Vermont Stream Alteration Permit (19-VT-h)
Consistent with the reasonable use of riparian rights, water resources in Vermont are regulated in the public interest to protect the natural flow of surface water. 10 V.S.A. §1001. The Agency of Natural Resources (ANR), Department of Environmental Conservation (DEC) manages surface water in Vermont. The DEC has granted the Watershed Management Division (WMD) authority to regulate stream flow pursuant to Regulation of Stream Flow, 10 V.S.A. §1001-1032 and Stream Alteration Rule, CVR 12-030-022.
Stream Alteration Permit Process
19-VT-h.1 to 19-VT-h.2 — Will the Project Change, Alter, or Modify a Perennial Stream?
A developer must obtain a Stream Alteration Permit and/or comply with the applicable reporting requirements if the project changes, alters, or modifies the course, current, or cross section of any water-course or designated outstanding resource waters, within or along the boundaries of Vermont either by movement, fill, or excavation of ten (10) cubic yards or more of instream material in any year. Regulation of Stream Flow, 10 V.S.A. §1021(a); Stream Alteration Rule, CVR 12-030-022 § 301(a). A watercourse is a perennial stream with surface flows that are not frequently or consistently interrupted during normal seasonal low flow periods. Stream Alteration Rule, CVR 12-030-022 § 27-301(b)(1).
19-VT-h.3 to 19-VT-h.4 — Does an Exemption Apply?
If the project evolves a dam, regulated under 10 V.S.A. § 1083, an exemption applies and the developer does not need a stream alteration permit. 10 V.S.A. § 1083; Stream Alteration Rule, CVR 12-030-022 § 302(4). Other exemptions may apply pursuant to 10 V.S.A. § 1021; Stream Alteration Rule, CVR 12-030-022 § 27-302.
19-VT-h.5 to 19-VT-h.6 — Is the Project a Non-Reporting Activity?
The developer must determine whether the project is a non-reporting activity, pursuant to Stream Alteration General Permit, § C.2.1.1. – C.2.1.5, to define permitting requirements. Stream Alteration Rule, CVR 12-030-022 § 27-506(b)(1). Non-reporting activities that are not located in a designated outstanding resource water, are very low impact activities that meet the requirements of 10 V.S.A. § 1023(a) and the Stream Alteration Rule with a high degree of certainty. Activities that meet these requirements may proceed without a permit, regardless of the watershed size. Stream Alteration Rule, CVR 12-030-022 § 27-506(b)(1). A non-reporting activity may be the:
- Removal of human-made debris from a stream channel when the activity will not involve the movement or excavation of ten cubic yards or more of instream material;
- Directional boring of utility crossings involving no earthwork within the water-course;
- Placement of municipal dry hydrants provided the intake is installed within 100 linear feet of a municipal bridge or culvert;
- Construction of at-grade fords provided:
- The ford is constructed perpendicular to the stream channel and is properly stabilized with clean stone fill; and
- No change in existing channel cross-section and bed elevation except for minor bank grading at the point of the crossing.
- Maintenance of existing channelized perennial streams less than 0.5 square miles of watershed size, i.e. those through and around roadsides and agricultural fields, and streams diverted for water supply purposes, provided:
- The maintenance work is conducted in a manner which minimizes or avoids turbidity associated with the activity; and
- If the work is in association with agricultural lands, vegetated buffers required under the Accepted Agricultural Practices (AAPs), Medium or Large Farm Operation Permits, and/or other applicable rules or permits are maintained;
- Erosional channels are appropriately stabilized with vegetative and/or structural treatments;
- Excavated sediments to maintain channel capacity are disposed appropriately;
- The work does not result in existing surface waters being converted to subsurface flows, and
- Project improvements that move toward attainment of the performance standards outlined in Stream Alteration General Permit, § B.3.2, are implemented wherever feasible.
In addition, non-reporting activities must be conducted between July 1 and October 1 and in a manner that minimizes or avoids turbidity associated with the activity. Stream Alteration Rule, CVR 12-030-022 § 27-506(b)(1); Stream Alteration General Permit, § C.2.1..
19-VT-h.7 to 19-VT-h.8 — Is the Project a Low Risk Activity that Meets the Stream Alteration Standards?
The developer may not need to file a formal permit application, if the project is a reporting activity, but represents a low impact, low risk activity, and meets the stream alteration standards pursuant to 10 V.S.A. § 1023(a) with a high degree of certainty. Stream Alteration General Permit, § C.2.2; Stream Alteration Rule, CVR 12-030-022 § 27-506(b)(3).
