Introduced by Senator Bartlett of Lamoillecounty and Senator Gossens of Addisoncounty

BILL AS INTRODUCEDS.286

2004Page 1

S.286

Introduced by Senator Bartlett of LamoilleCounty and Senator Gossens of AddisonCounty

Referred to Committee on

Date:

Subject: Conservation; Act 250; agency of natural resources permits

Statement of purpose: This bill proposes to reform comprehensively Vermont’s regulatory process by enacting a chapter that would establish a standard process for administering permitting programs under the agency of natural resources as well as the land use permitting process under Act 250. This standard establishes three categories of permits: Class I, ClassII, and Class III. All three classes are then made subject to provisions relating to initial project review and appropriate coordination and sequencing of further review. Project scoping would take place, upon the initiative of the applicant, on request of the secretary of natural resources or if the project will require an Act 250 land use permit. The scheduling of a scoping conference would be noticed, it would be attended by specified persons ready to explain the project, and it would be followed up by the issuance of a scoping report. This chapter also would require that an environmental notice bulletin be maintained on the agency’s website; it requires that in the case of Class I or II permits there be supplemental notice of all decisions. In the case of Class I permits, the bill proposes also to require supplemental notice of the issuance of a draft permit and the opportunity to request a public information meeting on the draft permit. It proposes to require that each Class I or Class II project include notice in the form of a sign to be posted along a highway closest to the location of the project to be permitted. It proposes to consolidate all state environmental permit appeals at a revised environmental board. It would standardize who can intervene in a pending appeal by means of language more closely aligned with the standard for intervention established in Rule 24 of the Vermont Rules of Civil Procedure.

The bill also proposes to repeal the solid waste and air quality variance board, assign its functions to the secretary of natural resources, and provide that appeals from variance decisions be taken to the environmental board instead of the environmental court. The bill proposes to repeal the waste facilities panel and the water resources board and assign their functions to the environmental board. It proposes to revise the environmental board so as to create two panels, an Act 250 panel of five persons chaired by the board chair, and a natural resources panel of five persons chaired by the board vice chair (previously the chair of the water resources board). The Act250 hearing panel would hear appeals of district commission decisions on land use permits. The natural resources panel would hear appeals of decisions of the secretary of natural resources. In instances in which both an agency of natural resources permit and an Act 250 permit related to the same project are appealed, the appeals would be heard in a single proceeding by a combined hearing panel established by the bill. The environmental board, acting as a whole, would adopt overall rules of procedure. The natural resources panel would have the power to amend substantive rules currently adopted by the water resources board with respect to matters that include: wetlands, surface water levels, surface water uses, and water quality standards. That panel would also consider petitions to designate outstanding resources waters. For continuity during transition, existing members of the water resources and environmental boards would be assigned to the related panel of the revised board, and existing staff resources would be consolidated. Future appointments of board members would be selected from among candidates deemed qualified by the judicial nominating board. By January 1, 2005, the position of vice chair would become a fulltime position.

In other Act 250 changes, the bill proposes to revise party status in a manner that would eliminate the environmental board’s authority to identify party status by rule and replace that authority, in part, with statutory definitions of the words “party”and “aggrieved person.” It proposes to revise the Act 250 criteria to require compliance with applicable water resources board rules. It proposes that when a project requires an Act 250 permit as well as an agency of natural resources permit that creates a rebuttable presumption under Act 250, the relevant Act 250 criteria shall be used in the agency review and need not be considered by the district commission. It proposes to make regulatory decisions consistent by making board decisions binding on the district commissions and the secretary of natural resources.

The bill proposes to reinvigorate and increase the responsibilities of the state planning office, and require the director of state planning to: work with the council of regional commissions and with state agencies to update state agency plans; establish guidelines with respect to development near interstate interchanges; and provide analyses with respect to the impact of state expenditures. The bill proposes to strengthen the development cabinet’s capability to address sprawl. The bill also proposes to address sprawl through creation of growth opportunity centers where agency of natural resources and Act 250 development review could be expedited by strengthening Act 250 criteria, by requiring cumulative impact review, and by mitigating the impacts of development on agricultural land.

