Part 1. Development of Resources

History

Science, technology, engineering, and mathematics (STEM) incentive program. 2011, No. 52 , § 6 provides: “(a) In this section:

“(1) “Accredited institution” means an educational institution that is accredited by ABET, Inc., a regional accrediting association, or by one of the specialized accrediting agencies recognized by the United States secretary of education.

“(2) “Qualified new employee” means a person who:

“(A) is hired by a qualified employer for a STEM position on or before December 31, 2012;

“(B) graduated from an accredited institution with an associate’s degree or higher not more than 18 months before the date of hire; and

“(C) is paid annual compensation of not less than $50,000.00, including the value of benefits.

“(3) “Qualified employer” means a person doing business in Vermont that is registered with the Vermont secretary of state, is current with all payments and filings required by the Vermont departments of taxes and of labor, and has a valid workers’ compensation policy.

“(4) “Secretary” means the secretary of commerce and community development.

“(5) “STEM position” means an employment position in the field of science, technology, engineering, or mathematics that requires, as determined by the secretary in his or her discretion, a high level of scientific or mathematical knowledge and skill. The term shall not include a position of academic instruction with a college or university.

“(6) “Student loan” means debt incurred for the purpose of paying tuition and expenses at an accredited institution, excluding any debt or other financial assistance provided by a family member, relative, or other private person.

“(b)(1) A qualified new employee who is hired by and remains in a STEM position with one or more qualified employers for a period of not less than five years shall be eligible for an incentive to pay a qualified student loan in the amount of $1,500.00 per year for five years.

“(2) A qualified new employee shall notify the secretary of his or her initial employment in a STEM position within 30 days of the date of hire and shall provide the secretary an annual notice of employment in a STEM position in each of the five years thereafter.

“(3) Following receipt of an annual notice of employment in a STEM position and verification of employment with one or more qualified employers, the secretary shall deliver an incentive to the qualified new employee pursuant to subdivision (1) of this subsection.

“(4) The secretary shall award up to a maximum of $75,000.00 per year for incentives in accordance with this section, which shall be made in the order in which they are claimed, as determined by the secretary in his or her discretion, and not to exceed a total program cap of $375,000.00.

“(c) The secretary shall design and make available on the agency of commerce and community development website:

“(1) any forms necessary for a new employee to apply for an incentive available under this section; and

“(2) a list of STEM positions for which a new employee may be eligible for an incentive under this section.”

Chapter 1. Economic Development

History

Amendments

—2015. 2015, No. 51 , § F.3 deleted “The Future of” from the chapter heading.

—2009. 2009, No. 54 , § 4, eff. June 1, 2009, substituted “The Future of Economic Development” for “Vermont Development Board” in the chapter heading.

Legislative findings and purpose. 2007, No. 182 (Adj. Sess.), § 8 provides: “(a) The general assembly finds the following:

“(1) There is a growing global demand for products and services that will reduce the impact on the natural environment by individuals, businesses, governments, and many other entities.

“(2) There is a common international perception that Vermont has a very well-defined green identity, a reputation developed through years of commitment to environmental integrity.

“(3) Vermont’s resources should be used to build a vibrant and strong environmental industry sector that creates high-wage jobs for Vermonters through the development and export of value-added products and services designed to reduce our collective impact on the environment.

“(4) Vermont must create a framework that stimulates the innovation and investment necessary to expand the development of new renewable energy sources and distribution capacity.

“(5) Vermont’s economic development strategy must be designed to raise Vermont’s profile as a hub of environmental integrity, innovation, and opportunity for working Vermonters.

“(b) The purpose of this act is to effect the following:

CROSS REFERENCES

Community development, see § 681 et seq. of this title.

Department of Economic Development, see 3 V.S.A. § 2471 .

Tourist information services, see § 481 et seq. of this title.

Vermont Economic Development Authority, see § 210 et seq. of this title.

§ 1. Repealed. 2009, No. 156 (Adj. Sess.), § E.801.1, eff. June 3, 2010.

History

Former § 1. Former § 1, relating to creation and composition of the board, was derived from V.S. 1947, § 6242; 1947, No. 110 , § 1; 1945, No. 5 , § 1, and amended by 1959, No. 329 (Adj. Sess.), §§ 17, 18(a), and was repealed by 1991, No. 145 (Adj. Sess.), § 6.

Former § 1, relating to the commission on the future of economic development, was derived from 2005, No. 184 (Adj. Sess.), § 17 and amended by 2007, No. 65 , § 224a.

§ 2. Repealed. 2011, No. 162 (Adj. Sess.), § E.800.3.

History

Former § 2. Former § 2, relating to the unified economic development budget, was derived from 2007, No. 182 (Adj. Sess.), § 5.

Section § 2, relating to relating to duties of the board, was previously repealed by 1991, No. 145 (Adj. Sess.), § 6.

§ 3. Economic development; principles; review and assessment.

  1. For purposes of the Vermont Statutes Annotated and State economic development programs and assistance, “economic development” means the process of generating economic wealth and vitality, security, and opportunity for all Vermonters.
  2. There are established the following four interrelated principles for future economic development in Vermont:
    1. Vermont’s businesses, educators, nongovernmental organizations, and government form a collaborative partnership that results in a highly skilled multigenerational workforce to support and enhance business vitality and individual prosperity.
    2. Vermont invests in its digital, physical, and human infrastructure as the foundation for all economic development.
    3. Vermont State government takes advantage of its small scale to create nimble, efficient, and effective policies and regulations that support business growth and the economic prosperity of all Vermonters.
    4. Vermont leverages its brand and scale to encourage a diverse economy that reflects and capitalizes on our rural character, entrepreneurial people, and reputation for environmental quality.
  3. The four principles shall be used to guide the design and implementation of each economic development program, policy, or initiative that is sponsored or financially supported by the State, its subdivisions, agencies, authorities, or private partners.
  4. [Repealed.]

HISTORY: Added 2009, No. 54 , § 4, eff. June 1, 2009; amended 2015, No. 11 , § 2.

History

Former § 3. Former § 3, relating to powers of the board, was derived from 1951, No. 128 , § 2; V.S. 1947, § 6244; 1947, No. 110 , § 3; 1945, No. 5 , § 3, and amended by 1959, No. 329 (Adj. Sess.), § 18(a), (b); 1965, No. 125 , § 5; 1971, No. 191 (Adj. Sess.), § 16. This section was previously repealed by 1991, No. 145 (Adj. Sess.), § 6.

Amendments

—2015. Section heading: Substituted “Principles” for “Long-Term Goals”.

Subsec. (b): Deleted “principal” following “four” and substituted “principles” for “goals” following “interrelated”.

Subsec. (c): Substituted “principles” for “principal goals” preceding “shall be”.

Subsec. (d): Repealed.

§ 4. New relocating employee incentives.

  1. The Agency of Commerce and Community Development shall design and implement a program to award incentive grants to relocating employees as provided in this section and subject to the policies and procedures the Agency adopts to implement the program.
  2. A relocating employee may be eligible for a grant under the program for qualifying expenses, subject to the following:
    1. A base grant shall not exceed $5,000.00.
    2. The Agency may award an enhanced grant, which shall not exceed $7,500.00, for a relocating employee who becomes a resident in a labor market area in this State in which:
      1. the average annual unemployment rate in the labor market area exceeds the average annual unemployment rate in the State; or
      2. the average annual wage in the State exceeds the annual average wage in the labor market area.
  3. The Agency shall:
    1. adopt procedures for implementing the program, which shall include a simple certification process to certify relocating employees and qualifying expenses;
    2. promote awareness of the program, including through coordination with relevant trade groups and by integration into the Agency’s economic development marketing campaigns;
    3. award grants to relocating employees on a first-come, first-served basis beginning on July 1, 2021, subject to available funding; and
    4. adopt measurable goals, performance measures, and an audit strategy to assess the utilization and performance of the program.
  4. On or before January 15, 2022, the Agency shall submit a report to the House Committee on Commerce and Economic Development and the Senate Committee on Economic Development, Housing and General Affairs concerning the implementation of this section, including:
    1. a description of the policies and procedures adopted to implement the program;
    2. the promotion and marketing of the program; and
    3. an analysis of the utilization and performance of the program, including the projected revenue impacts and other qualitative and quantitative returns on investment in the program based on available data and modeling.
  5. As used in this section:
    1. “Qualifying expenses” means the actual costs a relocating employee incurs for relocation expenses, which may include moving costs, closing costs for a primary residence, rental security deposit, one month’s rent payment, and other relocation expenses established in Agency guidelines.
    2. “Relocating employee” means an individual who meets the following criteria:
        1. On or after July 1, 2021: (A) (i) On or after July 1, 2021:
          1. the individual becomes a full-time resident of this State;
          2. the individual becomes a full-time employee at a Vermont location of a for-profit or nonprofit business organization domiciled or authorized to do business in this State, or of a State, municipal, or other public sector employer;
          3. the individual becomes employed in one of the “Occupations with the Most Openings” identified by the Vermont Department of Labor in its “Short Term Employment Projections 2020-2022”; and
          4. the employer attests to the Agency that, after reasonable time and effort, the employer was unable to fill the employee’s position from among Vermont applicants; or
        2. on or after February 1, 2022:
          1. the individual becomes a full-time resident of this State; and
          2. the individual is a full-time employee of an out-of-state business and performs the majority of his or her employment duties remotely from a home office or a co-working space located in this State.
      1. The individual receives gross salary or wages that equal or exceed the Vermont livable wage rate calculated pursuant to 2 V.S.A. § 526 .
      2. The individual is subject to Vermont income tax.

HISTORY: Added 2021, No. 51 , § 2.

History

Former § 4. Former § 4, relating to duties of the commissioner of development, was derived from V.S. 1947, § 6245; 1947, No. 110 , § 4; 1945, No. 5 , § 4, and amended by 1959, No. 329 (Adj. Sess.), § 18(a), (b), and repealed by 1991, No. 145 (Adj. Sess.), § 6.

§§ 5, 6. Repealed. 1991, No. 145 (Adj. Sess.), § 6.

History

Former §§ 5, 6. Former § 5, relating to organization of clubs and associations to promote recreational and natural resources of state, was derived from 1949, No. 402 (Joint Res.), and amended by 1959, No. 329 (Adj. Sess.), § 18(a).

Former § 6, relating to revolving and subscription reserve funds for Vermont Life magazine, was derived from 1971, No. 40 , § 1, and amended by 1987, No. 121 , § 17; 1987, No. 281 (Adj. Sess.), § 313. The subject matter is now covered by § 2473a of Title 3.

§ 7. Economic development; assistance and incentives benchmark reports.

  1. For purposes of this section, “economic development assistance recipient” means any business entity, including a for-profit corporation, a nonprofit corporation, a partnership, or a sole proprietorship that receives economic development assistance from State funds administered by a governmental agency, from State funds administered by a private entity, or from federal funds administered by the State, whether such assistance is in the form of a grant, a loan, a State tax abatement, a tax credit, a tax increment financing program, or such other form of economic development assistance or incentive as the Secretary of Commerce and Community Development may identify by rule.
  2. Each economic development recipient shall state, on a form approved by the agency granting assistance, or awarding a tax credit or abatement, or approving any other form of economic development assistance, the number of new jobs that will be created or existing jobs that will be retained as a result of such assistance, the wages and employee benefits associated with such jobs, and a description of any other public benefits associated with such economic development assistance.  Such statement shall be made prior to any such grant, award, or approval.  Such statements and the information contained therein shall not be available for public inspection until 90 days after the granting of assistance, or the awarding of a tax credit or abatement, or the approving any other form of economic development assistance or incentive.  After the expiration of such 90-day period such statements and information shall not be considered confidential, and may be inspected and copied pursuant to 1 V.S.A. chapter 5, subchapter 3 (public records law), notwithstanding the provisions of any other law.
  3. Each economic development recipient shall report annually, in a manner and on a form prescribed by the Commissioner of Economic Development, the amount or monetary value of economic assistance or incentive granted, awarded or approved, and such information as is necessary to determine whether the recipient has reached its job creation or other public benefit goals stated pursuant to subsection (b) of this section.
  4. The Commissioner of Economic Development shall adopt such rules as are necessary to carry out the purposes of this section.

HISTORY: Added 1995, No. 190 (Adj. Sess.), § 12g; amended 2009, No. 33 , § 18.

History

Revision note—

In subsec. (a), substituted “secretary of commerce and community development” for “secretary of commerce and community affairs” near the end of the paragraph pursuant to 1995, No. 190 (Adj. Sess.), § 1. See § 2402 et seq. of Title 3.

Amendments

—2009. Subsec. (c): Deleted the second through fourth sentences.

§ 8. Southern Vermont Economic Development Zone.

There is created the Southern Vermont Economic Development Zone, comprising the geographic areas served by the Brattleboro Development Credit Corporation and the Bennington County Industrial Corporation.

HISTORY: Added 2015, No. 51 , § F.3, eff. June 3, 2015.

§ 9. Investment in Vermont Community Loan Fund.

Notwithstanding any provision of 32 V.S.A. § 433(a) to the contrary, the State Treasurer is authorized to invest up to $2,000,000.00 of short-term operating or restricted funds in the Vermont Community Loan Fund on terms acceptable to the Treasurer and consistent with prudent investment principles and guidelines pursuant to 32 V.S.A. § 433(b) -(c).

HISTORY: Added 2015, No. 157 (Adj. Sess.), § F.6; amended 2019, No. 72 , § E.131; 2019, No. 120 (Adj. Sess.), § A.14, eff. June 30, 2020.

History

Amendments

—2019 (Adj. Sess.). Substituted “$2,000,000.00” for “$1,500,000.00”.

—2019. Substituted “$1,500,000.00” for “$1,000,000.00”.

§ 10. Vermont State Treasurer; credit facility for local investments.

  1. Notwithstanding any provision of 32 V.S.A. § 433(a) to the contrary, the Vermont State Treasurer shall have the authority to establish a credit facility of up to 10 percent of the State’s average cash balance on terms acceptable to the Treasurer and consistent with prudent investment principles and guidelines pursuant to 32 V.S.A. § 433(b) -(c) and the Uniform Prudent Investor Act, 14A V.S.A. chapter 9.
  2. The Treasurer may use amounts available under this section to provide financing for infrastructure projects in Vermont mobile home parks and may modify the terms of such financing in his or her discretion as is necessary to promote the availability of mobile home park housing and to protect the interests of the State.

HISTORY: Added 2015, No. 157 (Adj. Sess.), § F.9; 2019, No. 179 (Adj. Sess.), § 6, eff. Oct. 12, 2020.

History

Amendments

—2019 (Adj. Sess.). Subsec. (b): Rewrote.

§ 11. Treasurer’s Local Investment Advisory Committee.

  1. Creation of committee.   The Treasurer’s Local Investment Advisory Committee is established to advise the Treasurer on funding priorities and address other mechanisms to increase local investment.
  2. Membership.
    1. The Advisory Committee shall be composed of six members as follows:
      1. the State Treasurer or designee;
      2. the Chief Executive Officer of the Vermont Economic Development Authority or designee;
      3. the Chief Executive Officer of the Vermont Student Assistance Corporation or designee;
      4. the Executive Director of the Vermont Housing Finance Agency or designee;
      5. the Director of the Municipal Bond Bank or designee; and
      6. the Director of Efficiency Vermont or designee.
    2. The State Treasurer shall be the Chair of the Advisory Committee and shall appoint a vice chair and secretary. The appointed members of the Advisory Committee shall be appointed for terms of six years and shall serve until their successors are appointed and qualified.
  3. Powers and duties.   The Advisory Committee shall:
    1. meet regularly to review and make recommendations to the State Treasurer on funding priorities and using other mechanisms to increase local investment in the State of Vermont;
    2. invite regularly State organizations, citizens’ groups, and members of the public to Advisory Committee meetings to present information on needs for local investment, capital gaps, and proposals for financing; and
    3. consult with constituents and review feedback on changes and needs in the local and State investment and financing environments.
  4. Meetings.
    1. Meetings of the Advisory Committee shall occur at the call of the Treasurer.
    2. A majority of the members of the Advisory Committee who are physically present at the same location or available electronically shall constitute a quorum, and a member may participate and vote electronically.
    3. To be effective, action of the Advisory Committee shall be taken by majority vote of the members at a meeting in which a quorum is present.
  5. Report.   On or before January 15, the Advisory Committee annually shall submit a report to the Senate Committees on Appropriations, on Economic Development, Housing and General Affairs, on Finance, and on Government Operations and the House Committees on Appropriations, on Commerce and Economic Development, on Ways and Means, and on Government Operations. The report shall include the following:
    1. the amount of the subsidies associated with lending through each credit facility authorized by the General Assembly and established by the Treasurer;
    2. a description of the Advisory Committee’s activities; and
    3. any information gathered by the Advisory Committee on the State’s unmet capital needs, and other opportunities for State support for local investment and the community.

HISTORY: Added 2015, No. 157 (Adj. Sess.), § F.9.

§§ 12-14. [Reserved for future use]

§§ 15, 16. Repealed. 2009, No. 135 (Adj. Sess.), § 26(3)(A).

History

Former §§ 15, 16. Former § 15, relating to Vermont business recruitment partnership; promotion of Vermont as a special place for businesses to call home, was derived from 2001, No. 142 (Adj. Sess.), § 258b and amended by 2009, No. 33 , § 83(e).

Former § 16, relating to Vermont business recruitment partnership special fund, was derived from 2001, No. 142 (Adj. Sess.), § 258b.

§ 20. EB-5 Program; regulation; oversight.

  1. The U.S. Department of Homeland Security’s U.S. Citizenship and Immigrations Services (USCIS) administers the EB-5 Program, a federal program designed to stimulate the U.S. economy through job creation and capital investment by foreign investors. The Vermont EB-5 Regional Center is a USCIS-designated regional center. The Center is managed by the Agency of Commerce and Community Development in partnership with the Department of Financial Regulation.
  2. The Agency of Commerce and Community Development has the personnel and resources to market and promote economic opportunities in Vermont, whereas the Department of Financial Regulation has the personnel and resources to supervise financial services and products offered in Vermont in a manner that advances fair business practices and protects the investing public. It is imperative that management of the EB-5 Program reflect the existing expertise of both these State entities.
  3. The Secretary of Commerce and Community Development and the Commissioner of Financial Regulation shall separately adopt rules pertaining to the administration and oversight of the EB-5 Program. The rules shall be consistent with federal regulations and requirements as well as with the statutory expertise of the Department and Agency.
  4. The rules adopted under this section shall be modeled after the Memorandum of Understanding between the Agency of Commerce and Community Development and the Department of Financial Regulation, dated December 22, 2014, which pertains to the duties and responsibilities of the Agency and the Department with respect to the EB-5 Program. As such, the rules shall include provisions related to:
    1. communication with and reporting to the USCIS;
    2. marketing activities;
    3. required provisions pertaining to private placement memoranda;
    4. securities analysis and standards for project approval;
    5. ongoing oversight and compliance of approved projects, including annual audits;
    6. the establishment of escrow accounts for capital investments and third-party oversight of requisitions, if deemed appropriate by the Commissioner and Secretary;
    7. investor relations and a formal complaint protocol;
    8. standards for revoking approval of a project;
    9. penalties for failure to comply with rules adopted under this section;
    10. communication between the Agency and the Department, as well as with media outlets and with other regulatory or law enforcement entities;
    11. fees and costs of the Regional Center, consistent with subsection 21(c) of this title; and
    12. any other matter the Commissioner and the Secretary determine will strengthen the oversight and management of the EB-5 Program and prevent fraudulent activities.
  5. The rules adopted under this section shall explicitly state that any interest obtained through a capital investment in the EB-5 Program is a “security” as defined in 9 V.S.A. § 5102(28) and as such is subject to regulation by the Commissioner of Financial Regulation under the Vermont Uniform Securities Act, 9 V.S.A. chapter 150.

HISTORY: Added 2015, No. 149 (Adj. Sess.), § 34b.

§ 21. EB-5 Special Fund.

  1. An EB-5 Special Fund is created to support the operating costs of the Vermont Regional Center for Immigrant Investment under the federal EB-5 Program. The Fund shall consist of revenues derived from administrative charges by the Agency of Commerce and Community Development pursuant to subsection (c) of this section, any interest earned by the Fund, and all sums that are from time to time appropriated for the support of the Regional Center and its operations. It is the intent of the General Assembly that the collection of charges authorized by this section will reduce or eliminate the need for legislative appropriations to support Regional Center expenses.
    1. The receipt and expenditure of monies from the Special Fund shall be under the supervision of the Secretary of Commerce and Community Development. (b) (1) The receipt and expenditure of monies from the Special Fund shall be under the supervision of the Secretary of Commerce and Community Development.
    2. The Secretary of Commerce and Community Development shall maintain accurate and complete records of all receipts and expenditures by and from the Fund, and shall make an annual report on the condition of the Fund to the Secretary of Administration, the House Committees on Commerce and Economic Development and on Ways and Means, and the Senate Committees on Finance and on Economic Development, Housing and General Affairs.
    3. Expenditures from the Fund shall be used only to support the operating expenses of the Regional Center, including the costs of providing specialized services to support participating economic development projects, marketing and related travel expenses, application review and examination expenses, and personnel expenses incurred by the Agency of Commerce and Community Development. At the end of each fiscal year, the Secretary of Administration shall transfer from the EB-5 Special Fund to the General Fund any amount that the Secretary of Administration determines, in his or her discretion, exceeds the funds necessary to administer the Program.
  2. Notwithstanding 32 V.S.A. § 603 , the Secretary of Commerce and Community Development is authorized to impose administrative charges on project developers to achieve the Fund’s purpose. The charges shall be sufficient to fully fund the personnel and operating expenses of the Regional Center and shall include a one-time application fee as well as an annual assessment apportioned among approved projects in a fair and equitable manner as specified in rules adopted under section 20 of this title. In addition, the rules shall require that an applicant or approved project developer, as applicable, is liable for any additional expenses incurred with respect to the retention of outside legal, financial, examination or other services or studies deemed necessary by the Secretary or the Commissioner to assist with application or project review. The collection of some or all charges authorized under this section may be suspended for a period of time as deemed appropriate by the Secretary for good cause shown. Any charges imposed under this section shall be included in the consolidated Executive Branch fee report required under 32 V.S.A. § 605 .
  3. Any costs incurred by the Department of Financial Regulation in connection with of the EB-5 Program shall be reimbursed in the manner specified in 8 V.S.A. § 18(d) .

HISTORY: Added 2011, No. 52 , § 21, eff. May 27, 2011; amended 2011, No. 75 (Adj. Sess.), § 105, eff. March 7, 2012; 2015, No. 149 (Adj. Sess.), § 34c.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—2011 (Adj. Sess.). Substituted “special” for “enterprise” preceding “fund” in the section heading and throughout the section.

Report repeal delayed. 2015, No. 131 (Adj. Sess.), § 16 provides: “The reports set forth in this section shall not be subject to review under the provisions of 2 V.S.A. § 20(d) (expiration of required reports) until July 1, 2020”

Chapter 3. Natural Resources Interagency Committee

§§ 21-23. Repealed. 1979, No. 159 (Adj. Sess.), § 21.

History

Former §§ 21-23. Former §§ 21-23, establishing the interagency committee on natural resources and prescribing its membership and duties, were derived from 1964, No. 11 (Sp. Sess.), §§ 1-3. Former § 22 was amended by 1969, No. 37 , § 1. The subject matter is now covered by § 2825 of Title 3.

Chapter 4. World Trade Office

History

Repeal of chapter. This chapter, which formerly consisted of §§ 25-33, relating to world trade office, was repealed by 2009, No. 135 (Adj. Sess.), § 26(3)(B), effective May 29, 2010.

§§ 25-33. Repealed. 2009, No. 135 (Adj. Sess.), § 26(3)(B), eff. May 29, 2010.

History

Former §§ 25-33. Former § 25, relating to findings and purpose, was derived from 1995, No. 46 , § 35.

Former § 26, relating to definitions, was derived from 1995, No. 46 , § 35.

Former § 27, relating to applications for world trade office grants, was derived from 1995, No. 46 , § 35.

Former § 28, relating to determination of eligibility for grant, was derived from 1995, No. 46 , § 35.

Former § 29, relating to world trade office expenditures; reapplication, was derived from 1995, No. 46 , § 35.

Former § 30, relating to consistent efforts and coordination with the director of international trade and investment, was derived from 1995, No. 46 , § 35 and amended by 2001, No. 21 , § 2.

Former § 31, relating to rules, was derived from 1995, No. 46 , § 35.

Former § 32, relating to applicability of state laws, was derived from 1995, No. 46 , § 35 and amended by 2001, No. 21 , § 3.

Former § 33, relating to delegation of authority, was derived from 1995, No. 46 , § 35.

Chapter 5. State Building at Eastern States Exposition

§ 51. Vermont building.

The Secretary of Agriculture, Food and Markets is hereby invested with the management and control of the operation and affairs of the Vermont building at Eastern States Exposition. The Secretary shall cooperate with public and private agencies for the purpose of exhibiting the resources, products, and general development of the State of Vermont and for advertising its agricultural, industrial, and recreational possibilities.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 18(a), eff. March 1, 1961; 1977, No. 152 (Adj. Sess.), § 1; 2003, No. 42 , § 2, eff. May 27, 2003.

History

Source.

V.S. 1947, § 6247. 1947, No. 111 , § 1.

Amendments

—2003. Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” in the first sentence and “secretary” for “commissioner” in the second sentence.

—1977 (Adj. Sess.). Substituted “commissioner of agriculture” for “Vermont development board” and “commissioner” for “board”.

—1959 (Adj. Sess.). Substituted “board” for “commission”.

CROSS REFERENCES

Agency of Agriculture, Food and Markets, see 6 V.S.A. § 1 et seq.

§ 52. Maintenance.

The Department of Buildings and General Services shall be responsible for the maintenance of the land and buildings and repair and alterations of the physical structure including adequate coverage by insurance.

HISTORY: Amended 1983, No. 141 (Adj. Sess.), § 4(a), eff. April 11, 1984.

History

Source.

1955, No. 191 , § 1. V.S. 1947, § 6248. 1947, No. 111 , § 2.

Revision note—

Substituted “department of buildings and general services” for “state buildings department” for purposes of conformity with 1995, No. 148 (Adj. Sess.), § 4(c)(1), eff. May 5, 1996.

Amendments

—1983 (Adj. Sess.). Substituted “department” for “division” following “state buildings”.

CROSS REFERENCES

Department of buildings and general services, see § 2283a of Title 3.

Notes to Opinions

Contracts.

Contracts for maintenance of the Vermont building at the Eastern States Exposition need not be placed through office of purchasing agent. 1948 Vt. Op. Att'y Gen. 363.

§ 53. Assistants.

The Secretary may, with the approval of the Governor, employ such persons to carry out the operation of such building, including the rental or lease or sale of rental or exhibition space of any portion of such building upon such terms and conditions as the Secretary shall determine.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 18(a), eff. March 1, 1961; 1977, No. 152 (Adj. Sess.), § 2; 2003, No. 42 , § 2, eff. May 27, 2003.

History

Source.

V.S. 1947, § 6249. 1947, No. 111 , § 3.

Amendments

—2003. Substituted “secretary” for “commissioner” in two places within the section.

—1977 (Adj. Sess.). Substituted “commissioner” for “board”.

—1959 (Adj. Sess.). Substituted “board” for “commission”.

§ 54. Rental of building; disposition of funds.

The Secretary may rent the building or parts thereof for exhibition purposes to available exhibitors with reasonable preference being given to exhibitors from this State and, with the approval of the Governor, may rent or lease any part or all of the building to such parties and upon such terms and conditions and for such purposes as they shall determine to be in the best interests of the State, and the income therefrom shall be paid to the State Treasurer and held by him or her in a separate fund for the purposes of this chapter. The Commissioner of Finance and Management shall issue his or her warrant for the payment from such fund of all sums expended or due for the purposes herein authorized.

HISTORY: Amended 1959, No. 328 (Adj. Sess.), § 8(b); 1959, No. 329 (Adj. Sess.), § 18(a), eff. March 1, 1961; 1977, No. 152 (Adj. Sess.), § 3; 1983, No. 195 (Adj. Sess.), § 5(b); 2003, No. 42 , § 2, eff. May 27, 2003; 2011, No. 104 (Adj. Sess.), § 28a.

History

Source.

1955, No. 191 , § 2. V.S. 1947, § 6250. 1947, No. 111 , § 4.

Revision note—

Substituted “Commissioner of Finance and Management” for “commissioner of finance and information support” in the second sentence in light of Executive Order No. 35-87.

Amendments

—2011 (Adj. Sess.) Substituted “this chapter” for “this section and sections 51 and 53 of this title” at the end of the first sentence.

—2003. Substituted “secretary” for “commissioner” in the first sentence.

—1983 (Adj. Sess.). Inserted “and information support” following “commissioner of finance” in the second sentence.

—1977 (Adj. Sess.). Substituted “commissioner” for “board” in the first sentence and substituted “commissioner of finance” for “finance director” in the second sentence.

—1959 (Adj. Sess.). Act No. 328 substituted “finance director” for “auditor of accounts”.

Act No. 329 substituted “board” for “commission”.

Notes to Opinions

Disposition of funds.

Funds derived from space rentals in the building are, by virtue of the specific language of this section, not available to the building council for maintenance, repair, etc. 1956 Vt. Op. Att'y Gen. 375.

§ 55. Repealed. 1999, No. 49, § 130.

History

Former § 55. Former § 55, relating to appropriations for the Eastern States Exposition Building, was derived from 1955, No. 191 , §§ 3, 4; 1953, No. 204 , § 2; 1951, No. 128 , § 4; V.S. 1947, § 6251; 1947, No. 111 , § 5.

Chapter 7. Geologic Surveys and Reports

CROSS REFERENCES

Creation of Division, see 3 V.S.A. § 2879 .

Fragile areas registry, see § 6551 et seq. of this title.

Mines and quarries on public land, see 29 V.S.A. § 301 et seq.

§ 101. Division of Geology and Mineral Resources; duties.

The Division of Geology and Mineral Resources shall:

  1. conduct surveys and research related to the geology, mineral resources, and topography of the State;
  2. give aid and advice as may be possible relating to the development and working of rock or mineral deposits suitable for building, road making, and economic or other purposes;
  3. provide information and education to government, industry, other institutions and organizations, and to citizens regarding the geology, mineral resources, and topography of the State;
  4. provide technical information and advice regarding the management of mineral resources on State-owned lands, and cooperate where possible by providing geologic expertise and advice to persons conducting regulatory programs for the State;
  5. provide geological services for the Natural Gas and Oil Resources Board;
  6. maintain records of old and new information relating to the geology, mineral resources, and topography of the State;
  7. prepare and publish reports on the geology, mineral resources, and topography of the State.

HISTORY: Amended 1959, No. 328 (Adj. Sess.), § 8(b); 1983, No. 195 (Adj. Sess.), § 5(b); 1989, No. 245 (Adj. Sess.), § 3; 2015, No. 29 , § 17.

History

Source.

V.S. 1947, § 6252. P.L. § 423. G.L. § 405. 1917, No. 16 , § 1. 1917, No. 58 . 1915, No. 1 , § 45. P.S. §§ 309, 312. 1906, No. 11 , § 1. 1904, No. 12 , § 1. 1900, No. 6 , §§ 1, 2, 3. V.S. §§ 228, 231. 1888, No. 140 , §§ 1, 2. R.L. §§ 165, 168. 1876, No. 125 . 1872, No. 76 , § 2. 1867, No. 62 , § 2. 1864, No. 40 . 1844, No. 12 , § 2.

Amendments

—2015. Rewrote subdiv. (6).

—1989 (Adj. Sess.). Section amended generally.

—1983 (Adj. Sess.). Inserted “and information support” following “commissioner of finance” in the fourth sentence.

—1959 (Adj. Sess.). Substituted “finance director” for “auditor of accounts” in the fourth sentence.

CROSS REFERENCES

Division of Geology and Mineral Resources, see 3 V.S.A. § 2879 .

Notes to Opinions

History.

The state geologist was an autonomous officer appointed by and responsible to the governor for about ninety years, or until 1935 when he first became an employee of one of the departments of government. 1964-66 Vt. Op. Att'y Gen. 250.

§ 102. Repealed. 1989, No. 245 (Adj. Sess.), § 6.

History

Former § 102. Former § 102, relating to records of geology of state, was derived from V.S. 1947, § 6253; P.L. § 424; G.L. § 406; P.S. § 310; V.S. § 229; R.L. § 166; 1872, No. 76 , § 3; 1864, No. 40 , § 3.

§ 103. Contracts; maps.

  1. For the purpose of maintaining the geologic, mineral resource, and topographic surveys of this State, the Division of Geology and Mineral Resources may contract with agencies or departments of the U.S. government, for such work as may be required, including the methods of its execution and the order in which the mapping, research, and other surveys of the different parts of the State shall be completed; provided that the agencies or departments with whom the Division enters into a contract under this section shall agree to expend annually, on the part of the United States, upon such work a sum equal to or greater than that made annually available by this State for these purposes.
  2. All maps and other products shall conform to the highest quality and standards established by this State and the participating federal agency.  All maps shall be made adaptable to the most modern techniques of production, reproduction and display.

HISTORY: Amended 1989, No. 245 (Adj. Sess.), § 4.

History

Source.

V.S. 1947, §§ 6254, 6255. P.L. §§ 425, 426. G.L. §§ 408, 409. 1917, No. 265 , §§ 1, 2.

Amendments

—1989 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Authority of federal geological survey to enter upon lands, see 1 V.S.A. § 553 .

§ 104. Expenditure of monies.

The monies annually available for the purposes of section 103 of this title shall be expended by the State in accordance with the provisions of that section and relevant federal regulations.

HISTORY: Amended 1959, No. 328 (Adj. Sess.), § 8(b); 1983, No. 195 (Adj. Sess.), § 5(b); 1989, No. 245 (Adj. Sess.), § 5.

History

Source.

V.S. 1947, § 6256. P.L. § 427. G.L. § 410. 1917, No. 265 , § 3.

Amendments

—1989 (Adj. Sess.). Substituted “relevant federal” for “the” preceding “regulations” and deleted “of the United States geological survey” thereafter in the first sentence, and deleted the second sentence.

—1983 (Adj. Sess.). Inserted “and information support” following “commissioner of finance” in the second sentence.

—1959 (Adj. Sess.). Substituted “finance director” for “auditor of accounts”.

§ 105. Geological publications and products; account.

A special fund account to be known as the State Geological Publications Account is created. The Account shall contain all receipts from the sale of geological publications and products produced and sold by the State Geologist, and may be expended by the State Geologist for the purpose of supporting the production of geological publications and products. All balances in the Account at the end of any fiscal year shall be carried forward and remain part of the Account. Disbursements from the Account shall be made by the State Treasurer on warrants drawn by the Commissioner of Finance and Management.

HISTORY: Added 1987, No. 225 (Adj. Sess.), § 1; amended 1997, No. 155 (Adj. Sess.), § 33.

History

Amendments

—1997 (Adj. Sess.). Deleted “with the approval of the secretary of the agency of natural resources” after “expended by the state geologist” in the second sentence.

Chapter 8. Geographic Information

History

Repeal of sunset of chapter. Pursuant to 1993, No. 204 (Adj. Sess.), § 4, eff. June 17, 1994, as amended by 1997, No. 143 (Adj. Sess.), § 1, and by 1999, No 72 (Adj. Sess.), this chapter, which is comprised of sections 121-126, was to terminate December 31, 2004. However, pursuant to 2001, No. 142 (Adj. Sess.), § 37a, that sunset was repealed.

§ 121. Definitions.

As used in this chapter:

  1. “VGIS” means the Vermont Geographic Information System developed pursuant to the comprehensive strategy developed by the Center as required by section 122 of this title.
  2. “Electronic products and services” means computer-related services and products provided by the Center, including:
    1. Electronic manipulation of the data contained in public records in order to tailor the data to a customer’s request, or to develop a product that meets the needs of customers.
    2. Duplication of public records in alternative formats not used by the Center, providing periodic updates of an electronic file or database, or duplicating an electronic file or database.
    3. Provision of on-line access to an electronic file or database or any form of electronic access to the information system of the Center.
    4. Provision of software developed by or for the Center.
    5. Generating maps, listings, or other standard or customized products from an electronic geographic information system.
  3. “Media” means the physical material on which written, printed, or electronically encoded information is stored.

HISTORY: Added 1993, No. 204 (Adj. Sess.), § 2, eff. June 17, 1994.

§ 122. Vermont Center for Geographic Information, incorporated; establishment.

  1. The State of Vermont shall support a comprehensive strategy for the development and use of a geographic information system, including:
    1. data and mapping standards;
    2. potential applications and their priorities;
    3. priorities for collecting and digitizing information;
    4. geographic location standards for all data collection;
    5. software and hardware standards;
    6. management needs;
    7. private sector cooperation;
    8. costs and benefits of use;
    9. [Repealed.]
    10. ways to make information gathered available to regional and municipal entities, commercial entities, the public, and others;
    11. ways to assure that data gathered by governmental entities conforms to the geographic information system;
    12. an implementation schedule.
  2. In order to develop and implement that strategy, and to ensure that all data gathered by State agencies that is relevant to the VGIS shall be in a form that is compatible with, useful to, and shared with that geographic information system, there is hereby established the Vermont Center for Geographic Information (the Center) as a unit of the Data Management Division under the Agency of Digital Services.
  3. [Repealed.]

HISTORY: Added 1993, No. 204 (Adj. Sess.), § 2, eff. June 17, 1994; amended 2013, No. 179 (Adj. Sess.), § E.800.1; 2018, No. 11 (Sp. Sess.), § F.101; 2019, No. 49 , § 6, eff. June 10, 2019.

History

Amendments

—2019. Subsec. (b): Inserted “the Vermont Center for Geographic Information (the Center)” following “hereby established”, substituted “unit of the Data Management Division” for “division” preceding “under the Agency”, and deleted “the Vermont Center for Geographic Information (the Center)” after “Services”.

—2018 (Sp. Sess.). Subsec. (b): Substituted “Digital Services” for “Commerce and Community Development” following “Agency of”.

—2013 (Adj. Sess.), as amended by 2015, No. 4 , § 87. Section heading: Deleted “, Incorporated” following “Geographic Information”.

Subdiv. (a)(9): Repealed.

Subsec. (b): Substituted “as a division under the Agency of Commerce and Community Development the Vermont Center for Geographic Information (the Center)” for “a nonprofit public corporation to be known as the Vermont center for geographic information, hereinafter called ‘the center,’ as a body corporate and politic and a public instrumentality of the state” at the end.