The developer should contact a River Management Engineer with the Watershed Management Division (WMD) to determine whether their reporting activity qualifies for an expedited permitting process. After considering the risk factors pursuant to Stream Alteration General Permit, § G.10(a) in conjunction with the details about the proposed project the WMD will determine whether the proposed project qualifies for an expedited permitting process. If the WMD determines that the project does not need to file a formal application, the developer may proceed with the project after receiving written authorization from the WMD, pursuant to Stream Alteration General Permit, § C.2.2.6.
19-VT-h.9 to 19-VT-h.11 — Will the Project Disturb More than 10 Miles of Watershed at the Point of Alteration?
A developer must obtain a Stream Alteration Individual Permit (Individual Permit) for any project that disturbs more than ten (10) square miles of a watershed at any point of alteration. Stream Alteration Rule, CVR 12-030-022 § 27-601. The developer must obtain a Stream Alteration General Permit (General Permit) for projects that disturb ten (10) square miles or less, or if the WMD finds that additional information and public notice is required before they can make a low risk determination. Stream Alteration General Permit, § C.2.2; Stream Alteration Rule, CVR 12-030-022 § 27-506(b).
The WMD will issue a Stream Alteration General Permit if the change will not adversely affect public safety, significantly damage fish life, wildlife, or the rights of riparian owners, or adversely affect the value of designated outstanding resource waters pursuant to 10 V.S.A. § 1023(a). Outstanding Resource Waters, 10 V.S.A. §1424a; Stream Alteration Rule, CVR 12-030-022 § 402(a)(1)-(4).
19-VT-h.12 to 19-VT-h.13 — Review Application Materials for Completeness
The developer must submit, to the WMD, a complete application with all necessary attachments and fees and all other application information required by the WMD. The application, at minimum, must contain:
- The contact information of the developer, contractor(s), and landowner(s);
- A written description of the proposed project;
- A description of the location, including a map, and the purpose of the change;
- Documentation of a stream crossing as necessary to demonstrate that activity specific requirements are met, including documentation of structure repair and replacement cost for proposed structure repair projects;
- Documentation showing that any proposed changes to stream forms, geomorphic conditions, the horizontal alignment of streambanks, or the vertical profile of the stream bed will not alter channel hydraulics and thereby increase erosion on the streambank or cause a change in natural stream processes.
The Secretary of ANR may require the developer to submit any additional information that the Secretary considers necessary in order to make a decision on the issuance or denial of authorization. The Secretary of ANR may deny authorization under the general permit if the project developer does not provide the requested information to the Secretary within sixty (60) days of the Secretary’s request. Stream Alteration Rule, CVR 12-030-022 § 27-506(b)(5).
19-VT-h.14 to 19-VT-h.15 — Publish Notice of the Application
The developer must provide notice of the application, once the WMD determines that the application is complete, by providing a copy of the application to:
- The clerk and select persons of the municipality in which the activity is proposed;
- The local and regional planning commissions; and
- To the owners of the property which abuts or is opposite the land where the alteration is to take place.
The developer must provide a copy of the notice to the WMD. Following the receipt of the notice, the WMD must post the notice on ANR’s website and provide an opportunity for at least ten (10) working days for written comment for an Individual Permit Application and three (3) days for a General Permit Application regarding whether the application complies with the terms and conditions of the permit. Stream Alteration Rule, CVR 12-030-022 § 27-506(c), 27-602(c).
The Secretary of ANR may provide additional notice of a Stream Alteration Individual Permit and may conduct a public meeting to receive additional public comment. Stream Alteration Rule, CVR 12-030-022 § 27-506(c), 27-602(c).
19-VT-h.16 — Draft Permit
The WMD will issue a draft permit after reviewing the application materials and public comments. Stream Alteration Rule, CVR 12-030-022 § 503(a).
19-VT-h.17 to 19-VT-h.18 — Publish Notice of Draft Permit
After preparing a draft permit, the WMD must provide notice of the draft within each geographic area to which the permit would apply and must include, at least, all of the following:
- Written notice to the clerks of the municipalities in the geographic area covered by the permit;
- Written notice to each affected Vermont state agency and such other government agencies as the Secretary of ANR deems appropriate;
- Publication of notice of the proposed permit in a newspaper or newspapers that circulate generally within each geographic area to which the permit would apply;
- Posting of the notice and a copy of the permit on ANR’s webpage;
- Mailing notice and a copy of the proposed permit to any individual, group, or organization upon request; and
- Mailing a copy of the notice and a copy of the proposed permit to the chairs of the House Committees on Commerce and Economic Development; Fish, Wildlife and Water Resources; and Natural Resources and Energy; and the Senate Committees on Economic Development, Housing and General Affairs and on Natural Resources and Energy. With this mailing, the Secretary of ANR must also include a brief summary of any scientific information on which the proposed permit is based. If the Secretary of ANR proposes to amend a permit previously issued, the Secretary must also include an annotated text showing changes from the existing permit.