The bill proposes numerous conforming amendments to the underlying chapters of environmental law that would ensure that the administration of the application processes takes place in a consistent and predictable manner as provided in the new chapter on consolidated environmental permit administration and that all appeals taking place are consolidated before the reconstituted environmental board.

The bill proposes to amend the stream alteration chapter to make the criteria for permit issuance closer to the related criteria that exist in Act 250 and then to have those permits create a rebuttable presumption regarding the related criteria in Act 250. With respect to the chapter on dams, the bill proposes to exempt dams currently under the jurisdiction of the secretary of natural resources from review under the criteria established in the chapter on dams, if the dams are subject to the permitting requirements of Act 250, provided also that they are subject of a certification by the secretary attesting that the dams as located and designed meet generally accepted dam safety and engineering principles.

It proposes to repeal the section authorizing temporary pollution permits. In the chapter on groundwater protection, the bill proposes that appeals be taken to the environmental court from certain orders denying, suspending, revoking, or denying the renewal of a well driller license. Likewise, in the underground storage tank chapter, it proposes that tank closure or removal orders be subject to appeal to the environmental court.

The bill proposes to amend the criteria used in the consideration of applications for encroachment permits so that they are more closely aligned to the related Act 250 criteria, and it accords those permits the status of rebuttable presumptions in Act 250.

The bill also proposes that a municipal plan shall be based upon resource capacity analyses, and it authorizes municipalities to adopt regulations to address the control of cumulative growth. It also proposes to allow project master plans to be submitted in order to receive partial findings of fact in Act 250 and to accept certain municipal plans to receive presumptions of compliance with Act 250 criteria.

AN ACT RELATING TO THE CONSOLIDATION OF THE APPLICATION AND APPEALS PROCESSES THAT APPLY TO ACT 250 PERMITS AND THOSE ISSUED BY THE AGENCY OF NATURAL RESOURCES AND RELATING TO CUMULATIVE GROWTH

It is hereby enacted by the General Assembly of the State of Vermont:

* * * New Chapter on Environmental Permit Administration * * *

Sec. 1. 10 V.S.A. chapter 230 is added to read:

CHAPTER 230. CONSOLIDATED ENVIRONMENTAL PERMIT ADMINISTRATION

§ 9130. LEGISLATIVE FINDINGS

§ 9131. DEFINITIONS

§ 9132. PERMIT CLASSIFICATION; APPLICABILITY

§ 9133. INITIAL PROJECT REVIEW; COORDINATION AND

SEQUENCING OF PROCESSING

§ 9134. EARLY IDENTIFICATION OF ISSUES

§ 9135. ENVIRONMENTAL NOTICE BULLETIN; NOTICE BY SIGN

§ 9136. SUPPLEMENTAL NOTICE OF COMPLETE APPLICATION AND

OF APPLICATION COMMENT PERIOD

§ 9137. SUPPLEMENTAL NOTICE OF DRAFT PERMIT

§ 9138. PUBLIC INFORMATION MEETING ON DRAFT PERMIT;

SUPPLEMENTAL NOTICE

§ 9139. ISSUANCE OF DECISION ON PERMIT APPLICATION

§ 9140. SUPPLEMENTAL NOTICE OF DECISION

§ 9141. APPEALS

§ 9130. LEGISLATIVE FINDINGS

The general assembly finds it necessary to integrate and coordinate the permit process administered by the secretary of natural resources in order to:

(1) Provide for the internal coordination and consistency of permit application review.

(2) Provide for coordination and integration of the secretary’s permitting process with that of the district commissions and the environmental board.

(3) Consolidate and make consistent public participation requirements with respect to permitting decisions made by the secretary.

(4) Consolidate appeals of permitting decisions made by the secretary with appeals of decisions made by a district commission or the environmental board under the provisions of chapter 151 of this title.