Subsec. (c): Repealed.

Effective date of repeal of subsec. (c). 2015, No. 4 , § 87 amended 2014 Acts and Resolves No. 179, Sec. G.100(i) to change the reference in that effective date provision from a reference to the entire section, 10 V.S.A. § 122 , to a reference specifically to subsec. (c) of this section, so that only the repeal of subsec. (c) was effective March 30, 2015. The other amendments by Act No. 179 were effective July 1, 2014.

§ 123. Powers and duties.

  1. [Repealed.]
  2. The purposes of the Center shall be to:
    1. assure that all VGIS data are of high quality and are compatible with, useful to, and shared with other public-sector and private-sector data users;
    2. encourage the same high standards of quality and compatibility in other Vermont GIS cooperators;
    3. promote the efficient development and use of geographic information by agencies of the State, its political subdivisions, and Vermont businesses and citizens;
    4. facilitate the growth of commercial services within Vermont for the provision of spatial data, products, and services.
  3. Within the limits of available resources, the Center shall operate a program of standards development, data dissemination, and quality assurance, and shall perform the following duties:
    1. Provide or ensure provision of geographic information products and services to Vermont citizens, to local and regional planning organizations, to State government, to the federal government, and to private businesses and industries.
    2. Develop procedures for access to the VGIS. Those procedures shall ensure that VGIS data are readily available for the purposes of 24 V.S.A. chapter 117, as well as for the support of efficient and economical geographic analysis and decision making by government, business, and citizens of Vermont, at a reasonable cost and in reasonable forms.
    3. Develop, publish, maintain, and implement such VGIS standards as are necessary to assure that data are compatible with, useful to, and shared with all users of VGIS data, including geographic data standards relating to scale, accuracy, coding, documentation, data format, and physical media.
    4. In developing relevant policies, procedures, and standards, seek the consultation of institutions of higher learning, local government, local and regional planning, private business and industry, and other members of the public with an interest in or knowledge of GIS technology.
    5. For all geographic data that are or may be useful to the Center’s users, and that have been collected by any part of State government or generated with State support, ensure that such data:
      1. Are developed and maintained so as to conform to VGIS standards.
      2. Upon request of a potential user, are actually made available to the user in a usable format in accordance with 1 V.S.A. § 316 relating to access to public records and related statutes.
      3. Are stored and distributed in a manner that will limit the disclosure of data containing individual identifiers to disclosure consented to by the individuals in the data.
    6. Assist in assessing VGIS financial needs and resources for cooperating State agencies, evaluating the adequacy of those financial resources to meet the goals of the three-year VGIS work plan, and developing alternate sources of revenue for VGIS data acquisition.
    7. Enter into memoranda of understanding, form contracts, and enter cooperative agreements for the development, acquisition, maintenance, distribution, and marketing of GIS data.
    8. Include in any contract for electronic products and services provisions that:
      1. Protect the security and integrity of VGIS information and of information systems that are shared by public agencies.
      2. Indemnify or limit the liability, if any, of the State of Vermont.
    9. Notify the State Librarian of the electronic services and products offered to the public. The notification must include a summary of the available format options and the cost of such products and services.
    10. Retain archive copies and act as a distributor for any State agency, as well as for other public and private entities, that prepares GIS data or electronic products that are compatible with, useful to, and shared with VGIS.
    11. Assist the Secretaries of Administration, of Transportation, of Natural Resources, of Human Services, and of Commerce and Community Development, and the commissioner or director of State departments and offices not within these agencies in the identification of information gathered within the respective agency, department, or office that is relevant to Vermont’s GIS. Working in cooperation with each organization that identifies such information, the Center shall include components within the three-year VGIS work plan. Such cooperation may include:
      1. formulation of a “memorandum of understanding” between the organization and the Center, setting out roles and the relationship between the parties;
      2. periodic meetings to identify opportunities for improvement of VGIS information and applications gathered or used by the organization;
      3. identification of funding strategies, technical procedures, data conversion plans, and application development projects in which the Center can be of assistance to the organization.
    12. Provide to regional planning commissions, State agencies, and the general public orthophotographic imagery of the State at a scale appropriate for the production and revision of town property maps. Periodically, such digital imagery shall be updated to capture land use changes, new settlement patterns, and such additional information as may have become available to the Director or the Center.
      1. The Center shall supply to each town such orthophotographic imagery as has been prepared by it of the total area of that town. Any image shall be available, without charge, for public inspection in the office of the town clerk to whom the imagery was supplied.
      2. At a reasonable charge to be established by the Center and the Director, the Center shall supply to any person or agency other than a town clerk or lister a copy of any digital format orthophotographic imagery created under this section.
      3. Hard copy or nondigital format orthophotographic imagery created under this section shall be available for public review at the State Archives.
  4. The Center may provide specialized information or perform specialized services if these activities:
    1. contribute to achieving the purposes of the Center as stated in subsection (b) of this section;
    2. are pursued in partnership with the private sector; and
    3. are performed without cost to the taxpayer and all direct and indirect costs of obtaining these products and services are incurred by the customer or others.
  5. [Repealed.]

HISTORY: Added 1993, No. 204 (Adj. Sess.), § 2, eff. June 17, 1994; amended 1995, No. 190 (Adj. Sess.), § 1, eff. July 1, 1996; 2013, No. 34 , § 5; 2013, No. 179 (Adj. Sess.), § E.800.2, eff. March 30, 2015; 2015, No. 57 , § 36, eff. June 11, 2015; 2015, No. 97 (Adj. Sess.), § 19.

History

Amendments

—2015 (Adj. Sess.). Subdiv. (c)(5)(B): Substituted “§ 316” for “§ 315” following “1 V.S.A.”.

—2015. Subdiv. (c)(12): Added.

—2013 (Adj. Sess.). Subsecs. (a) and (e): Repealed.

—2013. Subsec. (a): Deleted “[chapter 19 of Title 11]” following “11B V.S.A. § 3.02”.

—1995 (Adj. Sess.). Subdiv. (c)(11): Substituted “commerce and community development” for “development and community affairs” in the first sentence.

§§ 124-126. Repealed. 2013, No. 179 (Adj. Sess.), § E.800.6, eff. March 30, 2015.

History

Former §§ 124-126. Former § 124, relating to the Board of Directors of the Geographic Information Center, was derived from 1993, No. 204 (Adj. Sess.), § 2 and amended by 1997, No. 143 (Adj. Sess.), § 2.

Former § 125, relating to the officers, was derived from 1993, No. 204 (Adj. Sess.), § 2.

Former § 126, relating to the audits, was derived from 1993, No. 204 (Adj. Sess.), § 2 and amended by 2011, No. 139 (Adj. Sess.), § 5.

§ 127. Resource mapping.

  1. On or before January 15, 2013, the Secretary of Natural Resources shall complete resource mapping based on the Geographic Information System (GIS). The mapping shall identify natural resources throughout the State that may be relevant to the consideration of energy projects. The Center for Geographic Information shall be available to provide assistance to the Secretary in carrying out the GIS-based resource mapping.
  2. The Secretary of Natural Resources shall consider the GIS-based resource maps developed under subsection (a) of this section when providing evidence and recommendations to the Public Utility Commission under 30 V.S.A. § 248(b)(5) and when commenting on or providing recommendations under chapter 151 of this title to District Commissions on other projects.

HISTORY: Added 2011, No. 170 (Adj. Sess.), § 16c, eff. May 18, 2012.

History

Revision note

—2017. In subsec. (b), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

§ 128. Vermont Center for Geographic Information Special Fund.

  1. A special fund is created for the operation of the Vermont Center for Geographic Information in the Agency of Digital Services. The fund shall consist of revenues derived from the charges by the Agency of Digital Services pursuant to subsection (c) of this section for the provision of Geographic Information products and services, interest earned by the fund, and sums which from time to time may be made available for the support of the Center and its operations. The fund shall be established and managed pursuant to 32 V.S.A. chapter 7, subchapter 5 and shall be available to the Agency to support activities of the Center.
  2. The receipt and expenditure of monies from the special fund shall be under the supervision of the Secretary of Digital Services.
  3. Notwithstanding 32 V.S.A. § 603 , the Secretary of Digital Services is authorized to impose charges reasonably related to the costs of the products and services of the Vermont Center for Geographic Information, including the cost of personnel, equipment, supplies, and intellectual property.

HISTORY: Added 2015, No. 57 , § 28, eff. June 11, 2015; amended 2018, No. 11 (Sp. Sess.), § F.100.

History

Amendments

—2018 (Sp. Sess.). Subsec. (a): Substituted “Digital Services” for “Commerce and Community Development” following “Agency of” in the first and second sentences.

Subsecs. (b)-(c): Substituted “Digital Services” for “Commerce and Community Development” following “Secretary of”.

Effective date and retroactive applicability of amendment. 2015, No. 57 , § 98(3), provides: “Notwithstanding 1 V.S.A. § 214 , Sec. 28 (VCGI Special Fund) [which enacted this section] shall take effect on passage [June 11, 2015] and apply retroactively as of February 8, 2015.

Chapter 9. Geographic Names

§ 151. Terminology and spelling.

  1. The State Librarian is authorized to furnish for any federal or state publication the proper terminology and spelling of any geographic name in Vermont and may advise the U.S. Postal service regarding the proper selection and spelling of the name of a Vermont post office or any railroad company regarding the use and spelling of the name of a Vermont station.  The State Librarian is authorized to function in collaboration with the U.S. board on geographic names and to conduct his or her operations similarly.
  2. The names used in the topographic maps of the State now being prepared by the U.S. Geological Survey in cooperation with the State shall be spelled in accordance with the recommendations of the State Librarian.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 45, eff. March 1, 1961.

History

Source.

1953, No. 175 . V.S. 1947, § 6257. P.L. § 428. G.L. § 411. 1917, No. 269 , § 1.

Amendments

—1959 (Adj. Sess.). Deleted former subsec. (a), redesignated former subsecs. (b) and (c) as present subsecs. (a) and (b), and substituted “state librarian” for “board” throughout the section.

CROSS REFERENCES

Powers and duties of State Librarian, see 22 V.S.A. § 601 .

§ 152. Authority to name geographic locations.

The Board of Libraries is hereby designated the State agency to name geographic locations, including mountains, streams, lakes, and ponds, upon petition signed by not less than 25 interested persons or by petition of an administrative department of the State.

HISTORY: Added 1961, No. 139 , § 3, eff. May 24, 1961; amended 1969, No. 226 (Adj. Sess.), § 2, eff. March 31, 1970; 2015, No. 40 , § 25, eff. March 1, 2016; 2017, No. 74 , § 16.

History

Amendments

—2017. Section heading: Deleted “roads and” following “name”.

—2015. Deleted “roads and” preceding “geographic locations including” and “but not limited to” thereafter.

—1969 (Adj. Sess.). Substituted “board of libraries” for “board of trustees of the state library”.

CROSS REFERENCES

Board of libraries generally, see 22 V.S.A. § 602 .

§ 153. Procedure.

When the Board receives a petition to act under section 152 of this title it shall give reasonable notice to each administrative department of the State having jurisdiction of the location to be named and to each town in which the location lies of the time and place when it will hear all interested parties.

HISTORY: Added 1961, No. 139 , § 4, eff. May 24, 1961; 2015, No. 40 , § 26, eff. March 1, 2016.

History

Amendments

—2015. Deleted “road or” preceding “location” twice.

Notes to Opinions

Construction with other laws.

The trustees of the state library are not subject to the administrative procedure act, section 801 et seq. of Title 3, in conducting a hearing under this section. 1970 Vt. Op. Att'y Gen. 159.

§ 154. Standards.

The Board in choosing names shall give preference to historical events, historic persons, and flora and fauna native to Vermont; names characteristic to Vermont; and its traditions and local place names where long usage has made them appropriate and useful.

HISTORY: 1961, No. 139 , § 5, eff. May 24, 1961.

Chapter 11. Development of Lake Champlain Basin

Subchapter 1. Interstate Commission

§ 171. Repealed. 1989, No. 265 (Adj. Sess.), § 8, eff. June 21, 1990.

History

Former § 171. Former § 171, declaring the policy of the state with regard to the Lake Champlain Basin, was derived from 1959, No. 110 , § 1. For establishment of citizens’ advisory committee on future of Lake Champlain, see chapter 63 of this title.

§§ 172-174. Repealed. 1967, No. 93, § 3, eff. April 14, 1967.

History

Former §§ 172-174. Former § 172, relating to interstate commission on Lake Champlain basin, was derived from 1959, No. 110 , § 2; 1959, No. 329 (Adj. Sess.), §§ 18, 23, 25.

Former §§ 173 and 174, relating to relations with other agencies and compensation of members, were derived from 1959, No. 110 , §§ 3 and 4.

Subchapter 2. Champlain Basin Compact

§§ 181-192. Repealed. 1989, No. 265 (Adj. Sess.), § 8, eff. June 21, 1990.

History

Former §§ 181-192. Former §§ 181-192, which promulgated the Champlain Basin Compact, were derived from 1967, No. 93 , § 1. For establishment of citizens’ advisory committee on future of Lake Champlain, see chapter 63 of this title.

Subchapter 3. Provisions Relating to Champlain Basin Compact

§§ 201-205. Repealed. 1989, No. 265 (Adj. Sess.), § 8, eff. June 21, 1990.

History

Former §§ 201-205. Former §§ 201-205, relating to members of the basin panel and advisors to the commission and requiring cooperative services, an annual budget, and audits, were derived from 1967, No. 93 , § 2.

Chapter 11A. Vermont Qualifying Facility Contract Mitigation Authority

Subchapter 1. General Provisions

History

Repeal of subchapter. This subchapter, which comprised §§ 171-175, relating to Vermont qualifying facility contract mitigation authority, was repealed by 2009, No. 135 (Adj. Sess.), § 26(3)(C), effective May 29, 2010.

§§ 171-175. Repealed. 2009, No. 135 (Adj. Sess.), § 26(3)(C).

History

Former §§ 171-175. Former § 171, relating to legislative findings, was derived from 2001, No. 145 (Adj. Sess.), § 4.

Former § 172, relating to definitions, was derived from 2001, No. 145 (Adj. Sess.), § 4.

Former § 173, relating to authority and organization, was derived from 2001, No. 145 (Adj. Sess.), § 4.

Former § 174, relating to authority and general powers, was derived from 2001, No. 145 (Adj. Sess.), § 4.

Former § 175, relating to records, annual report and audit, was derived from 2001, No. 145 (Adj. Sess.), § 4 and amended by 2009, No. 33 , § 19.

Subchapter 2. Mitigation Bonds

History

Repeal of subchapter. This subchapter, which comprised §§ 176-182, relating to mitigation bonds, was repealed by 2009, No. 135 (Adj. Sess.), § 26(3)(C), effective May 29, 2010.

§§ 176-182. Repealed. 2009, No. 135 (Adj. Sess.), § 26(3)(C).

History

Former §§ 176-182. Former § 176, relating to financing documents, was derived from 2001, No. 145 (Adj. Sess.), § 4.

Former § 177, relating to security documents, was derived from 2001, No. 145 (Adj. Sess.), § 4.

Former § 178, relating to mitigation bonds, was derived from 2001, No. 145 (Adj. Sess.), § 4.

Former § 179, relating to trustees and trust funds, was derived from 2001, No. 145 (Adj. Sess.), § 4.

Former § 180, relating to mitigation bonds of the authority exempt from taxation, was derived from 2001, No. 145 (Adj. Sess.), § 4.

Former § 181, relating to mitigation bonds of the authority eligible for investment, was derived from 2001, No. 145 (Adj. Sess.), § 4.

Former § 182, relating to applications, was derived from 2001, No. 145 (Adj. Sess.), § 4.

Chapter 12. Vermont Economic Development Authority

History

Amendments

—1993. 1993, No. 89 , § 3(a), eff. June 15, 1993, substituted “Vermont Economic Development Authority” for “Vermont Industrial Development Authority” in the chapter heading.

State pledge on behalf of small businesses. 2009, No. 54 , § 108, eff. June 1, 2009, provides: “An amount not to exceed $1,000,000.00 of the full faith and credit of the state is pledged for the support of the activities of the Vermont economic development authority to be used solely for loss reserves for lending in the Vermont small business loan program and the TECH loan program, to be apportioned in a manner deemed appropriate by the authority and the state treasurer.”

CROSS REFERENCES

Economic development grants, see 24 V.S.A. § 2781 et seq.

Subchapter 1. General Provisions

§ 210. Statutory purposes.

The statutory purpose of the exemption for local development corporations in section 236 of this title is to promote economic development.

HISTORY: Added 2013, No. 200 (Adj. Sess.), § 7.

§ 211. Legislative findings.

  1. The Legislature finds that it is necessary to alleviate and prevent unemployment and underemployment and to raise the per capita income within the State, that the development and increase of industry, including the further processing of agricultural products, within the State will promote the prosperity and general welfare of all citizens, and that this chapter is necessary and desirable in order to accomplish these purposes. The Legislature also finds that it is necessary and desirable to encourage the development, production, and distribution of renewable energy resources within the State.
  2. The Legislature further finds that small businesses are responsible for generating the majority of new jobs, and substantial economic development opportunity exists encouraging entrepreneurial development and innovation in Vermont.  The Legislature further finds that business incubator facilities have proved to be effective tools to help small and start-up businesses through the difficult early years with low-cost, flexible space, necessary support services at an affordable cost, and with managerial and technical assistance on such items as bookkeeping, inventory control, marketing and personnel.  Vermont’s experience with business incubators confirms their value in nurturing jobs and entrepreneurship.  The Legislature further finds that business incubator facilities related to institutions of higher education nationwide have been an excellent source for successful business enterprises.
  3. Therefore, the general public advantage requires:
    1. an increased inventory of industrial sites and modern buildings suitable to house new or existing business enterprises;
    2. the expansion, reclamation, or renovation of existing buildings to house new or existing business enterprises;
    3. low-cost capital available to local development corporations for the purchase of land for industrial sites, for planning and development of industrial parks, and for the construction of speculative industrial buildings and small business incubator facilities;
    4. low-cost capital available to industrial enterprises to provide land, buildings, and equipment for industrial expansion;
    5. aid to existing business enterprises in the State when such aid will prevent serious reduction in employment or will enhance or increase the existing level of employment;
    6. low-cost capital for the abatement of industrial air and water pollution and general improvement of the disposal of industrial waste;
    7. low-cost capital to assist Vermont family farmers to farm as provided in subdivision 272(3) of this title;
    8. low-cost capital available for the purchase of land, buildings, and equipment to process Vermont milk, including the processing of milk into cheese, yogurt, or other value-added milk products; and
    9. low-cost capital to assist the wood products enterprises to provide an adequate supply of mill quality chips for Vermont public and private schools and other entities that rely upon wood as a primary source of heating.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 217 (Adj. Sess.), § 4; 1985, No. 81 , § 2; 1985, No. 136 (Adj. Sess.), § 1, eff. April 24, 1986; 2003, No. 63 , § 73, eff. June 11, 2003; 2003, No. 121 (Adj. Sess.), § 91, eff. June 8, 2004.

History

Amendments

—2003 (Adj. Sess.). Subsec. (a): Added the second sentence.

Subdiv. (c)(9): Added.

—2003. Subdiv. (c)(8): Added.

—1985 (Adj. Sess.). Section amended generally.

—1985. Subdiv. (7): Added.

—1975 (Adj. Sess.). Inserted “including the further processing of agricultural products” following “increase of industry” in the first sentence.

Notes to Opinions

Constitutionality of prior law.

The language of former chapter 13, the presumption of constitutionality, earlier Vermont cases, and the trend of recent decisions all led to the conclusion that the primary purpose of the chapter was public and it was therefore constitutional. 1964-66 Vt. Op. Att'y Gen. 268.

Loans insurable.

Under former chapter, the authority could guarantee loans made for the purpose of financing new construction which was to be construed as either a completely new building or an addition to an old one whereby the facilities of the original plant or building were expanded, but the authority could not guarantee loans to purchase or alter existing buildings. 1962-64 Vt. Op. Att'y Gen. 445.

Purpose.

The purpose of former chapter was to promote the public welfare by increasing employment opportunity in the state. 1964-66 Vt. Op. Att'y Gen. 268.

§ 212. Definitions.

As used in this chapter:

  1. “Authority” means the Vermont Economic Development Authority established under section 213 of this title.
  2. “Bond” means a note, bond, debenture, or any other evidence of indebtedness issued by a municipality or by the State of Vermont under subchapter 4 of this chapter to finance a project in whole or in part or to refund indebtedness incurred for that purpose.
  3. “Debt service,” as used in subchapter 4 of this chapter, means the amounts required to pay bonds according to their terms and shall include amounts representing principal, premium, and interest, including interest on overdue payments.
  4. “Financing document,” as used in subchapter 4 of this chapter, means a written instrument establishing the rights and responsibilities of a municipality or the Authority and the user with respect to an eligible facility financed by the issue of bonds. A financing document may be in the nature of a sale and leaseback, a lease purchase, a conditional sale, an installment sale, a secured or unsecured loan, a loan and mortgage, or other similar transaction, may bear any appropriate title and may involve property in addition to the property financed by the bonds. The municipality’s or Authority’s ownership or possessory interest in the eligible facility under a financing document may be that of owner, lessor, lessee, conditional or installment vendor, mortgagor, mortgagee, or otherwise, but the municipality or the Authority need not have any ownership or possessory interest in the facility.
  5. “Governing body” means the board of aldermen or city council of a city, the board of selectboard members of a town, and the trustees of an incorporated village.
  6. “Eligible facility” or “eligible project” means any industrial, commercial, or agricultural enterprise or endeavor approved by the Authority that meets the criteria established in the Vermont Sustainable Jobs Strategy adopted by the Governor under section 280b of this title, including land and rights in land, air, or water, buildings, structures, machinery, and equipment of such eligible facilities or eligible projects, except that an eligible facility or project shall not include the portion of an enterprise or endeavor relating to the sale of goods at retail where such goods are manufactured primarily out of state, and except further that an eligible facility or project shall not include the portion of an enterprise or endeavor relating to housing. Such enterprises or endeavors may include:
    1. Quarrying, mining, manufacturing, processing, including the further processing of agricultural products, assembling, or warehousing of goods or materials for sale or distribution or the maintenance of safety standards in connection therewith, and including Vermont-based manufacturers that are adversely impacted by the State’s regulation or ban of products as they transition from the manufacture of the regulated or banned products to the design and manufacture of environmentally sound substitutes.
    2. The conduct of research and development activities, including research and development of computer software and telecommunications equipment.
    3. Use as the national or regional headquarters for a multistate business enterprise or for purposes of subchapter 4 of this chapter only, use as the national headquarters of a nonprofit organization whose purpose is the promotion of business, industry, or agriculture, including the registry of animal breeds.
    4. Collecting or processing any kind of waste material for reuse or disposal.
    5. Reducing, mitigating, or eliminating pollution of land, air, or water by substances, heat, or sound.
    6. For the purposes of subchapter 4 of this chapter only, in addition to the foregoing, the conduct of any trade or business that is eligible for tax-exempt financing under the U.S. Internal Revenue Code.
    7. For purposes of subchapter 4 of this chapter only, transporting of goods, materials, or agricultural products for sale or distribution or the maintenance of safety standards in connection therewith, including railroad terminals, trucking terminals, and airport facilities.
    8. Use as a small business incubator facility.
    9. Processing or converting post-consumer materials into industrial feed stocks, or manufacturing products from these feed stocks, or both, excluding the converting of recyclable materials into a fuel or fuel product. As used in this subdivision, “post-consumer materials” means only those products generated by a business or a consumer that have served their intended end uses, and that have been separated or diverted from solid waste.
    10. Travel and tourism projects and enterprises, and related recreational activities, provided that the project or enterprise will maintain a reasonable level of full-time employment throughout the year consistent with the size and nature of the business and general business custom in the industry.
    11. The business of information technology, or the collection, processing, or management of data, documents, or records.
    12. A captive or commercial insurance underwriter, a mortgage, commercial, or consumer credit provider, or an entity engaged in underwriting or brokering services.
    13. A renewable energy plant, as defined in 30 V.S.A. § 8002 , if the construction of the plant requires a certificate of public good under 30 V.S.A. § 248 and all or part of the electricity generated by the plant will be under contract to a Vermont electric distribution utility.
    14. Industrial park planning, development, or improvement.
    15. For purposes of subchapter 5 of this chapter, a telecommunications plant, as defined in 24 V.S.A. § 1911(2) , owned by a municipality individually or in concert with one or more other municipalities as a communications union district established under 30 V.S.A. chapter 82.
    16. Any combination of the foregoing activities, uses, or purposes. An eligible facility may include structures, appurtenances incidental to the foregoing such as utility lines, storage accommodations, offices, dependent care facilities, or transportation facilities.
  7. “Industrial park” means an area of land planned and designed as a location for one or more industrial buildings, including adequate access roads, utilities, and other services necessary for eligible facilities.
  8. “Industrial Park Planning and Development” means the basic architectural and engineering services needed to determine site and land use feasibility, and the planning and carrying out of land improvements necessary to make industrial land usable.
  9. “Insurance contract” means a contract insuring mortgage payments under subchapter 2 of this chapter.
  10. “Local Development Corporation” means any nonprofit organization incorporated in the State for the purpose of fostering, encouraging, and assisting the physical location of business enterprises within the State and having as its principal purpose the industrial and economic development of one or more political subdivisions, and shall include the Northeastern Vermont Development Association and any State development company organized under subdivision 216(13) of this title; however, in addition to the foregoing, for the purpose of providing assistance to small business incubator facilities, any nonprofit organization that enters into a written agreement with the Authority to establish, operate, and administer a small business incubator facility, including municipalities, local or regional nonprofit development corporations, and higher educational institutions, shall have the rights and obligations of a local development corporation under this chapter.
  11. “Maturity date,” as used in subchapter 2 of this chapter, means the date upon which the note or other evidence of indebtedness secured by a mortgage would be extinguished if paid in accordance with the mortgage payments.
  12. “Mortgage,” as used in subchapter 2 of this chapter, means a first mortgage upon an eligible facility given by a mortgagor, as herein defined, to secure the repayment of amounts borrowed to pay costs of a project.
  13. “Mortgage payments,” as used in subchapter 2 of this chapter, means the periodic payments called for by a mortgage that shall cover lease land rentals, if any, mortgage insurance premiums, interest, installments of principal, taxes and assessments, hazard insurance payments, and any other payments called for in the mortgage.
  14. “Mortgagee,” as used in subchapter 2 of this chapter, means the original lender under a mortgage and its successors and assigns if approved by the Authority.
  15. “Mortgagor,” as used in subchapter 2 of this chapter, means the original borrower under a mortgage or a security agreement and its successors and assigns, if approved by the Authority.
  16. “Municipality” means a city, town, or incorporated village.
  17. “Political subdivision” means a city, town, incorporated village, or county.
  18. “Project” or “eligible facility” means the creation, establishment, acquisition, construction, expansion, improvement, reclamation, or renovation of an eligible facility.
  19. “Project costs” means any costs or expenses reasonably incidental to a project and may without limitation include the costs of:
    1. issuing bonds under subchapter 4 of this chapter to finance a project;
    2. acquiring land, buildings, structures, and facilities, whether by lease, purchase, construction, or otherwise;
    3. acquiring rights in or over land, air, or water;
    4. improving land and improving buildings, structures, and facilities by remodeling, reconstruction, replacement, or enlargement;
    5. acquiring and installing machinery and equipment;
    6. obtaining professional or advisory services;
    7. interest prior to and during construction and until one year after the completion of a project;
    8. creating reserves in connection with the issue of bonds under subchapter 4 of this chapter; and
    9. acquiring or committing to acquire any federally guaranteed security and pledging the proceeds thereof to secure the payment of bonds.
  20. “Security document,” as used in subchapter 4 of this chapter, means a written instrument establishing the rights and responsibilities of a municipality or the Authority and the holders of bonds issued to finance an eligible facility, and may provide for a trustee for the benefit of those bondholders.  A security document may contain an assignment, pledge, mortgage, or other encumbrance of all or part of the municipality’s or Authority’s interest in, or right to receive payments with respect to, an eligible facility under a financing document and may bear any appropriate title.  A financing document and a security document may be combined as one instrument.
  21. “Speculative building” means a basic structure of flexible design erected by a local development corporation for eventual sale or lease to a purchaser or tenant requiring eligible facilities.
  22. “Tenant” means the tenant or occupier of an eligible facility; or small business incubator facility.
  23. “User,” as used in subchapter 4 of this chapter, means the person or local development corporation that is:
    1. entitled to the use or occupancy of an eligible facility or is lessor to the person entitled to the use or occupancy of an eligible facility; and
    2. primarily responsible for making payments sufficient to meet debt service on the bonds issued to finance the facility.
  24. “Processing” means to subject a product to a particular method, system, or technique of preparation, handling, or other treatment designed to effect a particular result.
  25. “Federally guaranteed security” means any security, investment, or evidence of indebtedness that is either directly or indirectly insured, or guaranteed, in whole or in part, as to the repayment of principal or interest, or both, by the United States or any instrumentality thereof.
  26. “Federally insured project loan” means any loan to finance or refinance the cost of a project that is either directly or indirectly insured or guaranteed, in whole or in part, as to the repayment of principal or interest or both by the United States or any instrumentality thereof, or any commitment by the United States or any instrumentality thereof to so insure or guarantee such a loan.
  27. “Small business incubator facility” means a building, group of buildings, or part of a building where small and growing businesses may obtain small units of space available for purchase or lease at below market rates or on flexible terms, shared office support services, and financial and general business management advice and assistance.
  28. “Loan,” for the purposes of subchapters 5, 7, and 10 of this chapter, means a loan, or a financing lease, provided that such lease transfers the ownership of the leased property to the lessee following the payment of all required lease payments as specified in the lease agreement.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 1, eff. March 27, 1975; 1975, No. 18 7 (Adj. Sess.), § 1; 1975, No. 217 (Adj. Sess.), §§ 5, 7; 1977, No. 52 , § 1, eff. April 22, 1977; 1981, No. 37 , § 1; 1981, No. 54 , §§ 1, 6, 7, 12, eff. April 28, 1981; 1983, No. 33 , § 1, eff. April 22, 1983; 1983, No. 38 , § 1; 1983, No. 159 (Adj. Sess.), § 1, eff. April 14, 1984; 1985, No. 136 (Adj. Sess.), §§ 2-5, eff. April 24, 1986; 1989, No. 237 (Adj. Sess.), § 1; 1991, No. 202 (Adj. Sess.), § 9, eff. May 27, 1992; 1991, No. 212 (Adj. Sess.), §§ 1-3, eff. May 27, 1992; 1993, No. 89 , §§ 2, 3, eff. June 15, 1993; 1995, No. 46 , §§ 2, 3; 1995, No. 184 (Act. Sess.), § 5; 2005, No. 61 , § 5; 2013, No. 161 (Adj. Sess.), § 72; 2013, No. 199 (Adj. Sess.), § 36; 2015, No. 41 , § 22, eff. June 1, 2015; 2015, No. 51 , § E.2, eff. June 3, 2015; 2015, No. 56 , § 14.

History

Revision note

—2011 (Adj. Sess.). Redesignated subdiv. (6)(I), as added by 1991, No. 212 (Adj. Sess.), § 3, as subdiv. (6)(J) to avoid a conflict with subdiv. (6)(I), as added by 1991, No. 202 (Adj. Sess.), § 9.

—2014. Subdiv. (5): Substituted “selectboard” for “selectmen” in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Although 1991, No. 202 (Adj. Sess.), § 9 and 1991, No. 212 (Adj. Sess.), § 2, provided for the redesignation of existing subdiv. (6)(I) as subdiv. (6)(J), that subdivision was redesignated as subdiv. (6)(K) in view of its content.

—2014. Subdiv. (5): Substituted “selectboard” for “selectmen” in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Amendments

—2015. Subdiv. (6)(A): Act 51 inserted “, and including Vermont-based manufacturers that are adversely impacted by the State’s regulation or ban of products as they transition from the manufacture of the regulated or banned products to the design and manufacture of environmentally sound substitutes” following “therewith”.

Subdiv. (6)(M): Act 56 substituted “a renewable energy plant” for “Sustainably Priced Energy Enterprise Development (SPEED)” and inserted “, if the construction of the plant requires a certificate of public good under 30 V.S.A. § 248 and all or part of the electricity generated by the plant will be under contract to a Vermont electric distribution utility” following “§ 8002”.

Subdiv. (6)(O): Added by Act 41 and redesignated former (6)(O) as present (6)(P).

—2013 (Adj. Sess.). Subdiv. (6)(O): Added by Act 199.

—2005. Subdiv. (6): Made a minor change in punctuation in the introductory paragraph, made a minor stylistic change in subdiv. (L), added new subdiv. (M) and redesignated former subdiv. (M) as subdiv. (N) and made minor change in punctuation in that subdiv.

—1995 (Adj. Sess.) Subdiv. (28): Substituted “subchapters 5, 7 and 10” for “subchapter 5 and subchapter 7” preceding “of this chapter”.

—1995. Subdiv. (6): Act No. 46, § 2 rewrote the introductory paragraph.

Subdiv. (28): Added by Act No. 46, § 3.

—1993. In subdiv. (1), Act No. 89, § 2 substituted “Vermont economic development authority” for “Vermont industrial development authority” and in subdiv. (6) substituted “eligible facility” for “industrial facility” preceding “means” in the introductory paragraph, deleted “for purposes of subchapter 5 of this chapter only” preceding “travel” in subdiv. (J), added new subdivs. (K) and (L), redesignated former subdiv. (K) as subdiv. (M) and substituted “eligible” for “industrial” preceding “facility” in the second sentence of that subdiv.

Act No. 89, § 3, substituted “eligible facility” for “industrial facility” wherever it appeared in subdivs. (4), (12), (18), (20), (22) and (23)(A), and for “industrial project” preceding “means the” in subdiv. (18), and “eligible facilities” for “industrial facilities” at the end of subdivs. (7) and (21).

—1991 (Adj. Sess.). Act No. 202 and Act No. 212 deleted “or” at the end of subdiv. (6)(H), added a new subdiv. (6)(I) and redesignated former subdiv. (6)(I) as subdiv. (6)(J).

—1989 (Adj. Sess.). Subdiv. (6)(B): Added “including research and development of computer software and telecommunications equipment” following “activities.”

Subdiv. (6)(I): Inserted “dependent care facilities” following “offices” in the second sentence.

—1985 (Adj. Sess.) Subdiv. (6)(C): Inserted “of this chapter” following “subchapter 4”.

Subdiv. (6)(G): Deleted “or” following “facilities” at the end of the subdiv.

Subdiv. (6)(H): Amended generally.

Subdiv. (6)(I): Added.

Subdiv. (10): Amended generally.

Subdiv. (22): Added “or small business incubator facility” following “industrial facility”.

Subdiv. (27): Added.

—1983 (Adj. Sess.). Subdiv. (6)(C): Added “or for purposes of subchapter 4 only, use as the national headquarters of a nonprofit organization whose purpose is the promotion of business, industry or agriculture including the registry of animal breeds” following “enterprise”.

Subdiv. (6)(F): Amended generally.

Subdiv. (6)(G): Added “or” following “facilities” and made other minor stylistic changes.

Subdiv. (6)(H): Added.

—1983. Subdiv. (6)(G): Added by Act No. 38.

Subdiv. (10): Act No. 33 added “and any state development company organized under 10 V.S.A. § 216(13) ” following “Association”.

Subdiv. (15): Act No. 38 added “or a security agreement” following “mortgage” and deleted “but under section 221(a) of this title is limited to a local development corporation” following “if approved by the authority”.

—1981. Subdiv. (10): Added “and shall include the Northeastern Vermont Development Association” following “political subdivisions”.

Subdiv. (19)(I): Added.

Subdiv. (23): Inserted “or local development corporation” following “the person”.

Subdiv. (23)(A): Added “or is lessor to the person entitled to the use or occupancy of an industrial facility” following “industrial facility”.

Subdiv. (25): Added.

Subdiv. (26): Added.

—1977. Subdiv. (15): Inserted “of this chapter” following “subchapter 2” and added “but under section 221(a) of this title is limited to a local development corporation” following “approved by the authority”.

—1975 (Adj. Sess.). Subdiv. (6)(A): Act No. 217 inserted “including the further processing of agricultural products” following “processing”.

Subdiv. (19): Act No. 187 deleted subdiv. (I).

Subdiv. (24): Added by Act No. 217.

—1975. Section amended generally.

Effective date of amendments—

1995. 1995, No. 46 , § 22, eff. April 20, 1996, provided in part that section 2 of the act, which amended subdiv. (6) of this section, shall become effective on July 1, 1996.

1995, No. 46 , § 22, eff. April 20, 1995, further provided that section 3 of the act, which added subdiv. (28) of this section, shall take effect on April 20, 1995.

Effective date of amendments—

1981. 1981, No. 37 , § 2, eff. April 21, 1981, provided: “This act [which amended subdiv. (10) of this section] shall take effect from passage [April 21, 1981] and affect the Northeastern Vermont Development Association as of November 1, 1979.”

Notes to Opinions

Industrial enterprise.

A business producing and distributing eggs satisfied the definition of an industrial project under former § 252 and was entitled to aid under former chapter. 1970 Vt. Op. Att'y Gen. 136.

§ 213. Authority; organization.

