintenance of utility poles, lines and corridors in a manner which minimizes adverse impacts and is in accordance with Best Management Practices developed by the Secretary of ANR, (Wetland Rules, CVR 12-030-026 § 6.08);
  • 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,(Wetland Rules, CVR 12-030-026 § 6.12);
  • 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, (Wetland Rules, CVR 12-030-026 § 6.13);
  • 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 of ANR. Wetland Rules, CVR 12-030-026 § 6.14. This use may involve dredging, temporary draining, and/or temporarily altering the flow of water into or out of a wetland;
  • 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 of ANR. Wetland Rules, CVR 12-030-026 § 6.15. This use may involve draining and/ or altering the flow of water into or out of a wetland.
  • 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 of ANR, (Wetland Rules, CVR 12-030-026 § 6.16);
  • 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 of ANR and under any applicable state law, (Wetland Rules, CVR 12-030-026 § 6.18);
  • Activities within existing lawns, including mowing, the placement of barbecue pits, sand boxes, bird houses, and other similar activities incidental to ordinary residential use, (Wetland Rules, CVR 12-030-026 § 6.19);
  • The use of pesticides or other biological agents to control mosquitoes when applied according to all applicable state law, (Wetland Rules, CVR 12-030-026 § 6.20);
  • 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 ANR finds in writing that the surface level rules will not result in any undue adverse effect on the protected wetland functions. (Wetland Rules, CVR 12-030-026 § 6.21). This use may involve draining or altering the flow of water into or out of a wetland;
  • 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 of ANR, (Wetland Rules, CVR 12-030-026 § 6.22);
  • Wetland restoration or stream restoration projects, including dam removals, in accordance with a plan approved by the Secretary of ANR, (Wetland Rules, CVR 12-030-026 § 6.23);

Wetland Rules, CVR 12-030-026 § 6.

13-VT-c.3 — Contact District Wetlands Ecologist

The developer must contact a district wetlands ecologist to discuss the proposed project, the Wetland Rules, CVR 12-030-026, and to schedule a site visit. Vermont Wetlands Contact and Inquiry Portal.

13-VT-c.4 — Conduct Site Visit

A district wetlands ecologist from the Watershed Management Division(WMD) of the DEC will conduct a site visit of the developer’s property and review the wetland to assess concerns associated with the project. The ecologist will also discuss with the developer whether an Individual or General Wetland Permit is required. Individual Permit Application Instructions, at 1.

13-VT-c.5 — Wetland Permit Application and Fee

The developer must submit a complete Vermont Wetland Permit/Determination Application (application) and applicable fee to the Vermont Wetland Program. Individual Permit Instructions, at 1; General Wetland Permit Instructions, at 3; Wetland Permit Application Fees. The application serves as the Individual Wetland Permit application and the General Wetland Permit application and notice of intent (NOI). Individual Wetland Permit Instructions, at 1. The developer must complete the sections of the application required for the type of permit sought.

A complete application must include, at minimum, the following:

  • Applicant (developer) or representative and/or landowner’s name, address, and contact information;
  • Applicant (developer) or representative and/or landowner’s signature;
  • A description of the wetland and project location, including the road the wetland is located on, the compass direction of the wetland in relation to the road, 911 street address if available and any other distinguishing geographic features;
  • Site visit date and name of attendees at the site visit;
  • A description of the entire wetland, including:
    • size of wetland complex in acres;
    • natural community types present (emergent wetland, softwood forested swamp, scrub swamp, etc.);
    • landscape position;
    • wetland hydrology, including the direction of flow, influence of hydrology on wetland complex, relation to the project area, and hydroperiod.
  • Description of Subject Wetland as defined as the area of wetland in the project area, but not limited to the portion of the wetland to be directly impacted by the project. A description of the Subject Wetland should include:
    • the context of Subject Wetland, where the wetland is in the context of the larger wetland or wetland complex described above;
    • a list of dominate wetland vegetation, including community type and associated dominant plant species;
    • wetland soils;
    • wetland hydrology;
    • buffer zone, including general land-use, buffer vegetation, and buffer soils.
  • Project Description, including a description of:
    • the overall project;
    • the project purpose;
    • acres owned by the applicant (developer);
    • acres involved in the project.
  • Details regarding specific impacts to the wetland and buffer zone;
  • Details regarding the wetland and buffer zone impacts;
  • Supporting materials, including (if applicable):
    • location map;
    • site plans;
    • U.S. Army Corps of Engineers Delineation Forms;
    • other supporting documents, including easements, agreements, etc.;
    • list of abutters (neighbors with land adjoining wetland or buffer zone).