§ 9131. DEFINITIONS

As used in this chapter, unless the context in which the words are used clearly indicates otherwise:

(1) “Act or decision of the secretary” means any act or decision of the secretary of natural resources, the commissioner of the department of environmental conservation, or their authorized representatives, including any act or decision pertaining to a permit. It also means any act or decision of the commissioner of fish and wildlife with respect to endangered and threatened species.

(2) “Adjoining landowner” means a person who owns land in fee simple, if that land:

(A) shares a property boundary with a tract of land where a proposed or actual project is located; or

(B) is adjacent to a tract of land where a proposed or actual project is located and the two properties are separated only by a public highway, river, or stream.

(3) “Agency” means the agency of natural resources.

(4) “Board” means the environmental board established pursuant to chapter 151 of this title.

(5) “Class I permit” means a permit listed in subsection 9132(a) of this title.

(6) “Class II permit” means a permit listed in subsection 9132(b) of this title.

(7) “Class III permit” means a permit listed in subsection 9132(c) of this title.

(8) “Complete application” means an application for a permit in which the application form is complete, all initially required documentation has been submitted, and the information submitted initially addresses all application requirements.

(9) “District commission” means a district environmental commission established pursuant to chapter 151 of this title.

(10) “Federal delegation” means the delegation, authorization, or grant of primacy given by the U.S. Environmental Protection Agency to the state which enables the state to implement directly federal environmental protection programs.

(11) “Permit,” except when used in reference to a land use permit or a local permit, means any permit, license, certification, approval, determination, ruling, renewal, revocation, annulment, withdrawal, or decision issued by the secretary and listed in section 9132 of this title. “Permit” includes a variance issued under authority listed in section 9132 of this title. “Land use permit” means a permit issued by a district commission or the environmental board under section 6086 of this title. “Local permit” means a permit, license, certification, approval, determination, ruling, renewal, revocation, annulment, withdrawal, or decision issued by a municipality or its duly authorized officials.

(12) “Person” means any individual, partnership, company, corporation, association, joint venture, trust, municipality, the state of Vermont or any agency, department or subdivision of the state, federal agency, or any other legal or commercial entity.

(13) “Person aggrieved” means any person who demonstrates an interest that may be affected by the outcome of the proceeding and who is so situated that the disposition of the proceeding may as a practical matter impair that interest.

(14) “Project” means an activity, site, or facility that requires a permit listed in section 9132 of this title.

(15) “Secretary” means the secretary of the agency of natural resources or the secretary’s duly authorized representative and includes the commissioner of the department of environmental conservation and any duly authorized representative of the commissioner.

(16) “Should” means that a requirement is encouraged but not mandated.

§ 9132. PERMIT CLASSIFICATION; APPLICABILITY

(a) The following are subject to Class I permitting procedures, as specified in this section:

(1) Applications for air contaminant indirect source permits, air contaminant source construction and operating permits, or variances reviewed pursuant to chapter 23 of this title, other than individual approvals under general permits.

(2) Applications for wetland conditional use determinations reviewed pursuant to applicable rules adopted under chapter 151 of this title.

(3) Applications for 401 certifications for hydroelectric facilities and all other 401 certifications reviewed pursuant to chapter 41 of this title that are associated with projects requiring Class I permits.

(4) Applications for stream alteration permits, reviewed pursuant to chapter 41 of this title, that are related to projects subject to review under chapter 151 of this title.

(5) Applications for discharge permits, including general permits, reviewed pursuant to chapter 47 of this title, except applications for emergency water pollution control permits and applications for individual approvals under general permits reviewed pursuant to section 1264 of this title.

(6) Applications for aquatic nuisance control permits that regulate the use of chemical pesticides in the waters of the state and that are reviewed pursuant to chapter 47 of this title.

(7) Applications for public water supply new source permits, construction permits, and water supply source permits reviewed pursuant to chapter 56 of this title.

(8) Applications for potable water supply and wastewater permits under chapter 64 of this titlefor developments or subdivisions subject to review under chapter 151 of this title or with more than 5 residential units or lots.