The notice of the draft permit must:
- Accurately summarize the proposed permit, including a summary of eligible activities and its terms and conditions;
- Indicate how and where copies of the proposed permit can be obtained and information on the procedure for submitting comments and requesting a public information meeting;
- Contact information; and
- The deadline for submission of comments and the request for a public information meeting.
The WMD must provide a thirty (30) day public comment period following the date of the publication in the newspaper of general circulation. Any person may submit written comments on the draft permit. Stream Alteration Rule, CVR 12-030-022 § 27-503(c).
19-VT-h.19 to 19-VT-h.21 — Publish Notice of Public Meeting (if applicable)
The Secretary of ANR must hold a public meeting if there is a request for such a meeting or if the Secretary decides to do so. Any request for a public meeting must be submitted to the Secretary of ANR in writing no later than the end of the thirty (30) day public comment period. The Secretary of ANR must publish notice of any public meeting at least thirty (30) days prior to the meeting. Stream Alteration Rule, CVR 12-030-022 § 27-503(d).
Notice of the public meeting must be given in the same manner as notice of the draft permit, except that the Secretary of ANR does not need to set a new comment deadline or provide, with the notice of the meeting, the copy of the proposed draft permit to any person or entity to which the Secretary has already provided a copy. Stream Alteration Rule, CVR 12-030-022 § 27-503(d).
During the public meeting any person may ask clarifying questions and submit oral or written statements and data concerning the proposed permit. The Secretary of ANR must retain all statements, and data presented at the meeting and consider the information when formulating the Secretary’s determinations regarding the final permit. Stream Alteration Rule, CVR 12-030-022 § 27-503(d).
19-VT-h.22 — Does WMD approve the permit?
The WMD may issue or deny a final permit following the consideration of any written comments submitted, oral statements, comments, and data presented during the public comment period and at the public information meeting. Stream Alteration Rule, CVR 12-030-022 § 27-503(e).
The WMD must apply the equilibrium and connectivity performance standards in accordance with Stream Alteration Rule, CVR 12-030-022 § 27-402(b) to determine whether or not a proposed activity meets the criteria for permit issuance in 10 V.S.A. § 1023(a). The WMD must evaluate the proposed activity on the basis of both its direct, immediate, and cumulative effects on the watercourse when determining whether the developer has met the burden to show that the proposed activity complies with the rules, regulations and requirements of a General or Individual Permit. Stream Alteration Rule, CVR 12-030-022 § 27-402(d)(1); Stream Alteration Rule, CVR 12-030-022 § 27-601(f).
19-VT-h.23 to 19-VT-h.24 — Stream Alteration Authorization
If the WMD decides to issue a permit over substantial arguments and considerations raised for or against the original proposal, the Secretary must include a responsiveness summary with the final permit. The responsiveness summary must include the reasons for the WMD’s decision. Stream Alteration Rule, CVR 12-030-022 § 27-506(e).
If the WMD issues a final permit, the Secretary must provide notice of the permit’s final adoption and any accompanying responsiveness summary. The WMD must provide notice in at least the same manner as notice of the draft permit was issued, except that the Secretary does not need to set or include further deadlines for comment or for requesting an informational meeting. Stream Alteration Rule, CVR 12-030-022 § 27-503(f).
If the WMD denies a request for a permit authorization, the Secretary must notify the developer in writing, stating the reasons for the denial. Stream Alteration Rule, CVR 12-030-022 § 27-506(d)(5).
In addition, the WMD must provide notice of the authorization or denial under a General or Individual Permit to the clerk and selectperson of the municipality in which the activity is proposed, to the local and regional planning commissions, and to the owners of the property which abuts or is opposite the land where the alteration is to take place, and on ANR’s website. Stream Alteration Rule, CVR 12-030-022 § 27-506(d)(6). Further, for an Individual Permit authorization or denial the WMD, must also, notify any person who filed written comments on the application. Stream Alteration Rule, CVR 12-030-022 § 27-601(e).
14-VT-d.25 — Appeal Decision (If Applicable)
Any interested person, including the applicant (developer) may appeal the permit decision within thirty (30) days of the determination by ANR to the Vermont Environmental Court. Appeals to the Environmental Division, 10 V.S.A. § 8504(a).
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