Wetland Permit/Determination Application, at 1-7; Wetland Rules, CVR 12-030-026 § 9.7(a).

A developer applying for an Individual Wetland Permit, must also provide a copy 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, 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. Wetland Rules, CVR 12-030-026 § 9.2(b).

General Wetland Permit

The developer must obtain a General Wetland Permit for a project that falls within the maximum wetland impact eligibility requirements. Wetland Rules, CVR 12-030-026 § 9.7. Determining what type of permit is required dictates what application materials the developer must submit to the Wetland Program. A project meets the eligibility requirements for a General Wetland Permit if the project is in a Class II wetland and the total area impacted by the project is:

  • Less than 5,000 square feet for linear projects and less than 3,000 square feet for non-linear projects in a Managed Wetland or Buffer Area;
  • Less than 3,000 square feet for linear projects and less than 1,000 square feet for non-linear projects in a Natural Wetland or Buffer Area;
  • Less than 150 square feet of a linear project’s surface water margins from the above mentioned Managed and Natural Areas threshold minimums and less than 150 square feet of a non-linear project’s surface water margins from the above mentioned Managed and Natural Areas threshold minimums. The 150 square feet is not in addition to the Managed Areas or Natural Areas thresholds, but is contained within those thresholds.

Vermont Wetland General Permit (3-9025) Instructions, at 2-3.

A linear project is a project associated with linear facilities, including roads, highways, bike paths, railroads, overhead and underground utility lines, and/or pipelines. Vermont Wetland General Permit (3-9025) Instructions, at 2. A Managed Area is a wetland and buffer area where the land use results in diminished function, including mowed lawns, mowed road shoulders, parking areas, roads, managed pasture, hay fields and/or croplands. Vermont Wetland General Permit (3-9025) Instructions, at 2. A Natural Area is a wetland and buffer area that are naturally vegetated or minimally managed resources where the land use does not result in diminished function, including natural areas, areas used for silvcultural, and/old fields.

Surface water margins are wetlands located along waters of the State (e.g. lakes, rivers, streams). Vermont Wetland General Permit (3-9025) Instructions, at 2. The associated threshold applies to the ten (10) feet of wetland margin as measured from the ordinary high water mark for lakes and ponds, or top of bank for streams. Vermont Wetland General Permit (3-9025) Instructions, at 2. No more than 150 square feet of combined wetland and buffer zone impact is allowed in surface water margins in order to be eligible for coverage under a General Wetland Permit. Vermont Wetland General Permit (3-9025) Instructions, at 2-3. The 150 square feet is not in addition to the other thresholds, but is contained within those thresholds. Vermont Wetland General Permit (3-9025) Instructions, at 2-3.

When calculating the size of the area of impact, the applicant (developer) must include filling, dredging, cutting woody vegetation, and temporary and permanent impacts. Vermont Wetland General Permit (3-9025) Instructions, at 2.

Individual Wetland Permit

A developer must obtain an Individual Wetland Permit for project activities that fall outside the eligibility parameters of a General Wetland Permit, including, but not limited to, the following:

  • Activities within a Class I wetland or buffer zone;
  • Activities affecting wetlands significant for the Rare, Threatened, or Endangered (RTE) Species Habitat function pursuant to Wetland Rules, CVR 12-030-026 § 5.6. This limitation may be waived if the applicant (developer) receives approval from the Department of Fish and Wildlife’s Wildlife Diversity Program;
  • Activities located in or adjacent (within 50 feet) to bogs, fens, or vernal pools;
  • Activities in or adjacent (within 50 feet) to wetlands that are significant for the Exemplary Wetland Natural Community function pursuant to Wetland Rules, CVR 12-030-026 § 5.5. This limitation may be waived if the applicant (developer) receives approval from the Department of Fish and Wildlife’s Wildlife Diversity Program;
  • Activities that the Secretary of ANR finds need additional conditions beyond those in the General Wetland Permit in order to protect the functions and values of the State wetlands;
  • Activities in or adjacent (within 50 feet) to wetlands at or above 2,500 feet in elevation (headwaters wetlands);
  • Unpermitted as-build projects that required a permit and did not obtain one in violation of the Wetland Rules;
  • Activities that have not demonstrated sufficient avoidance and minimization of impacts to the wetland and buffer zone, in accordance with Wetland Rules, CVR 12-030-026 § 9.7(a)(4);
  • Activities that are components of a single project and/or planned phases of a multi-phased project, where the entire project exceeds the eligibility thresholds of the General Wetland Permit;
  • Activities within perennial streams subject to state jurisdiction under Stream Alteration, 10 V.S.A § 1021.