  1. The Vermont Economic Development Authority is hereby created and established as a body corporate and politic and a public instrumentality of the State. The exercise by the Authority of the powers conferred upon it in this chapter constitutes the performance of essential governmental functions.
  2. The Authority shall have 15 voting members consisting of the Secretary of Commerce and Community Development, the State Treasurer, the Secretary of Agriculture, Food and Markets, the Commissioner of Forests, Parks and Recreation, and the Commissioner of Public Service, each of whom shall serve as an ex officio member, or a designee of any of the aforementioned; and 10 members, who shall be residents of the State of Vermont, appointed by the Governor with the advice and consent of the Senate. The appointed members shall be appointed for terms of six years and until their successors are appointed and qualified. Appointed members may be removed by the Governor for cause and the Governor may fill any vacancy occurring among the appointed members for the balance of the unexpired term.
  3. The Authority shall elect a chair, from among its appointed members, and a vice chair and treasurer from among its members and shall employ a manager who shall hold office at the Authority’s pleasure and who, unless he or she is a member of the classified service under 3 V.S.A. chapter 13, shall receive such compensation as may be fixed by the Authority with the approval of the Governor. A quorum shall consist of eight members. Members disqualified from voting under section 214 of this title shall be considered present for purposes of determining a quorum. No action of the Authority shall be considered valid unless the action is supported by a majority vote of the members present and voting and then only if at least five members vote in favor of the action.
  4. The Authority shall establish the Agricultural Finance Program Advisory Panel of five members, consisting of two present members of the Authority and three members, who shall be residents of the State of Vermont, selected by the Chair of the Authority.  A quorum shall consist of three members.  The Panel may act by majority vote of the members present and voting.  The Panel shall review the preliminary disposition of applications for loans submitted under the agricultural finance programs of chapter 16 of this title, when so requested by the applicant or by the manager of the Authority.  If the Panel determines that an application should be submitted to the members, or if the Panel is in disagreement about the appropriate disposition of an application, the application and the panel’s recommendation shall be submitted to the Authority at its next regularly scheduled meeting.  The Advisory Panel shall also provide advice to the Authority regarding the policies, practices and procedures for the operation of the agricultural programs.
  5. Appointed members of the Authority and the Advisory Panel shall be compensated at the rate of $50.00 a day for time spent in the performance of their duties and they shall be reimbursed for necessary expenses incurred in the performance of their duties.
  6. The State of Vermont reserves the right, at its sole discretion, and at any time, to alter or change the structure, organization, programs, or activities of the Authority, including the power to terminate the Authority, subject to any limitation on the impairment of contracts entered into by the Authority.
  7. Any net earnings of the Authority, beyond that necessary for retirement of the indebtedness or to implement the public purposes or programs of the State of Vermont, shall not inure to the benefit of any person other than the State of Vermont.
  8. Upon dissolution of the Authority, title to all property owned by the Authority shall vest in the State of Vermont.
  9. The Authority shall study and report back to the Legislature no later than January 15, 1989 on the feasibility of hiring full-time counsel in lieu of retaining outside counsel.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 2, eff. March 27, 1975; 1975, No. 18 7 (Adj. Sess.), § 7; 1977, No. 52 , § 2, eff. April 22, 1977; 1987, No. 203 (Adj. Sess.), § 1, eff. May 27, 1988; 1989, No. 199 (Adj. Sess.), § 1; 1993, No. 89 , § 3(a), eff. June 15, 1993; 1995, No. 190 (Adj. Sess.), § 1(a); 2003, No. 42 , § 2, eff. May 27, 2003; 2013, No. 87 , § 6, eff. June 17, 2013.

History

Revision note—

Substituted “commissioner of agriculture, food and markets” for “commissioner of agriculture” in the first sentence of subsec. (b) for purposes of conformity with 1989, No. 256 (Adj. Sess.), § 10(a).

Amendments

—2013. Subsec. (b): Substituted “15” for “12” preceding “voting members”; “10” for “nine” preceding “members”; and deleted the former third sentence.

Subsec. (c): Substituted “3 V.S.A. chapter 13” for “chapter 13 of this title”; “eight” for “six” preceding “members” and “five” for “four” preceding “members”.

—2003. Subsec. (b): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” in the first sentence.

—1995 (Adj. Sess.) Subsec. (b): Substituted “agency of commerce and community development” for “agency of development and community affairs”.

—1993. Subsec. (a): Substituted “Vermont economic development authority” for “Vermont industrial development authority” in the first sentence.

—1989 (Adj. Sess.) Subsec. (d): Inserted “agricultural finance program” following “establish an” and substituted “chair” for “chairman” in the first sentence, added the second through fifth sentences and inserted “also” preceding “provide” and deleted “established under chapter 16 of this title” in the sixth sentence.

—1987 (Adj. Sess.) Section amended generally.

—1977. Subsec. (c): Amended generally.

—1975 (Adj. Sess.). Subsec. (e): Added.

Subsec. (f): Added.

Subsec. (g): Added.

—1975. Subsec. (c): Inserted “and who unless he is a member of the classified service under chapter 13 of Title 3” following “authority’s pleasure” in the first sentence.

§ 214. Members; disqualification.

A member of the Authority may not participate in any decision:

  1. Under subchapter 3 of this chapter affecting a local development corporation if the member is a stockholder or member of that corporation;
  2. Upon any insurance contract under subchapter 2 of this chapter or loan under subchapter 5 of this chapter, if the member is a member, director, trustee, employee, or officer of; or has any interest direct or indirect in; or owns any stock, bonds, or other liabilities issued by or authorized by the prospective mortgagor, mortgagee, or tenant;
  3. Upon a bond issue under subchapter 4 of this chapter if the member is an officer or director of a bank or trust company that is a prospective purchaser of the bonds or a prospective trustee under the trust indenture securing the bonds.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1977, No. 52 , § 3, eff. April 22, 1977.

History

Amendments

—1977. Subdiv. (1): Added “under subchapter 3 of this chapter” preceding “affecting”.

Subdiv. (2): Inserted “or loan under subchapter 5 of this chapter” following “chapter”, and “employee” following “trustee”, substituted “owns any stock, bonds or other liabilities issued by or authorized by” for “connection with” preceding “the prospective”, and made other minor stylistic changes.

Subdiv. (3): Deleted. Former subdiv. (4) redesignated as present subdiv. (3).

Subdiv. (4): Redesignated as present subdiv. (3).

§ 215. Manager; duties.

The manager shall be the chief administrative officer of the Authority and shall direct and supervise the administrative affairs and technical activities of the Authority in accordance with any rules, regulations, and policies set forth by the Authority. In addition to any other duties, the manager shall:

  1. attend all meetings of the Authority, act as its secretary and keep minutes of its proceedings;
  2. approve all accounts of the Authority, including accounts for salaries, per diems, and allowable expenses of any employee or consultant thereof, and expenses incidental to the operation of the Authority;
  3. make an annual report to the Authority documenting the actions of the Authority, and such other reports as the Authority may request;
  4. work closely with the Agency of Commerce and Community Development and provide assistance to the various divisions of that Agency to facilitate the planning and financing of projects;
  5. make recommendations and reports, in cooperation with the Agency of Commerce and Community Development, to the Authority on the merits of any proposed project, on the status of local development corporations, and on suitable industrial sites;
  6. perform such other duties as may be directed by the Authority in the carrying out of the purposes of this chapter.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1995, No. 190 (Adj. Sess.), § 1(a).

History

Revision note

—2018. In subdiv. (2), deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—1995 (Adj. Sess.) Substituted “agency of commerce and community development” for “agency of development and community affairs” in subdivs. (4) and (5).

§ 216. Authority; general powers.

The Authority is hereby authorized:

  1. To sue and be sued in its own name and plead and be impleaded; service of process upon it in any action shall be made by service upon the Secretary of State either in hand or by leaving a copy of the process at his or her office.
  2. To adopt an official seal and alter the same.
  3. To adopt and from time to time amend bylaws, rules, and regulations for the calling and conduct of its meetings and for the conduct of its affairs, including regulations relating to applications for financial assistance and disclosure of information supplied to it.
  4. To establish reasonable priorities among the types and locations of projects to be undertaken or aided under this chapter, and to use its discretion in the selection and combining of programs to be utilized in the undertaking or aiding of such projects.
  5. To maintain its principal office in Washington County and other offices at such place or places as it may designate.
  6. To employ such employees, who may be in the classified system under 3 V.S.A. chapter 13 within the discretion of the Authority, and to employ or contract with agents, consultants, legal advisors, and other experts, as may be necessary or desirable for its purposes, to determine the qualifications, duties, and compensation of such employees, agents, consultants, legal advisors, and experts and to utilize the services of other governmental agencies and departments.
  7. To contract with the State of Vermont or any agency or political subdivision thereof, public corporations or bodies, private corporations, or individuals for any purposes related to industrial development.
  8. To borrow money, make and issue negotiable bonds, notes, commercial paper, and give other evidences of indebtedness or obligations, and give security therefor, including the sale, assignment, or pledge of the Authority’s interest in loans. Such obligations may be incurred for any of the Authority’s corporate purposes, including the expenses of preparing, issuing, and marketing obligations issued for such purposes, and the establishment of reserve funds, including reserve funds created under section 219 of this title. Such obligations shall be in such form and denominations, and with such terms and provisions, including the maturity date or dates, redemption provisions, and other provisions necessary or desirable. Such obligations shall be either taxable or tax-exempt, and shall be noninterest bearing, or bear interest at such rate or rates, which may be fixed or variable, as may be sufficient or necessary to effect the issuance and sale or resale thereof. The Authority is authorized to enter into such agreements with other persons as the Authority deems necessary or appropriate in connection with the issuance, sale, and resale of such obligations, including without limitation, trust indentures, bond purchase agreements, disclosure agreements, remarketing agreements, agreements providing liquidity or credit facilities, bond insurance, or other credit enhancements in connection with such obligations. The Authority is authorized to resell or retire any such notes prior to the stated maturity thereof.
  9. To make such charges against local development corporations as may be mutually agreed upon to assist in meeting the expenses of the Authority incurred under this chapter, including any interest charged by the State Treasurer.
  10. To administer its own funds and to invest or deposit funds which are not needed currently to meet the obligations of the Authority.
  11. To acquire, hold, and dispose of real and personal property; to enter into all contracts, leases, agreements, and arrangements and to do all lawful acts and things necessary or incidental to the performance of its duties and the execution of its powers under this chapter.
  12. To make such payments in lieu of taxes for highway maintenance, fire protection, or for other services as the Authority considers advisable, in the event property owned by the Authority is occupied in whole or in part.
  13. To cause to be incorporated in Vermont a nonprofit corporation that will qualify as a State development company under Title 15 of the U.S. Code and rules and regulations adopted pursuant thereto. The voting members of the Authority shall be members of the company and shall constitute the board of directors of the company. The company shall have at least 14 other members selected by the members of the Authority. The company shall be organized and operate under the nonprofit corporation laws of the State of Vermont to the extent not inconsistent herewith. The Authority shall have the power to contract with the company to provide staff and management needs of the company. The Authority is authorized to contribute to the capital of the company in an amount the Authority determines is necessary and appropriate.
  14. To incorporate one or more nonprofit corporations in Vermont to fulfill the goals of this chapter. Such corporation shall be empowered to borrow money and to receive and accept gifts, grants, or contributions from any source, provided that such gifts, grants, or contributions are not less than $5,000.00 from any one source for the period of one year and provided that such nonprofit corporation provides business loans of not less than $2,500.00 to any particular entity or individual. The voting members of the Authority shall be directors of the corporation. The corporation shall be organized and operate under the nonprofit corporation laws of the State of Vermont. The Authority may contract with the corporation to provide staff and management needs of the company. The Authority may contribute to the capital of the corporation in an amount the Authority determines is necessary and appropriate.
  15. To delegate to loan officers the power to review, approve, and make loans under this chapter, subject to the approval of the manager, and to disburse funds on such loans, subject to the approval of the manager.
  16. To cause to be formed in Vermont a for-profit limited partnership, the purpose of which shall be to invest funds in commercial and agricultural enterprises that create job opportunities and support economic development. The Authority’s investment in the partnership may not exceed $2,000,000.00. To manage the operations of and attract investors to the partnership, the Authority is further authorized to cause to be formed in Vermont a for-profit limited liability company. The Authority’s investment in the limited liability company shall be determined by the Authority.
  17. To contribute to the capital of the Vermont Agricultural Credit Corporation established pursuant to chapter 16A of this title in an amount the Authority determines is necessary and appropriate.
  18. To contribute to the capital of the Vermont Sustainable Energy Loan Fund established under subchapter 13 of this chapter in an amount the Authority determines is necessary and appropriate.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1977, No. 52 , §§ 4, 10, eff. April 22, 1977; 1977, No. 222 (Adj. Sess.), § 5, eff. July 2, 1978; 1981, No. 54 , § 2, eff. April 28, 1981; 1983, No. 33 , §§ 2, 3, eff. April 2, 1983; 1993, No. 210 (Adj. Sess.), § 229a; 1995, No. 46 , §§ 4, 5, eff. April 20, 1995; 1995, No. 184 (Act. Sess.), § 4; 1999, No. 131 (Adj. Sess.), § 1; 2003, No. 67 , §§ 1, 2, eff. June 16, 2003; 2005, No. 137 (Adj. Sess.), § 1; 2011, No. 110 (Adj. Sess.), § 5, eff. May 8, 2012; 2013, No. 87 , § 3, eff. June 17, 2013; 2015, No. 157 (Adj. Sess.), § A.2, eff. June 2, 2016.

History

Amendments

—2015 (Adj. Sess.). Subdiv. (15): Amended generally.

Revision note

—2018. In subdiv. (8) deleted “, without limitation,” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2013. Subdiv. (13): Deleted “$25,000.00” following “contribute” and inserted “in an amount the Authority determines is necessary and appropriate” following “company”.

Subdiv. (14): Deleted “no more than $1,050,000.00” following “contribute” and inserted “in an amount the Authority determines is necessary and appropriate” following “corporation”.

Subdivs. (17), (18): Added.

—2011 (Adj. Sess.) Subdiv. (15): Amended generally.

—2005 (Adj. Sess.). Subdiv. (15): Made a minor change in punctuation in the first sentence, and inserted “except for any agricultural loan referenced above in an amount not to exceed $50,000.00” following “provision” and “electronic mail” following “facsimile” in the second sentence.

—2003. Subdiv. (14): Substituted “$1,050,000.00” for “$50,000.00” in the fifth sentence.

Subdiv. (16): Added.

—1999 (Adj. Sess.). Subdiv. (15): Substituted “$250,000.00” for “$150,000.00” and “$200,000.00 in aggregate amount if the loan is guaranteed by the Farm Services Agency, or its successor agency, or $150,000.00 in aggregate amount if the loan is not guaranteed by the Farm Services Agency, or its successor agency” for “$120,000.00 in aggregate amount” in the first sentence.

—1995 (Adj. Sess.) Subdiv. (8): Amended generally.

—1995. Subdiv. (5): Substituted “in Washington county” for “at Montpelier” preceding “and other”.

Subdiv. (15): Added.

—1993 (Adj. Sess.) Subdiv. (14): Added.

—1983. Subdiv. (7): Added “for any purposes related to industrial development” following “individuals”.

Subdiv. (13): Added.

—1981. Section amended generally.

—1977 (Adj. Sess.). Subdiv. (6): Inserted “who shall be in the classified system under chapter 13 of Title 3” following “such employees”.

—1977. Subdiv. (6): Deleted “in accordance with chapter 13 of Title 3” following “employ”.

Subdiv. (12): Added.

CROSS REFERENCES

Nonprofit corporations, see Title 11B.

Notes to Opinions

Constitutionality of prior law.

There was no unconstitutional delegation of power to the Vermont industrial building authority. 1964-66 Vt. Op. Att'y Gen. 268.

§ 217. Records; annual report; audit.

  1. The Authority shall keep an accurate account of all its activities and of all its receipts and expenditures. Information and records in connection with an application for an insurance contract under subchapter 2 of this chapter shall be preserved for three years after the application has been denied or, if the application is accepted, for three years after the mortgage has been discharged and thereafter until the Authority orders them destroyed.
  2. Prior to February 1 in each year, the Authority shall submit a report of its activities for the preceding fiscal year to the Governor and to the General Assembly. The report shall set forth a complete operating and financial statement covering its operations during the year. The Authority shall cause an audit of its books and accounts to be made at least once in each year by a certified public accountant and its cost shall be considered an expense of the Authority and a copy shall be filed with the State Treasurer. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection.
  3. The Auditor of Accounts of the State and his or her authorized representatives may at any time examine the accounts and books of the Authority including its receipts, disbursements, contracts, funds, investments, and any other matters relating to its financial statements.
  4. At such time as the Authority has exhausted all rights and remedies to enforce the terms of a financing document or mortgage serving as security for a loan, the identity of the borrower and the outstanding principal balance of the loan shall become a public record.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 3, eff. March 27, 1975; 1999, No. 131 (Adj. Sess.), § 1a; 2013, No. 142 (Adj. Sess.), § 16.

History

Amendments

—2013 (Adj. Sess.). Subsec. (b): Added the last sentence.

—1999 (Adj. Sess.). Subsec. (d): Added.

—1975. Designated existing provisions of section as subsec. (a), rewrote the first sentence of that subsec., and added subsecs. (b) and (c).

CROSS REFERENCES

Audits of State departments, institutions, agencies and trustees of funds, see 32 V.S.A. § 163 .

Reports of appropriations and expenditures, see 32 V.S.A. § 301 .

§ 217a. Application.

Among such other things as may be required by the Authority, any application for financing or for mortgage insurance under this chapter shall state in detail on the application the nature and purpose of the business and its products for which the loan, revenue bonds or mortgage insurance is intended to benefit.

HISTORY: Added 1983, No. 33 , § 3a, eff. April 22, 1983; amended 1987, No. 203 (Adj. Sess.), § 3, eff. May 27, 1988.

History

Amendments

—1987 (Adj. Sess.) Substituted “mortgage insurance” for “a guarantee of financing” preceding “under this chapter” and “mortgage insurance” for “loan guarantee” preceding “is intended”.

§ 218. Construction.

  1. The powers conferred by this chapter are supplemental and alternative to other powers conferred by law.
  2. No notice, proceedings, or approval, including licensure under 8 V.S.A. chapter 73, shall be required with respect to any action taken under this chapter, except as provided in this chapter.
  3. Purchases and contracts required for the establishment or expansion of an eligible facility may be made or let without regard to any provision of law relating to public purchases or contracts.
  4. This chapter shall be liberally construed in order to effect its purposes.
  5. The provisions of this chapter are severable, and the invalidity of any provision or provisions of this chapter shall not affect the validity of any other provision or provisions of this chapter.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1987, No. 203 (Adj. Sess.), § 17, eff. May 27, 1988; 1993, No. 89 , § 3(b), eff. June 15, 1993.

History

Revision note

—2018. In subsec. (b) deleted “without limitation” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—1993. Subsec. (c): Substituted “eligible facility” for “industrial facility” following “expansion of an”.

—1987 (Adj. Sess.) Subsec. (b): Inserted “including without limitation licensure under chapter 73 of Title 8” following “approval” and made other minor changes in punctuation.

§ 219. Reserve funds.

  1. The Authority may create and establish one or more special funds, herein referred to as “debt service reserve funds,” and shall pay into each such debt service reserve fund:
    1. Any monies appropriated and made available by the State for the purpose of such funds.
    2. Any proceeds of the sale of notes or bonds, to the extent provided in the resolution or resolutions of the Authority authorizing the issuance thereof.
    3. Any other monies or financial instruments such as surety bonds, letters of credit, or similar obligations, which may be made available to the Authority for the purpose of such fund from any other source or sources.

      All monies or financial instruments held in any debt service reserve fund, except as hereinafter provided, shall be used, as required, solely for the payment of the principal of the bonds secured in whole or in part by such fund or of the sinking fund payments with respect to such bonds, the purchase or redemption of such bonds, the payment of interest on such bonds, or the payment of any redemption premium required to be paid when such bonds are redeemed prior to maturity or to reimburse the issuer of a liquidity or credit facility, bond insurance, or other credit enhancement for the payment by such party of any of the foregoing amounts on the Authority’s behalf; provided, however, that the monies or financial instruments in any such fund shall not be drawn upon or withdrawn therefrom at any time in such amounts as would reduce the amount of such funds to less than the debt service reserve requirement established by resolution of the Authority for such fund as hereafter provided except for the purpose of making with respect to bonds secured in whole or in part by such fund payments, when due, of principal, interest, redemption premiums, and the sinking fund payments hereinafter mentioned for the payment of which other monies of the Authority are not available. Any income or interest earned by, or increment to, any debt service reserve fund due to the investment thereof may be transferred by the Authority to other funds or accounts of the Authority to the extent it does not reduce the amount of such debt service reserve fund below the debt service reserve requirement for such fund.

  2. The Authority shall not at any time issue bonds or notes secured in whole or in part by a debt service reserve fund if upon the issuance of such bonds or notes the amount in such debt service reserve fund will be less than the debt service reserve requirement established by the resolution of the Authority for such fund, unless the Authority at the time of issuance of such bonds shall deposit in such fund from the proceeds of the bonds or notes so to be issued, or from other sources, an amount which together with the amount then in such fund, will not be less than the debt service reserve requirement established for such fund. The debt service reserve requirement for any debt service reserve fund shall be established by resolution of the Authority prior to the issuance of any bonds or notes secured in whole or in part by such fund and shall be the amount, determined by the Authority to be reasonably required in light of the facts and circumstances of the particular bond issue.
  3. In computing the amount of the debt service reserve funds for the purpose of this section, securities in which all or a portion of such funds shall be invested shall be valued at par if purchased at par or at amortized value, as such term is defined by resolution of the Authority, if purchased at other than par.
  4. In order to ensure the maintenance of the debt service reserve requirement in each debt service reserve fund established by the Authority, there may be appropriated annually and paid to the Authority for deposit in each such fund, such sum as shall be certified by the Chair of the Authority, to the Governor, the President of the Senate, and the Speaker of the House, as is necessary to restore each such debt service reserve fund to an amount equal to the debt service reserve requirement for such fund. The Chair shall annually, on or about February 1, make, execute, and deliver to the Governor, the President of the Senate, and the Speaker of the House, a certificate stating the sum required to restore each such debt service reserve fund to the amount aforesaid, and the sum so certified may be appropriated, and if appropriated, shall be paid to the Authority during the then current State fiscal year. The principal amount of bonds or notes outstanding at any one time and secured in whole or in part by a debt service reserve fund to which State funds may be appropriated pursuant to this subsection shall not exceed $181,000,000.00, provided that the foregoing shall not impair the obligation of any contract or contracts entered into by the Authority in contravention of the Constitution of the United States.

HISTORY: Added 1995, No. 184 (Act. Sess.), § 4b; amended 2003, No. 67 , § 3, eff. June 16, 2003; 2009, No. 78 (Adj. Sess.), § 15, eff. April 15, 2010; 2011, No. 110 (Adj. Sess.), § 3, eff. May 8, 2012; 2013, No. 87 , § 7, eff. June 17, 2013; 2015, No. 157 (Adj. Sess.), § A.3, eff. June 2, 2016; 2017, No. 157 (Adj. Sess.), § 1; 2019, No. 79 , § 17, eff. June 20, 2019.

History

Amendments

—2019. Subsec. (d): Substituted $181,000,000.00“ for ”$175,000,000.00“.

—2017 (Adj. Sess.). Subsec. (d): Substituted “$175,000,000.00,” for “$155,000,000.00” in the third sentence.

—2015 (Adj. Sess.). Subsec. (d): Substituted “$155,000,000.00” for “$130,000,000.00” in the third sentence.

—2013. Subsec. (d): Substituted “$130,000,000.00” for “$115,000,000.00” following “exceed”.

—2011 (Adj. Sess.) Subsec. (d): Deleted “or the governor-elect” following “the governor” in the first and second sentences, and substituted “115,000,000.00” for “$100,000,000.00” in the third sentence.

—2009 (Adj. Sess.) Subsec. (d): Substituted “$100,000,000.00” for “$70,000,000.00” in the last sentence.

—2003. Subsec. (d): Substituted “$70,000,000.00” for “$25,000,000.00” in the third sentence.

§ 220. Transfer from Indemnification Fund.

The State Treasurer shall transfer from the Indemnification Fund created in former section 222a of this title to the Authority all current and future amounts deposited to that Fund.

HISTORY: Added 2015, No. 157 (Adj. Sess.), § A.4, eff. June 2, 2016.

Subchapter 2. Mortgage Insurance

§§ 221-229. Repealed. 2015, No. 157 (Adj. Sess.), § A.7(b), eff. June 2, 2016.

History

Former §§ 221-229. Former § 221, relating to insurance of mortgages, was derived from 1973, No. 197 (Adj. Sess.), § 1 and amended by 1975, No. 18 , §§ 4, 5; 1977, No. 52 , §§ 5, 6; 1981, No. 54 , §§ 3-5; 1989, No. 237 (Adj. Sess.), §§ 2, 3; 1993, No. 89 , § 3(b); 1993, No. 233 (Adj. Sess.), § 37; 1995, No. 46 , § 6; 2003, No. 164 (Adj. Sess.), § 10; 2009, No. 54 , § 109 and 2011, No. 110 (Adj. Sess.), § 6.

Former § 222, relating to the Industrial Building Mortgage Insurance Fund, was derived from 1973, No. 197 (Adj. Sess.), § 1 and amended by 1975, No. 18 , § 6 and 2005, No. 6 , § 87a.

Former § 222a, relating to the Indemnification Fund, was derived from 2005, No. 6 , § 87b.

Former § 223, relating to credit of the state pledged, was derived from 1973, No. 197 (Adj. Sess.), § 1 and amended by 1993, No. 89 , § 8; 2005, No. 6 , § 87c and 2009, No. 54 , § 110.

Former § 224, relating to validity of insurance contract, was derived from 1973, No. 197 (Adj. Sess.), § 1.

Former § 225, relating to mortgages made legal investments, was derived from 1973, No. 197 (Adj. Sess.), § 1.

Former § 226, relating to insurance contracts; provisions, was derived from 1973, No. 197 (Adj. Sess.), § 1 and amended by 1975, No. 18 , § 7 and 1993, No. 89 , § 3(b).

Former § 227, relating to acquisition and disposal of property, was derived from 1973, No. 197 (Adj. Sess.), § 1 and amended by 1977, No. 52 , § 7; 1981, No. 54 , § 13; 1993, No. 89 , § 3(b) and 1999, No. 25 , § 1a.

Former § 228, relating to mortgage insurance premiums, was derived from 1973, No. 197 (Adj. Sess.), § 1 and amended by 1983, No. 33 , § 4.

Former § 229, relating to use of recoveries, was derived from 1977, No. 10 , § 1 and amended by 2005, No. 6 , § 87d.

ANNOTATIONS

Annotations From Former § 221

Cited.

Cited in Vermont Industrial Development Authority v. Setze, 157 Vt. 427, 600 A.2d 302, 1991 Vt. LEXIS 205 (1991).

Subchapter 3. Industrial Parks, Speculative Buildings, and Small Business Incubator Facilities

History

Amendments

—1985 (Adj. Sess.) 1985, No. 136 (Adj. Sess.), § 6, eff. April 24, 1986, deleted “and” preceding “Speculative Buildings” and added “and Small Business Incubator Facilities” thereafter in the subchapter heading.

§ 231. Assistance to local development corporations.

Upon application of a local development corporation, the Authority may loan money to that local development corporation, upon such terms and conditions as it may prescribe, for the purpose of industrial park planning and development, for constructing or improving a speculative building or small business incubator facility on land owned or held under lease by the local development corporation, for purchase or improvement of existing buildings suitable for or which can be made suitable for industrial or small business incubation facility purposes and for the purchase of land in connection with any of the foregoing. Before the local development corporation receives such funds for such purposes from the Authority, it shall give to the Authority security for the repayment of the funds. The security shall be in such form and amounts as the Authority may determine and shall, in each instance, include a first mortgage on the land, or the leasehold, building, and appurtenances financed by such funds. Loans by the Authority to local development corporations for the construction of speculative buildings or improvements to those buildings shall be repaid in full, including interest and other charges, within 90 days after the building is occupied if the building is being sold, or within five years after the property is occupied if the building is being leased, or within such period of time deemed reasonable by the Authority. Loans by the Authority to local development corporations for the construction, purchase, or improvement of small business incubator facilities shall be repaid in full, including interest and other charges, within ten years after the property is occupied.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1977, No. 52 , 1986 § 8, eff. April 22, 1977; 1985, No. 136 (Adj. Sess.), § 7, eff. April 24, 1991, No. 76 , § 1.

History

Amendments

—1991. Added “or within such period of time deemed reasonable by the authority” following “leased” in the fourth sentence.

—1985 (Adj. Sess.) Inserted “or small business incubator facility” preceding “on land owned” and “or small business incubation facility” following “suitable for industrial” in the first sentence and added the fifth sentence.

—1977. Section amended generally.

§ 232. Issuance of loans for speculative buildings and small business incubator facilities.

Before issuing any loan under this subchapter for construction of a speculative building or small business incubator facilities and the purchase of land in connection therewith, the Authority, or the Authority’s loan officer pursuant to the provisions of subdivision 216(15) of this title, shall determine and incorporate the following findings in its minutes. Such findings when adopted by the Authority shall be conclusive:

  1. The project is within the scope of this chapter, will be of public use and benefit, and may reasonably be expected to create new employment opportunities.
  2. The proposed site for the speculative building or small business incubator facilities will be located on adequate land owned or to be acquired by the local development corporation or leased by the local development corporation on terms satisfactory to the Authority.
  3. An adequate access road from a public highway is provided to the proposed site and that such utilities as water, sewer, and power facilities are available, or will be available when the speculative building or small business incubator facilities is completed.
  4. The project plans comply with all applicable environmental, zoning, planning and sanitary laws and regulations of the municipality where it is to be located and of the State of Vermont.
  5. The local development corporation is responsible and has presented evidence to demonstrate its ability to carry out the project as planned.
  6. Evidence has been presented demonstrating the feasibility of the site as a location for business, and additional evidence has been presented that an adequate supply of labor is available within the labor market area to serve a business located on the site or in the small business incubator facility.
  7. The local development corporation has made adequate provisions for insurance protection of the building while it is unoccupied and suitable arrangements have been made for fire protection and maintenance while it is unoccupied.
  8. The project will be without unreasonable risk of loss to the Authority.
  9. The local development corporation is unable to secure on reasonable terms the funds required for the project without the assistance of the Authority, or in the alternative, the making of the loan will serve as a substantial inducement for the establishment or expansion of a speculative building or small business incubator.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1985, No. 136 (Adj. Sess.), § 8, eff. April 24, 1986; 1991, No. 76 , § 2; 1995, No. 46 , § 7, eff. April 20, 1995.

History

Amendments

—1995. Inserted “or the authority’s loan officer pursuant to the provisions of section 216(15) of this title” preceding “shall determine” in the first sentence of the introductory paragraph.

—1991. Inserted “the following” following “incorporate” and deleted “that” following “minutes” in the first sentence and added the second sentence of the introductory paragraph, made minor changes in punctuation at the end of subdivs. (1)-(7), deleted “and the local development corporation is unable to secure on reasonable terms the funds required for the project without the assistance of the authority” following “loss of the authority” at the end of the first sentence and deleted the second sentence of subdiv. (8), and added subdiv. (9).

—1985 (Adj. Sess.) Rewrote the section catchline, inserted “or small business incubator facilities” following “speculative building” in the introductory paragraph and in subdivs. (2) and (3), and substituted “business” for “industry” preceding “and additional” and “a business” for “an industry” preceding “located on the site” and added “or in the small business incubator facility” thereafter in subdiv. (6).

§ 233. Depressed areas.

The Authority shall give preference to the areas within labor market districts declared to be economically depressed areas as defined by the Vermont Agency of Commerce and Community Development or the Vermont Department of Labor, or to the area that is a designated job development zone under chapter 29, subchapter 2 of this title.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1981, No. 66 , § 5(a), eff. May 1, 1981; 1985, No. 172 (Adj. Sess.), § 2; 1995, No. 190 (Adj. Sess.), § 1(a); 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments

—2005 (Adj. Sess.) Substituted “department of labor” for “department of employment and training”.

—1995 (Adj. Sess.) Substituted “agency of commerce and community development” for “agency of development and community affairs”.

—1985 (Adj. Sess.) Added “or to the area that is a designated job development zone under 10 V.S.A. chapter 29, subchapter 2” following “training”.

—1981. Substituted “employment and training” for “employment security” following “department of”.

§ 234. The Vermont Jobs Fund.

  1. There is hereby created the Vermont Jobs Fund, hereinafter called the Fund, which shall be used by the Authority as a nonlapsing fund for the purposes of subchapters 3, 5, 9, and 10 of this chapter. To it shall be charged all operating expenses of the Authority not otherwise provided for and all payments of interest and principal required to be made by the Authority under this subchapter. To it shall be credited any appropriations made by the General Assembly for the purposes of subchapters 3, 5, 9, and 10 of this chapter and all payments required to be made to the Authority under subchapters 3, 5, 9, and 10 of this chapter, it being the intent of this section that the Fund shall operate as a revolving fund whereby all appropriations and payments made thereto, unless required to repay notes under the following section, may be applied and reapplied for the purposes of subchapters 3, 5, 9, and 10 of this chapter. Monies in the Fund may be loaned at interest rates to be set by the Authority for the following:
    1. Loans to local development corporations under this subchapter, provided that if the funds for any such loan are derived from the issue of notes to the State Treasurer under section 235 of this chapter, the loan shall bear interest at a rate not less than the rate on the notes.
    2. Direct mortgage loans as described in subchapter 5 of this chapter.
    3. Loans for the financing of export activities under subchapter 9 of this chapter.
    4. Other loans as the Authority may prescribe under subchapter 10 of this chapter.
  2. In order to provide monies in the Fund for loans under this chapter, the Authority may issue notes for purchase by the State Treasurer as provided in section 235 of this chapter.
  3. Monies in the Fund may be loaned to the Vermont Agricultural Credit Program to support its lending operations as established in chapter 16A of this title at interest rates and on terms and conditions to be set by the Authority to establish a line of credit in an amount not to exceed $100,000,000.00 to be advanced to the Vermont Agricultural Credit Program to support its lending operations as established in chapter 16A of this title.
  4. Monies in the Fund may be loaned to the Vermont Small Business Development Corporation to support its lending operations as established pursuant to subdivision 216(14) of this title at interest rates and on terms and conditions to be set by the Authority.
  5. Monies in the Fund may be loaned to the Vermont 504 Corporation to support its lending operations as established pursuant to subdivision 216(13) of this title at interest rates and on terms and conditions to be set by the Authority.
  6. The Authority may loan money from the Fund to the Vermont Sustainable Energy Loan Fund established under subchapter 13 of this chapter at interest rates and on terms and conditions set by the Authority.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1985, No. 81 , § 3; 1995, No. 46 , § 8, eff. April 20, 1995; 2003, No. 7 , § 8, eff. April 25, 2003; 2003, No. 67 , § 4, eff. June 16, 2003; 2009, No. 78 (Adj. Sess.), § 16, eff. April 15, 2010; 2013, No. 87 , § 4; 2015, No. 157 (Adj. Sess.), § A.5, eff. June 2, 2016.

History

References in text.

Section 235 of this title, cited in subdiv. (a)(1), was repealed in 1996, effective July 1, 1997.

Revision note—

Substituted “economic development fund” for “industrial development fund” in the section catchline and the first sentence of subsec. (a) in accordance with 1993, No. 89 , § 3.

Amendments

—2015 (Adj. Sess.). Subsec. (c): Substituted “$100,000,000.00” for “$60,000,000.00”.

Subsec. (b): Substituted “Fund” for “industrial development fund”.

Subsec. (f): Added.

—2009 (Adj. Sess.) Subsec. (c): Inserted “to the Vermont agricultural credit program to support its lending operations as established in chapter 16A of this title” following “loaned” and substituted “$60,000,000.00” for “$30,000,000.00”.

Subsec. (d): Inserted “loaned to the Vermont small business development corporation to support its lending operations as established pursuant to subdivision 216(14) of this title” following “loaned” and deleted “to establish a line of credit in an amount not to exceed $3,000,000.00 to be advanced to the Vermont small business development corporation to support its lending operations as established pursuant to subdivision 216(14) of this title” following “authority.

Subsec. (e): Added.

—2003. Subsec. (c): Added by Act No. 7.

Subsec. (d): Added as subsec. (c) by Act No. 67 and redesignated as subsec. (d).

—1995. Substituted “the Vermont jobs” for “economic development” preceding “fund” in the section catchline, substituted “Vermont jobs” for “economic development” following “created the” and “5, 9 and 10” for “and 5” following “subchapters” in the first sentence and substituted “5, 9, and 10” for “and 5” following “subchapters” in three places in the third sentence of the introductory paragraph of subsec. (a), rewrote subdiv. (a)(3), added subdiv. (a)(4), and deleted “to local development corporations” preceding “under this” and substituted “chapter” for “subchapter” thereafter in subsec. (b).

—1985. Subdiv. (a)(3): Added.

§ 235. Repealed. 1995, No. 184 (Adj. Sess.), § 4a, eff. July 1, 1997.

History

Former § 235. Former § 235, relating to issuance of notes and purchase by state treasurer, was derived from 1973, No. 197 (Adj. Sess.), § 1 and amended by 1981, No. 54 , § 9; 1981, No. 212 (Adj. Sess.); 1985, No. 136 (Adj. Sess.), § 9; 1987, No. 203 (Adj. Sess.), § 5; 1989, No. 210 (Adj. Sess.), § 237a; No. 237 (Adj. Sess.), § 4; 1991, No. 212 (Adj. Sess.), § 4; 1993, No. 233 (Adj. Sess.), § 38; 1995, No. 46 , § 9; 1995, No. 185 (Adj. Sess.), § 41.

§ 236. Taxes.

  1. While a part of a building or industrial park owned by a local development corporation and subject to a mortgage to the Authority or the State of Vermont under this subchapter remains unoccupied, that portion that remains unoccupied shall be exempt from all taxes and special assessments of the State or a municipality.  Instead of taxes, payments shall be made by the local development corporation to the municipality in which the speculative building or industrial park is located for highway maintenance, fire protection, or for other services.
  2. Any property to which the Authority holds title by reason of foreclosure upon a mortgage or other security given by a local development corporation in connection with a loan made under this subchapter, or voluntary conveyance in lieu thereof, shall, as long as it is not leased or rented, be exempt from all taxes and special assessments of the State and all local municipal property taxes for the remaining balance of the tax year in which title becomes vested in the Authority and the entire next succeeding year, provided however, that thereafter the Authority shall pay 50 percent of the local municipal property taxes annually assessed against such property during the term of the Authority’s ownership.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1977, No. 52 , § 9, eff. April 22, 1977; 1981, No. 54 , § 14, eff. April 28, 1981.

History

Amendments

—1981. Designated existing provisions of section as subsec. (a) and added subsec. (b).

—1977. Rewrote the first sentence.

CROSS REFERENCES

Taxation of property generally, see 32 V.S.A. § 3401 et seq.

§ 237. Issuing of loans for industrial park planning and development projects.

