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Vermont Lake Encroachment Permit (19-VT-b)

A hydropower developer may need a Lake Encroachment Permit, from the Vermont Agency of Natural Resources (ANR) for projects that encroach upon public lakes and ponds. 10 V.S.A. §§ 401-409. 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). ANR has designated permitting and regulatory authority to the Watershed Management Division (WMD) of the Department of Environmental Conservation (DEC), a department within ANR. The WMD regulates lake and pond encroachments pursuant to 10 V.S.A. §§ 401-409.


Lake Encroachment Permit Process

19-VT-b.1 to 19-VT-b.2 — Will the Project Encroach Beyond the Mean Water Level of A Lake or Pond?

The developer must obtain a Individual Lake Encroachment Permit for any encroachment beyond the mean water level of a lake or pond. 10 V.S.A. § 401. To encroach means to place or cause to be placed any material or structure in any lakes and ponds which are public waters or to alter, or cause to be altered, the lands underlying any waters, or to place or cause to be placed any bridge, dock, boathouse, cable, pipeline, or similar structure beyond the shoreline as established by the mean water level of any lakes and ponds…” 10 V.S.A. § 402(3).

19-VT-b.3 to 19-VT-b.4 — Does an Exemption Apply?

The developer does not need an Individual Lake Encroachment Permit, if the proposed project is regulated under 10 V.S.A. § 1082 or 10 V.S.A §1424. In addition, the developer may not need a Individual Lake Encroachment Permit for “a water intake pipe not exceeding two inches inside diameter,” “temporary extensions of existing structures added for a period that do not exceed six (6) months, if required by low water,” or “ordinary repairs and maintenance to existing commercial and noncommercial structures provided that navigation or boating is not unreasonably impeded.” 10 V.S.A. § 403(b)(2)-(4). For a complete list of exemptions, see: 10 V.S.A § 403(b)(1)-(5).

19-VT-b.5— Individual Lake Encroachment Permit Application and Fee

The developer must submit a complete Individual Lake Encroachment Permit Application and application fee to the Watershed Management Division (WMD) of the Department of Environmental Conservation (DEC), a department of the Agency of Natural Resources (ANR). 10 V.S.A. § 403(a)(1).

19-VT-b.6 to 19-VT-b.7 — Review Application Materials for Completeness

The WMD must review the application for administrative completeness. A complete application includes, at minimum, the following:

  • Name, address, and contact information of the applicant (developer);
  • Location of the encroachment and the name of the lake or pond;
  • A project description including, the type, shape, and size of the encroachment, and the plans and specifications for construction;
  • The purpose of the proposed project;
  • A list of the landowners who abut the proposed project, using the Abbutting Land Owner Addendum;
  • Description of less intrusive feasible alternatives considered and what measures are proposed to reduce adverse impacts on the waterbody;
  • Description of the public benefits of the proposed project; and
  • Description of the encroachment effects on water quality, fish and wildlife habitat, aquatic and shoreline vegetation, consistency with natural surroundings, navigation, recreation, and other public uses.

10 V.S.A. § 404(a); Individual Lake Encroachment Permit. In addition, the developer must grant the WMD permission to enter the developer’s premises for performing “investigations, examinations, tests and site evaluations necessary to verify information contained in the application.” 10 V.S.A. § 404(b).

19-VT-b.8 to 19-VT-b.9 — Publish Notice of Application

The WMD must provide written notice of the application to “abutting property owners, the selectmen of the town in which the proposed encroachment is located, and any other person the WMD considers appropriate.” 10 V.S.A. § 405(a). The notice should include a “brief description of the proposed encroachment and the address where information regarding the project can be found.” 10 V.S.A. § 405(a).

In addition, the notice must include information describing the thirty (30) day written comment period and how interested parties may comment on the application. The notice must also explain how an interested party may request a public meeting regarding the application. 10 V.S.A. § 405(a).

Any interested party may submit written comments to the WMD for thirty (30) days from the date the notice. An interested party or municipality must submit a request for a public meeting to the WMD before the end of the thirty (30) day written comment period. 10 V.S.A. § 405(a).

19-VT-b.10 to 19-VT-b.12 — Publish Notice of Public Meeting (if applicable)

The WMD must publish notice of the requested public meeting. The WMD must hold a public meeting if a municipality, or twenty-five (25) or more persons in interest request a meeting in writing during the thirty (30) day written comment period. 10 V.S.A. § 405(a).

The WMD must provide notice of the meeting to “abutting property owners, the selectmen of the town in which the proposed encroachment is located, all persons who have filed written comments within the comment period and to any other person the WMD considers appropriate.” 10 V.S.A. § 405(a).

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

19-VT-b.13 — Conduct Project Investigation

The WMD conducts a project investigation, either before the application is submitted or during the public comment period. A WMD representative(s) will conduct a site visit with the applicant (developer) and project contractor to review the details of the project.

19-VT-b.14 — Does WMD Approve the Permit?

After reviewing the application materials and public comments, the WMD will determine whether to permit the proposed encroachment. In determining whether the encroachment will adversely affect the public good, the WMD must consider the effect of the proposed encroachment as well as the potential cumulative effect of existing encroachments on:

  • Water quality;
  • Fish and Wildlife habitat;
  • Aquatic and shoreline vegetation;
  • Navigation and other recreational and public uses, including fishing and swimming;
  • Consistency with the natural surroundings; and
  • Consistency with municipal shoreland zoning ordinances or any applicable state plans.

10 V.S.A. § 405(b).

19-VT-b.15 to 19-VT-b.16 — Lake Encroachment Permit Authorization

The WMD will issue an Individual Lake Encroachment Permit, if the WMD determines, after reviewing the application, written comments, and result of the investigation, that the proposed encroachment will not adversely affect the public good. 10 V.S.A. § 405(b).

The WMD must provide written notice to the applicant (developer), the municipality in which the encroachment is located, the abutting property owners and other persons considered appropriate, of the action taken in approving a permit or denying the application. The WMD must provide notice within five (5) days of taking action. The notice must explain the reasons for the action and must include findings as to the effect of the encroachment on each element of the public good set forth in accordance with of 10 V.S.A. § 405(b). 10 V.S.A. § 405(c).

The permit authorization or denial is not effective until ten (10) days after the WMD publishes notice of their determination. 10 V.S.A. § 405(c).

19-VT-b.17 — Appeal Decision (If Applicable)

Any interested person, including the developer may appeal the 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).




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Edit Vermont Watershed Management Division
Environmental Analyst - Lake Encroachment
802-490-6165
kevinabbazabbaburke@vermontabbazabbagov
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Edit Vermont Watershed Management Division
Environmental Analyst
802-490-6199<MANY>802-490-6200
mishaabbazabbacetner@stateabbazabbavtabbazabbaus<MANY>danabbazabbahomeier@stateabbazabbavtabbazabbaus
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