Vermont Wetland General Permit (3-9025) Instructions, at 1.

13-VT-c.6 to 13-VT-c.7 — Review Application Materials for Completeness

Upon receipt of the application the Wetlands Program reviews the developer’s permit application materials and determines if the application is administratively and technically complete. A Wetlands Program representative will notify the developer if the application is complete or incomplete, and whether additional information is needed. Individual Permit Instructions, at 2; General Wetland Permit Instructions, at 7; Wetland Rules, CVR 12-030-026 § 9.2, 9.8.

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 Wetland Permit application. Individual Permit Instructions, at 2; General Wetland Permit Instructions, at 7; Wetland Rules, CVR 12-030-026 § 9.2(c).

13-VT-c.8 to 13-VT-c.9 — Publish Notice of Application

The WMD provides public notice of the applicable permit application materials to the clerk of the municipality in which the proposed activity and affected wetland area and buffer are located. Vermont Wetland General Permit (3-9025) Instructions, at 7; Wetland Rules, CVR 12-030-026 § 9.8(b). The municipality must post the application notice for at least ten (10) days for a General Permit application and fifteen (15) days for an Individual Permit application. Wetland Rules, CVR 12-030-026 § 9.8(b), 9.3.

In addition, the WMD must publish notice of the application:

Vermont Wetland General Permit (3-9025) Instructions, at 7; Wetland Rules, CVR 12-030-026 § 9.8(b).

The notice must, at minimum, include:

  • An accurate summary of the proposed general permit(s) (if applicable);
  • A description of where copies of the application materials can be obtained; and
  • A description of the ten (10) day comment period and how interested parties may file written comments and/or file a written request for a public meeting.

Wetland Rules, CVR 12-030-026 § 9.8(b); Vermont Wetland General Permit (3-9025) Instructions, at 7.

Any interested party may submit written comments to the WMD for ten (10) days from the date of the notice, regarding whether the application complies with the terms and conditions of the General or Individual permit. An interested party or municipality must submit a request for a public meeting to the WMD before the end of the ten (10) day written comment period. Vermont Wetland General Permit (3-9025) Instructions, at 7. The Secretary of ANR may extend the period for public comment. Vermont Wetland General Permit (3-9025) Instructions, at 7; Wetland Rules, CVR 12-030-026 § 9.8(b), 9.2.

Individual Wetland Permit Application

The developer must, also, provide notice to all persons owning property within or adjacent to the affected wetland are or buffer zone. Wetland Rules, CVR 12-030-026 § 9.3.

13-VT-c.10 — Is the Project Eligible for a General Wetland Permit?

The type of permit required dictates not only what application materials the developer must submit to the Wetland Program, but also the subsequent review process. If the project is eligible for a General Wetland Permit go to 13-VT-c.14.

13-VT-c.11 to 13-VT-c.13 — Publish Notice of Public Meeting (if applicable)

The WMD may hold a public meeting, regarding an Individual Wetland Permit application, prior to making a permitting decision. If the WMD decides to hold a public meeting, a representative must publish notice of the public meeting. Wetland Rules, CVR 12-030-026 § 9.3. At the public meeting, interested parties may ask questions and provide oral and written comments regarding the permit application.

13-VT-c.14 — Draft General Wetland Permit

The WMD issues a draft General Wetland Permit after receiving the application materials and subsequent comments on the application. Wetland Rules, CVR 12-030-026 § 9.7. A draft (proposed) General Wetland Permit must include the following:

  • A detailed description of the activities or uses to be authorized;
  • Any conditions or limitations on the activities or uses authorized;
  • The expiration date of the general permit; and
  • A detailed narrative explaining the rationale for the draft (proposed) general permit and the basis on which the Secretary of ANR 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 of ANR must 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, must be presumed to constitute an undue adverse effect unless:
    • 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
    • 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
    • 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.

Wetland Rules, CVR 12-030-026 § 9.7(a)(1)-(4).