Before issuing any loan under this subchapter for industrial park planning and development, and the purchase of land in connection therewith, the Authority shall determine and incorporate in its minutes the findings that:

  1. The proposed industrial park is on adequate land owned or to be owned by the local development corporation or leased by the local development corporation on terms satisfactory to the Authority.
  2. An adequate access road from a public highway is provided to the proposed site, and utilities, including water, sewer, and power facilities, are available or will be available for any future tenant located in the park.
  3. The total industrial park will be planned by architects and engineers acceptable to the Authority.
  4. No more than 80 percent of the fair market value of the industrial park, as shown by appraisal by an appraiser acceptable to the Authority, is to be financed under the loan.
  5. The park project is within the scope of this chapter, will be of public use and benefit, and may reasonably be expected to create new employment opportunities.
  6. The park project complies with all applicable environmental, zoning, planning and sanitary laws and regulations of the municipality in which it is to be located and of the State of Vermont.
  7. The local development corporation is responsible and has presented evidence to demonstrate its ability to carry out the park project as planned.
  8. Evidence has been presented demonstrating the feasibility of the site as a location for industry, and additional evidence has been presented that an adequate supply of labor is available within the labor market area to serve an industry located on the site.
  9. The park project will be without unreasonable risk of loss to the Authority, and the local development corporation is unable to secure on reasonable terms the funds required for the project without the assistance of the Authority.  Such findings when adopted by the Authority shall be conclusive.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1.

Subchapter 4. Economic Development Revenue Bonds

History

Revision note—

Substituted “economic development revenue bonds” for “industrial development revenue bonds” in the subchapter heading in accordance with 1993, No. 89 , § 3.

CROSS REFERENCES

Federal taxation of interest on bonds, see 32 V.S.A. § 995 et seq.

Issuance of private activity bonds, see 32 V.S.A. §§ 991 , 992.

§ 241. Powers of municipalities.

Municipalities shall have the following powers in addition to any other powers given them by law:

  1. To engage in projects under this subchapter within the municipality or partially within the municipality but entirely within the State, to acquire ownership or possessory interests in eligible facilities and related property, and to dispose of them;
  2. To issue bonds to pay project costs, or to reimburse a user or a related person for payments for project costs made before or after the bonds are issued, or to refund bonds previously issued;
  3. To execute financing documents and security documents and to perform obligations and exercise powers created by them;
  4. In the event of default by a user under a financing document, but only to the extent authorized by the financing document or security document, to dispose of all or part of the eligible facility by sale or otherwise for the benefit of the bondholders under the security document;
  5. To make contracts or take any other action that is necessary or desirable in connection with the exercise of the foregoing powers. Nothing in this chapter shall be construed to authorize a municipality to operate an eligible facility itself or to conduct any business enterprise with it.
  6. To acquire and to enter into commitments to acquire any federally guaranteed security and to pledge or otherwise use any such federally guaranteed security in such manner as the Authority shall approve to secure or otherwise provide a source of repayment on any of its bonds or to enter into any appropriate agreement with one or more users whereby the municipality may make a loan to any such user for the purposes of enabling such user to fund or refund directly or indirectly, the cost of acquiring or entering into commitments to acquire any federally guaranteed security; provided, however, that the federally guaranteed security is evidence of a federally insured project loan or, if not such evidence, that the Authority determines that the federally guaranteed security has been issued to pass through a federally insured project loan.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 8, eff. March 27, 1975; 1981, No. 54 , § 8, eff. April 28, 1981; 1993, No. 89 , § 3(b), eff. June 15, 1993.

History

Amendments

—1993. Substituted “eligible facilities” for “industrial facilities” following “interests in” in subdiv. (1), and “eligible facility” for “industrial facility” preceding “by sale” in subdiv. (4) and following “operate an” in the second sentence of subdiv. (5).

—1981. Subdiv. (5): Added.

—1975. Section amended generally.

§ 242. Financing documents.

  1. A financing document shall:
    1. provide for payments by the user at such times and in such amounts as are necessary in order to pay the debt service on all bonds issued to finance the project as they become due; and
    2. obligate the user to pay all the costs and expenses of operation, maintenance, upkeep, and insurance of the eligible facility.
  2. A financing document may:
    1. provide for payments by the user that include amounts in addition to the amounts required to pay debt service;
    2. obligate a user to make payments before the eligible facility exists or becomes functional and to make payments after the eligible facility has ceased to exist or be functional to any extent and from any cause whatsoever;
    3. obligate a user to make payments regardless of whether the user is in possession or is entitled to be in possession of the eligible facility;
    4. allocate responsibility between the municipality and the user for making purchases and contracts required for the project;
    5. contain an option for the user to acquire any ownership or possessory interest that the municipality may have in the eligible facility for nominal consideration upon payment of the bonds or upon the user’s making adequate and secure provision for their payment and provide for the automatic transfer of the municipality’s interest in the facility upon the effective exercise of the option;
    6. provide that some or all of the user’s obligations shall be unconditional and shall be binding and enforceable in all circumstances whatsoever notwithstanding any other provision of law; and
    7. contain such other provisions and covenants relating to the use, maintenance, repair, insurance, and replacement of the eligible facility as the municipality and the user deem necessary for the protection of themselves or others.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 9, eff. March 27, 1975; 1993, No. 89 , § 3(b), eff. June 15, 1993.

History

Amendments

—1993. Substituted “eligible facility” for “industrial facility” wherever it appeared in subdivs. (a)(2), (b)(2), (3), (5) and (7).

—1975. Section amended generally.

§ 243. Security documents.

  1. An assignment, pledge, mortgage or other encumbrance of all or part of a municipality’s right to receive payments with respect to an eligible facility contained in a security document shall be fully effective from the time when the security document is executed with or without any subsequent physical delivery or segregation of the money and without any filing or recording under the Uniform Commercial Code or otherwise.
  2. A security document may contain covenants of the municipality as to:
    1. the creation and maintenance of reserves;
    2. the issuance of other bonds with respect to the eligible facility;
    3. the custody, investment and application of monies;
    4. the disposition of insurance or condemnation proceeds;
    5. the use of surplus bond proceeds;
    6. action by the municipality in the event of a default by the user under the financing document;
    7. the subjecting of additional property to the lien of the security document;
    8. any other matter which affects the security for the bonds in any way;
    9. pledging any federally guaranteed security and monies received therefrom whether such security is acquired by the municipality or by a user to secure the payment of the bonds.
  3. A security document may limit the rights of bondholders to enforce obligations of the municipality thereunder or under the financing document.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 10, eff. March 27, 1975; 1981, No. 54 , § 10, eff. April 28, 1981; 1993, No. 89 , § 3(b), eff. June 15, 1993.

History

Amendments

—1993. Substituted “eligible facility” for “industrial facility” preceding “contained in” in subsec. (a) and at the end of subdiv. (b)(2).

—1981. Subdiv. (b)(9): Added.

—1975. Section amended generally.

CROSS REFERENCES

Secured transactions generally, see § 9-101 et seq. of Title 9A.

§ 244. Bonds.

  1. Bonds authorized under this subchapter may, without limitation, be issued:
    1. in one or more series of one or more denominations and bearing one or more rates of interest;
    2. in bearer form or registered form with or without privileges of conversion and reconversion from one form to the other;
    3. payable in serial installments or as term bonds, and any series may consist of both types of bonds, provided that all of the bonds of every series shall mature no later than 40 years after their dates; and
    4. subject to redemption prior to maturity, with or without the payment of any redemption premium, in accordance with the provisions of the security document.
  2. Bonds shall bear the manual signature of the treasurer of the municipality and the manual or facsimile signature or signatures of the mayor or a majority of the selectboard or trustees as the case may be.  Interest coupons, if any, shall bear the facsimile signature of the treasurer.  If the municipality has a corporate seal, bonds shall bear the seal or a facsimile of the seal.  Bonds executed in accordance with this subchapter shall be valid notwithstanding that before the delivery thereof and payment therefor any or all of the persons whose signatures appear thereon shall have ceased to hold office.
  3. Every bond shall bear a statement on its face that it does not constitute an indebtedness of the municipality except to the extent permitted by this subchapter.  Bonds may be sold at public or private sale by the officers authorized to sign them.  The price at which bonds are sold may be par or may be more or less than par, but the original purchaser of the bond shall be obligated to pay accrued interest for the period, if any, from the date of the bonds to the date of delivery.  All bonds issued under this subchapter and interest coupons applicable thereto, if any, shall be deemed to be negotiable instruments and to be investment securities under the Uniform Commercial Code.
  4. No purchaser of bonds shall be in any way bound to see to the proper application of the proceeds thereof.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 11, eff. March 27, 1975.

History

Revision note

—2018. In subsec. (b), substituted “selectboard” for “selectmen” in accordance with 2013, No. 161 , § 72.

Amendments

—1975. Subsec. (a): Inserted “without limitation” preceding “be issued” in the introductory clause.

Subdiv. (a)(2): Inserted “form” following “bearer”.

Subdiv. (a)(4): Substituted “security document” for “trust indenture”.

Subsec. (b): Substituted “subchapter” for “section” in the fourth sentence.

Subsec. (c): Amended generally.

Subsec. (d): Deleted “issued under this subchapter” following “bonds”.

§ 245. Municipal proceedings.

All actions of a municipality in the exercise of its powers with respect to a project and the financing thereof shall be authorized by resolution adopted by majority vote of all of the members of its governing body. Unless otherwise provided in the resolution, or in the city charter in the case of a city, each resolution shall take effect upon its passage. The terms and details of any transaction may be delegated by the governing body to those authorized by the governing body to enter into the transaction on behalf of the municipality.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1.

§ 246. Approval of Authority.

No municipality may acquire any interest in an eligible facility or execute any financing document or security document or issue any bonds under this subchapter without the approval of the Authority, but nothing herein contained shall prevent a municipality from giving preliminary official approval of a proposed project and the financing thereof. In applying for approval by the Authority the municipality shall furnish the Authority with any information required, including drafts of the proposed financing document and security document. The Authority shall not give its approval unless it determines and incorporates findings in its minutes that:

  1. the project and its proposed financing are feasible;
  2. the establishment and operation of the eligible facility will either:
    1. create or preserve employment opportunities directly or indirectly within the State; or
    2. help to protect the State’s physical environment, or will accomplish both purposes;
  3. the eligible facility consists of property of a type that may be financed under this subchapter;
  4. the proposed user, or if the user as defined under subdivision 212(23) of this chapter is a lessor, then the tenant of said lessor, has the skills and financial resources necessary to operate the eligible facility successfully;
  5. the financing and security documents contain provisions such that under no circumstances is the municipality obligated directly or indirectly to pay project costs; debt service; or expenses of operation, maintenance and upkeep of the facility except from bond proceeds or from funds received under the financing or security documents, exclusive of funds received thereunder by the municipality for its own use;
  6. the project plans comply with all applicable environmental, zoning, planning, and sanitary laws and regulations of the municipality and of the State of Vermont; and
  7. neither the financing document nor the security document purports to create any debt of the municipality with respect to the eligible facility, other than a special obligation of the municipality under this chapter; and
  8. the proposed financing of the project by the municipality and the proposed operation and use of the eligible facility will preserve or increase the prosperity of the municipality and of the State or enhance or protect the physical environment of the State and will promote the general welfare of citizens of the State;
  9. for a project involving an eligible facility as defined in subdivision 212(6)(G) of this chapter, the project has been certified by the Transportation Board as likely to aid in the retention of existing industrial or agricultural enterprises in the State or in the development and increase of such enterprises, and if such project consists in whole or in part of vehicles, rolling stock or other modes of conveyance, there is reasonable assurance that the same will continue to be based in or operated from the municipality and contribute to the prosperity of the municipality and of the State; and
  10. the findings when adopted by the Authority shall be conclusive.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 12, eff. March 27, 1975; 1981, No. 54 , § 15, eff. April 28, 1981; 1983, No. 38 , § 2; 1993, No. 89 , § 3(b), eff. June 15, 1993.

History

Amendments

—1993. Substituted “eligible facility” for “industrial facility” in the first sentence of the introductory paragraph, and wherever it appeared in subdivs. (2), (3), (4), (7), (8), and (9).

—1983. Deleted subsec. designation at beginning of section.

Subdiv. (9): Added. Former subdiv. (9) redesignated as present subdiv. (10).

Subdiv. (10): Redesignated from former subdiv. (9).

—1981. Subdiv. (4): Inserted “or if the user as defined under section 212(23) is a lessor, then the tenant of said lessor” following “proposed user”.

—1975. Section amended generally.

§ 247. Obligations of the municipality.

No financing or security document, bond, or other instrument issued or entered into under this subchapter shall in any way obligate a municipality to use its taxing power for any purpose in relation to an eligible facility financed under this subchapter. No municipality may pay or promise to pay any debt or meet any financial obligation to any person at any time in relation to an eligible facility financed under this subchapter, except from monies received or to be received under the provisions of a financing or security document entered into under this subchapter or except as may be required by other provisions of law. Bonds issued under the subchapter shall not be deemed indebtedness of the municipality for the purposes of any debt limit.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 13, eff. March 27, 1975; 1993, No. 89 , § 3(b), eff. June 15, 1993.

History

Amendments

—1993. Substituted “eligible facility” for “industrial facility” preceding “financed” in the first and second sentences.

—1975. Section amended generally.

§ 248. Trustees and trust funds.

A state or national chartered bank, Vermont bank, or Vermont trust company may serve as trustee for the benefit of bondholders under a security document; and the trustee may at any time own all or any part of the bonds issued under that security document, unless otherwise provided therein. All monies received or held by a municipality or by a trustee pursuant to a financing or security document, other than funds received or held by the municipality for its own use, shall be deemed to be trust funds and shall be held and applied solely in accordance with the applicable document, but the person paying the money to the municipality or the trustee shall not be in any way bound to see to its proper application.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 14, eff. March 27, 1975.

History

Amendments

—1975. Section amended generally.

§ 249. Remedies.

Except as provided in any financing or security document entered into or any bond issued under this subchapter, each of the parties to the financing or security document or any bondholder may enforce the obligation of any other person to him or her under the bond or instrument by appropriate legal proceedings in a court of competent jurisdiction. A receiver may be appointed for an eligible facility in any such proceeding.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 15, eff. March 27, 1975; 1993, No. 89 , § 3(b), eff. June 15, 1993.

History

Amendments

—1993. Substituted “eligible facility” for “industrial facility” following “appointed for an” in the second sentence.

—1975. Substituted “financing or security document” for “lease or trust indenture” in the first sentence.

CROSS REFERENCES

Appointment of receiver, see Rule 66, V.R.C.P.

§ 250. Bonds exempt from taxation.

All bonds issued under this subchapter and the income therefrom shall be exempt from taxation by the State of Vermont and all of its political subdivisions, agencies, or instrumentalities, except that bonds shall not be exempt from inheritance, transfer, and estate taxes or taxes in the nature thereof.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1.

CROSS REFERENCES

Income taxes, see 32 V.S.A. § 5811 et seq.

Inheritance, transfer and estate taxes, see 32 V.S.A. § 7101 et seq.

Property taxes, see 32 V.S.A. § 3401 et seq.

§ 251. Taxation of eligible facilities.

All real and personal property comprising an eligible facility financed under this subchapter shall be set in the grand list and taxed to the tenant of the facility as if the tenant were the owner of the property in fee.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1993, No. 89 , § 3(b), eff. June 15, 1993.

History

Amendments

—1993. Substituted “eligible facilities” for “industrial facilities” in the section catchline and “eligible facility” for “industrial facility” following “comprising an”.

CROSS REFERENCES

Taxation of property generally, see 32 V.S.A. § 3401 et seq.

§ 252. Bonds eligible for investment.

Bonds issued under this subchapter shall be legal investments for all persons without limit as to the amount held, regardless of whether they are acting for their own account or in a fiduciary capacity; such bonds shall likewise be legal investments for all public officials authorized to invest public funds. No person offering to buy or sell or buying or selling the bonds shall be required to obtain any license or register any transaction in connection with them.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 16, eff. March 27, 1975.

History

Amendments

—1975. Added the second sentence.

§ 253. State projects.

  1. The State of Vermont may engage in projects within the state in accordance with the provisions of this subchapter.  For the purposes of this section and section 254 of this title:
    1. The word “municipality” as used in the sections of this subchapter other than this section shall mean the “State of Vermont”;
    2. The provisions of section 245 of this title shall not apply; and
    3. The provisions of this subchapter other than this section and section 254 of this title shall, where appropriate, be deemed to be modified or superseded by the provisions of this section and section 254 of this title.
  2. For the purposes of engaging in a project, the Authority shall act in the name of the State and on its behalf as its agent and instrumentality for the execution of financing documents, security documents, bonds, and other appropriate instruments or for the taking of any action with respect to a project financed in whole or in part by the issue of bonds under section 254 of this title.
  3. Title to or possessory interest in any eligible facility that is financed in whole or in part by the issue of bonds pursuant to section 254 of this title may be taken and held in the name of the State. In performing its functions under this section, the Authority may exercise any and all powers conferred upon municipalities by this subchapter, but the Authority shall not execute any financing document, security document, or bond with respect to a project until the Authority has made the findings required by section 246 of this title.
  4. The Authority shall establish guidelines for the type and location of projects that shall be considered in evaluating applications for financing under this subchapter. These guidelines shall be used to prioritize projects and shall include factors such as the number of permanent jobs created or retained; the wage rates of the jobs created; the availability and suitability of private market financing; the employment multiplier effect; the potential for alleviating unemployment in distressed areas; the potential effect on the revitalization of depressed commercial areas; the potential to stimulate markets for recycled materials to be used as raw materials; whether the project is located in the job development zone as designated under chapter 29, subchapter 2 of this title; and a potential for increasing capital investment. In the consideration of nonmanufacturing projects, priority shall be given to those projects located within areas suffering from the loss of commercial or service enterprises, loss of commercial or service sales, buildings with large vacancy rates, or physically deteriorating structures.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 17, eff. March 27, 1975; 1975, No. 18 7 (Adj. Sess.), § 2; 1983, No. 159 (Adj. Sess.), § 2, eff. April 14, 1984; 1985, No. 172 (Adj. Sess.), § 3; 1991, No. 202 (Adj. Sess.), § 10, eff. May 27, 1992; 1993, No. 89 , § 3(b), eff. June 15, 1993.

History

Revision note

—2018. In subsec. (d), deleted “, but not be limited to,” following “include” in accordance with 2013, No. 5 , § 4.

Amendments

—1993. Subsec. (c): Substituted “eligible facility” for “industrial facility” preceding “which is financed” in the first sentence.

—1991 (Adj. Sess.) Subsec. (d): Inserted “the potential to stimulate markets for recycled materials to be used as raw materials” following “commercial areas” in the second sentence.

—1985 (Adj. Sess.) Subsec. (d): Inserted “whether the project is located in the job development zone as designated under 10 V.S.A. chapter 29, subchapter 2” following “commercial areas” and made other minor stylistic changes in the second sentence.

—1983 (Adj. Sess.). Subsec. (d): Added.

—1975 (Adj. Sess.). Subsec. (b): Inserted “bonds” following “security documents” and deleted “state” following “the issue of”.

Subsec. (c): In the first sentence, deleted “state” following “the issue of” and, in the second sentence, deleted “except the power to issue bonds” following “this subchapter” and “or” following “financing document”, inserted “or bond” following “security document”, and substituted “findings” for “finding”.

—1975. Subsec. (b): Substituted “financing documents, security documents” for “leases, trust indentures”.

Subsec. (c): Inserted “or possessory interest in” preceding “any industrial facility” in the first sentence and substituted “financing document or security document” for “lease or trust indenture” in the second sentence.

§ 254. State bonds.

  1. From time to time the Authority may issue bonds to pay project costs of a project that has been approved by the Authority, to reimburse a user for the payment of costs made before or after the bonds are issued or to refund bonds previously issued.
  2. No bonds shall be issued under this section without the prior approval of the Governor or designee and the State Treasurer.
  3. Bonds issued under this section shall bear the manual or facsimile signature of the manager or treasurer of the Authority and the manual or facsimile signature of the Chair or Vice Chair of the Authority; provided, however, that at least one of the foregoing signatures shall be manual unless the bonds are to be manually authenticated by a bank or trust company serving as trustee for the bonds.  The details of the bonds shall be fixed by the signing officers in accordance with section 244 of this title.  Bonds shall be sold by the signing officers at public or private sale, and the proceeds thereof shall be paid to the trustee under the security document that secures the bonds.
  4. No financing or security document, bond, or other instrument issued or entered into in the name and on behalf of the State under this subchapter shall in any way obligate the State to raise any money by taxation or use other funds for any purpose to pay any debt or meet any financial obligation to any person at any time in relation to an eligible facility financed in whole or in part by the issue of the Authority’s bonds under this subchapter, except from monies received or to be received under a financing or security document entered into under this subchapter or except as may be required by any other provision of law. Notwithstanding the provisions of this subsection, the State may accept and expend with respect to an eligible facility any gifts or grants received from any source in accordance with the terms of the gifts or grants.
  5. In carrying out the purposes of this subchapter, the Authority may, with the consent of the users, undertake a combined financing of projects for two or more users, and, thereupon, all other provisions of this subchapter shall apply to and for the benefit of the Authority and the participants in such joint financing.
  6. Bonds may be issued by the Authority under this subchapter for the purpose of making loans to local development corporations for industrial park planning and development, constructing, or improving a speculative building or small business incubator facility on land owned or held under lease by the local development corporation, purchase or improvement of existing buildings suitable or that can be made suitable for industrial or business incubation purposes, and purchase of land in connection with any of the foregoing.
    1. Before issuing bonds for construction of a speculative building or small business incubator facility and the purchase of land in connection therewith, the Authority shall make the determinations and incorporate in its minutes the findings that:
      1. the project is within the scope of this chapter, will be of public use and benefit, and may reasonably be expected to create new employment opportunities;
      2. the proposed site for the speculative building or small business incubator facility will be located on adequate land owned or to be acquired by the local development corporation or leased by the local development corporation on terms satisfactory to the Authority;
      3. an adequate access road from a public highway is provided to the proposed site and that such utilities as water, sewer, and power facilities are available, or will be available when the speculative building or small business incubator facility is completed;
      4. the project plans comply with all applicable environmental, zoning, planning, and sanitary laws and regulations of the municipality where it is to be located and of the State of Vermont;
      5. the local development corporation is responsible and has presented evidence to demonstrate its ability to carry out the project as planned;
      6. evidence has been presented demonstrating the feasibility of the site as a location for business, and additional evidence has been presented that an adequate supply of labor is available within the labor market area to serve a business located on the site;
      7. the local development corporation has made adequate provisions for insurance protection of the building while it is unoccupied and suitable arrangements have been made for fire protection and maintenance while it is unoccupied;
      8. the project will be without unreasonable risk of loss to the Authority, and the local development corporation is unable to secure on reasonable terms the funds required for the project without the assistance of the Authority;
      9. the financing and security documents contain provisions such that under no circumstances is the State obligated directly or indirectly to pay project costs; debt service; or expenses of operation, maintenance, and upkeep of the facility except from bond proceeds or from funds received under the financing or security documents, exclusive of funds received thereunder by the State for its own use;
      10. neither the financing document nor the security document purports to create any debt of the State with respect to the eligible facility, other than a special obligation of the State under this chapter.
    2. Before issuing bonds for industrial park planning and development and the purchase of land in connection therewith, the Authority shall make the determinations and incorporate in its minutes the findings that:
      1. the proposed industrial park is on adequate land owned or to be owned by the local development corporation or leased by the local development corporation on terms satisfactory to the Authority;
      2. an adequate access road from a public highway is provided to the proposed site, and utilities, including water, sewer, and power facilities, are available or will be available for any future tenant located in the park;
      3. the total industrial park will be planned by architects and engineers acceptable to the Authority;
      4. no more than 80 percent of the fair market value of the industrial park, as shown by appraisal by an appraiser acceptable to the Authority, is to be financed under the loan;
      5. the park project is within the scope of this chapter, will be of public use and benefit, and may reasonably be expected to create new employment opportunities;
      6. the park project complies with all applicable environmental, zoning, planning, and sanitary laws and regulations of the municipality in which it is to be located and of the State of Vermont;
      7. the local development corporation is responsible and has presented evidence to demonstrate its ability to carry out the park project as planned;
      8. evidence has been presented demonstrating the feasibility of the site as a location for industry, and additional evidence has been presented that an adequate supply of labor is available within the labor market area to serve an industry located on the site;
      9. the park project will be without unreasonable risk of loss to the Authority, and the local development corporation is unable to secure on reasonable terms the funds required for the project without the assistance of the Authority;
      10. the financing and security documents contain provisions such that under no circumstances is the State obligated directly or indirectly to pay project costs; debt service; or expenses of operation, maintenance, and upkeep of the facility except from bond proceeds or from funds received under the financing or security documents, exclusive of funds received thereunder by the State for its own use;
      11. neither the financing document nor the security document purports to create any debt of the State with respect to the eligible facility, other than a special obligation of the State under this chapter.
    3. All determinations and findings made by the Authority pursuant to this section shall be conclusive.
  7. Bonds issued by the Authority under this subchapter may be secured, in whole or in part, by mortgage insurance under subchapter 2 of this chapter upon the terms and conditions set forth in subchapter 2 and in this subsection.  Such insurance may be in the form of reinsurance or may be for the purpose of creating a loan loss reserve, in a case where the bonds are also secured by the mortgage insurance from another source. The principal amount of bonds so secured outstanding at any time with respect to facilities of any one user, or any related person, in any one municipality, shall not exceed $2,500,000.00. For purposes of this subsection, the term “mortgagee” as used in subchapter 2 of this chapter shall mean the purchasers of the bonds, or where appropriate the trustee under the security document; the mortgage payments to be insured shall be those required to be made by the user under the financing document; and bond proceeds, instead of being used to pay project costs directly, may be used to purchase participation in loans originated by local banks or other responsible financial institutions where the proceeds of such loans have been used to pay project costs.  In authorizing mortgage insurance to secure bonds, the Authority shall make all of the findings and determinations set forth in subsection 221(a) of this title, except that the principal of the mortgage cannot exceed $2,500,000.00.  In authorizing any bonds that are to be secured by mortgage insurance, the Authority shall make all of the findings and determinations set forth in section 246 of this title, and may make the findings set forth in subdivisions 246(5) and (7) of this title, notwithstanding the fact that the mortgage insurance will create a contingent liability of the Authority.  The creation of such contingent liability shall not be deemed to violate the prohibition contained in subsection (d), and the statement required on each bond that it does not constitute an indebtedness of the State may be modified to refer to the mortgage insurance.  Separate series of bonds all of which are secured by mortgage insurance may be combined pursuant to subsection (e) of this section, and the proceeds of any payment of such mortgage insurance may be allocated and applied by the trustee for the benefit of the bondholders in accordance with the terms of the security document providing for the combined financing.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 18, eff. March 27, 1975; 1975, No. 18 7 (Adj. Sess.), § 3; 1981, No. 54 , § 11, eff. April 28, 1981; 1983, No. 33 ,§§ 5, 6, eff. April 22, 1983; 1983, No. 159 (Adj. Sess.), § 3, eff. April 14, 1984; 1985, No. 25 , § 2; 1985, No. 136 (Adj. Sess.), § 10, eff. April 24, 1986; 1993, No. 89 , § 3(b), eff. June 15, 1993.

History

Editor’s note—

In subsec. (g), inserted “246” following “subdivisions” and inserted “of this section” following “subsection (e)”.

Revision note

—2018. In subsec. (c), substituted “Chair” for “chairman” and “Vice Chair” for “vice chairman” in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Amendments

—1993. Substituted “eligible facility” for “industrial facility” wherever it appeared in subsec. (d), and subdivs. (f)(1)(J) and (2)(K).

—1985 (Adj. Sess.) Subsec. (f): Inserted “or small business incubator facility” following “speculative building” and “or business incubation” preceding “purposes, and purchase”.

Subdiv. (f)(1): Inserted “or small business incubator facility” following “speculative building”.

Subdiv. (f)(1)(B): Inserted “or small business incubator facility” following “speculative building”.

Subdiv. (f)(1)(C): Inserted “or small business incubator facility” following “speculative building”.

Subdiv. (f)(1)(F): Substituted “business” for “industry” following “location for” and “a business” for “an industry” following “serve”.

—1985. Subsec. (c): Inserted “or facsimile” preceding “signature of the manager” in the first sentence and substituted “provided, however, that at least one of the foregoing signatures shall be manual unless the bonds are to be manually authenticated by a bank or trust company serving as trustee for the bonds” for “coupons, if any, shall bear the facsimile signature of the chairman or vice chairman” following “authority” in that sentence.

—1983 (Adj. Sess.). Subsec. (b): Deleted “written” preceding “approval” and inserted “governor or designee and the” preceding “state treasurer”.

—1983. Subsec. (f): Added.

Subsec. (g): Added.

—1981. Subsec. (e): Added.

—1975 (Adj. Sess.). Subsec. (a): Deleted “request the governor and the state treasurer to” preceding “issue bonds” and “state” following “to refund”.

Subsec. (b): Amended generally.

Subsec. (c): Amended generally.

—1975. Subsec. (a): Substituted “user” for “tenant” following “to reimburse a”.

Subsec. (c): Substituted “security document” for “trust indenture” in the third sentence.

Subsec. (d): Amended generally.

Subchapter 5. Direct Mortgage Loans

§ 261. Additional powers.

In addition to powers enumerated elsewhere in this chapter, the Authority may:

  1. Make loans secured by mortgages, which may be subordinate to one or more prior mortgages, upon application by the proposed mortgagor, who may be a private corporation, partnership, person, or municipality financing an eligible project described in subdivision 212(6) of this title, upon such terms as the Authority may prescribe, for the purpose of financing the establishment or expansion of eligible facilities. Such loans shall be made from the Vermont Jobs Fund established under subchapter 3 of this chapter. The Authority may provide for the repayment and redeposit of such loans in the manner provided hereinafter.
  2. Take title by foreclosure to any eligible facility where such acquisition is necessary to protect any loan previously made by the Authority, pay all costs arising out of such foreclosure and acquisition from monies held in the Vermont Jobs Fund, and sell, transfer and convey any such eligible facility to any responsible buyer. If the sale, transfer, and conveyance cannot be effected with reasonable promptness, the Authority may, in order to minimize financial losses and sustain employment, lease the eligible facility to a responsible tenant or tenants.
  3. Purchase prior mortgages and make payments on prior mortgages on any eligible facility where the purchase or payment is necessary to protect any loan previously made by the Authority. In addition, the Authority may sell, transfer, convey and assign any such prior mortgage. Monies used by the Authority in the purchase of any prior mortgages, or any payments thereon, shall be withdrawn from the Vermont Jobs Fund, and any monies derived from the sale of any prior mortgages shall be deposited by the Authority in the Vermont Jobs Fund.
  4. Purchase and own personal property for the purpose of leasing such personal property under financing leases, which leases transfer the ownership of leased personal property to each lessee following the payment of all required lease payments as specified in each lease agreement.
  5. Execute lease agreements pursuant to subdivision (4) of this section.
  6. Provide loans and assistance under this subchapter for the planning, development, or improvement of an industrial park or an eligible project within an industrial park.

HISTORY: Added 1973, No. 197 , (Adj. Sess.), § 1; amended 1975, No. 187 (Adj. Sess.), § 4; 1993, No. 89 , § 3, eff. June 15, 1993; 1995, No. 46 , § 10, eff. April 20, 1995; 2013, No. 199 (Adj. Sess.), § 36; 2015, No. 41 , § 23, eff. June 1, 2015.

History

Amendments

—2015. Subdiv. (1): Deleted “or” preceding “person” and added “or municipality financing an eligible project described in subdivision 212(6) of this title” following “private corporation, partnership, person” near the middle of the first sentence.

—2013 (Adj. Sess.). Subdiv. (6): Added.

—1995. Added subdivs. (4) and (5).

—1993. Substituted “eligible facilities” for “industrial projects” at the end of the first sentence of subdiv. (1), and “eligible facility” for “industrial project” in two places in subdiv. (2), and following “mortgages on any” in the first sentence of subdiv. (3).

—1975 (Adj. Sess.). Subdiv. (1): Inserted “which may be subordinate to one or more prior mortgages” following “secured by mortgages” and deleted “which may be second mortgages” following “person”

Subdiv. (3): Substituted “prior” for “first” preceding “mortgages” and “mortgage” throughout the subdiv.

§ 262. Findings.

Before making any loan, the Authority shall receive from an applicant a loan application in such form as the Authority may by regulation prescribe, and the Authority, or the Authority’s loan officer pursuant to the provisions of subdivision 216(15) of this title, shall determine and incorporate findings in its minutes that:

  1. The project is within the scope of this chapter and will increase or maintain employment and expand the economy of the State.
  2. The project plans comply with all applicable environmental, zoning, planning, and sanitary laws and regulations of the municipality where it is to be located and of the State of Vermont.
  3. The making of the loan will be of public use and benefit.
  4. The proposed loan will be adequately secured by a mortgage on real property or equipment, or both.
  5. The principal obligation of the Authority’s mortgage does not exceed $1,500,000.00, which may be secured by land and buildings or by machinery and equipment, or both; unless:
    1. an integral element of the project consists of the generation of heat or electricity employing biomass, geothermal, methane, solar, or wind energy resources to be primarily consumed at the project, in which case the principal obligation of the Authority’s mortgage does not exceed $2,000,000.00, which may be secured by land and by buildings, or machinery and equipment, or both; such principal obligation does not exceed 40 percent of the cost of the project; and the mortgagor is able to obtain financing for the balance of the cost of the project from other sources as provided in the following section; or
    2. a single loan for which the principal amount of the Authority’s mortgage does not exceed $3,000,000.00 for an eligible facility consisting of a municipal telecommunications plant, as defined in 24 V.S.A. § 1911(2) .
  6. The mortgagor is responsible and able to manage its responsibilities as mortgagor and owner of the project.
  7. The mortgage has a satisfactory maturity date, in no case later than 20 years from the date of the mortgage.
  8. The mortgagor is unable to finance the project upon reasonable terms without the assistance of the requested loan from the Authority, or in the alternative, the granting of the loan will serve as a substantial inducement for the establishment or expansion of an eligible project within the State.
  9. The mortgagor has made adequate provision for insurance protection of the project while the loan is outstanding.
  10. The loan will be without unreasonable risk of loss to the Authority.  Such findings when adopted by the Authority shall be conclusive.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 187 (Adj. Sess.), § 5; 1987, No. 203 (Adj. Sess.), § 2, eff. May 27, 1988; 1991, No. 212 (Adj. Sess.), § 5, eff. May 27, 1992; 1993, No. 89 , § 3(b), eff. June 15, 1993; 1995, No. 46 , § 11, eff. April 20, 1995; 1999, No. 131 (Adj. Sess.), § 2; 2003, No. 67 , § 7a, eff. June 16, 2003; 2005, No. 137 (Adj. Sess.), § 2; 2011, No. 110 (Adj. Sess.), § 4, eff. May 8, 2012; 2015, No. 41 , § 24, eff. June 1, 2015.

History

Amendments

—2015. Subdiv. (5)(B): Added.

—2011 (Adj. Sess.) Subdiv. (5): Substituted “$1,500,000.00” for “$1,300,000.00” in the first sentence.

—2005 (Adj. Sess.). Subdiv. (5): Amended generally.

—2003. In the introductory paragraph, substituted “subdivision” for “section”.

Subdiv. (5): Amended generally.

—1999 (Adj. Sess.). Subdiv. (5): Substituted “$1,300,000.00” for “$800,000.00”, “$800,000.00” for “$500,000.00”, and “$500,000.00” for “$300,000.00”.

—1995. Inserted “or the authority’s loan officer pursuant to the provisions of section 216(15) of this title” preceding “shall determine” in the introductory paragraph.

—1993. Subdiv. (8): Substituted “eligible project” for “industrial project” following “expansion of an”.

—1991 (Adj. Sess.) Subdiv. (5): Substituted “$800,000.00” for “$500,000.00”, “$500,000.00” for “$300,000.00” and “$300,000.00” for “$200,000.00”.

—1987 (Adj. Sess.). Subdiv. (5): Inserted “$500,000.00 of which no more than” preceding “$300,000.00” and “may be” thereafter and substituted “no more than $200,000.00 may be” for “$100,000.00” following “buildings and”.

—1975 (Adj. Sess.). Subdiv. (8): Added “or in the alternative, the granting of the loan will serve as a substantial inducement for the establishment or expansion of an industrial project within the state” following “authority”.

§ 263. Mortgage loan; limitations.

  1. When it has been determined by the Authority that the establishment or expansion of a particular eligible facility will accomplish the public purposes of this act, the Authority may contract to loan to the mortgagor an amount not in excess of 40 percent of the cost of such eligible facility. In addition, the Authority shall have determined that the mortgagor has obtained from other independent and responsible sources, such as banks and insurance companies or otherwise, a firm commitment for all other funds, over and above the loan of the Authority and such funds or property as the local development corporation may hold, necessary for payment of all of the cost of the project, and that the sum of all these funds, together with any funds, machinery, and equipment to be provided by the mortgagor is adequate for the completion and operation of the project.
  2. Any loan of the Authority under this subchapter shall be for a period of time and shall bear interest at such rate as determined by the Authority and shall be secured by a mortgage on the eligible facility for which the loan was made or upon the assets of a municipal communications plant, including the net revenues derived from the operation thereof, or both. The mortgage may be subordinate to one or more prior mortgages, including the mortgage securing the obligation issued to secure the commitment of funds from the independent and responsible sources and used in the financing of the economic development project. Monies loaned by the Authority shall be withdrawn from the Vermont Jobs Fund and paid over to the mortgagor in such manner as provided and prescribed by the rules and regulations of the Authority. All payments of principal and interest on the loans shall be deposited by the Authority in the Vermont Jobs Fund.
  3. Loans by the Authority for an eligible facility under this subchapter shall be made only in the manner and to the extent provided in this section, except, however, in those instances where an agency of the federal government participates in the financing of an eligible facility by loan, grant or otherwise. When any federal agency participates the Authority may adjust the required ratio of financial participation by the local development corporation, independent sources of funds, and the Authority in such manner as to ensure the maximum benefit available by the participation of the federal agency. Where any federal agency participating in the financing of an eligible facility is not permitted to take as security a mortgage, the lien of which is junior to the mortgage of the Authority, the Authority shall be authorized to take as security for its loan a mortgage junior in lien to that of the federal agency.
  4. The Authority may develop and incorporate into loan instruments formulae which require prepayment of loans when the profits attained by the borrower warrant prepayment.
  5. All real and personal property to which the Authority holds title by reason of foreclosure upon a mortgage or other security granted it pursuant to this subchapter, or a voluntary conveyance in lieu thereof, shall, as long as it is not leased or rented, be exempt from all taxes and special assessments of the State and all local municipal property taxes for the remaining balance of the tax year in which title becomes vested in the Authority and the entire next succeeding year; provided, however, that thereafter the Authority shall pay 50 percent of the local municipal property taxes annually assessed against such property during the term of the Authority’s ownership.
  6. The Authority shall give preference to projects located within labor market districts declared to be economically depressed areas as defined by the Vermont Agency of Commerce and Community Development or the Vermont Department of Labor, or to projects located within the area that is a designated job development zone under chapter 29, subchapter 2 of this title.
  7. The Authority shall give preference to projects involving loans to employee-owned businesses, to businesses that are becoming employee-owned through the purchase of stock or business assets, and to start-up businesses that will be owned by substantially all of the employees.
  8. All actions of a municipality taken under this subchapter for the financing of an eligible project described in subdivision 212(6) shall be as authorized in section 245 of this title.
  9. The provisions of section 247 of this title shall apply to the financing of an eligible project described in subdivision 216(6) of this title.