(9) Applications for land use permits reviewed under chapter 151 of this title.

(10) Applications for solid waste or hazardous waste facility certifications or permits reviewed pursuant to chapter 159 of this title, including applications for hazardous waste certificates of need.

(11) Applications for encroachment permits reviewed pursuant to 29V.S.A. chapter 11.

(12) Applications for renewal or amendment of Class I permits, as well as proceedings relating to any act or decision by the secretary to annul, withdraw, suspend, revoke, or terminate a Class I permit.

(13) All declaratory rulings issued by the secretary.

(b) The following are subject to Class II permitting procedures, as established by this section:

(1) Applications for individual approvals under general permits reviewed pursuant to chapters 23, 37, or 47 of this title.

(2) Applications for 401 certifications associated with projects requiring Class II permits reviewed pursuant to chapter 41 of this title.

(3) Applications for stream alteration permits reviewed pursuant to chapter 41 of this title that are not related to projects subject to review under chapter 151 of this title.

(4) Applications for aquatic nuisance control permits reviewed pursuant to chapter 47 of this title involving methods other than the use of chemical pesticides and applying to any of the waters of the state except for private ponds that are less than five acres in size.

(5) The establishment of a priority system and determinations concerning the priority of awards pursuant to chapter 55 of this title.

(6) Applications for potable water supply and wastewater permits under chapter 64 of this titlefor projects that are not subject to review under chapter 151 of this title, including those that have more than one but less than five residential units or lots.

(7) Applications for renewal or amendment of Class II permits, as well as proceedings relating to any action taken by the secretary to annul, withdraw, suspend, revoke, or terminate a Class II permit.

(c) The following shall be subject to Class III permitting procedures, as established under this section:

(1) Applications for site technician certifications reviewed pursuant to 3V.S.A. chapter 51.

(2) Applications for sewage treatment plant operator certifications reviewed pursuant to chapter 47 of this title.

(3) Applications for aquatic nuisance control permits reviewed pursuant to chapter 47 of this title involving methods other than the use of chemical pesticides in private ponds that are less than one acre in size.

(4) Applications for emergency water pollution control permits issued pursuant to chapter 47 of this title.

(5) Applications for well drillers’ licenses reviewed pursuant to chapter 48 of this title.

(6) Applications for water treatment plant operator certifications reviewed pursuant to chapter 56 of this title.

(7) Applications for waivers of water filtration requirements issued pursuant to chapter 56 of this title.

(8) Applications for public water supply, temporary, and final operating permits issued pursuant to chapter 56 of this title.

(9) Applications for disbursements under the petroleum cleanup fund issued pursuant to chapter 59 of this title.

(10) Applications for underground liquid storage tank permits issued pursuant to chapter 59 of this title.

(11) Applications for solid waste hauler and hazardous waste transporter certifications issued pursuant to chapter 159 of this title.

(12) Applications for renewal or amendment of Class III permits, as well as proceedings relating to any action taken by the secretary to annul, withdraw, suspend, revoke, or terminate a Class III permit.

(d) Class I, II, and III permits all shall be subject to the following provisions of this chapter:

(1) initial project review, coordination and sequencing of processing under section 9133 of this title;

(2) early identification of issues under section 9134 of this title;

(3) except in the case of professional licenses and matters related to the petroleum cleanup fund, appearance in the environmental notice bulletin under section 9135 of this title:

(A) when the project identification number is assigned; and

(B) when a final decision is issued;

(4) requirements under section 9136 of this title that supplemental notice of complete application be provided to specified persons and be posted in the environmental notice bulletin;

(5) provisions regarding final decisions on permit applications under section 9139 of this title;

(6) appeals provisions under section 9141 of this title.

(e) In addition to the requirements of subsection (d) of this section, Class I and II permit applications also shall be subject to the following:

(1) appearance in the environmental notice bulletin under section 9135 of this title when a complete application is filed;

(2) requirements under section 9140 of this title that supplemental notice of permit issuance or denial be mailed to specified persons.