13-VT-c.15 to 13-VT-c.16 — Publish Notice of Draft General Wetland Permit

The Secretary of ANR must publish notice of any draft (proposed) General Wetland Permit in no fewer than three daily newspapers that collectively circulate throughout the state and to all persons requesting such notice prior to or during the comment period, via direct mail or e-mail. Wetland Rules, CVR 12-030-026 § 9.7(c). The notice most, at minimum, include:

  • An accurate description summarizing the draft (proposed) general permit(s);
  • A description of where copies of the draft general permit can be obtained; and
  • A description of the forty-five (45) day comment period, and how an interested person may file written comments and/or to file a written request that the Secretary of ANR hold a public meeting. Wetland Rules, CVR 12-030-026 § 9.7(c).

The WMD must also submit a copy of any draft (proposed) General Wetland Permit to ANR, to be posted on ANR’s website. Copies of the permit application must also be available for review during normal office hours at the Wetlands Office of the Department of Environmental Conservation in Waterbury, Vermont, each office of ANR and other locations as the Secretary of ANR may direct. Wetland Rules, CVR 12-030-026 § 9.7(c).

In addition, the Secretary of ANR must provide copies of any documents, which the Secretary has relied on in the preparation of the draft (proposed) general permit(s), upon request unless exempt from public inspection and copying pursuant to 1 V.S.A. § 317(c), Access to Public Records.

Any interested party may submit written comments regarding the draft (proposed) General Permit to the WMD for forty-five (45) days from the date of the draft permit notice. Wetland Rules, CVR 12-030-026 § 9.7(c).

13-VT-c.17 to 13-VT-c.19 — Publish Notice of Public Meeting (if applicable)

The WMD must publish notice of the requested public meeting at least thirty (30) days prior to the meeting. The WMD must hold a public meeting if there is a demonstrated interest in having a meeting. Any interested party requesting a public meeting must submit a request in writing to the Secretary of ANR during the public comment period. The WMD must provide notice of the public meeting in the same manner as the notice for the permit application. Wetland Rules, CVR 12-030-026 § 9.7(d).

At the public meeting, interested parties may ask questions and provide oral and written comments regarding the permit application.

13-VT-c.20 — Does WMD Approve the Permit?

After reviewing the application materials and public comments the WMD will determine whether to issue a Final General or Individual Wetland Permit. Vermont Wetland General Permit (3-9025) Instructions, at 7; Wetland Rules, CVR 12-030-026 § 9.7(e), 9.5.

13-VT-c.21 to 13-VT-c.22 — Wetland Permit Authorization

General Wetland Permit

The Secretary of ANR must provide copies of the permit decision by direct mail or e-mail of any Final General Permit and a responsiveness summary addressing all substantial comments in the final decision to all persons receiving notice prior to or during the comment period and to all persons who file timely written comments. Wetland Rules, CVR 12-030-026 § 9.7(e). The WMD must submit in writing a denial of authorization, stating the reasons for denial to the developer. If an application is denied for lack of technical or other information, the Secretary of ANR provides appropriate information to help the applicant (developer) correct the deficiencies and re-apply for an authorization. Vermont Wetland General Permit (3-9025) Instructions, at 7-8. Authorizations issued by the Secretary of ANR are valid for the specified time, pursuant to the General Wetland Permit, not to exceed five years. Vermont Wetland General Permit (3-9025) Instructions, at 8.

Individual Wetland Permit

A developer applying for an Individual Wetland Permit has the burden to show that a proposed activity in any Class I or Class II wetland or its buffer zone complies with Vermont Wetland Rules and will have no undue adverse effect on protected functions and values. In determining whether this burden is met, the WMD must evaluate the potential effect of any proposed activity 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. Wetland Rules, CVR 12-030-026 § 9.4(a). The WMD must presume that an adverse effect on any protected function, other than a minimal impact, constitutes an undue adverse effect unless:

  • 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
  • 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
  • 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.

Wetland Rules, CVR 12-030-026 § 9.4(b).

The Secretary of ANR must provide notice of the Individual Wetland Permit decision to all persons entitled to receive notice under Wetland Rules, CVR 12-030-026 § 9.2. Wetland Rules, CVR 12-030-026 § 9.4.

13-VT-c.23 — Record Permit Authorization in Local Land Records (if applicable)

The developer must record a General Wetland Permit authorization in the local land records of the town(s) in which all affected lands are located. The developer then must submit a copy of the correspondence with the town(s) certifying that the required recording has been made within thirty (30) days of the permit issuance. Vermont Wetland General Permit (3-9025) Instructions, at 8.

13-VT-c.24 — 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 Vermont Environmental Court. Appeals to the Environmental Division, 10 V.S.A. § 8504(a); Wetland Rules, CVR 12-030-026 § 10




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