HISTORY: Added 1973, No. 197 (Adj. Sess.), § 1; amended 1975, No. 18 , § 19, eff. March 27, 1975; 1975, No. 18 7 (Adj. Sess.), § 6; 1977, No. 228 (Adj. Sess.), § 6, eff. April 17, 1978; 1981, No. 54 , § 16, eff. April 28, 1981; 1985, No. 172 (Adj. Sess.), § 4; 1985, No. 172 (Adj. Sess.), § 4; 1993, No. 89 , § 3, eff. June 15, 1993; 1995, No. 190 (Adj. Sess.), § 1(a); 2003, No. 121 (Adj. Sess.), § 90, eff. June 8, 2004; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 170 (Adj. Sess.), § 3; 2015, No. 41 , § 25, eff. June 1, 2015.

History

Revision note

—2018. In subsec. (h), corrected cross-reference to nonexistent “subsection 212(b)” by replacing it with “subdivision 212(6)”.

Amendments

—2015. Subsec. (b): Inserted “or upon the assets of a municipal communications plant, including the net revenues derived from the operation thereof, or both” following “which the loan was made” at the end of the first sentence.

Subsecs. (h) and (g): Added.

Subsec. (f): Act No. 103 substituted “department of labor” for “the department of employment and training”.

Subsec. (g): Added by Act No. 170.

—2003 (Adj. Sess.). Subsec. (a): Substituted “40 percent” for “forty percent” and deleted the requirement in the first sentence that the authority find that a local development corporation holds funds or property equal to not less than ten percent of the amount which the authority proposes to loan or less than ten percent of the cost of the project and the funds are available for the project and made minor changes in punctuation in the second sentence.

—1995 (Adj. Sess.) Subsec. (f): Substituted “agency of commerce and community development” for “agency of development and community affairs”.

—1993. Substituted “eligible facility” for “industrial project” wherever it appeared in subsecs. (a)-(c).

—1985 (Adj. Sess.) Subsec. (f): Added.

—1981. Subsec. (e): Added.

—1977 (Adj. Sess.). Subsec. (d): Added.

—1975 (Adj. Sess.). Subsec. (a): Substituted “less” for “more” following “proposes to loan or” in the first sentence.

Subsec. (b): Rewrote the second sentence.

—1975. Subsec. (a): Amended generally.

CROSS REFERENCES

Taxation of property generally, see 32 V.S.A. § 3401 et seq.

§ 264. Accelerated repayment provisions.

Any direct mortgage loan made on or after July 1, 1988 under this subchapter shall be conditioned upon the maintenance of a reasonable level of employment at the facility or facilities owned by the mortgagor and pledged as security for the loan. For the purposes of this section, a reasonable level of employment shall be deemed not to have been maintained whenever a mortgagor employing 50 or more employees at such facility or facilities permanently transfers, within any three-year period, 50 percent or more of those employees or employment positions to any out-of-state facility. Upon breach of this condition, the Authority may declare all principal and interest of the mortgage loan immediately due and payable and may commence foreclosure on any property held as security for the mortgage loan or take any other lawful steps to obtain payment.

HISTORY: Added 1987, No. 203 (Adj. Sess.), § 4, eff. May 27, 1988.

Subchapter 6. Family Farm Assistance

Law Reviews —

For note relating to preservation of farmlands, see 11 Vt. L. Rev. 603 (1986).

§§ 271-275. Repealed. 2019, No. 61, § 12.

History

Former §§ 271-275. Former § 271, relating to the purpose of the family farm assistance, was derived from 1985, No. 81 , § 1.

Former § 272, relating to definitions, was derived from 1985, No. 81 , § 1 and amended by 1993, No. 89 , § 3(a).

Former § 273, relating to the farmers loan program; eligibility; application, was derived from 1985, No. 81 , § 1 and 1993, No. 89 , § 3(b).

Former § 274, relating to loan terms and conditions, was derived from 1985, No. 81 , § 1 and amended by 1993 No. 89, § 3(a).

Former § 275, relating to funding, was derived from 1985, No. 81 , § 1.

§ 276. Repealed. 2009, No. 33, § 83(e)(2).

History

Former § 276. Former § 276, relating to report by the Vermont rehabilitation corporation on its progress and recommendations for improvements to the family farm assistance program, was derived from 1985, No. 81 , § 1.

§ 277. Repealed. 2019, No. 61, § 12.

History

Former § 277. Former § 277, relating to personnel and administrative support, was derived from 1985, No. 81 , § 1 and amended by 2003, No. 42 , § 2.

Subchapter 7. Job Start Program

§§ 278-278b. Repealed. 2007, No. 46, § 8, eff. May 23, 2007.

History

Former §§ 278-278b. Former § 278, relating to the job start program, was derived from 1993, No. 89 , § 5 and amended by 1995, No. 46 , § 12; 1995, No. 184 (Adj. Sess.), § 6; No. 190 (Adj. Sess.), § 1(a), (b); and 2001, No. 45 , § 1.

Former § 278a, relating to the regional program operation, was derived from 1993, No. 89 , § 5 and amended by 1995, No. 190 (Adj. Sess.), § 1(b); and 2001, No. 45 , § 1. For present provisions relating to the regional microbusiness development programs operation, see 3 V.S.A. § 3722 .

Former § 278b, relating to the job start loan fund, was derived from 1993, No. 89 , § 5 and amended by 1993, No. 221 (Adj. Sess.), § 29a.

Subchapter 8. Vermont Financial Access Program

§§ 279-279b. Repealed. 2015, No. 157 (Adj. Sess.), § A.7(b), eff. June 2, 2016.

History

Former §§ 279-279b. Former § 279, relating to the Vermont Financial Access Fund, was derived from 1993, No. 89 , § 7.

Former § 279a, relating to contracts authorized, was derived from 1993, No. 89 , § 7.

Former § 279b, relating to credit of the state pledged, was derived from 1993, No. 89 , § 7 and amended by 1993, No. 221 (Adj. Sess.), § 8; 1997, No. 156 (Adj. Sess.), § 57; 1999, No. 131 (Adj. Sess.), § 3; 2005, No. 6 , § 87e and 2009, No. 54 , § 111.

Subchapter 9. Vermont Export Finance Program

§ 279c. Vermont Export Finance Program.

  1. The Authority may, directly or indirectly, extend export finance to Vermont businesses, or to non-Vermont businesses where a substantial beneficiary of the export finance would be a Vermont business. The Authority may only directly extend export finance where the transaction will be guaranteed or insured against nonpayment by the Export-Import Bank of the United States, the U.S. Small Business Administration, or a comparable source of risk mitigation. Such export finance may include extending working capital loans to finance the pre-export costs of manufacturing, preparing, or accumulating products destined for export by overseas importers, the post-export costs of holding export receivables, as well as purchasing export receivables that are payable by overseas importers.
  2. The Authority may use any cash on hand in the Vermont Jobs Fund established under subchapter 3 of this chapter, any appropriations made by the General Assembly for this purpose, loans from banks, export finance specialty lenders, the Treasurer, or other sources in order to provide funds for lending under this subchapter. The Authority may pledge its assets as security for such loans.
  3. The Authority may sell any loans or participations in loans made under this subchapter to financial institutions.
  4. The Authority may extend export finance on such terms and conditions as it deems appropriate. Export finance directly extended by the Authority shall conform to the terms and conditions of the applicable risk mitigation offered by the Export-Import Bank of the United States, the U.S. Small Business Administration, or a comparable source of risk mitigation.
  5. Any excess of revenues over expenses derived from this program shall be deposited in the development fund.

HISTORY: Added 1995, No. 46 , § 13, eff. April 20, 1995.

Subchapter 10. Vermont Jobs Fund

§ 280. Public financing policy.

  1. It is policy of the State to engage in publicly supported financing activities that carry out the economic development policies of the State, including the following policies:
    1. Vermont should encourage enterprises that maximize job opportunities for Vermonters, produce a diversity of goods and services, and support sustainable development in the Vermont economy.
    2. Vermont should encourage entrepreneurial investments by the private sector in businesses that promote a sustainable economy and that are compatible with Vermont’s economic, social, and environmental values.
    3. Vermont should help its citizens start, maintain, and expand enterprises that:
      1. make use of the traditional skills of Vermont’s people while developing new capabilities necessary to compete in a changing economic environment; and
      2. produce value-added products or services, thereby maximizing reinvestment within Vermont.
  2. As used in this chapter, the term “sustainable development” means meeting the needs of the present without compromising the ability of future generations to meet their own needs.

HISTORY: Added 1995, No. 46 , § 14, eff. April 20, 1995.

§ 280a. Eligible projects; authorized financing programs.

  1. The Authority may develop, modify, and implement any existing or new financing program, provided that any specific project that benefits from such program shall meet the criteria contained in the Vermont Sustainable Jobs Strategy adopted under section 280b of this title, and provided further that the program shall meet the criteria contained in the Vermont Sustainable Jobs Strategy adopted under section 280b of this title. These programs may include:
    1. the Mortgage Insurance Program, administered under chapter 12, subchapter 2 of this title;
    2. the Loans to Local Development Corporations Program, administered under chapter 12, subchapter 3 of this title;
    3. the Industrial Revenue Bond Program, administered under chapter 12, subchapter 4 of this title;
    4. the Direct Loan Program, administered under chapter 12, subchapter 5 of this title;
    5. the SBA 504 Certified Development Company and Small Business Loan Programs of the Authority’s Vermont 504 Corporation, administered by the Authority under subdivision 216(13) of this title;
    6. the Small Business Development Corporation Program, administered by the Authority under subdivision 216(14) of this title;
    7. one or more programs targeting economically distressed regions of the State, and specifically including the Authority to develop a program to finance or refinance up to 100 percent of the existing assets or debts of a health, recreation, and fitness organization that is exempt under Section 501(c)(3) of the Internal Revenue Code, the income of which is entirely used for its exempt purpose, that owns and operates a recreation facility located in a distressed region of the State;
    8. an Export Finance Program, administered by the Authority under chapter 12, subchapter 9 of this title;
    9. a Vermont Sustainable Energy Loan Fund and any programs created thereunder, administered by the Authority under subchapter 13 of this chapter;
    10. any other program implemented after the adoption of the sustainable jobs strategy pursuant to section 280b of this title designed to meet Vermont’s need for sustainable economic development;
    11. a program that would award grants made to eligible and qualified recipients as directed by the Agency of Agriculture, Food and Markets or the Agency of Natural Resources for the purpose of funding water quality initiatives approved by the agencies, provided that the maximum amount of grants awarded by the Authority pursuant to the program shall not exceed $1,340,238.00 in the aggregate.
  2. This section shall not apply to the Job Start Program authorized by chapter 12, subchapter 7 of this title, and the agricultural finance programs authorized by chapter 16 of this title.

HISTORY: Added 1995, No. 46 , § 14; amended 2003, No. 122 (Adj. Sess.), § 281, eff. June 10, 2004; 2011, No. 63 , § E.800; 2013, No. 87 , § 5, eff. June 17, 2013; 2015, No. 39 , § 20.

History

References in text.

Section 501(c)(3) of the Internal Revenue Code, referred to in subdiv. (a)(7), is codified as 26 U.S.C. § 501(c) (3).

Editor’s note—

2003, No. 122 (Adj. Sess.), § 282 provided that: “The state treasurer, in consultation with the secretary of administration, shall negotiate an agreement for forgiveness of up to $1,340,238.00 of the principal balance of the loan between the state of Vermont and the Vermont economic development authority issued May 15, 2003. The negotiated agreement shall require the Vermont economic development authority to make grants in a like amount to eligible and qualified recipients as directed by the agency of agriculture, food and markets or by the agency of natural resources for the purpose of funding stream stability and conservation reserve enhancement environmental initiatives approved by the agencies. The agreement will also specify that the authority continue to make all payments currently scheduled under the loan to the state until the remaining principal and interest are paid in full.”

Amendments

—2015. Subdiv. (a)(11): Substituted “water quality” for “stream stability and conservation reserve enhancement environmental” preceding “initiatives”.

—2013. Subsec. (a): Substituted “These” for “Such” preceding “programs”.

Subdiv. (a)(5): Substituted “Small Business Loan Programs” for “Rural Economic Activity Loan programs” and “504” for “503”.

Subdiv. (a)(9): Added.

—2011. Subdiv. (a)(8): Amended generally.

—2003 (Adj. Sess.). Subdiv. (a)(11): Added.

VEDA financing of water quality initiatives. 2015, No. 39 , § 21 provides: “Notwithstanding 32 V.S.A. § 706 , the Vermont Economic Development Authority is authorized to transfer to the Agency of Agriculture, Food and Markets funds held by VEDA for water quality programs pursuant to 10 V.S.A. § 280a(11) .”

§ 280b. The Vermont sustainable jobs strategy.

  1. The Governor, with the advice of the Secretary of Commerce and Community Development and the Authority, shall adopt a Vermont sustainable jobs strategy for the State, in accordance with the provisions of this section.
    1. The Vermont sustainable jobs strategy shall contain the criteria upon which the Authority shall develop, modify, and implement its public financing programs, and the criteria for determining whether investments should be made in an eligible project. Such criteria shall include a requirement that, before making any investment or other financial commitment, the Authority shall determine that the proposed project is of public use and benefit and is without unreasonable risk of loss to the Authority. (b) (1) The Vermont sustainable jobs strategy shall contain the criteria upon which the Authority shall develop, modify, and implement its public financing programs, and the criteria for determining whether investments should be made in an eligible project. Such criteria shall include a requirement that, before making any investment or other financial commitment, the Authority shall determine that the proposed project is of public use and benefit and is without unreasonable risk of loss to the Authority.
    2. In adopting the Vermont sustainable jobs strategy, the Governor shall consider:
      1. the policies established in section 280 of this title; and
      2. the economic policy and economic development plan of the State, as developed by the Economic Progress Council under subchapter 3 of chapter 29 of this title.
    1. Before adopting the Vermont sustainable jobs strategy, the Governor shall direct the Authority and the Secretary of Commerce and Community Development to solicit information and recommendations from the people and businesses of the State. (c) (1) Before adopting the Vermont sustainable jobs strategy, the Governor shall direct the Authority and the Secretary of Commerce and Community Development to solicit information and recommendations from the people and businesses of the State.
    2. After soliciting information and recommendations, the Authority and the Secretary shall jointly develop a proposed Vermont sustainable jobs strategy. In developing a proposed strategy, the Authority and the Secretary shall consider how best to integrate Vermont’s economic, social, and environmental values into a Vermont sustainable jobs strategy. The Authority and the Secretary shall jointly present their proposed strategy to the House Committee on Commerce and the Senate Committee on Economic Development, Housing and General Affairs meeting in joint hearing.
    3. After legislative presentation, the Authority and the Secretary may amend the proposed strategy, and shall present the proposed strategy as amended to the Governor. The Governor may adopt the proposed strategy, or may return the proposed strategy to the Authority and the Secretary for further development and legislative presentation. After adoption of the Vermont sustainable jobs strategy, any amendments to the strategy may be adopted by the Governor in accordance with the process established by this section.

HISTORY: Added 1995, No. 46 , § 14, eff. April 20, 1995; amended 1995, No. 190 (Adj. Sess.), § 1(b).

History

Revision note

—2018. In subdiv. (c)(2), substituted “on Economic Development, Housing and General Affairs” for “on General Affairs and Housing” to correct the name of the Committee.

Amendments

—1995 (Adj. Sess.) Substituted “secretary of commerce and community development” for “secretary of development and community affairs” in subsec. (a) and subdiv. (c)(1).

CROSS REFERENCES

Sustainable jobs fund program, see § 326 et seq. of this title.

Subchapter 11. State Infrastructure Bank Program

CROSS REFERENCES

Annual report, transportation capital program and project development plan, see 19 V.S.A. § 10g .

Infrastructure improvement program, see § 698 of this title.

Procedure for adoption of administrative rules, see 3 V.S.A. § 801 et seq.

Special Funds, see 32 V.S.A. § 588 .

Transportation fund budget stabilization reserve, see 32 V.S.A. § 308a .

§ 280d. Definitions.

As used in this subchapter:

  1. “Agency” means the Agency of Transportation.
  2. “Authority” means the Vermont Economic Development Authority established under section 213 of this title.
  3. “Board” means the State Infrastructure Bank Board as established under this subchapter.
  4. “Bond act” means any general or special law authorizing a governmental unit to incur indebtedness for all or any part of the cost of a qualified project.
  5. “Bonds” means bonds, notes, or other evidence of indebtedness.
  6. “Borrower obligations” means government obligations or a promissory note of a private enterprise issued to evidence a loan.
  7. “Cost,” as applied to any qualified project, means any or all costs, whenever incurred, approved by the Agency, of carrying out a qualified project, including costs for preliminary planning or legal, fiscal, and economic investigations, reports, and studies to determine the economic or engineering feasibility of a qualified project; engineering and architectural reports, studies, surveys, designs, plans, working drawings, and specifications necessary in the construction of a qualified project; construction; expansion; facilities; improvement and rehabilitation; acquisition of real property, personal property, materials, machinery, or equipment; start-up costs; demolitions and relocations; reasonable reserves and working capital; interest on loans, borrower obligations and notes in anticipation thereof prior to and during construction of such qualified project or prior to the date of such loan, if later; administrative, legal, and financing expenses; and other expenses necessary or incidental to the above.
  8. “Financial assistance” means any financial assistance for a qualified project provided by the Board under the Program, including loans to and leases with qualified borrowers, the establishment of reserves and other security, and guarantees of and credit enhancement for the obligations of governmental units and private enterprises incurred in connection with the financing of qualified projects.
  9. “General revenues” when used with reference to a governmental unit means revenues, receipts, assessments, and other monies of a governmental unit, and all rights to receive the same, including revenue permitted to be collected by municipalities, project revenue, assessments upon or payments received from any other governmental unit that is a member or service recipient of the governmental unit, proceeds of loans made in accordance with this subchapter and of grants made in accordance with State transportation or highway grant programs, investment earnings, reserves for debt service or other capital or current expenses, receipts from any rate, charge, tax excise, or fee, all or a part of the receipts of which are payable or distributable to or for the account of the governmental unit, local aid distributions, if any, and receipts, distributions, reimbursements, and other assistance from the State or the United States; provided, however, that general revenues shall not include any monies restricted by law to specific statutorily defined purposes inconsistent with their treatment as general revenues for purposes of this subchapter.
  10. “Government obligations or governmental obligations” means bonds, notes, or other evidence of indebtedness issued by a government unit to evidence a loan.
  11. “Government unit or governmental unit” means any municipality, regional development corporation that is qualified pursuant to 24 V.S.A. chapter 76, or other instrumentality of the State or any of its political subdivisions, that is responsible for the construction, ownership, or operation of a qualified project.
  12. “Guarantee” means a contract or contracts entered into by the Program pursuant to which the Program agrees to guarantee all or a portion of the obligations of a governmental unit or private enterprise incurred to finance a qualified project.
  13. “Highway account” means the highway account of the Program, established under this subchapter.
  14. “ISTEA” means the federal Intermodal Surface Transportation Efficiency Act of 1991, P.L. 102-240, as amended.
  15. “Lease” means any form of capital or operating lease for all or a portion of a qualified project between the Program and a governmental unit or private enterprise.
  16. “Loan” means any form of financial assistance subject to repayment which is provided by the Program to a qualified borrower for all or any part of the cost of a qualified project. A loan may provide for planning, construction, bridge, or permanent financing, and be disbursed in anticipation of reimbursement for or direct payment of costs of a qualified project or take the form of a guarantee, line of credit, or other form of financial assistance.
  17. “Loan agreement” means any agreement entered into between the program and a qualified borrower pertaining to a loan or lease. A loan agreement may contain, in addition to financial terms, provisions relating to the regulation and supervision of a qualified project or any other provisions as the Board may reasonably determine. The term “loan agreement” shall include a loan agreement, lease, trust agreement, trust indenture, security agreement, reimbursement agreement, guarantee agreement, bond or note resolution, loan order, or similar instrument whether secured or unsecured.
  18. “NHS Act” means the federal National Highway System Designation Act of 1995, P.L. 104-59, as amended.
  19. “Private enterprise” means a private person or entity that has entered into a contract with a public authority to design, finance, construct, or operate a qualified project that is within the jurisdiction of such public authority, provided that the public authority is responsible for complying with all applicable requirements of ISTEA and the NHS Act with respect to such qualified project.
  20. “Program” means the State Infrastructure Bank Program established pursuant to this subchapter.
  21. “Project revenues” means all rates, rents, fees, assessments, charges and other receipts derived or to be derived by a qualified borrower from a qualified project, and, if so provided in the applicable loan agreement pursuant to this subchapter, from any system of which such qualified project is a part and any other revenue producing facilities under the ownership or control of such qualified borrower, including proceeds of grants, gifts, appropriations and loans, including the proceeds of loans or grants made by the Board, investment earnings, reserves for capital and current expenses, proceeds of insurance or condemnation and the sale or other disposition of property; provided, however, the project revenues shall not include any ad valorem taxes levied directly by a governmental unit on any real and personal property.
  22. “Qualified borrower” means any governmental unit or private enterprise that is authorized to construct, operate, or own a qualified project.
  23. “Qualified project” means any activity, as defined in Title 23 and Title 49, Code of Federal Regulations.
  24. “Revenues” when used with respect to the Board, means any receipts, fees, revenues, or other payments received or to be received by the Program, including receipts and other payments received by or deposited in the Program, payments of principal, interest, or other charges on loans, leases, grants, appropriations or other financial assistance from the State or the United States or any political subdivision or instrumentality of either in connection with the Program, investment earnings on its funds and accounts, including the Program, and any other fees, charges, or other income received or receivable by the Program.
  25. “Secretary” means the Secretary of Transportation.
  26. “State aid distributions” means any receipts, distributions, reimbursements, or other assistance payable by the State to or for the account of a governmental unit.
  27. “Transit account” means the transit account of the Program, established pursuant to this subchapter.
  28. “Trust agreement” means any agreement entered into by the Program and the State Treasurer providing for the issuance, security, and payment of bonds issued pursuant to this subchapter. The term “trust agreement” shall include a trust agreement, trust indenture, security agreement, reimbursement agreement, bond or note resolution, or other similar instrument.

HISTORY: Added 1997, No. 43 , § 1.

History

References in text.

The federal Intermodal Surface Transportation Efficiency Act of 1991, P.L. 102-240, referred to in subdiv. (14), is codified as 5 U.S.C. § 5316; 15 U.S.C. §§ 1392, 1413, 1414, 3708, 3711b, 3711c, 3712 to 3715; 16 U.S.C. §§ 460 l -11, 1261, 1262; 23 U.S.C. §§ 101, 102, 103, 104, 105, 106, 108, 109, 113, 114, 117 to 119, 120, 121, 125, 127, 129, 131, 133 to 135, 140 to 142, 144, 149, 153, 154, 156, 157, 160, 202, 203 to 205, 217, 303, 307, 321, 325, 326, 402, 403, 409, 410; 26 U.S.C. §§ 4041, 4051, 4071, 4081, 4091, 4221, 4481, 4482, 4483, 6156, 6412, 6420, 6421, 6427, 9503, 9504, 9511; 33 U.S.C. §§ 59cc, 59dd; 40 App. 403; 42 U.S.C. § 4633; 45 U.S.C. § 831; 49 U.S.C. §§ 101, 107, 111, 301, 302, 309, 5301 et seq., 10723.

The federal National Highway System Designation Act of 1995, P.L. 104-59, referred to in subdiv. (18), is codified as 16 U.S.C. §§ 1261, 1262; 23 U.S.C. §§ 101, 103, 104, 106, 109, 111, 112, 115, 116, 120, 122, 127, 129, 130, 131, 133, 134, 141, 144, 149, 152 to 154, 161, 217, 303, 306, 307, 323, 409, 410; 42 U.S.C. §§ 7506, 12186 and 49 U.S.C. §§ 3112, 5316, 5331, 20140, 31306, 30308, 31136, 45102.

Revision note

—2018. In subdivs. (7)-(9), (21), and (24) deleted “, without limitation,” following “including” and “include” in accordance with 2013, No. 5 , § 4.

Revision note—. In subdiv. (9), substituted “this subchapter” for “this act” for clarity.

§ 280e. State Infrastructure Bank Program.

  1. There is created a State Infrastructure Bank Program, to be a program to assist the improvement, rehabilitation, expansion, and construction of transportation projects within the State to contribute to the economic welfare of the State by providing jobs and other economic opportunities for the people of the State and enhancing economic development, particularly in downtown areas.
    1. A State infrastructure bank board is established within the Vermont Economic Development Authority to administer the State Infrastructure Bank Program. (b) (1) A State infrastructure bank board is established within the Vermont Economic Development Authority to administer the State Infrastructure Bank Program.
    2. The Board shall consist of two legislators and nine other members: the State Treasurer, the Secretary of Transportation or designee, the Secretary of Commerce and Community Development or designee, one member of the Authority, one member from the Agency of Transportation Planning Division, one member who is a member of the board of a regional development corporation approved under 24 V.S.A. chapter 76, one member who is a member of a regional planning commission created under 24 V.S.A. chapter 117, subchapter 3, two members at large, one Representative appointed by the Speaker of the House, and one Senator appointed by the Committee on Committees. Selection of Board members shall be made with consideration toward geographic representation from throughout the State. Board members, other than legislators and State agency officials or designees, shall be appointed by the Governor, with the advice and consent of the Senate, to five-year terms, except that the Governor shall stagger initial appointments so that the terms of no more than two members expire during a calendar year. Legislative members shall be appointed on or before January 15 of the first year of each legislative session. A quorum shall consist of six members. Members disqualified from voting shall be considered present for purposes of determining a quorum. No action of the Board shall be considered valid unless the action is supported by a majority vote of the members present and voting and then only if at least four members vote in favor of the action.
    3. Board members who are not otherwise compensated in the course of their employment shall be compensated and receive reimbursement for necessary expenses in the same manner provided for members of the board of the Economic Development Authority under subsection 213(e) of this title.
    1. The Board shall adopt such rules or guidelines as it deems necessary to carry out the purposes of the program. (c) (1) The Board shall adopt such rules or guidelines as it deems necessary to carry out the purposes of the program.
    2. A majority vote of Board members present and voting shall be necessary to approve a loan or bond issuance.
    3. The Secretary of Transportation can veto any approval of the Board if he or she presents objections to the Board based upon the lack of compliance with federal law governing this Program.
    4. The Authority shall assign a State Infrastructure Bank Coordinator from the staff of the Authority to manage the Program. The Coordinator shall be responsible for administration of the Program in accordance with the policies and rules of the Board. The Coordinator may have other responsibilities within the Authority that are outside this Program. The Coordinator may examine any records relating to applications and may conduct such program and fiscal audits as the Coordinator deems necessary.

HISTORY: Added 1997, No. 43 , § 1; amended 1997, No. 120 (Adj. Sess.), § 1a.

History

Amendments

—1997 (Adj. Sess.). Subsec. (a): Added “particularly in downtown areas” at the end.

§ 280f. Applicability of general provisions.

The definitions under section 212 of this chapter shall not apply to this subchapter.

HISTORY: Added 1997, No. 43 , § 1.

§ 280g. State Infrastructure Bank Program; duties; powers.

  1. The Board, in addition to any other powers and duties conferred or imposed on it by this chapter or any other law, shall have the following powers and duties:
    1. to apply for, receive, administer, and comply with the conditions and requirements respecting any grant, gift, or appropriation of property, services, or monies;
    2. to make loans to or enter into leases with qualified borrowers to finance the costs of qualified projects, to acquire, hold, and sell borrower obligations evidencing the loans at such prices and in such manner as the Board shall deem advisable, and to pledge borrower obligations to secure bonds issued pursuant to this subchapter;
    3. to enter into guarantees secured solely by, or purchase insurance or other credit enhancement through, amounts on deposit in the Program;
    4. to enter into contracts, arrangements, and agreements to provide any other form of financial assistance through amounts on deposit in the Program that the Board may consider appropriate;
    5. to enter into contracts, arrangements, and agreements with other persons and execute and deliver all trust agreements, loan agreements, and other instruments necessary or convenient to the exercise of the powers granted in this subchapter;
    6. to enter into an agreement, contract, or other arrangement directly or indirectly with the Agency or Authority or with a private enterprise in furtherance of and in accordance with the provisions of ISTEA or the NHS Act, as applicable;
    7. to obtain insurance necessary or convenient to the exercise of the power granted in this subchapter;
    8. to engage accounting, management, legal, financial, consulting, and other professional services necessary to the conduct of the Program;
    9. to distribute the benefits conferred by this subchapter throughout the State.
    10. [Repealed.]
  2. In its administration of the Program as provided in this subchapter, the Program shall comply with applicable federal requirements under ISTEA and the NHS Act and other applicable federal programs. The Program shall not be authorized or empowered to be or to constitute a bank, trust company, or licensed lender under the jurisdiction or under the control of the Department of Financial Regulation or the Comptroller of the Currency or the Treasury Department of the United States, or to be or constitute a bank, banker, or dealer in securities within the meaning of, or subject to the provisions of, any securities, securities exchange, or securities dealers’ law of the United States or Vermont.
  3. The Agency shall provide technical assistance to either the Board, Program, or the Vermont Economic Development Authority to ensure compliance pursuant to subsection (b) of this section.
  4. [Repealed.]

HISTORY: Added 1997, No. 43 , § 1; amended 1997, No. 144 (Adj. Sess.), § 20; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2011, No. 153 (Adj. Sess.), § 28.

History

References in text.

For citation to ISTEA (the Intermodal Surface Transportation Efficiency Act of 1991) and the NHS Act (the National Highway System Designation Act of 1995), both cited in subdiv. (a)(6), see notes under § 280d of this title.

Amendments

—2011 (Adj. Sess.). Subdiv. (a)(10): Repealed by Act No. 153.

Subsec. (b): Act No. 78 substituted “department of financial regulation” for “department of banking, insurance, securities, and health care administration”.

Subsec. (d): Repealed by Act No. 153.

—1997 (Adj. Sess.). Added “and” at the end of subdiv. (9) and added subdiv. (a)(10) and subsec. (d).

§ 280h. Receipt and administration of Program funds.

  1. The Authority shall receive in trust, hold, administer, and disburse in and from the Program exclusively for the benefit of the beneficiaries the following monies:
    1. federal grants and awards or other federal assistance received by the Agency or the State and eligible for deposit therein under applicable federal law;
    2. amounts appropriated by the State to the Program for purposes of the Program;
    3. loan and lease payments and other payments received by the Program in respect of providing financial assistance to qualified borrowers;
    4. investment earnings on monies in the Program; and
    5. any other amounts required to be credited to the Program by any law or by any resolution, loan agreement, or trust agreement or which the State or the Secretary shall otherwise determine to deposit therein.
  2. Application of amounts in the Program shall be subject to the requirements of this subchapter and the provisions of any applicable loan agreement or trust agreement and, with respect to amounts held pursuant to grants or awards made under 23 U.S.C. § 101 et seq., or 49 U.S.C. § 5301 et seq., or any other federal law, to the applicable requirements of federal law. The Authority shall be the custodian of the Fund as provided in this subchapter, and, subject to any applicable trust agreement, the Authority is authorized to invest monies held in the Program in such investments as may be legal investments for funds of the State, subject, however, with respect to funds deposited in the Program pursuant to section 350 of the NHS Act, to the provisions of section 350(e)(3) of the NHS Act.

HISTORY: Added 1997, No. 43 , § 1.

History

References in text.

Section 350 of the NHS Act, referred to in subsec. (b), is codified as 23 U.S.C. § 101 note.

§ 280i. Disbursement and use of funds.

  1. Subject to limitations under ISTEA and the NHS Act and other federal laws, other laws respecting the use of particular monies in the Program, and the provisions of any applicable trust agreement, amounts in the Program may be used only:
    1. to provide financial assistance, including through loans and leases, to finance or refinance the costs of qualified projects and to provide for all or any part of the interest costs on loans made by the Program during the construction of such qualified projects;
    2. to guarantee or purchase insurance or other credit enhancement for bonds of qualified borrowers issued to finance the costs of qualified projects;
    3. to provide reserves for or otherwise secure bonds issued pursuant to this subchapter and to provide insurance or other credit enhancement for such bonds;
    4. to provide a subsidy for, or to otherwise assist, qualified borrowers in the payment of debt service costs on loans made by the Program;
    5. to provide reserves for, or to otherwise secure, amounts payable by qualified borrowers on loans made by and leases with the Program in the event of default by a particular qualified borrower or, on a parity basis, by any qualified borrower;
    6. to earn interest on the Fund; and
    7. for the costs of administering the Program; provided, however, that not more than two percent of the federal funds contributed to the Program pursuant to section 350 of the NHS Act may be expended for such administrative costs.
  2. For necessary and convenient administration of the Fund, the Program shall establish the highway account and the transit account, as provided in section 280n of this title, and one or more additional accounts and sub-accounts within the Vermont Economic Development Authority as shall be necessary to meet the requirements of the NHS Act and any other applicable federal law requirements or as the program shall otherwise deem necessary or desirable in order to implement the provisions of this subchapter or to comply with any trust agreement. The Program may also establish in any trust agreement or otherwise, as the Secretary shall determine, one or more other funds and accounts for revenues and other funds not required to be held in the Program, and to apply and disburse such funds for the purposes of the Program.

HISTORY: Added 1997, No. 43 , § 1.

History

References in text.

For citation to ISTEA (the Intermodal Surface Transportation Efficiency Act of 1991) and the NHS Act (the National Highway System Designation Act of 1995), both cited in subsec. (a), see notes under § 280d of this title. Section 350 of the NHS Act, cited in subdiv. (a)(7), is codified as 23 U.S.C § 101 note.

§ 280j. Powers and duties of the Secretary.

The Secretary is authorized and directed to take all necessary or incidental actions to secure for the State the benefits of ISTEA and the NHS Act, and any similar programs, including exercise of the powers:

  1. to cooperate with appropriate federal agencies in all matters related to the administration of the Program as contemplated by 23 U.S.C. § 129(a) (7) and section 350 of the NHS Act;
  2. to prepare and submit to the appropriate federal agencies applications for grants and to enter into grant agreements, cooperative agreements, operating agreements, and other agreements with the United States relating to the purposes of the Program; and
  3. to prepare and submit to the appropriate federal agencies and the Vermont General Assembly, annual and other reports and audits, in form and content satisfying federal requirements, relating to the Program.

HISTORY: Added 1997, No. 43 , § 1.

History

References in text.

For citation to ISTEA (the Intermodal Surface Transportation Efficiency Act of 1991) and the NHS Act (the National Highway System Designation Act of 1995), both cited in the introductory paragraph, see notes under § 280d of this title. Section 350 of the NHS Act, cited in subdiv. (1), is codified as 23 U.S.C § 101 note.

§ 280k. Powers and duties of the Program.

The Program is authorized and directed to take all necessary or incidental actions to secure for the State the benefits of ISTEA and the NHS Act, and any similar programs, including exercise of the powers:

  1. to establish and collect such fees, charges, and interest rates in compliance with federal requirements and as the Board determines to be reasonable, and to hold, apply and disburse such funds within or without the Program to implement the purposes of this subchapter;
  2. to establish, jointly with the Authority, fiscal controls and accounting procedures for the Program.

HISTORY: Added 1997, No. 43 , § 1.

History

References in text.

For citation to ISTEA (the Intermodal Surface Transportation Efficiency Act of 1991) and the NHS Act (the National Highway System Designation Act of 1995), both cited in the introductory paragraph, see notes under § 280d of this title.

§ 280l. Applications for financial assistance.

  1. Any qualified borrower may file an application with the Board to obtain financial assistance from the Program. The application shall be filed in such manner and contain or be accompanied by such information as the Program may require.
  2. In addition to other requirements prescribed by the Board, an application shall:
    1. describe the nature and purpose of the proposed transportation project, including the need for the project and the reasons why the project is in the public interest;
    2. state the estimated costs of the project and the proposed sources of funding, if any, in addition to the financial assistance being sought from the Program;
    3. state the economic development benefit;
    4. demonstrate that the project has the support of the regional planning commission or the metropolitan planning organization, as the case may be, in which the project is located, which support shall not be given unless the project is in conformance with the regional plan;
    5. demonstrate conformance with Agency of Transportation design standards and level of improvement policies; and
    6. demonstrate that the public benefits of the project outweigh its public costs.
  3. Before any financial assistance under this chapter is approved for an Agency of Transportation project, the applicant shall demonstrate that:
    1. the project is part of the State’s current year transportation capital program approved by the General Assembly under 19 V.S.A. § 10g(c) ; or
    2. if the Legislature is not in session, the project is approved by a committee, composed of the Joint Fiscal Committee, the Chair of the House Committee on Transportation or designee, and the Chair of the Senate Committee on Transportation or designee.

HISTORY: Added 1997, No. 43 , § 1.

§ 280m. Loan and lease terms.

  1. The Board shall determine the form and content of any borrower obligation, including the term and rate or rates of interest on any loan or lease.
  2. Notwithstanding subsection (a) of this section, loans and leases financed through the application of federal monies pursuant to 23 U.S.C. § 129 or section 350 of the NHS Act shall:
    1. bear interest at or below market rates or otherwise as may be specified therein;
    2. have a repayment term of not longer than 30 years;
    3. be subject to repayment commencing not later than five years after the facility financed with the proceeds of such loan has been completed or, in the case of a highway project, the facility has opened to traffic; and
    4. be made only after all federal environmental requirements applicable to the qualified project have been complied with and all federal environmental permits obtained.
  3. Notwithstanding any provisions of this subchapter to the contrary, the Secretary may waive any of the requirements contained in this section if such waiver would not cause the loan or the Program to violate the requirements of ISTEA or the NHS Act or any other applicable federal requirement.

HISTORY: Added 1997, No. 43 , § 1.

History

References in text.

For citation to ISTEA (the Intermodal Surface Transportation Efficiency Act of 1991) and the NHS Act (the National Highway System Designation Act of 1995), both cited in subsec. (c), see notes under § 280d of this title. Section 350 of the NHS Act, cited in subsec. (b), is codified as 23 U.S.C § 101 note.

§ 280n. Program Fund; accounts.

  1. A State Infrastructure Bank Program Fund is created as a special fund subject to the provisions of 32 V.S.A. chapter 7, subchapter 5. The Fund shall be administered by the Authority for the purposes of the Program, in accordance with the provisions of this subchapter.
  2. The State Infrastructure Bank Program Fund shall receive funds from the following sources:
    1. any amounts required under section 350 of the NHS Act or any other federal law or program to be deposited in the highway account and such funds shall not be commingled with any other amounts on deposit in the Program;
    2. any amounts required under section 350 of the NHS Act or any other federal law or program to be deposited in the transit account and such funds shall not be commingled with any other amounts on deposit in the Program;
    3. any other State or federal funds appropriated for the Program by the General Assembly, any repayments of principal and interest of Program loans, any private monies related to the administration and operation of the Program;
    4. any grants received for the benefit of the Program.
  3. Notwithstanding 32 V.S.A. § 588(4)(A) , monies may be disbursed from the Fund for Program purposes without an annual appropriation.
  4. The liabilities or obligations of the Authority with regard to its activities under the Program shall not extend beyond the funds that are deposited in the State Infrastructure Bank Program Fund, and shall not constitute a debt or pledge of the faith and credit of the State or any subdivision of the State.
  5. Any monies held in the Program shall be used solely as provided in this subchapter, subject to the applicable federal requirements.
  6. Expenditures from the Program shall be made for the following purposes:
    1. for the payment of the principal, including sinking fund payments of and premium, if any, and interest on bonds of the Authority in connection with the Program, as described in section 280o of this title, issued for the purpose of financing or refinancing any cost of a qualified project;
    2. for providing financial assistance to qualified borrowers to finance qualified projects;
    3. for the maintenance of, or provision for, any reserves, additional security, insurance, or other form of credit enhancement required or provided for in any trust agreement entered into pursuant to section 280q of this title to secure such bonds; and
    4. administration costs of the Program or for any of the foregoing.

HISTORY: Added 1997, No. 43 , § 1.

History

References in text.

Section 350 of the NHS Act (National Highway System Designation Act of 1995), referred to in subsec. (b), is codified as 23 U.S.C. § 101 note.

§ 280o. Issuance of revenue bonds.

  1. The Authority may issue bonds to finance or refinance any cost of a qualified project or provide other financial assistance, the proceeds of which are to be deposited in the Program, or used to refinance existing obligations (whether obligations of the Authority or another entity), used to fund the cost of a qualified project.
  2. Such bonds shall be special revenue bonds of the State payable solely from revenues, credited to the Program.
  3. Notwithstanding the provisions of any law to the contrary, such bonds shall not be general obligations of the State.
  4. Bonds may be issued provided that such issuance meets the requirements of section 244 and subsections 254(b), (c), (d), (f), and (g) of this title.
  5. Sections 250, 252, and subsections 253(b), (c), and (d) of this title shall also apply to bonds issued under this subchapter, except that any reference to industrial facilities therein shall also apply to eligible projects under this subchapter.
  6. Bonds may be secured by a trust agreement entered into by the Authority, which trust agreement may pledge or assign, in whole or in part, any loan agreements or governmental obligations, and all or any part of the monies credited to the Program, subject to applicable federal requirements, and any funds or accounts established under a trust agreement, any contract or other rights to receive the same, whether then existing or coming into existence and whether then held or thereafter acquired, and the proceeds thereof.

HISTORY: Added 1997, No. 43 , § 1.

§ 280p. Additional security agreements, insurance, and credit enhancements.

The Authority is also authorized to enter into additional security, insurance, or other forms of credit enhancement that may be secured on a parity or subordinate basis with the bonds. A pledge in any such trust agreement or credit enhancement agreement shall be valid and binding from the time such pledge shall be made without any physical delivery or further act, and the lien of such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract, or otherwise, irrespective of whether such parties have notice thereof. Any such pledge shall be perfected by filing of the trust agreement or credit enhancement agreement in the records of the Authority, and no filing need be made under any other provision of law. Any such trust agreement or credit enhancement agreement may establish provisions defining defaults and establishing remedies and other matters relating to the rights and security of the holders of the bonds or other secured parties as determined by the Authority, including provisions relating to the establishment of reserves, the issuance of additional or refunding bonds, whether or not secured on a parity basis, the application of receipts, monies, or funds pledged pursuant to such agreement, hereinafter referred to as “pledged funds,” and other matters deemed necessary or desirable by the Authority for the security of such bonds, and may also regulate the custody, investment, and application of monies.

HISTORY: Added 1997, No. 43 , § 1.

§ 280q. Loans to qualified borrowers to finance qualified projects.

  1. Any qualified borrower may apply to the Program for a loan to assist in financing the cost of a qualified project. At the option of the Board, and subject to applicable federal requirements, a loan may be made as secured loans or as unsecured general obligations of a qualified borrower. Each loan shall be made pursuant to a loan agreement between the Program and the qualified borrower acting by and through the officer or officers, board, committee, or other body authorized by law, or otherwise its chief executive officer.
  2. A qualified borrower may receive, apply, pledge, assign, and grant security interests in project revenues, and, in the case of a governmental unit, its general revenues to secure its obligations under loan agreements and borrower obligations as provided in this subchapter and may fix, revise, charge, and collect fees, rates, rents, assessments, and other charges of general or special application for the operation or services of any qualified project, the system of which it is a part and any other revenue producing facilities from which the qualified borrower derives project revenues to meet its obligations under any loan agreements or borrower obligation, or otherwise to provide for the construction, maintenance, and operation of a qualified project.
  3. For the purposes of entering into a loan and establishing the authorized terms and conditions thereof and for issuing any government obligations, a governmental unit shall be deemed to have the powers expressly granted to governmental units in this subchapter and the powers granted to the governmental unit in any bond act applicable to it specifically or as a member of a class of governmental instrumentalities. Liberal construction shall be given in support of the broadest interpretation of governmental unit powers derived from either this subchapter or any bonds act, provided that nothing in this subchapter shall be construed as affecting the manner of voting and other procedures of any governmental unit by the governing body thereof or any limitations on indebtedness of governmental units.

HISTORY: Added 1997, No. 43 , § 1.

§ 280r. Powers and privileges of government units.

In order to provide for the collection and enforcement of fees, rates, rents, assessments, and other charges for the operation of any qualified project, the system of which it is a part and any other revenue producing facilities from which the governmental unit derives project revenues, in addition to any other authority provided by law or any applicable bond act, governmental units are hereby granted all the powers and privileges granted to them by law with respect to any similar fee, rate, rent, assessment, or other charge. Any governmental unit may enter into agreements with the Agency:

  1. regarding the operation of a pricing system for the services producing facilities from which the governmental unit derives project revenues. Such agreements may include provisions defining the costs of such services, the qualified project and such local system and other facilities, and covenants or agreements regarding the fixing and collection of fees, rates, rents, assessments, and other charges for such costs and the maintenance of such pricing system at levels sufficient to pay or provide for all such costs and any payments due the department under any loan agreement or governmental obligations;
  2. regarding the operation of an enterprise fund established for any qualified project, and the system of which it is a part and any other revenue producing facilities from which the governmental unit derives project revenues. Such agreements may include fiscal and accounting controls and procedures, provisions regarding the custody, safeguarding, and investment of project revenues and other amounts credited thereto, the establishment of reserves and other accounts and funds and the application of any surplus funds.

HISTORY: Added 1997, No. 43 , § 1.

History

Revision note

—2018. In subdivs. (1) and (2) deleted “, without limitation,” following “including” and “include” in accordance with 2013, No. 5 , § 4.

§ 280s. Borrower obligations.

  1. Subject to the provisions of this subchapter, governmental obligations issued by a governmental unit shall conform to the requirements of subchapter 4 of this chapter.
  2. Notwithstanding any law to the contrary, if a governmental unit has authorized a loan in accordance with this subchapter and the issuance of governmental obligations under any bond act, the governmental unit may, subject to the loan agreement and the approval of the Board, issue notes to the Authority or any other person in anticipation of the receipt of the proceeds of the loan. The issue of such notes shall be governed by the provisions of this subchapter relating to the issue of governmental obligations other than notes, to the extent applicable, provided the maturity date of such notes shall not exceed three years from the date of issue of such notes or the expected date of completion of the project financed thereby, as determined by the Board, if later. Notes issued for less than the maximum maturity date may be renewed by the issue of other notes maturing no later than the maximum maturity date.
  3. A governmental unit may issue governmental obligations to refund or pay at maturity or earlier redemption any governmental obligations outstanding under any loan agreement or to refund or pay any other debt of the governmental unit issued to finance the qualified project to which such loan agreement pertains. Governmental obligations for refunding may be issued in sufficient amounts to pay or provide for the principal of the obligations refunded, any redemption premium thereon, any interest accrued and to accrue to the date of payment of such obligations, the costs of issuance of such refunding obligations and any reserves required by the applicable loan agreement. An issue of refunding governmental obligations, the amount and dates of maturity or maturities and other details thereof, the security thereof and the rights, duties, and obligations of the governmental unit with respect thereto shall be governed by the provisions of this subchapter relating to the issue of governmental obligations other than refunding obligations as the same may be applicable.
  4. Except as otherwise provided in this subchapter, the applicable bond act, or by agreement between the Board and a governmental unit, all governmental obligations shall be general obligations of the governmental unit issuing the same for which its full faith and credit are pledged and for the payment of which all taxable property in the governmental unit shall be subject to ad valorem taxation without limitation as to rate or amount except as otherwise provided by law.

HISTORY: Added 1997, No. 43 , § 1.

History

Revision note—

Substituted “this subchapter” for “this act” following “accordance with” in the first sentence of subsec. (b) and following “provisions of” in the last sentence of subsec. (c) for purposes of clarity.

§ 280t. Security agreements securing borrower obligations; pledges of general revenues or project revenues.

  1. Governmental obligations may be secured by one or more security agreements between the governmental unit and a corporate trustee, which may be a trust company or bank having the powers of a trust company within or without the State, or directly between the Board and the governmental unit. A borrower obligation, other than governmental obligations, may be secured by one or more security agreements between the Board and the qualified borrower. Any security agreements entered into pursuant to this section shall be in such form and shall be executed as provided in the applicable loan agreement or as otherwise agreed to between the Board and the qualified borrower.
  2. Any security agreement directly or indirectly securing governmental obligations, other than governmental obligations issued in accordance with this subchapter, may pledge or assign, and create security interests in, all or any part of the general revenues of the governmental unit. Any security agreement securing borrower obligations issued in accordance with this section may pledge or assign, and create security interests in, all or any part of the project revenues of the qualified borrower, but, in the case of a governmental unit, shall not otherwise pledge or assign any other general revenues of the governmental unit unless otherwise authorized by the applicable bond act. Any security agreement may contain such provisions for protecting and enforcing the rights, security, and remedies of the Board, or the holders of the borrower obligations, as may be determined by the Board and the qualified borrower, including provisions defining defaults and providing for remedies, including the acceleration of maturities, and:
    1. in the case of borrower obligations issued under this section, the appointment of a receiver of the project financed thereby and the system of which it is a part; and
    2. in the case of public entities, the use of a State aid intercept mechanism; and covenants setting forth the duties of, and limitations on, the qualified borrower in relation to the custody, safeguarding, investment, and application of monies, including general revenues and project revenues, the issue of additional and refunding borrower obligations and other bonds, notes, or obligations on a parity or superior thereto, the establishment of reserves, the establishment of sinking funds for the payment of borrower obligations, and the use of surplus proceeds. A security agreement securing borrower obligations issued in accordance with this section also may include covenants and provisions not in violation of law regarding the acquisition, construction, operation, and carrying out of the qualified project financed by such obligations, the system of which it is a part and any other revenue producing facilities from which the qualified borrower may pledge or assign any of its project revenues as appropriate, as security for payments made thereon.
  3. Any pledge of general revenues or project revenues made by a qualified borrower shall be valid and binding and shall be deemed continuously perfected for the purposes of the State commercial code, Title 9 and Title 9A, and any other law from the time made. The general revenues, project revenues, monies, rights, and proceeds so pledged and then held or thereafter acquired or received by the qualified borrower shall immediately be subject to the lien of such pledge without any physical delivery or segregation thereof or further act, and the lien of such pledge shall be valid and binding against all parties having claims of any kind in tort, contract or otherwise, regardless of whether such parties have notice thereof. Neither the security agreement or any other agreement by which a pledge is created need be filed or recorded except in the records of the governmental unit and no filing need be made under the provisions of the State commercial code.
  4. In the case of a governmental unit, a pledge of general revenues or project revenues in accordance with this subchapter shall constitute a sufficient appropriation thereof for the purposes of any provisions for appropriation for so long as such pledge shall be in effect and, notwithstanding any law to the contrary, such revenues shall be applied as required by the pledge and the security agreement evidencing the same without further appropriation.

HISTORY: Added 1997, No. 43 , § 1.

History

Revision note

—2018. In subsec. (b) deleted “, without limitation,” following “including” in accordance with 2013, No. 5 , § 4.

§ 280u. Guarantees; other credit enhancement.

  1. The Board may provide guarantees secured solely by, or purchase of insurance or other enhancements through, amounts on deposit in the program, to qualified borrowers in accordance with the provisions of this section.
  2. All of the assets and obligations directly covered by guarantees or other forms of credit enhancement shall be assets or obligations of governmental units or private entities that are, without guarantee or enhancement, listed by a nationally recognized statistical rating organization at a rating not below the third highest rating of such organization.
  3. The assets and obligations that may be directly covered by guarantees issued by the Board are:
    1. bonds, debentures, notes, evidence of debt, loans, and interest therein, of qualified borrowers, the proceeds of which are to be used for a qualified project; and
    2. leases of personal, real, or mixed property to be used for a qualified project.
  4. The Program may charge and collect premiums or other fees for the guarantees or other credit enhancement provided pursuant to this subchapter, including fees for services performed in connection with the approval and processing of the guarantees or the credit enhancement provided pursuant to this subchapter.

HISTORY: Added 1997, No. 43 , § 1.

§ 280v. Termination of the Program; remaining assets and liabilities.

The Program shall continue until terminated by law; provided, however, that no such law shall take effect so long as there shall be outstanding bonds secured by the fund unless adequate provision has been made for the payment or satisfaction thereof. Upon termination of the Program, assets that remain after provision for the payment or satisfaction of all bonds issued pursuant to this subchapter shall vest in the State, in the Transportation Fund and General Fund in equal proportion to the percentages of funds initially invested in the bank. For the purpose of this section only, federal transportation funds invested in the bank shall be considered State transportation funds.

HISTORY: Added 1997, No. 43 , § 1.

§ 280w. Records of receipts, expenditures, and disbursements.

The Authority, in cooperation with the Agency, shall at all times keep full and accurate accounts of all receipts, expenditures, and disbursements from the Program and all assets and liabilities of the Program incurred pursuant to this subchapter that shall be open to inspection by any officer or duly appointed agent of the State.

HISTORY: Added 1997, No. 43 , § 1.

History

Revision note—

Deleted a reference to annual reports from the section heading to reflect text.

§ 280x. Obligations; credit of the State not pledged.

Obligations issued under the provisions of this subchapter shall not be deemed to constitute a debt or liability of the State. Each obligation issued under this subchapter shall contain on the face thereof a statement to the effect that the Authority shall not be obligated to pay the same nor the interest thereon except from the revenues or assets pledged therefor, and that neither the faith and credit nor the taxing power of the State is pledged to the payment of the principal of or the interest on such obligations.

HISTORY: Added 1997, No. 43 , § 1.

§ 280y. Public records.

The Authority shall establish policies and procedures to ensure that information relating to the cost of any qualified project is considered a public record, and subject to the provisions of 1 V.S.A. chapter 5, subchapter 2.

HISTORY: Added 1997, No. 43 , § 1.

Subchapter 12. Vermont Entrepreneurial Lending Program

History

Amendments

—2013 (Adj. Sess.). Subchapter heading: Act No. 179 and 199 substituted “Vermont Entrepreneurial Lending” for “Technology Loan” preceding “Program”.

Vermont Entrepreneurial Lending Program; Loan Loss Reserve Funds; capitalization. 2013, No. 199 (Adj. Sess.), § 5 provides: “(a) The Vermont Economic Development Authority shall capitalize loan loss reserves for the Vermont Entrepreneurial Lending Program created in 10 V.S.A. § 280bb with the following funding from the following sources:

“(1) up to $1,000,000.00 from Authority funds or eligible federal funds currently administered by the Authority; and

“(2) any fiscal year 2014 or fiscal year 2015 funds, or both, appropriated or authorized by the General Assembly.

“(b) The Authority shall use the funds in subsection (a) of this section solely for the purpose of establishing and maintaining loan loss reserves to guarantee loans made pursuant to 10 V.S.A. § 280bb .”

§ 280aa. Findings and purpose.

    1. Vermont-based businesses in seed, start-up, and growth stages are a vital source of innovation, employment, and economic growth in Vermont. The continued development and success of these businesses is dependent upon the availability of flexible, risk-based capital. (a) (1) Vermont-based businesses in seed, start-up, and growth stages are a vital source of innovation, employment, and economic growth in Vermont. The continued development and success of these businesses is dependent upon the availability of flexible, risk-based capital.
    2. Because the primary assets of Vermont-based businesses in seed, start-up, and growth stages often consist almost entirely of intellectual property or insufficient tangible assets to support conventional lending, these companies frequently may not have access to conventional means of raising capital, such as asset-based bank financing.
  1. To support the growth of Vermont-based businesses in seed, start-up, and growth stages and the resultant creation of higher-wage employment in Vermont, the General Assembly hereby creates in this subchapter the Vermont Entrepreneurial Lending Program.

HISTORY: Added 2009, No. 54 , § 28, eff. June 1, 2009; amended 2013, No. 179 (Adj. Sess.), § F.100; 2013, No. 199 (Adj. Sess.), § 4.

History

Amendments

—2013 (Adj. Sess.). Subdiv. (a)(1): Substituted “Vermont-based businesses in seed, start-up, and growth stages” for “Technology-based companies” at the beginning and “these businesses” for “this increasingly important sector of Vermont’s economy” following “and success of”.

Subdiv. (a)(2): Substituted “Vermont-based businesses in seed, start-up, and growth stages often” for “technology-based companies sometimes” preceding “consist almost entirely”, “or insufficient tangible assets to support conventional lending, these companies” for “such companies” following “intellectual property”, and “may not” for “do not” following “frequently”.

Subsec. (b): Substituted “Vermont-based businesses in seed, start-up, and growth stages” for “technology-based companies” following “To support the growth of”, “higher wage” for “high-wage” following “resultant creation of”, and “the General Assembly hereby creates in this subchapter the Vermont Entrepreneurial Lending Program” for “a technology loan program is established under this subchapter” at the end.

§ 280bb. Vermont Entrepreneurial Lending Program.

  1. There is created the Vermont Entrepreneurial Lending Program to be administered by the Vermont Economic Development Authority. The Program shall seek to meet the working capital and capital-asset financing needs of Vermont-based businesses in seed, start-up, and growth stages. The Program shall specifically seek to fulfill capital requirement needs that are unmet in Vermont, including:
    1. loans to manufacturing businesses and software developers with innovative products that typically reflect long-term, organic growth;
    2. loans up to $1,000,000.00 in growth-stage companies that do not meet the underwriting criteria of other public and private entrepreneurial financing sources;
    3. loans to businesses that are unable to access adequate capital resources because the primary assets of these businesses are typically intellectual property or similar nontangible assets; and
    4. loans to advanced manufacturers and other Vermont businesses for product development and intellectual property design.
  2. The Authority shall adopt regulations, policies, and procedures for the Program as are necessary to increase the amount of investment funds available to Vermont businesses whose capital requirements are not being met by conventional lending sources.
  3. When considering entrepreneurial lending through the Program, the Authority shall give additional consideration and weight to an application of a business whose business model and practices will have a demonstrable effect in achieving other public policy goals of the State, including:
    1. The business will create jobs in strategic sectors such as the knowledge-based economy, renewable energy, advanced manufacturing, wood products manufacturing, and value-added agricultural processing.
    2. The business is located in a designated downtown, village center, growth center, industrial park, or other significant geographic location recognized by the State.
    3. The business adopts energy and thermal efficiency practices in its operations or otherwise operates in a way that reflects a commitment to green energy principles.
    4. The business will create jobs that pay a livable wage and significant benefits to Vermont employees.
    5. The business will create environmental benefits or will manufacture environmentally responsible products.
  4. The Authority shall include provisions in the terms of a loan made under the Program to ensure that a loan recipient shall maintain operations within the State for a minimum of five years from the date on which the recipient receives the loan funds from the Authority or shall otherwise be required to repay the outstanding funds in full.

HISTORY: Added 2009, No. 54 , § 28, eff. June 1, 2009; amended 2013, No. 179 (Adj. Sess.), § F.100; 2013, No. 199 (Adj. Sess.), § 4; 2015, No. 51 , § E.1, eff. June 3, 2015.

History

Amendments

—2015. Subdiv. (a)(1): Deleted “up to $100,000.00” preceding “to manufacturing businesses”.

Subdiv. (a)(4): Added.

Subdiv. (c)(5): Added.

—2013 (Adj. Sess.). Subsec. (a): Substituted “the Vermont Entrepreneurial Lending Program” for “a technology (TECH) loan program” and “Vermont-based businesses in seed, start-up, and growth stages” for “technology based companies” and added the third sentence.

Subdivs. (a)(1)-(a)(3): Added.

Subsec. (b): Substituted “Authority” for “Vermont economic development authority” and “adopt regulations” for “establish such”; deleted “carry out the purposes of this subchapter” following “necessary to” and substituted “increase the amount of investment funds available to Vermont businesses whose capital requirements are not being met by conventional lending sources” for “carry out the purposes of this subchapter. The authority’s lending criteria shall include consideration of in-state competition and whether a company has made reasonable efforts to secure capital in the private sector.”

Subsecs. (c), (d): Added.

Subchapter 13. Vermont Sustainable Energy Loan Fund

§ 280cc. Creation; purpose; definitions.

  1. There is established within the Authority the Vermont Sustainable Energy Loan Fund, referred to in this subchapter as “the Fund,” the purpose of which shall be to enable the Authority to make loans and provide other forms of financing for projects that stimulate and encourage development and deployment of sustainable energy projects in the State of Vermont.
  2. In this subchapter:
    1. “Renewable energy” shall have the same meaning as in 30 V.S.A. § 8002(17) .
    2. “Sustainable energy” means energy efficiency, renewable energy, and technologies that enhance or support the development and implementation of renewable energy or energy efficiency, or both.

HISTORY: Added 2013, No. 87 , § 1, eff. June 17, 2013.

§ 280dd. Loan programs administered within the Fund.

  1. The Fund shall consist of:
    1. Existing sustainable energy loans made by the Authority, the Vermont Small Business Development Corporation, and the Vermont Agricultural Credit Corporation.
    2. Sustainable energy loans originated under the following programs:
      1. The Small Business Energy Efficiency Loan Program, under which the Authority provides loans for qualifying commercial energy efficiency improvements.
      2. The Renewable Energy Loan Program, which the Authority may create to provide loans for qualifying renewable energy projects.
      3. The Agricultural Energy Loan Program, which the Authority may create to provide loans for qualifying agriculture- and forest product-based sustainable energy projects.
      4. The Energy Efficiency Loan Guarantee Program, which the Authority may create to provide loan guarantees to participating lending institutions that enroll loans for sustainable energy projects in the Program.
    3. Programs created by the Authority pursuant to subsection (c) of this section.
  2. The Fund shall be administered by the Authority and shall not be subject to 32 V.S.A. chapter 7, subchapter 5.
  3. The Authority may establish:
    1. New financing programs that the Authority determines are necessary to encourage and promote sustainable energy projects and reduce reliance upon fossil fuel sources.
    2. Policies and procedures for programs within the Fund that the Authority determines are necessary to carry out the purposes of this subchapter.
  4. For all sustainable energy loans, the Authority shall maintain records on the projected reductions in greenhouse gas emissions and, for energy efficiency loans, the projected energy savings from the financed improvements and shall provide data on the projected greenhouse gas emissions reductions and projected energy savings to the Department of Public Service, the Public Utility Commission, and the Agency of Natural Resources on request. The methods used for calculating and reporting this data shall be the same methods used in programs delivered under 30 V.S.A. § 209(d) and (e). The data provided shall be used for the purpose of tracking progress toward the greenhouse gas reduction goals of section 578 of this title and the building efficiency goals of section 581 of this title.

HISTORY: Added 2013, No. 87 , § 1, eff. June 17, 2013.

History

Revision note

—2017. In subsec. (d), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

Subchapter 14. Broadband Expansion Loan Program

§ 280ee. Broadband Expansion Loan Program.

  1. Creation.   There is established within the Authority the Vermont Broadband Expansion Loan Program, the purpose of which is to enable the Authority to make loans that expand broadband service to unserved and underserved Vermonters as part of a plan to achieve universal broadband coverage in a municipality or communications union district.
  2. Intent.   It is understood that loans under the Program may be high-risk loans to likely start-up businesses and therefore losses in the Program may be higher than the Authority’s historical loss rate. Loans shall be underwritten by the Authority utilizing underwriting parameters that acknowledge the higher risk nature of these loans. The Authority shall not make a loan unless the Authority has a reasonable expectation of the long-term viability of the business. The Program is intended to provide start-up loans until such time as the borrower can refinance the loans through, for example, the municipal revenue bond market.
  3. Requirements.
    1. The Authority shall make loans for start-up and expansion of broadband projects in unserved and underserved locations as part of a plan to achieve universal broadband coverage in a municipality or communications union district.
    2. The Authority shall establish policies and procedures for the Program necessary to ensure the expansion of broadband availability to the largest number of Vermont addresses as possible. The policies shall specify that:
      1. loans may be made in an amount of up to $4,000,000.00;
      2. eligible borrowers are:
        1. communications union districts;
        2. Internet service providers working in conjunction with a communications union district to expand broadband service to unserved and underserved locations as part of a plan to achieve universal broadband coverage in the district; and
        3. Internet service providers working in conjunction with a municipality that was not part of a communications union district prior to June 1, 2021 to expand broadband service to unserved and underserved locations as part of a plan to achieve universal broadband coverage in such municipality;
      3. interest and principal may be deferred up to three years;
      4. a maximum of $10,800,000.00 in Authority loans may be outstanding under the Program commencing on June 20, 2019;
      5. the provider shall offer to all customers broadband service that is capable of speeds of at least 100 Mbps symmetrical; and
      6. not more than one-sixth of the total allowable loans under this Program shall be available to eligible borrowers under subdivision (2)(B)(iii) of this subsection (c).
    3. To ensure the limited funding available through the Program supports the highest-quality broadband available to the most Vermonters and prioritizes delivering services to the unserved and underserved, the Authority shall consult with the Department of Public Service and the Vermont Community Broadband Board.
  4. On or before January 1, 2020, and annually thereafter, the Authority shall submit a report of its activities pursuant to this section to the Senate Committee on Finance and the House Committees on Commerce and Economic Development and on Energy and Technology. Each report shall include operating and financial statements for the two most recently concluded State fiscal years. In addition, each report shall include information on the Program portfolio, including the number of projects financed; the amount, terms, and repayment status of each loan; and a description of the broadband projects financed in whole or in part by the Program.

HISTORY: Added 2019, No. 79 , § 15, eff. June 20, 2019; amended 2021, No. 20 , § 45; 2021, No. 71 , § 9, eff. June 8, 2021.

History

Revision note

—2019. In subdiv. (c)(2)(E), substituted “June 20, 2019” for “the effective date of this act”.

Amendments

—2021. Section amended generally by Act No. 71.

Subsec. (c): Act No. 20 moved the subdiv. (c)(1) designation to follow the subsec. (c) heading.

§ 280ff. Funding.

  1. The State Treasurer, in consultation with the Secretary of Administration, shall negotiate an agreement with the Authority incorporating the provisions of this section and consistent with the requirements of this subchapter.
  2. State appropriations to the Authority are based on the Authority’s contributions to loan loss reserves for the Program in accordance with generally accepted accounting principles. Any difference between the actual loan losses incurred by the Authority in a fiscal year shall be adjusted in the following year’s appropriation.
    1. This is a revolving loan program.
    2. The accumulated total of the appropriation shall not exceed $8,500,000.00 over the life of the Program.
    3. The Authority shall absorb its historical loan loss reserve rate before any State funds are expended.
    4. Additionally, the Authority shall absorb up to $3,000,000.00 in Program losses shared with the State on a pro rata basis.

HISTORY: Added 2019, No. 79 , § 15, eff. June 20, 2019; amended 2021, No. 71 , § 10, eff. June 8, 2021.

History

Amendments

—2021. Subsec. (b): Amended generally.

Chapter 13. Vermont Industrial Building Authority

§§ 251-265. Repealed. 1973, No. 197 (Adj. Sess.), § 4.

History

Former §§ 251-265. Former § 251, relating to purpose, was derived from 1961, No. 235 , § 2, and amended by 1963, No. 141 , § 1; 1964, No. 34 (Sp. Sess.), § 1. The subject matter is now covered by § 211 of this title.

Former § 252, relating to definitions, was derived from 1961, No. 235 , § 3, and amended by 1963, No. 141 , § 2; 1964, No. 34 (Sp. Sess.), § 2. The subject matter is now covered by § 212 of this title.

Former § 253, relating to the authority and its organization, was derived from 1961, No. 235 , § 4, and amended by 1963, No. 193 , § 34; 1967, No. 97 , § 1. The subject matter is now covered by § 213 of this title.

Former § 254, relating to disqualification of members, was derived from 1961, No. 235 , § 5. The subject matter is now covered by § 214 of this title.

Former § 255, relating to the manager and his duties, was derived from 1961, No. 235 , § 8, and amended by 1964, No. 34 (Sp. Sess.), § 3; 1965, No. 79 , § 1. The subject matter is now covered by § 215 of this title.

Former § 256, relating to the powers of the authority, was derived from 1961, No. 235 , § 7. The subject matter is now covered by § 216 of this title.

Former § 257, relating to insurance of mortgages, was derived from 1961, No. 235 , § 8, and amended by 1964, No. 34 (Sp. Sess.), § 3; 1965, No. 79 , § 1; 1967, No. 97 , § 2; 1973, No. 93 , § 1. The subject matter is now covered by § 221 of this title.

Former § 258, relating to the industrial building mortgage insurance fund, was derived from 1961, No. 235 , § 9, and amended by 1969, No. 199 (Adj. Sess.). The subject matter is now covered by § 222 of this title.

Former § 259, relating to the pledging of the full faith and credit of the state, was derived from 1961, No. 235 , § 10, and amended by 1964, No. 34 (Sp. Sess.), § 4; 1965, No. 79 , § 2; 1967, No. 97 , § 3. The subject matter is now covered by § 223 of this title.

Former § 260, relating to the validity of insurance contracts executed by the authority, was derived from 1961, No. 235 , § 11. The subject matter is now covered by § 224 of this title.

Former § 261, relating to mortgages insured by the authority as legal investments, was derived from 1961, No. 235 , § 12, and amended by 1967, No. 293 (Adj. Sess.), § 2. The subject matter is now covered by § 225 of this title.

Former § 262, relating to provisions of insurance contracts, was derived from 1961, No. 235 , § 13. The subject matter is now covered by § 226 of this title.

Former § 263, relating to acquisition and disposal of property, was derived from 1961, No. 235 , § 14. The subject matter is now covered by § 227 of this title.

Former § 264, relating to mortgage insurance premiums, was derived from 1961, No. 235 , § 15. The subject matter is now covered by § 228 of this title.

Former § 265, relating to records and their preservation, was derived from 1961, No. 235 , § 16. The subject matter is now covered by § 217 of this title.

Chapter 14. The Vermont Venture Capital Fund

History

Repeal of chapter. 2003, No. 164 (Adj. Sess.), § 7, provides for the repeal of this chapter, comprising sections 281-285 of this title, effective on July 1, 2010.

§§ 281-285. Repealed. 2003, No. 164 (Adj. Sess.), § 7.

History

Former §§ 281-285. Former § 281, relating to statement of legislative findings and intent, was derived from 1985, No. 171 (Adj. Sess.), § 1 and amended by 1987, No. 80 , § 2.

Former § 282, relating to formation; name; and purposes of private investment fund, was derived from 1985, No. 171 (Adj. Sess.), § 1 and amended by 1987, No. 80 , § 3.

Former § 283, relating to limitations on purposes and powers, was derived from 1985, No. 171 (Adj. Sess.), § 1 and amended by 1987, No. 80 , § 4; 1993, No. 78 , § 2 and 2009, No. 33 , § 20.

Former § 284, relating to initial organization, was derived from 1985, No. 171 (Adj. Sess.), § 1 and amended by 1987, No. 80 , § 5.

Former § 285, relating to capitalization, was derived from 1985, No. 171 (Adj. Sess.), § 1 and amended by 1987, No. 80 , § 6.

Chapter 14A. The Entrepreneurs’ Seed Capital Fund

History

Amendments

—2009. 2009, No. 54 , § 25, eff. June 1, 2009, substituted “Entrepreneurs’ ” for “Vermont” in the chapter heading.

CEDF; ARRA funds; Vermont small-scale loan program; entrepreneurs’ seed capital fund. 2009, No. 78 (Adj. Sess.), § 10f provides: “(a) The general assembly finds that the Vermont small-scale renewable energy loan program currently administered by the clean energy development fund is expected to receive $1,000,000.00 in funding in 2010 under the American Recovery and Reinvestment Act of 2009 (ARRA), Pub.L. No. 111-5, and the clean energy development fund established under 10 V.S.A. § 6523 . Notwithstanding any other provision of law, the general assembly directs that this $1,000,000.00 in funds be reallocated to the entrepreneurs’ seed capital fund created under 10 V.S.A. § 291 to conduct ARRA-eligible activities related to ‘clean energy resources’ or ‘emerging energy-efficient technologies’ as those terms are defined under 10 V.S.A. § 6523 (b)(1) and (4), respectively.

“(b) The commissioner of public service, in conjunction with the Vermont office of economic stimulus and recovery, shall seek and obtain from the United States Department of Energy express authorization for the reallocation of funds pursuant to subsection (a) of this section within four months of the effective date of this act.

“(c) The funds appropriated under this section, and any return on the state’s investment, shall remain in the entrepreneurs’ seed capital fund and may be re-invested in Vermont firms consistent with the purposes of the fund.”

§ 290. Definitions.

For purposes of this chapter:

  1. “Follow-on investment” means any investment in a Vermont firm following the initial investment.
  2. “Fund manager” means the investment management firm responsible for creating the fund, securing capital commitments, and implementing the fund’s investment strategy, consistent with the requirements of this section. The fund manager shall be paid a fee that reflects a percentage of the fund’s capital under management and a performance-fee share based on the fund’s economic performance, as determined by the Authority.
  3. “Seed capital” means first, nonfamily, nonfounder investment in the form of equity or convertible securities issued by a firm that had, in the 12 months preceding the date of the funding commitment, annual gross sales of less than $3,000,000.00.

HISTORY: Added 2009, No. 54 , § 25, eff. June 1, 2009.

§ 291. Entrepreneurs’ Seed Capital Fund; authorization; limitations.

  1. The Vermont Economic Development Authority shall cause to be formed a private investment equity fund to be named “the Entrepreneurs’ Seed Capital Fund” or “the Fund” for the purpose of increasing the amount of investment capital provided to new Vermont firms or to existing Vermont firms for the purpose of expansion. The Authority may contract with one or more persons for the operation of the Fund as Fund manager. Such contract shall contain the terms and conditions pursuant to which the Fund shall be managed to meet the Fund’s objective of providing seed capital to Vermont firms. The terms of the contract shall require that, if the Fund manager does not meet the investment criteria specified in the contract, the Fund manager may not be awarded the performance fee.
  2. The Fund shall be formed as a limited partnership pursuant to Title 11 and shall be subject to all the following:
    1. The Fund shall not invest in any firm in which any interest in that firm is held by an investor of the Fund or by the spouse, children, or other relative of the investor.
    2. The Fund shall invest at least 40 percent of its total capital in initial investment in firms that had in the 12 months preceding the date of the funding commitment annual gross sales of less than $1,000,000.00 and may reserve the remainder of its capital for follow-on investments in these businesses, as appropriate.
      1. Before the Fund makes any investments, the Fund shall have and maintain a board of five advisors who shall be appointed as follows: two shall be appointed by the Authority, two shall be appointed by the Fund manager, and one shall be appointed jointly by the Authority and the Fund manager. (3) (A) Before the Fund makes any investments, the Fund shall have and maintain a board of five advisors who shall be appointed as follows: two shall be appointed by the Authority, two shall be appointed by the Fund manager, and one shall be appointed jointly by the Authority and the Fund manager.
      2. The appointing authorities shall coordinate their appointments to ensure that the Board comprises advisors with diverse professional and personal backgrounds and experiences.
      3. The Board of Advisors shall represent solely the economic interest of the State with respect to the management of the Fund and shall have no civil liability for the financial performance of the Fund.
      4. The Board of Advisors shall be advised of investments made by the Fund and shall have access to all information held by the Fund with respect to investments made by the Fund.
    3. The Fund, within 120 days after the close of each fiscal year of its operations, shall issue a report that includes an audited financial statement certified by an independent certified public accountant. The report also shall include a compilation of the firm data required by subsection (d) of this section. These data shall be reported in a manner that does not disclose competitive or proprietary information, as determined by the Authority. This report shall be distributed to the Governor and the Senate Committee on Economic Development, Housing and General Affairs and the House Committee on Commerce and Economic Development and made available to the public. The report shall include a discussion of the Fund’s impact on the Vermont economy and employment.
    4. The Fund shall not make distributions of more than 75 percent of its net profit to its investors during its first five years of operation.
    5. No person shall be allocated more than 20 percent of the available tax credits. For the purposes of determining allocation, the attribution rules of Section 318 of the Internal Revenue Code in effect as of June 12, 2004 shall apply.
    6. The capitalization of the Fund is not limited under this section; however, only the first $7,150,000.00 raised from Vermont taxpayers on or before January 1, 2020, shall be eligible for partial tax credits as specified in 32 V.S.A. § 5830b .
    7. All investments and related business dealings using funds that qualify for partial tax credits under 32 V.S.A. § 5830b shall be subject to the following restrictions:
      1. The investments shall be restricted to Vermont firms, which for the purposes of this chapter means that their Vermont apportionment equals or exceeds 50 percent, using the apportionment rules under 32 V.S.A. § 5833 , and they maintain headquarters and a principal facility in Vermont. Any funds invested in Vermont firms shall be used for the purpose of enhancing their Vermont operations. Investment shall be restricted to firms that export the majority of their products and services outside the State or add substantial value to products and materials within the State. In its investments, the Fund shall give priority to new firms and existing firms that are developing new products, and shall take into consideration any impact on in-state competition and also whether the investment will encourage economic activity that would not occur but for the Fund investment.
      2. Each Fund investment in any one firm, in any 12-month period shall be limited to a maximum of ten percent of the Fund’s capitalization and, for the life of the Fund, to a maximum of 20 percent of the Fund’s total capitalization.
      3. At least two-thirds of the monies invested by the Fund and qualifying for a tax credit under 32 V.S.A. § 5830b shall at all times be invested in the form of equity or convertible securities unless the Fund manager determines it is reasonable and necessary to pursue temporarily the generally accepted business practice of earning interest on working funds deposited in relatively secure accounts such as savings and money market funds.
  3. Any firm receiving monies from the Fund must report to the Fund manager the following information regarding its activities in the State over the calendar year in which the investment occurred:
    1. The total amount of private investment received.
    2. The total number of persons employed as of December 31.
    3. The total number of jobs created and retained, which also shall indicate for each job the corresponding job classification, hourly wage and benefits, and whether it is part-time or full-time.
    4. Total annual payroll.
    5. Total sales revenue.
  4. The Authority, in consultation with the Fund manager, shall establish reasonable standards and procedures for evaluating potential recipients of Fund monies. The Authority shall make available to the general public a report of all firms that receive Fund investments and also indicate the date of the investment, the amount of the investment, and a description of the firm’s intended use of the investment. This report shall be updated at least quarterly.
  5. Information and materials submitted by a business receiving monies from the Fund shall be available to the Auditor of Accounts in connection with the performance of duties under 32 V.S.A. § 163 ; provided, however, that the Auditor of Accounts shall not disclose, directly or indirectly, to any person any proprietary business information.

HISTORY: Added 2003, No. 164 (Adj. Sess.), § 6, eff. June 12, 2004; amended 2005, No. 184 (Adj. Sess.), § 17a; 2009, No. 54 , § 25, eff. June 1, 2009; 2021, No. 74 , § H.16.

History

References in text.

Section 318 of the Internal Revenue Code, referred to in subdiv. (b)(6), is codified as 26 U.S.C. § 318.

Revision note

—2018. In subdiv. (b)(6), replaced “the effective date of this chapter” with “June 12, 2004”, the chapter’s actual effective date.

—2004. In subdiv. (b)(7)(A) removed the extraneous phrase “under 32 V.S.A. § 5833 ” immediately following “apportionment”.

Amendments

—2021. Subdiv. (b)(3): Added subdiv. (b)(3)(B), and designated the existing provisions of subdiv. (b)(3) as subdivs. (b)(3)(A), (b)(3)(C), and (b)(3)(D).

—2009. Subsecs. (a), (b): Amended generally.

Subsecs. (c)-(e): Added.

—2005 (Adj. Sess.). Subsec. (a): Substituted “Vermont economic development authority shall cause to be formed” for “formation of” and added the second sentence.

Subdiv. (b)(2)(A): Substituted “to” for “seven of whom shall” following “nine directors” and deleted “and two of whom shall be appointed by the governor with the advice and consent of the senate and shall represent the public interest of the state” following “shareholders”.

Subdiv. (b)(2)(B): Substituted “authority” for “governor with the advice and consent of the senate” in the first sentence and “economic” for “public” in the second sentence.

Subdiv. (b)(6): Substituted “$5” for “$2” preceding “million”.

Subdiv. (b)(7)(A): Inserted “and they maintain headquarters and a principal facility in Vermont” following “ 32 V.S.A. § 5833 ”.

Effective date of amendments—

2005, No. 184 (Adj. Sess.), § 18(c) provides that section 17a of that act shall take effect for tax years beginning January 1, 2006 and thereafter.

Entrepreneurs’ Seed Capital Fund. 2021, No. 74 , § H.15 provides: “(a) Entrepreneurs’ Seed Capital Fund. The Entrepreneurs’ Seed Capital Fund, created by the Vermont Economic Development Authority pursuant to 10 V.S.A. § 291 , is a $5.1 million revolving ‘evergreen’ capital fund in operation since 2010 serving Vermont’s entrepreneurs and early-stage technology-enabled companies for job growth, income potential, and wealth creation. Since inception, the Fund’s portfolio companies have now raised in excess of $182 million. The Fund is professionally managed by the Vermont Center for Emerging Technologies (VCET).

“(b) Appropriation. The General Assembly has appropriated the amount of $900,000.00 from the General Fund to the Entrepreneurs’ Seed Capital Fund in Sec. G.300(b)(2) of this act to provide risk stage seed capital to Vermont businesses that have experienced economic disruption either through reduced business, new business formation, or through an unmanageable increase in new business.

“(c) Investment; categories. Notwithstanding any provision of 10 V.S.A. § 290 to the contrary, the Fund shall invest in businesses consistent with the following:

“(1) The Fund shall invest in rapid seed and early growth stage employers that have a viable plan for recovery and growth.

“(2) The Fund shall make expedited investments using simplified investment terms and instruments, including stock, convertible notes, forgivable loans, royalty financing, or grants with equity warrants.

“(3) The expected range per new investment is $20,000.00 to $100,000.00 from this appropriation.

“(4) The Fund shall prioritize sourcing and funding on BIPOC-, veteran-, and women-owned businesses.

“(5) In continuing to serve the Vermont innovation ecosystem and notwithstanding the expedited program timeline, the Fund shall pursue co-investment participation from local and regional investors, including Vermont venture funds, family offices, community foundations, accredited individual “angel” investors, lending institutions, and other relevant sources.

“(6) Prior to providing seed capital, the Fund may ensure that an applicant has consulted with, and has accessed any available funding from, the Vermont Economic Development Authority.

“(d) Eligibility. For-profit Vermont businesses are eligible except where other significant State appropriated Coronavirus Relief Fund program resources have been directed. These excluded sectors include:

“(1) traditional in-person retail operations;

“(2) lodging, hospitality, and real estate operations; and

“(3) restaurants and food service operations.”

§ 292. Repealed. 2009, No. 54, § 26, eff. June 1, 2009.

History

Former § 292. Former § 292, relating to providing for the initial organization of the Vermont seed capital fund, was derived from 2003, No. 164 (Adj. Sess.), § 6.

§ 293. Repealed. 2005, No. 184 (Adj. Sess.), § 17c.

History

Former § 293. Former § 293, relating to capitalization, was derived from 2003, No. 164 (Adj. Sess.), § 6.

2005, No. 184 (Adj. Sess.), § 18(c), provided that the repeal of this section shall take effect for tax years beginning January 1, 2006 and thereafter.

Chapter 15. Vermont Housing and Conservation Trust Fund

Subchapter 1. General Provisions

§ 301. Short title.

This chapter may be cited as the “Vermont Housing and Conservation Trust Fund Act.”

HISTORY: Added 1987, No. 88 , § 1, eff. June 11, 1987.

§ 302. Policy, findings, and purpose.

  1. The dual goals of creating affordable housing for Vermonters, and conserving and protecting Vermont’s agricultural land, forestland, historic properties, important natural areas, and recreational lands are of primary importance to the economic vitality and quality of life of the State.
  2. In the best interests of all of its citizens and in order to improve the quality of life for Vermonters and to maintain for the benefit of future generations the essential characteristics of the Vermont countryside, and to support farm, forest, and related enterprises, Vermont should encourage and assist in creating affordable housing and in preserving the State’s agricultural land, forestland, historic properties, important natural areas and recreational lands, and in keeping conserved agricultural land in production and affordable for future generations of farmers.
  3. It is the purpose of this chapter to create the Vermont Housing and Conservation Trust Fund to be administered by the Vermont Housing and Conservation Board to further the policies established by subsections (a) and (b) of this section.

HISTORY: Added 1987, No. 88 , § 1, eff. June 11, 1987; amended 2011, No. 118 (Adj. Sess.), § 1; 2011, No. 142 (Adj. Sess.), § 3, eff. May 15, 2012.

History

Editor’s note

—2011 (Adj. Sess.) The text of this section is based on the harmonization of two amendments. During the 2011 Adj. Sess., this section was amended twice, by Act Nos. 118 and 142, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2011 Adj. Sess., the text of Act Nos. 118 and 142 were merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

Amendments

—2011 (Adj. Sess.) Subsec. (a): Act No. 118 inserted “forestland” preceding “historic properties”.

Act No. 142 inserted “and forestland” preceding “historic properties”.

Subsec. (b): Act No. 118 inserted “and to support farm, forest, and related enterprises” preceding “Vermont should encourage and assist in creating affordable housing and in preserving the state’s agricultural land” and “forestland” thereafter, and added “and in keeping conserved agricultural land in production and affordable for future generations of farmers” at the end.

Act No. 142 inserted “and forestland,” following “agricultural land”.

§ 303. Definitions.

As used in this chapter:

  1. “Board” means the Vermont Housing and Conservation Board established by this chapter.
  2. “Fund” means the Vermont Housing and Conservation Trust Fund established by this chapter.
  3. “Eligible activity” means any activity which will carry out either or both of the dual purposes of creating affordable housing and conserving and protecting important Vermont lands, including activities which will encourage or assist:
    1. the preservation, rehabilitation, or development of residential dwelling units that are affordable to:
      1. lower income Vermonters; or
      2. for owner-occupied housing, Vermonters whose income is less than or equal to 120 percent of the median income based on statistics from State or federal sources;
    2. the retention of agricultural land for agricultural use, and of forestland for forestry use;
    3. the protection of important wildlife habitat and important natural areas;
    4. the preservation of historic properties or resources;
    5. the protection of areas suited for outdoor public recreational activity;
    6. the protection of lands for multiple conservation purposes, including the protection of surface waters and associated natural resources;
    7. the development of capacity on the part of an eligible applicant to engage in an eligible activity.
  4. “Eligible applicant” means any:
    1. municipality;
    2. State agency as defined in section 6301a of this title;
    3. nonprofit organization qualifying under Section 501(c)(3) of the Internal Revenue Code; or
    4. cooperative housing organization, the purpose of which is the creation or retention of affordable housing for lower income Vermonters and the bylaws of which require that such housing be maintained as affordable housing for lower income Vermonters on a perpetual basis.
  5. “Lower income” means less than or equal to the median income based on statistics from State or federal sources.
  6. “Important natural area” means any area containing one or more endangered species as defined in chapter 123 of this title or any area essential to maintaining the ecological diversity or natural heritage of the State.
  7. “Historic property or resource” means any building, structure, object, district, area, or site that is significant in the history, architecture, archeology, or culture of this State, its communities, or the nation.

HISTORY: Added 1987, No. 88 , § 1, eff. June 11, 1987; amended 2011, No. 138 (Adj. Sess.), § 29; 2011, No. 142 (Adj. Sess.), § 3, eff. May 15, 2012; 2015, No. 157 (Adj. Sess.), § T.3.

History

References in text.

Section 501 of the Internal Revenue Code, referred to in subdiv. (4), is codified as 26 U.S.C. § 501.

Editor’s note

—2011 (Adj. Sess.) The text of this section is based on a harmonization of two amendments, each of which is described in the amendment notes below. During the 2011 Adj. Sess., this section was amended twice, by Act Nos. 118 and 142, resulting in two versions of this section. In order to reflect all of the changes enacted by the legislature during the 2011 Adj. Sess., the text of Act Nos. 118 and 142 were merged to arrive at a single version of this section.

Amendments

—2015 (Adj. Sess.). Subdiv. (3)(A): After “to”, inserted colon and designated remaining existing text as subdiv. (i), and added subdiv (ii).

—2011 (Adj. Sess.). Act No. 138 added subdiv. (3)(F) and redesignated former subdiv. (3)(F) as present subdiv. (3)(G); and amended subdiv. (4)(B) to refer to “state agency as defined in section 6301a of this title”.

—2011 (Adj. Sess.). Act No 142 added “, and of forestland for forestry use” in subdiv. (3)(B).

§§ 304-310. Repealed. 1973, No. 197 (Adj. Sess.), § 4.

History

Former §§ 304-310. Former § 304, relating to disqualification of members of the former industrial park authority, was derived from 1967, No. 197 , § 4. The subject matter is now covered by § 214 of this title.

Former § 305, relating to the powers of the industrial park authority, was derived from 1967, No. 197 , § 5. The subject matter is now covered by § 216 of this title.

Former § 306, relating to assistance to local development corporations, was derived from 1967, No. 197 , § 6, and amended by 1969, No. 183 (Adj. Sess.), § 3. The subject matter is now covered by § 231 of this title.

Former § 307, relating to issuance of loans, was derived from 1967, No. 197 , § 7, and amended by 1969, No. 183 (Adj. Sess.), § 4. The subject matter is now covered by § 232 of this title.

Former § 308, relating to depressed areas, was derived from 1967, No. 197 , § 8. The subject matter is now covered by § 233 of this title.

Former § 309, relating to the industrial park authority fund, was derived from 1967, No. 197 , § 9.

Former § 310, relating to issuance of notes and purchase by the state treasurer, was derived from 1967, No. 197 , § 10, and amended by 1967, No. 294 (Adj. Sess.), § 1.

Subchapter 2. Establishment and Organization

§ 311. Establishment and Organization.

  1. There is created and established a body politic and corporate to be known as the “Vermont Housing and Conservation Board” to carry out the provisions of this chapter. The Board is constituted a public instrumentality exercising public and essential governmental functions, and the exercise by the Board of the powers conferred by this chapter shall be deemed and held to be the performance of an essential governmental function of the State. The Board is exempt from licensure under 8 V.S.A. chapter 73.
  2. The Board shall consist of the following 11 members:
    1. The Secretary of Agriculture, Food and Markets or designee.
    2. The Secretary of Human Services or designee.
    3. The Secretary of Natural Resources or designee.
    4. The Executive Director of the Vermont Housing Finance Agency or designee.
    5. Three public members appointed by the Governor with the advice and consent of the Senate, who shall be residents of the State and who shall be experienced in creating affordable housing or conserving and protecting Vermont’s agricultural land and forestland, historic properties, important natural areas, or recreational lands, one of whom shall be a representative of lower income Vermonters and one of whom shall be a farmer as defined in 32 V.S.A. § 3752(7) .
    6. One public member appointed by the Speaker of the House, who shall not be a member of the General Assembly at the time of appointment.
    7. One public member appointed by the Senate Committee on Committees, who shall not be a member of the General Assembly at the time of appointment.
    8. Two public members appointed jointly by the Speaker of the House and the President Pro Tempore of the Senate as follows:
      1. One member from the nonprofit affordable housing organizations that qualify as eligible applicants under subdivision 303(4) of this title who shall not be an employee or board member of any of those organizations at the time of appointment.
      2. One member from the nonprofit conservation organizations whose activities are eligible under subdivision 303(3) of this title who shall not be an employee or member of the board of any of those organizations at the time of appointment.
  3. The public members shall serve terms of three years beginning February 1 of the year of appointment. However, two of the public members first appointed by the Governor shall serve initial terms of one year; and the public members first appointed by the Speaker and Committee on Committees shall serve initial terms of two years. A vacancy occurring among the public members shall be filled by the respective appointing authority for the balance of the unexpired term. A member may be reappointed.
  4. Annually, the Board shall elect from among its public members a chair and vice chair. The Board may elect officers as it may determine. Meetings shall be held at the call of the Chair or at the request of three members. A majority of the sitting members shall constitute a quorum and action taken by the Board under the provisions of this chapter may be authorized by a majority of the members present and voting at any regular or special meeting.
  5. Members other than ex officio members shall be entitled to per diem authorized under 32 V.S.A. § 1010 for each day spent in the performance of their duties and each member shall be reimbursed from the Fund for his or her reasonable expenses incurred in carrying out his or her duties under this chapter.
  6. The Board shall employ the Executive Director to administer, manage and direct the affairs and business of the Board, subject to the policies, control, and direction of the members. The Board may employ technical experts and other officers, agents, and employees as are necessary to effect the purposes of this chapter, and may fix their qualifications, duties, and compensation. The Board shall use the Office of the Attorney General for legal services.

HISTORY: Added 1987, No. 88 , § 1, eff. June 11, 1987; amended 1987, No. 203 (Adj. Sess.), § 18, eff. May 27, 1988; 1995, No. 190 (Adj. Sess.), § 1(b); 2003, No. 42 , § 2, eff. May 27, 2003; 2009, No. 1 (Sp. Sess.), § E.813; 2009, No. 1 56 (Adj. Sess.), §§ E.810.1, E.810.2; 2011, No. 142 (Adj. Sess.), § 3, eff. May 15, 2012.

History

Amendments

—2011 (Adj. Sess.). Substituted “8 V.S.A. chapter 73” for “chapter 73 of Title 8” in subsec. (a); and added “and forestland,” in the middle of subdiv. (b)(5).

—2009 (Adj. Sess.) Subdiv. (b)(5): Added “with the advice and consent of the senate” after “governor.”

Subdiv. (c): Substituted “February” for “July.”

—2009 (Sp. Sess.). Rewrote subsec. (b); added new subsec. (c); deleted “such” preceding “officers”, “member”, and “other officers” in subsecs. (d), (e) and (f); and redesignated former subsecs. (c)-(e) as present subsecs. (d)-(f).

—2003. Subsec. (b): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” in the first sentence.

—1995 (Adj. Sess.) Subsec. (b): Substituted “secretary of commerce and community development” for “secretary of development and community affairs” in the first sentence.

—1987 (Adj. Sess.). Subsec. (a): Added the last sentence.

Effective date of subdiv. (b)(5). 2009, No. 156 (Adj. Sess.), § G.100(h) provides: “Sec E.810.1 [which amended subdiv. (b)(5) of this section] is effective upon passage [June 3, 2010]; however, senate consent shall be required for members appointed by the governor on February 1, 2011 and thereafter.”

Effective date provisions. 2009, No. 156 (Adj. Sess.), § G.100.(i), provides that the amendments by section E.810.2 [which amended subsec. (c) of this section] of the act is effective on passage and the terms of all public members currently appointed to the Vermont Housing and Conservation Trust Fund by the governor or general assembly under 10 V.S.A. § 311 shall be extended from June 30 to January 31.

§ 312. Creation of Vermont Housing and Conservation Trust Fund.

There is created a special fund in the State Treasury to be known as the “Vermont Housing and Conservation Trust Fund.” The Fund shall be administered by the Board and expenditures therefrom shall only be made to implement and effectuate the policies and purposes of this chapter. The Fund shall be comprised of 50 percent of the revenue from the property transfer tax under 32 V.S.A. chapter 231 and any monies from time to time appropriated to the Fund by the General Assembly or received from any other source, private or public, approved by the Board. Unexpended balances and any earnings shall remain in the Fund for use in accord with the purposes of this chapter.

HISTORY: Added 1987, No. 88 , § 1, eff. June 11, 1987; amended 1997, No. 156 (Adj. Sess.), § 40; 1999, No. 49 , § 79.

History

Amendments

—1999. Substituted “fund” for “account” preceding “in the state” and “treasury” for “general fund” thereafter in the first sentence, “50 percent” for “56 percent” in the third sentence, and deleted “not revert to the general fund but shall” following “any earnings shall” in the fourth sentence.

—1997 (Adj. Sess.). Substituted “The fund shall be comprised of 56 percent of the revenue from the property transfer tax under chapter 231 of Title 32 and any moneys” for “Deposits shall be made to the fund from moneys” and made stylistic changes in the third sentence.

1997 (Adj. Sess.). 1997, No. 156 (Adj. Sess.), § 44, provides, in part, that the amendment to this section by Act No. 156 shall not be construed to alter or amend the appropriations in §§ 228 (housing and conservation trust fund) and 266 (transfers of property transfer tax revenues) of Act No. 147, the fiscal year 1999 general appropriations act.

CROSS REFERENCES

Allocation of property transfer tax revenues to fund, see 32 V.S.A. § 9610 .

Appropriations from municipal and regional planning fund, see 24 V.S.A. § 4306 .

§ 313. Expenditure of bond proceeds.

Any proceeds of State bonds issued in support of activities under this chapter shall be used exclusively for the funding of long-term, tangible capital investments and those capital expenses allowed under federal laws governing the use of State bond proceeds as determined with the guidance of the State of Vermont’s bond counsel. No bond proceeds shall be used to fund the operational expenses of the Board. For purposes of this section, “operational expenses” shall include costs related to persons directly employed or under contract to provide administrative, clerical, financial, lobbying, policy analysis, or research services.

HISTORY: Added 1991, No. 256 (Adj. Sess.), § 21a, eff. June 9, 1992.

§ 314. Section 314 repealed on July 1, 2039. Affordable housing bond; investment.

The Vermont Housing and Conservation Board shall use the proceeds of bonds, notes, and other obligations issued by the Vermont Housing Finance Agency pursuant to subdivision 621(22) of this title and transferred to the Vermont Housing and Conservation Trust Fund to fund the creation and improvement of owner-occupied and rental housing for Vermonters with very low to middle income, in areas targeted for growth and reinvestment, as follows:

  1. not less than 25 percent of the housing shall be targeted to Vermonters with very low income, meaning households with income below 50 percent of area median income;
  2. not less than 25 percent of the housing shall be targeted to Vermonters with moderate income, meaning households with income between 80 and 120 percent of area median income; and
  3. the remaining housing shall be targeted to Vermonters with income that is less than or equal to 120 percent of area median income, consistent with the provisions of this chapter.

HISTORY: Added 2017, No. 85 , § I.2; amended 2017, No. 85 , § I.11(a).

History

Former § 314. Former § 314, relating to the issuance of loans for industrial park planning and development projects, was derived from 1969, No. 183 (Adj. Sess.), § 5 and was previously repealed by 1973, No. 197 (Adj. Sess.), § 4. The subject matter is now covered by § 237 of this title.

Prospective repeal. 2017, No. 85 , Sec. I.11(a)(1) provides that 10 V.S.A. § 314 “shall be repealed on July 1, 2039”.

Subchapter 3. Powers and Duties

§ 321. General powers and duties.

  1. The Board shall have all the powers necessary and convenient to carry out and effectuate the purposes and provisions of this chapter, including those general powers provided to a business corporation by Title 11A and those general powers provided to a nonprofit corporation by Title 11B and including, without limitation of the general powers under Titles 11A and 11B, the power to:
    1. upon application from an eligible applicant in a form prescribed by the Board, provide funding in the form of grants or loans for eligible activities;
    2. enter into cooperative agreements with private organizations or individuals or with any agency or instrumentality of the United States or of this State to carry out the purposes of this chapter;
    3. issue rules in accordance with 3 V.S.A. chapter 25 for the purpose of administering the provisions of this chapter;
    4. transfer funds to the Department of Housing and Community Development to carry out the purposes of this chapter;
    5. make and execute all legal documents necessary or convenient for the exercise of its powers and functions under this chapter, including legal documents that may be made and executed with the State or any of its agencies or instrumentalities, with the United States or any of its agencies or instrumentalities, or with private corporations or individuals;
    6. receive and accept grants from any source to be held, used, or applied or awarded to carry out the purposes of this chapter subject to the conditions upon which the grants, aid, or contributions may be made;
    7. make and publish rules and regulations respecting its housing programs and such other rules and regulations as are necessary to effectuate its corporate purposes; and
    8. do any and all things necessary or convenient to effectuate the purposes and provisions of this chapter and to carry out its purposes and exercise the powers given and granted in this chapter.
    1. The Board shall seek out and fund nonprofit organizations and municipalities that can assist any region of the State that has high housing prices, high unemployment, or low per capita incomes in obtaining grants and loans under this chapter for perpetually affordable housing. (b) (1) The Board shall seek out and fund nonprofit organizations and municipalities that can assist any region of the State that has high housing prices, high unemployment, or low per capita incomes in obtaining grants and loans under this chapter for perpetually affordable housing.
    2. The Board shall administer the “HOME” affordable housing program that was enacted under Title II of the Cranston-Gonzalez National Affordable Housing Act (Title II, P.L. 101-625, 42 U.S.C. 12701-12839). The State of Vermont, as a participating jurisdiction designated by Department of Housing and Urban Development, shall enter into a written memorandum of understanding with the Board, as subrecipient, authorizing the use of HOME funds for eligible activities in accordance with applicable federal law and regulations. HOME funds shall be used to implement and effectuate the policies and purposes of this chapter related to affordable housing. The memorandum of understanding shall include performance measures and results that the Board will annually report on to the Vermont Department of Housing and Community Development.
  2. On behalf of the State of Vermont, the Board shall be the exclusive designated entity to seek and administer federal affordable housing funds available from the Department of Housing and Urban Development under the national Housing Trust Fund that was enacted under HR 3221, Division A, Title 1, Subtitle B, Section 1131 of the Housing and Economic Reform Act of 2008 (P.L. 110-289) to increase perpetually affordable rental housing and home ownership for low and very low income families. The Board is also authorized to receive and administer federal funds or enter into cooperative agreements for a shared appreciation and/or community land trust demonstration program that increases perpetually affordable homeownership options for lower income Vermonters and promotes such options both within and outside Vermont.
  3. On behalf of the State of Vermont, the Board shall seek and administer federal farmland protection and forestland conservation funds to facilitate the acquisition of interests in land to protect and preserve in perpetuity important farmland for future agricultural use and forestland for future forestry use. Such funds shall be used to implement and effectuate the policies and purposes of this chapter. In seeking federal farmland protection and forestland conservation funds under this subsection, the Board shall seek to maximize State participation in the federal Wetlands Reserve Program and other programs as is appropriate to allow for increased or additional implementation of conservation practices on farmland and forestland protected or preserved under this chapter.
  4. The Board shall inform all grant applicants and recipients of funds derived from the annual capital appropriations and State bonding act of the following: “The Vermont Housing and Conservation Trust Fund is funded by the taxpayers of the State of Vermont, at the direction of the General Assembly, through the annual Capital Appropriation and State Bonding Act.” An appropriate placard shall, if feasible, be displayed at the location of the proposed grant activity.

HISTORY: Added 1987, No. 88 , § 1, eff. June 11, 1987; amended 1991, No. 93 , § 16a, eff. June 26, 1991; 1995, No. 46 , § 27; 1991, No. 62 , § 54, eff. April 26, 1995; 2005, No. 71 , § 219a; 2009, No. 1 (Sp. Sess.), § E.813.1; 2009, No. 1 10 (Adj. Sess.), § 12, eff. May 18, 2010; 2009, No. 156 (Adj. Sess.), § E.810, eff. June 3, 2010; 2011, No. 142 (Adj. Sess.), § 3, eff. May 15, 2012; 2015, No. 11 , § 7; 2019, No. 129 (Adj. Sess.), § 28; 2019, No. 138 (Adj. Sess.), § 12, eff. July 2, 2020.

History

Revision note

—2013. In subdiv. (a)(4) and subsec. (b), substituted “Housing and Community Development” for “Economic, Housing and Community Development” in light of Executive Order No. 3-48 (No. 01-13), effective April 12, 2013.

Amendments

—2019 (Adj. Sess.). Subsec. (a): Act No. 129 and Act No. 138 inserted “and those general powers provided to a nonprofit corporation by Title 11B” and inserted “without limitation of the general powers under Titles 11A and 11B,”.

Subdivs. (a)(5) - (a)(8): Added by Act No. 129 and Act No. 138.

Subdivs. (b)(1): Act No. 129 and Act No. 138 substituted “or” for “and”.

Subdivs. (b)(2): Act No. 129 and Act No. 138 substituted “that” for “which” in the first sentence.

Subsec. (c): Act No. 129 and Act No. 138 substituted “that” for “which” in the first sentence.

Subsec. (d): Act No. 129 and Act No. 138 deleted “such” preceding “other” in the last sentence.

—2015. Subsec. (a): Deleted “without limitation” preceding “those general powers” and “without limiting the generality of the foregoing” preceding “the power to” and added “and” preceding subdiv. (4).

Subsec. (b): Added the subdivs. (1) and (2) designations, and substituted “nonprofit” for “not-for-profit” in subdiv. (1), and “results” for “outcomes” in the last sentence of subdiv. (2).

—2011 (Adj. Sess.). Subsec. (d): Added “and forestland conservation” in the first and last sentences, added “and forestland for future forestry use” at the end of the first sentence, and substituted “and such other programs as is appropriate to allow” for “in order to allow” and added “and forestland” in the last sentence.

—2009 (Adj. Sess.) Subsec. (c): Amended generally by Act No. 156.

Subsec. (d): Added the last sentence by Act No. 110.

—2009 (Sp. Sess.). Substituted “Title 11A” for “section 1852 of Title 11” in subsec. (a); added new subsec. (c); and redesignated former subsecs. (c) and (d) as present subsecs. (d) and (e).

—2005. Inserted “high housing prices” preceding “high employment” in the first sentence and added the second through fourth sentences in subsec. (b); added new subsec. (c) and redesignated former subsec. (c) as present subsec. (d).

—1995. Subdiv. (a)(4): Added by Act No. 46.

Subsec. (c): Added by Act No. 62.

—1991. Designated the existing provisions of the section as subsec. (a) and added subsec. (b).

Vermont housing and conservation board. 2007, No. 65 , § 232(a) provides: “As required by 10 V.S.A. § 321(b) , the housing and conservation board shall expend HOME funds solely for the development of perpetually affordable housing and to leverage additional funds for such purpose. Notwithstanding the limitations in 10 V.S.A. § 321(b) and this subsection, the housing and conservation board may expend up to $200,000 of HOME funds in fiscal year 2008 to assist Vermont owners of affordable housing to replace failed wastewater or potable water supply systems, provided that (1) priority will be given to homes that are perpetually affordable; (2) HOME funds shall be highly leveraged by other public and private funds; and (3) HOME funds shall be secured by due-on-sale mortgages.”

Vermont housing and conservation board. 2007, No. 192 (Adj. Sess.), § 5.502(a) provides: “As required by 10 V.S.A. § 321(b) , the housing and conservation board shall expend HOME funds solely for the development of perpetually affordable housing and to leverage additional funds for such purpose.”

§ 322. Allocation system.

  1. In determining the allocation of funds available for the purposes of this chapter, the Board shall give priority to projects that combine the dual goals of creating affordable housing and conserving and protecting Vermont’s agricultural land, historic properties, important natural areas or recreation lands and also shall consider, but not be limited to, the following factors:
    1. the need to maintain balance between the dual goals in allocating resources;
    2. the need for a timely response to unpredictable circumstances or special opportunities to serve the purposes of this chapter;
    3. the level of funding or other participation by private or public sources in the activity being considered for funding by the Board;
    4. what resources will be required in the future to sustain the project;
    5. the need to pursue the goals of this chapter without displacing lower income Vermonters;
    6. the long-term effect of a proposed activity and, with respect to affordable housing, the likelihood that the activity will prevent the loss of subsidized housing units and will be of perpetual duration;
    7. geographic distribution of funds.
  2. The Board’s allocation system shall include a method, defined by rule, that evaluates the need for, impact, and quality of activities proposed by applicants.

HISTORY: Added 1987, No. 88 , § 1, eff. June 11, 1987; amended 1997, No. 156 (Adj. Sess.), § 45, eff. April 29, 1998.

History

Amendments

—1997 (Adj. Sess.). Subdiv. (a)(7): Added.

§ 323. Annual report.

Prior to January 31 of each year, the Board shall submit a report concerning its activities to the Governor and to the House Committees on Agriculture and Forestry, on Appropriations, on Corrections and Institutions, on Energy and Technology, on Natural Resources, Fish, and Wildlife, and on Ways and Means and the Senate Committees on Agriculture, on Appropriations, on Finance, on Institutions, and on Natural Resources and Energy. The report shall include the following:

  1. a list and description of activities funded by the Board during the preceding year, including commitments made to fund projects through housing bond proceeds pursuant to section 314 of this title, and project descriptions, levels of affordability, and geographic location;
  2. a list of contributions received by the Board, whatever their form or nature, and the source thereof, unless anonymity is a condition of a particular contribution;
  3. a full financial report of the Board’s activities, including a special accounting of all activities from July 1 through December 31 of the year preceding the legislative session during which the report is submitted;
  4. if more than 70 percent of the funds allocated by the Board during the previous year were allocated to either one of the dual goals of this chapter, as established in subsection 302(a) of this title, the Board shall set forth its reasons for not allocating funds more equally between the two.

HISTORY: Added 1987, No. 88 , § 1, eff. June 11, 1987; amended 1991, No. 93 , § 16, eff. June 26, 1991; 2017, No. 85 , § I.3; 2017, No. 113 (Adj. Sess.), § 44.

History

Amendments

—2017 (Adj. Sess.). Introductory language: Inserted “on Energy and Technology,” following “Corrections and Institutions,”.

—2017. Introductory paragraph and subdiv. (1): Amended generally.

—1991. Deleted “and on” following “agriculture” and following “energy” and added “ways and means, finance, and institutions” following “appropriations” in the introductory paragraph and added “including a special accounting of all activities from July 1 through December 31 of the year preceding the legislative session during which the report is submitted” following “activities” in subdiv. (3).

Reports repeal delayed. 2015, No. 131 (Adj. Sess.), § 36 provides: “The reports set forth in this section shall not be subject to expiration under the provisions of 2 V.S.A. § 20(d) (expiration of required reports) until July 1, 2018.

§ 324. Stewardship.

If an activity funded by the Board involves acquisition by the State of an interest in real property for the purpose of conserving and protecting agricultural land or forestland, important natural areas, or recreation lands, the Board, in its discretion, may make a one-time grant to the appropriate State agency or municipality. The grant shall not exceed ten percent of the current appraised value of that property interest and shall be used to support its proper management or maintenance, or both.

HISTORY: Added 1987, No. 88 , § 1, eff. June 11, 1987; amended 2011, No. 142 (Adj. Sess.), § 3, eff. May 15, 2012.

History

Amendments

—2011 (Adj. Sess.). Inserted “or forestland,” following “agricultural land” in the first sentence.

§ 325. Condemnation prohibited.

The Board shall not have the authority or power to acquire property for the purposes of this chapter through condemnation or through the exercise of the power of eminent domain.

HISTORY: Added 1987, No. 88 , § 1, eff. June 11, 1987.

§ 325a. Conservation easement review appraisals.

The Vermont Housing and Conservation Board shall ensure on a periodic basis that review appraisals are conducted of conservation easements proposed to be acquired pursuant to this chapter.

HISTORY: Added 1995, No. 185 (Adj. Sess.), § 14a, eff. May 22, 1996.

§ 325b. State of Vermont executory interest in easements.

  1. As used in this section:
    1. “Qualified organization” shall have the same meaning as in section 6301a of this title; and
    2. “State agency” shall have the same meaning as in section 6301a of this title.
  2. The Agency of Agriculture, Food and Markets may hold an executory interest in agricultural conservation easements acquired by the Board under chapter 155 of this title when the acquisition of an interest in the agricultural conservation easement was financed by monies expended, in whole or in part, from the Housing and Conservation Trust Fund.
  3. An agricultural conservation easement acquired by the Board under chapter 155 of this title with monies expended, in whole or in part, from the Fund shall be subject to a memorandum of understanding between the Board, the Agency of Agriculture, Food and Markets, and any other co-holder of the agricultural conservation easement regarding oversight, performance, and enforcement of the agricultural conservation easement.
  4. The Agency of Agriculture, Food and Markets may exercise its executory interest in an agricultural conservation easement interest acquired under chapter 155 of this title if:
    1. the Board ceases to exist and its interest in the agricultural conservation easement is not otherwise released and conveyed in accordance with law;
    2. the Board releases and conveys its agricultural conservation easement interests, in whole or in part, to a State agency, municipality, qualified holder, or qualified organization in accordance with the laws of the State of Vermont; or
    3. a significant violation of the terms and conditions of an agricultural conservation easement is not resolved in accordance with the memorandum of understanding required under subsection (c) of this section for the agricultural conservation easement.
  5. The Board annually shall monitor or cause to be monitored a conserved property subject to an agricultural conservation easement for compliance with the terms and conditions of the agricultural conservation easement. The Board shall report a significant violation of the terms and conditions of an agricultural conservation easement to the Secretary of Agriculture, Food and Markets. The Secretary of Agriculture, Food and Markets may recommend to the Board or the Attorney General a course of action to be taken to address a violation of the terms and conditions of an agricultural conservation easement in accordance with the memorandum of understanding required under subsection (c) of this section.

HISTORY: Added 2015, No. 172 (Adj. Sess.), § E.811.

Subchapter 4. Rural Economic Development Initiative

§ 325m. Rural Economic Development Initiative.

  1. Definitions.   As used in this subchapter:
    1. “Rural area” means a county of the State designated as “rural” or “mostly rural” by the U.S. Census Bureau in its most recent decennial census.
    2. “Small town” means a town in the State with a population of less than 5,000 at the date of the most recent U.S. Census Bureau decennial census.
  2. Establishment.   There is created the Rural Economic Development Initiative to be administered by the Vermont Housing and Conservation Board for the purpose of promoting and facilitating community economic development in the small towns and rural areas of the State. The Rural Economic Development Initiative shall collaborate with municipalities, businesses, regional development corporations, regional planning commissions, and other appropriate entities to access funding and other assistance available to small towns and businesses in rural areas of the State when existing State resources or staffing assistance is not available.
  3. Services; access to funding.   The Rural Economic Development Initiative shall provide the following services to small towns and businesses in rural areas:
    1. identification of grant or other funding opportunities that facilitate business development, infrastructure development, or other economic development opportunities;
    2. technical assistance in writing grants, accessing other funding, coordination with providers of grants or other funding, strategic planning for the implementation or timing of activities funded by grants or other funding, and compliance with the requirements of grant awards or awards of other funding.
  4. Priority.   In providing services under this section, the Rural Economic Development Initiative shall give first priority to projects that have received necessary State or municipal approval and that are ready for construction or implementation.
  5. Priority projects.   The Rural Economic Development Initiative shall seek to assist the following priority types of projects:
    1. milk plants, milk handlers, or dairy products, as those terms are defined in 6 V.S.A. § 2672 ;
    2. outdoor recreation and equipment enterprises;
    3. value-added food and forest products enterprises;
    4. farm operations, including phosphorus removal technology for farm operations;
    5. coworking or business generator and accelerator spaces;
    6. commercial composting facilities; and
    7. restoration and rehabilitation of historic buildings in community centers.
  6. Coordination.   In providing services under this section, the Rural Economic Development Initiative shall coordinate with the Secretary of Commerce and Community Development, regional development corporations, and regional planning commissions.
  7. Report.   Beginning on January 31, 2019, and annually thereafter, the Rural Economic Development Initiative shall submit to the Senate Committees on Agriculture and on Economic Development, Housing and General Affairs and the House Committees on Agriculture and Forestry and on Commerce and Economic Development a report regarding the activities and progress of the Initiative as part of the report of the Vermont Farm and Forest Viability Program. The report shall summarize the Initiative’s activities in the preceding year; evaluate the effectiveness of the services provided by the Initiative; provide an accounting of the grants or other funding that the Initiative facilitated or helped secure; and recommend any changes to the program to further economic development in small towns and rural areas of the State.

HISTORY: Added 2017, No. 77 , § 1; amended 2017, No. 77 , § 12; 2017, No. 194 (Adj. Sess.), § 1.

History

Amendments

—2017 (Adj. Sess.). Section amended generally.

Repeal of sunset. 2017, No. 77 , § 12(a), which had provided for the repeal of this subchapter 4, effective July 1, 2021, was repealed by 2019, No. 129 (Adj. Sess.), § 29 and 2019, No. 138 (Adj. Sess.), § 13.

Chapter 15A. The Sustainable Jobs Fund Program

History

Farm-to-plate investment program. 2009, No. 78 (Adj. Sess.), § 13, as amended by 2009, No. 143 (Adj. Sess.), § 2 and 2009, No. 161 (Adj. Sess.), § 44, provides: “The funds received pursuant to Sec. 7(a) of this act shall be used to further the initiatives of the farm-to-plate investment program established in 10 V.S.A. § 330 and support entities that will enhance the production, storage, processing, and distribution infrastructure of the Vermont food system. The funds shall be competitively awarded by the program director, in consultation with the secretary of agriculture, food and markets and the Vermont sustainable agriculture council, in the form of grants to nonprofit farmers’ markets and like entities that are ready to implement their business plans or expand their existing operations to provide additional capacity and services within the food system. The funds also may be used for the coordination and implementation of the recommendations contained in the strategic plan of the farm-to-plate investment program.”

Coordination of farm-to-plate, farm-to-school, and farm-to-institutions programs. 2009, No. 78 (Adj. Sess.), § 22 provides: “For the purposes of avoiding duplication of administration and better coordinating resources, the Vermont farm-to-plate investment program, in consultation with the secretary of agriculture, shall include in its strategic plan for agricultural economic development required by 10 V.S.A. § 330 (c)(1) , a recommendation for the oversight and coordination of the farm-to-plate investment program established under 10 V.S.A. § 330 , the farm-to-school program established under 6 V.S.A. § 4721 , and any other farm-to-institutions partnerships designed to increase institutional purchases of fresh, locally grown food.”

CROSS REFERENCES

Vermont sustainable jobs strategy, see § 280b of this title.

§ 326. Findings, policies, and goals.

  1. The General Assembly finds that Vermont’s economic prosperity depends on the establishment and achievement of the following policies and goals:
    1. The dual goals of creating quality jobs and conserving and protecting Vermont’s social and natural environments are of primary importance to economic vitality and the quality of life of Vermont.
    2. The idea of combining the dual goals of economic vitality and environmental quality is known as sustainable economic development.
    3. Sustainable economic development is a growing national and international public policy trend for the investment of private and governmental funds.
    4. Vermont’s unique environmental image as a function of State policy and of the policies of our existing educational institutions provides an opportunity to position the State as a primary sustainable economic development educational center.
    5. The goal of quality job creation as part of the State’s economic development policy is dependent on providing support for the start-up and expansion of small businesses and micro-business sectors of our economy.
    6. The goal of creating quality jobs or family-wage jobs is in part dependent upon nurturing businesses in growing sectors of the national and international economy, including companies involved with:
      1. environmental technologies;
      2. environmental equipment and services;
      3. energy efficiency;
      4. renewable energy;
      5. pollution abatement;
      6. specialty foods;
      7. water and wastewater systems;
      8. solid waste and recycling technologies;
      9. wood products and other natural resource based or “value added” industries;
      10. sustainable agriculture; and
      11. existing businesses, including larger manufacturing firms, striving to minimize their impact and waste through environmentally sound products and processes.
    7. The goal of creating quality jobs by nurturing the businesses listed in subdivision (6) of this subsection is consistent with the goal of protecting our natural and social environments, and with the goal of positioning the State as a primary sustainable economic development educational center.
    8. Support for sustainable economic development includes the need to provide:
      1. Increased financial resources to fund existing programs for the start-up and expansion of small businesses, including revolving loan programs, peer lending programs, technical assistance programs, and marketing programs.
      2. Capital access to those businesses too large or too small to obtain funds from existing programs.
      3. An organization designed to coordinate the leveraging of federal, State, local, and private resources and to stimulate the development of public-private partnerships.
      4. An increased array of economic development tools, including flexible manufacturing networks, sectoral development, and product development funds.
      5. Funding for eligible activities as recommended in the Vermont Economic Progress Council’s 10-year plan.
      6. Professional evaluation and accountability of funded economic development activities.
      7. Coordination between the State’s economic development and environmental protection policies.
  2. It is the purpose of this chapter to create the Sustainable Jobs Fund Program, to be administered by the nonprofit corporation formed under section 328 of this title, to further the policies and goals established in subsection (a) of this section.

HISTORY: Added 1995, No. 46 , § 15, eff. April 20, 1995.

§ 327. Definitions.

As used in this chapter:

  1. “Sustainable jobs” is defined as jobs created from business strategies and activities that meet the needs of the enterprise and its stakeholders today while protecting and sustaining the human and natural resources that will be needed in the future.
  2. “Eligible activity” means any activity that will carry out the dual purposes of creating quality jobs, as defined by the ten-year economic development plan adopted by the Agency of Commerce and Community Development, and conserving and preserving Vermont’s social and natural environment, including activities which will encourage or assist, but are not limited to:
    1. the start-up or expansion of the small business and micro-business sector; and
    2. existing businesses striving to minimize their impact and waste through environmentally sound products and processes.
  3. “Eligible applicant” means any for profit or nonprofit business entity that fulfills the purposes of this chapter.

HISTORY: Added 1995, No. 46 , § 15, eff. April 20, 1995; amended 1995, No. 190 (Adj. Sess.), § 1(a).

History

Amendments

—1995 (Adj. Sess.) Subdiv. (2): Substituted “agency of commerce and community development” for “agency of development and community affairs” in the introductory paragraph.

§ 328. Creation of the Sustainable Jobs Fund Program.

  1. There is created the Sustainable Jobs Fund Program to create quality jobs that are compatible with Vermont’s natural and social environment.
  2. The Vermont Economic Development Authority shall incorporate a nonprofit corporation pursuant to the provisions of subdivision 216(14) of this title to administer the Sustainable Jobs Fund Program, and to fulfill the purposes of this chapter by means of loans or grants to eligible applicants for eligible activities, provided that any funds contributed to the Program by the Authority under subsection (c) of this section shall be used for lending purposes only.
    1. Notwithstanding the provisions of subdivision 216(14) of this title, the Authority may contribute not more than $1,000,000.00 to the capital of the corporation formed under this section, and the Board of Directors of the corporation formed under this section shall consist of: (c) (1) Notwithstanding the provisions of subdivision 216(14) of this title, the Authority may contribute not more than $1,000,000.00 to the capital of the corporation formed under this section, and the Board of Directors of the corporation formed under this section shall consist of:
      1. the Secretary of Commerce and Community Development or designee;
      2. the Secretary of Agriculture, Food and Markets or designee;
      3. a director appointed by the Governor; and
      4. eight independent directors, no more than two of whom shall be State government employees or officials, and who shall be selected as vacancies occur by vote of the existing directors from a list of names offered by a nominating committee of the Board created for that purpose.
      1. Each independent director shall serve a term of three years or until his or her earlier resignation. (2) (A) Each independent director shall serve a term of three years or until his or her earlier resignation.
      2. A director may be reappointed, but no independent director and no director appointed by the Governor shall serve for more than three terms.
      3. The director appointed by the Governor shall serve at the pleasure of the Governor and may be removed at any time with or without cause.
    2. A director of the Board who is or is appointed by a State government official or employee shall not be eligible to hold the position of Chair, Vice Chair, Secretary, or Treasurer of the Board.
  3. [Repealed.]
  4. The Agency of Commerce and Community Development shall have the authority and responsibility for the administration and implementation of the Program.
  5. The Vermont Sustainable Jobs Fund Program shall work collaboratively with the Agency of Agriculture, Food and Markets to assist the Vermont slaughterhouse industry in supporting its efforts at productivity and sustainability.

HISTORY: Added 1995, No. 46 , § 15, eff. April 20, 1995; amended 1995, No. 190 (Adj. Sess.), § 1(b); 2003, No. 122 (Adj. Sess.), § 225; 2009, No. 146 (Adj. Sess.), § G18, eff. June 1, 2010; 2011, No. 52 , §§ 35a, 37, 38, eff. May 27, 2011; 2011, No. 139 (Adj. Sess.), § 51, eff. May 14, 2012; 2015, No. 157 (Adj. Sess.), § O.1, eff. June 2, 2016.

History

Editor’s note

—2011 (Adj. Sess.). 2011, No. 52 , § 32 repealed the amendments in 2009, No. 146 (Adj. Sess.), §§ G18 and G19 before they became effective.

Amendments

—2015 (Adj. Sess.). Repealed subsec. (d) and added subsec. (e).

—2011 (Adj. Sess.) Subsec. (e): Repealed.

—2011. Subsec. (c): Amended generally.

—2009 (Adj. Sess.) Subsec. (c): Amended generally.

Subsec. (d): Repealed.

—2003 (Adj. Sess.). Subsecs. (e), (f): Added.

—1995 (Adj. Sess.) Subsec. (c): Substituted “secretary of commerce and community development” for “secretary of development and community affairs”.

§ 329. Annual report.

Prior to January 31 of each year, the corporation formed under section 328 of this title shall submit a report concerning its activities to the Governor, to the House Committees on Appropriations, on Commerce and Economic Development, on Corrections and Institutions, on General, Housing, and Military Affairs, on Natural Resources, Fish, and Wildlife, and on Ways and Means and to the Senate Committees on Appropriations, on Economic Development, Housing and General Affairs, on Finance, on Institutions, and on Natural Resources and Energy. The report shall include the following information:

  1. A list and description of activities funded by the Sustainable Jobs Fund Program during the preceding year.
  2. A list of contributions received by the Board, whatever their form or nature, and the source thereof, unless anonymity is a condition of a particular contribution.
  3. A full financial report of the activities of the Sustainable Jobs Fund Program, including a special accounting of all activities from July 1 through December 31 of the year preceding the legislative session during which the report is submitted.
  4. If more than 70 percent of the funds allocated by the Sustainable Jobs Fund Program during the previous year were allocated to either one of the dual goals of this chapter in such a manner that the other goal was not achieved as established in section 326 of this title, and subdivisions 326(a)(5) and (6) of this title in particular, the Program shall set forth its reasons for the manner of allocation.
  5. A summary of work completed in the Farm-to-Plate Investment Program, including progress toward meeting the program goals, information regarding any advisory panel meetings, an accounting of all revenues and expenses related to the Program, and recommendations regarding future Program activity. The report shall also include information regarding the status of State government procurement of local foods.

HISTORY: Added 1995, No. 46 , § 15, eff. April 20, 1995; amended 2009, No. 54 , § 36, eff. June 1, 2009; 2019, No. 14 , § 12, eff. April 30, 2019.

History

Amendments

—2019. Amended generally the introductory paragraph.

—2009. Subdiv. (5): Added.

Reports repeal delayed. 2015, No. 131 (Adj. Sess.), § 36 provides: “The reports set forth in this section shall not be subject to expiration under the provisions of 2 V.S.A. § 20(d) (expiration of required reports) until July 1, 2018.

§ 330. The Farm-to-Plate Investment Program; creation; outcomes; tasks; methods.

  1. Creation.
    1. The Sustainable Jobs Fund Program shall establish the Vermont Farm-to-Plate Investment Program to fulfill the goals and carry out the tasks described in this section.
    2. If at least $100,000.00 in funding is not made available for the purpose of this section, the Sustainable Jobs Fund Program is encouraged but no longer required to fulfill the provisions of this section.
  2. Intended outcomes.   The intended outcomes of the Farm-to-Plate Investment Program are to:
    1. Increase sustainable economic development and create jobs in Vermont’s food and farm sector.
    2. Improve soils, water, and resiliency of the working landscape in the face of climate change.
    3. Improve access to healthy local foods for all Vermonters.
  3. Tasks.
    1. The Vermont Farm-to-Plate Investment Program shall create a strategic plan for agricultural and food system development, which may be periodically reviewed and updated, based upon the following:
      1. Inventory Vermont’s food system infrastructure by gathering existing data, studies, and analysis about the components of Vermont’s food system, including:
        1. the types of foods produced in Vermont, the number of producers of each type of food, the amount of each type of food produced, and the financial viability of each food-producing sector;
        2. the types of food processors in Vermont, how much food produced in Vermont is purchased by Vermont processors, and the financial viability of the food processing sector in Vermont;
        3. the current and potential markets in which Vermont food producers and processors can sell their products;
        4. the extent of existing agricultural lands that could be expanded and the resources available to expand Vermont’s food production;
        5. the potential for new farmers and food processors to enter the local food economy, the methods for new farmers to acquire land and other farm infrastructure, and the availability and barriers to farm and processing labor; and
        6. the potential for entirely new local products and the barriers to farmers and processors entering new markets.
      2. Identify gaps in the infrastructure and distribution systems and identify ways to address these gaps.
    2. The Vermont Farm-to-Plate Investment Program shall provide support for farm and food businesses, including regional food hubs, selling in all types of markets, direct and wholesale, in the State and outside the State.
    3. As an ongoing task, the Farm-to-Plate Investment Program shall use the information gathered for the strategic plan and updates to the plan to identify methods and the funding necessary to strengthen the links among producers, processors, and markets, including:
      1. supporting the work of existing farm-to-school programs to increase the purchase of local foods by Vermont schools, with a particular emphasis on procurement of nutrient-dense animal foods;
      2. supporting the work of the Working Lands Enterprise Board to strategically invest in farm and food businesses;
      3. collaborating with the Agency of Agriculture, Food and Markets and the Department of Buildings and General Services to increase procurement of local foods in accordance with 6 V.S.A. § 4601 ;
      4. collaborating with the Agency of Agriculture, Food and Markets to increase procurement of local foods by businesses and institutions;
      5. supporting initiatives that improve the marketing of foods from Vermont producers to consumers inside the State and outside of the State;
      6. supporting education and workforce development initiatives that address skill and labor needs of farm and food businesses; and
      7. informing agricultural lenders of the information collected under subdivision (1) of this subsection (c) in order to facilitate availability of farm and food sector financing.
    4. The Farm-to-Plate Investment Program Strategic Plan shall also establish measurable goals that shall be tracked over the life of the Plan, methods for the ongoing collection of data necessary to track those goals, plans for updating the Plan as needed, and appropriate methods to track the ongoing economic contribution of the farm and food sector to the Vermont economy.
  4. Methods.   To accomplish the goals and carry out the ongoing tasks stated in this section, the Vermont Farm-to-Plate Investment Program may:
    1. create an advisory panel with representatives from the agricultural and business communities;
    2. hire or assign staff;
    3. seek and accept funds from private and public entities;
    4. serve as the administrative support for the Farm-to-Plate Network; and
    5. utilize technical assistance, loans, grants, or other means.
  5. [Repealed.]

HISTORY: Added 2009, No. 54 , § 35, eff. June 1, 2009; amended 2009, No. 3 (Sp. Sess.), § 11(b); 2009, No. 78 (Adj. Sess.), § 13a, eff. April 15, 2010; 2015, No. 11 , § 8; 2019, No. 23 , § 1; 2019, No. 131 (Adj. Sess.), § 12.

History

Amendments

—2019 (Adj. Sess.). Subdiv. (c)(3)(A): Deleted “of” following “supporting”.

—2019. Section amended generally.

—2015. Subdiv. (c)(4): Substituted “goals” for “outcomes” following “measurable” and “track those”.

—2009 (Adj. Sess.). Subdiv. (c)(4): Added.

—2009 (Sp. Sess.). Subdiv. (e): Repealed by Act No. 3 (Sp. Sess.).

Chapter 16. Vermont Agricultural Finance Program

CROSS REFERENCES

Family farm assistance generally, see § 271 et seq. of this title.

Federal agricultural loans, see 7 U.S.C. § 1921 et seq.

Subchapter 1. Administration

§§ 331-337. Repealed. 1999, No. 25, § 3.

History

Former §§ 331-337. Former § 331, relating to definitions, was derived from 1987, No. 77 , § 2; and amended by 1987, No. 203 (Adj. Sess.), §§ 6, 7, eff. May 27, 1988; 1989, No. 199 (Adj. Sess.), § 2; 1993, No. 89 , § 3(a), eff. June 15, 1993, and 1995, No. 46 , § 16, eff. April 20, 1995.

Former § 332, relating to the establishment of the Vermont Agricultural Finance Program, was derived from 1987, No. 77 , § 2; and amended by 1987, No. 203 (Adj. Sess.), § 8, eff. May 27, 1988, and 1989, No. 199 (Adj. Sess.), § 3.

Former § 333, relating to duties of the program loan officer, was derived from 1987, No. 77 , § 2; and amended by 1987, No. 203 (Adj. Sess.), § 9, eff. May 27, 1988, and 1989, No. 199 (Adj. Sess.), § 4; No. 256 (Adj. Sess.), § 10(a), eff. Jan. 1, 1991, and 1995, No. 190 (Adj. Sess.), § 1(a).

Former § 334, relating to authority and general powers, was derived from 1987, No. 77 , § 2; and amended by 1987, No. 203 (Adj. Sess.), § 10, eff. May 27, 1988; 1989, No. 73 § 246, and 1995, No. 46 (Adj. Sess.), § 17, eff. April 20, 1995.

Former § 335, relating to records, annual report and audit, was derived from 1987, No. 77 , § 2.

Former § 336, relating to construction, was derived from 1987, No. 77 , § 2.

Former § 337, relating to property tax exemption, was derived from 1987, No. 77 , § 2.

ANNOTATIONS

Annotations From Former § 331

Cited.

Cited in Houston v. Town of Waitsfield, 162 Vt. 476, 648 A.2d 864, 1994 Vt. LEXIS 88 (1994).

Subchapter 2. Family Farm Finance Loans

CROSS REFERENCES

Family farm debt stabilization assistance, see § 371 et seq. of this title.

§§ 341, 342. Repealed. 1999, No. 25, § 3.

History

Former §§ 341, 342. Former § 341, relating to authorization and purposes of loans, was derived from 1987, No. 77 , § 2; amended by 1987, No. 203 (Adj. Sess.), § 11, eff. May 27, 1988; 1993, No. 233 (Adj. Sess.), § 39, eff. June 21, 1994.

Former § 342, relating to eligibility standards for loans, was derived from 1987, No. 77 , § 2.

Subchapter 3. Agricultural Facility Loans

§§ 351, 352. Repealed. 1999, No. 25, § 3.

History

Former §§ 351, 352. Former § 351, relating to authorization of loans and purposes, was derived from 1987, No. 77 , § 2; and amended by 1987, No. 203 (Adj. Sess.), § 12, eff. May 27, 1988.

Former § 352, relating to eligibility standards, was derived from 1987, No. 77 , § 2.

Subchapter 4. Funding

§§ 361-363. Repealed. 1999, No. 25, § 3.

History

Former §§ 361-363. Former § 361, relating to the agricultural development fund, was derived from 1987, No. 77 , § 2, and amended by 1987, No. 203 (Adj. Sess.), § 13, eff. May 27, 1988.

Former § 362, relating to family farm debt stabilization financing, was derived from 1987, No. 203 (Adj. Sess.), § 14, eff. May 27, 1988, and amended by 1989, No. 73 , § 246a; 1991, No. 106 , §§ 1, 2; 1993, No. 233 (Adj. Sess.), § 39a, eff. June 21, 1994; 1995, No. 46 , § 18, eff. April 20, 1995, and 1995, No. 184 (Act. Sess.), § 6a.

Former § 363, relating to issuance of notes, purchase by the state treasurer, and repayment, was derived from 1991, No. 212 (Adj. Sess.), § 6, eff. May 27, 1992, and amended by 1993, No. 233 (Adj. Sess.), § 39b, eff. June 21, 1994.

Subchapter 5. Family Farm Debt Stabilization

§§ 371-373. Repealed. 1999, No. 25, § 3.

History

Former §§ 371-373. Former § 371, relating to operating loan assistance, was derived from 1987, No. 203 (Adj. Sess.), § 15, eff. May 27, 1988, and amended by 1989, No. 199 (Adj. Sess.), § 5 and 1991 No. 106, § 3.

Former § 372, relating to interest rates, was derived from 1987, No. 203 (Adj. Sess.), § 15, eff. May 27, 1988, and amended by 1991, No. 106 , § 3a; 1991, No. 212 (Adj. Sess.), § 7, eff. May 27, 1992.

Former § 373, relating to cooperation with federal agencies, was derived from 1987, No. 203 (Adj. Sess.), § 15, eff. May 27, 1988.

Chapter 16A. Vermont Agricultural Credit Program

§ 374a. Creation of the Vermont Agricultural Credit Program.

  1. There is created the Vermont Agricultural Credit Program, which will provide an alternative source of sound and constructive credit to farmers and forest products businesses who are not having their credit needs fully met by conventional agricultural credit sources at reasonable rates and terms. The Program is intended to meet, either in whole or in part, the credit needs of eligible agricultural facilities and farm operations in fulfillment of one or more of the purposes listed in this subsection by making direct loans and participating in loans made by other agricultural credit providers:
    1. to encourage diversification, cooperative farming, and the development of innovative farming techniques;
    2. to increase energy efficiency and reduce energy consumption in agricultural facilities, including the construction of water pollution control facilities which implement best management practices for farm waste abatement pursuant to 6 V.S.A. chapter 215;
    3. to encourage innovative and diversified processing, marketing, and distribution of Vermont agricultural products;
    4. to assist beginning farmers to start new farms and new agricultural facilities to commence or strengthen their operations;
    5. to assist or financially strengthen existing farms; and
    6. to refinance loans incurred by eligible borrowers for any of the purposes enumerated in subdivisions (1) through (5) of this subsection.
  2. No borrower shall be approved for a loan from the corporation that would result in the aggregate principal balances outstanding of all loans to that borrower exceeding the then-current maximum Farm Service Agency loan guarantee limits, or $5,000,000.00, whichever is greater.

HISTORY: Added 1999, No. 25 , § 1; amended 2003, No. 67 , § 5, eff. June 16, 2003; 2005, No. 137 (Adj. Sess.), § 3; 2013, No. 199 (Adj. Sess.), § 6; 2015, No. 157 (Adj. Sess.), § A.6, eff. June 2, 2016.

History

Amendments

—2015 (Adj. Sess.). Subsec. (a): Inserted “and forest products business” following “credit to farmers” in the first sentence.

Subsec. (b): Substituted “$5,000,000.00” for “$2,000,000.00”.

—2013 (Adj. Sess.). Subsec. (b): Inserted “, or $2,000,000.00, whichever is greater” at the end.

—2005 (Adj. Sess.). Subsec. (b): Amended generally.

—2003. Subsec. (b): Deleted “or outstanding operating loans from the corporation in excess of $300,000.00 in the aggregate” from the end of the subsec.

Legislative findings. 2003, No. 7 , § 1, provided: “(a) The legislature finds that the financial viability of many otherwise efficient and productive Vermont farms, most particularly dairy and milk-producing farm units, is severely threatened by the continued suppression of farm milk prices, and that financial assistance should be made available to them to provide short-term cash flow and capital to meet annual operating and related needs.

“(b) To meet these immediate needs, the legislature in this act authorizes and establishes an Agricultural Loan Payment Guarantee Program and a Farm Operating Loan Program.”

Agricultural loan payment guarantee program; authorization and requirements. 2003, No. 7 , § 2, provided: “(a) Immediately on the effective date of this act, the Vermont Agricultural Credit Corporation (VACC) shall establish and implement an Agricultural Loan Payment Guarantee Program to provide immediate cash flow relief to eligible farmers through the issuance of mortgage insurance pursuant to 10 V.S.A. chapter 12, subchapter 2.

“(b) The Agricultural Loan Payment Guarantee Program shall insure not more than nine months of deferred installment payments of principal and interest granted by a financial institution to a borrower on an eligible agricultural loan, up to a maximum of $100,000.00 per borrower. Financial institutions may apply for insurance on eligible agricultural loans for a period of nine months from the effective date of this act. VACC may establish other policies and procedures for the program pursuant to 10 V.S.A. § 374d(17) .”

§ 374b. Definitions.

As used in this chapter:

  1. “Agricultural facility” means land and rights in land, buildings, structures, machinery, and equipment that is used for, or will be used for producing, processing, preparing, packaging, storing, distributing, marketing, or transporting agricultural or forest products that have been primarily produced in this State, and working capital reasonably required to operate an agricultural facility.
  2. “Agricultural land” means real estate capable of supporting commercial farming or forestry, or both.
  3. “Agricultural products” mean crops, livestock, forest products, and other farm or forest commodities produced as a result of farming or forestry activities.
  4. “Farm ownership loan” means a loan to acquire or enlarge a farm or agricultural facility, to make capital improvements including construction, purchase, and improvement of farm and agricultural facility buildings that can be made fixtures to the real estate, to promote soil and water conservation and protection, and to refinance indebtedness incurred for farm ownership or operating loan purposes, or both.
  5. “Authority” means the Vermont Economic Development Authority.
  6. “Cash flow” means, on an annual basis, all income, receipts, and revenues of the applicant or borrower from all sources and all expenses of the applicant or borrower, including all debt service and other expenses.
  7. “Farmer” means an individual directly engaged in the management or operation of an agricultural facility or farm operation for whom the agricultural facility or farm operation constitutes two or more of the following:
    1. is or is expected to become a significant source of the farmer’s income;
    2. the majority of the farmer’s assets; and
    3. an occupation in which the farmer is actively engaged, either on a seasonal or year-round basis.
  8. “Farm operation” shall mean the cultivation of land or other uses of land for the production of food, fiber, horticultural, silvicultural, orchard, maple syrup, Christmas trees, forest products, or forest crops; the raising, boarding, and training of equines, and the raising of livestock; or any combination of the foregoing activities. “Farm operation” also means the storage, preparation, retail sale, and transportation of agricultural or forest commodities accessory to the cultivation or use of such land. “Farm operation” also shall mean the operation of an agritourism business on a farm subject to regulation under the Required Agricultural Practices.
  9. “Forest products business” means a Vermont enterprise that is primarily engaged in managing, harvesting, trucking, processing, manufacturing, crafting, or distributing products derived from Vermont forests.
  10. “Livestock” shall mean cattle, sheep, goats, equines, fallow deer, red deer, reindeer, American bison, swine, poultry, pheasant, chukar partridge, coturnix quail, ferrets, camelids and ratites, cultured trout propagated by commercial trout farms, and bees.
  11. “Loan” means an operating loan or farm ownership loan, including a financing lease, provided that such lease transfers the ownership of the leased property to each lessee following the payment of all required lease payments as specified in each lease agreement.
  12. “Operating loan” means a loan to purchase livestock, farm or forestry equipment, or fixtures to pay annual operating expenses of a farm operation or agricultural facility, to pay loan closing costs, and to refinance indebtedness incurred for farm ownership or operating loan purposes, or both.
  13. “Program” means the Vermont Agricultural Credit Program established by this chapter.
  14. “Project” or “agricultural project” means the creation, establishment, acquisition, construction, expansion, improvement, strengthening, reclamation, operation, or renovation of an agricultural facility or farm operation.
  15. “Resident” means a person who is or will be domiciled in this State as evidenced by an intent to maintain a principal dwelling place in the State indefinitely and to return there if temporarily absent, coupled with an act or acts consistent with that intent, including the filing of a Vermont income tax return within 18 months of the application for a loan under this chapter. In the case of a limited liability company, partnership, corporation, or other business entity, resident means a business entity formed under the laws of Vermont, the majority of which is owned and operated by Vermont residents who are natural persons.

HISTORY: Added 1999, No. 25 , § 1; amended 2003, No. 67 , § 6, eff. June 16, 2003; 2003, No. 121 (Adj. Sess.), § 89, eff. June 8, 2004; 2005, No. 137 (Adj. Sess.), § 4; 2013, No. 199 (Adj. Sess.), § 6; 2015, No. 157 (Adj. Sess.), § A.6, eff. June 2, 2016; 2019, No. 129 (Adj. Sess.), § 20.

History

Revision note

—2014. In subdiv. (14), deleted “but not limited to” following “including” in the first sentence in accordance with 2013, No. 5 , § 4.

Amendments

—2019 (Adj. Sess.). Subdiv. (8): In the second sentence, inserted quotation marks around “Farm operation” and substituted “means” for “includes”; and added the last sentence.

—2015 (Adj. Sess.). Inserted “or forest” following “transporting agricultural” in subdiv. (1), added new subdiv. (9) and redesignated former subdivs. (9) through (14) as present subdivs. (10) through (15), and inserted “or forestry” following “purchase livestock, farm” in present subdiv. (12).

—2013 (Adj. Sess.). Subdiv. (1): Made minor stylistic change.

Subdiv. (2): Inserted “or forestry, or both” at the end.

Subdiv. (3): Inserted “or forest” following “and other farm” and “or forestry” following “result of farming”, and made a minor stylistic change.

Subdiv. (6): Inserted comma following “receipts”.

Subdiv. (7)(C): Inserted “in which” following “an occupation”, and deleted “in” following “actively engaged”.

Subdiv. (8): Inserted “silvicultural,” following “fiber, horticultural,”, “forest products,” following “Christmas trees,”, and “or forest” following “and transportation of agricultural”.

—2005 (Adj. Sess.). Substituted “is or is expected to become a significant source of the farmer’s income” for “the source for the majority of the farmer’s income” in subdiv. (7)(A) and “an occupation the farmer is actively engaged in, either on a seasonal or year-round basis” for “the farmer’s primary occupation” in subdiv. (7)(C).

—2003 (Adj. Sess.). Subdiv. (14): Inserted “or will be” preceding “domiciled” in the first sentence and substituted “the majority of which is” for “and” preceding “owned” in the second sentence.

—2003. Section amended generally.

§ 374c. Incorporation; board of directors.

The Vermont Economic Development Authority shall incorporate a nonprofit corporation to administer the Vermont agricultural credit program and to fulfill the goals and purposes of this chapter. The voting members of the Authority shall be the board of directors of the corporation, and the manager of the Authority shall serve as the president and chief executive officer of the corporation. Such corporation shall be organized and operate under the nonprofit corporation laws of the State of Vermont to the extent not inconsistent herewith. The Authority will have the power to contract with the corporation to provide staff and management needs of the corporation.

HISTORY: Added 1999, No. 25 , § 1.

History

Transfer of powers and duties, and assets and liabilities. 1999, No. 25 , § 2, provides that: “The corporation formed under section 10 V.S.A. § 374c shall be, in all respects, the successor to the authority for purposes of operating the programs administered through the Vermont agricultural finance program codified in 10 V.S.A. chapter 16, and repealed by Sec. 3 of this act. The policies of the authority related to programs administered by the authority through the Vermont agricultural finance program shall continue in effect to the extent that they are not inconsistent with the provisions of Sec. 1 of this act [which added this chapter]. Funds in the agricultural development fund and in the family farm debt stabilization fund on June 30, 1999 shall be deposited into the agricultural credit development fund established under 10 V.S.A. § 374e . On June 30, 1999, all loans then outstanding and all loan commitments made by the authority pursuant to 10 V.S.A. §§ 341 and 351, as repealed by Sec. 3 of this act [which repealed chapter 16 of this title], shall be transferred to and become the assets and obligations of the corporation enforceable by and against the corporation in accordance with their respective terms but shall otherwise be unaffected hereby. On June 30, 1999, all family farm debt stabilization certificates issued by the authority pursuant to 10 V.S.A. § 362 as repealed by Sec. 3 of this act and all notes issued by the authority to the state treasurer pursuant to 10 V.S.A. § 363 as repealed by Sec. 3 of this act shall be transferred to and shall become liabilities and obligations of the corporation enforceable by and against the corporation in accordance with their respective terms, but shall otherwise be unaffected hereby. Notwithstanding the repeal of 10 V.S.A. § 363 , the full faith and credit of the state of Vermont continues to be pledged to secure repayment of the certificates issued by the authority through June 30, 1998 pursuant to 10 V.S.A. § 362 as repealed by Sec. 3 of this act.”

§ 374d. General powers.

The corporation shall have the powers necessary to carry out the purposes and provisions of this chapter, including those general powers provided a business corporation by 11A V.S.A. § 3.02. In addition, the corporation shall have the power to:

  1. execute contracts and all other instruments necessary for the exercise of its powers and functions under this chapter;
  2. without limitation, acquire or dispose of real or personal property or any interest in real or personal property;
  3. receive and accept gifts, grants, or contributions from any source, for any purpose consistent with this chapter;
  4. provide or contract for consolidated processing of any aspect of the financing of eligible borrowers in order to avoid duplication;
  5. procure insurance against any loss;
  6. invest monies of the corporation not required for immediate use;
  7. borrow money and issue notes and other evidences of indebtedness for lending and administrative and other expenses. The corporation may sell, transfer, pledge, mortgage, hypothecate, or otherwise dispose of loans under its management. Neither the full faith and credit of the State of Vermont nor any of the assets of the Authority are pledged to secure repayment of the indebtedness of the corporation;
  8. consent to any modification with respect to rate of interest, time, and payment of any contract or agreement of any kind to which the corporation is a party;
  9. procure or agree to the procurement of insurance, guarantees, or interest rate subsidy assistance on any notes or any other evidence of indebtedness issued to the corporation;
  10. make loans or advances secured by a mortgage or a security agreement, which may be subordinate to one or more prior mortgages or security agreements, to eligible borrowers under such terms and conditions as the corporation deems prudent and consistent with the purposes of this chapter and for such fees, and at such rate or rates of interest, as determined by the corporation, provided that the interest rate or rates charged by the corporation shall not exceed the rate paid or to be paid by the corporation for monies borrowed by the corporation to fund loans plus 300 basis points;
  11. take title, by foreclosure or other process available under the law, to any real or personal property where such action is necessary to protect any loan previously made by the corporation, pay all costs arising out of the legal action and acquisition from monies held in the Fund, and sell or transfer any such property to any responsible buyer. If the transfer or conveyance of assets acquired under this subdivision cannot be effected with reasonable promptness, the corporation may, in order to minimize financial losses and sustain a farm operation or agricultural facility, lease the assets owned by it to responsible persons on such terms and conditions as the corporation deems reasonable;
  12. purchase prior mortgages and make payments on prior mortgages or security interests on any assets pledged as security for loans of the corporation where the purchase or payment is necessary to protect any loan previously made by the corporation. In addition, the corporation may sell, transfer, and assign a prior mortgage or prior security interest. Monies used by the corporation for the purchase of any prior mortgages, or any payments on prior mortgages, shall be withdrawn from the Fund established pursuant to section 374e of this title, and any monies derived from the sale of any prior mortgages shall be deposited in the Fund;
  13. employ or contract for services with agents, consultants, legal advisors, and other experts, as may be necessary for its purposes;
  14. participate in eligible and qualified loan projects with lenders, including the farm credit system, banks, and insurance companies;
  15. execute lease agreements for the purpose of leasing personal property under financing leases, which leases transfer the ownership of the leased personal property to each lessee following the payment of all required lease payments as specified in each lease agreement;
  16. sell loans, or portions thereof, in order to provide further funding for lending under this chapter. Proceeds from sales of loans shall be deposited in the Agricultural Credit Development Fund established under section 374e of this title;
  17. establish policies and procedures consistent with the purpose of providing sound and constructive credit to eligible loan applicants; and
  18. do all things necessary to carry out the purposes and provisions of this chapter.

HISTORY: Added 1999, No. 25 , § 1; amended 2003, No. 7 , § 6, eff. April 25, 2003.

History

Revision note

—2010. In the introductory language, substituted “11A V.S.A. § 3.02” for “11A V.S.A. § 302” to correct an error in the reference.

Amendments

—2003. Subdiv. (7): Deleted “nor the moral obligation” following “full faith and credit” in the third sentence.

§ 374e. Agricultural Credit Development Fund.

The Agricultural Credit Development Fund is created and shall be used by the corporation for the purposes of this chapter. All reasonable administrative expenses of the corporation shall be paid from the Fund. The Fund shall be credited with any appropriations made by the General Assembly, all payments of principal and interest received from loans transferred or assigned to or made by the corporation, any available grants or gifts made to the corporation, the proceeds of any sale, transfer, pledge, mortgage, hypothecation, or other disposition of loans transferred or assigned to the corporation by the Authority and loans made by the corporation pursuant to this chapter, and any funds borrowed by the corporation. Monies in the Fund may, after payment of reasonable administrative expenses and debt service on the indebtedness of the corporation incurred in furtherance of its purposes under this chapter, be loaned by the corporation directly to eligible borrowers, used to purchase or acquire portions of loans made by unrelated third party lenders to eligible borrowers, or to subsidize the payment of interest on the debt of the corporation so as to lower the interest rate on loans made by the corporation to eligible borrowers.

HISTORY: Added 1999, No. 25 , § 1.

§ 374f. Records.

The corporation shall keep an accurate account of all its activities.

HISTORY: Added 1999, No. 25 , § 1; amended 2011, No. 139 (Adj. Sess.), § 6, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Amended the section generally.

§ 374g. Construction.

The provisions of section 218 of this title shall apply to this chapter. Information concerning loan applicants or recipients shall be kept confidential.

HISTORY: Added 1999, No. 25 , § 1.

§ 374h. Loan eligibility standards.

A farmer, or a limited liability company, partnership, corporation, or other business entity the majority ownership of which is vested in one or more farmers, shall be eligible to apply for a farm ownership or operating loan, provided the applicant is:

  1. a resident of this State and will help to expand the agricultural economy of the State;
  2. an owner, prospective purchaser, or lessee of agricultural land in the State or of depreciable machinery, equipment, or livestock to be used in the State;
  3. a person of sufficient education, training, or experience in the operation and management of an agricultural facility or farm operation of the type for which the applicant requests the loan;
  4. an operator or proposed operator of an agricultural facility, farm operation, or forest products business for whom the loan reduces investment costs to an extent that offers the applicant a reasonable chance to succeed in the operation and management of an agricultural facility or farm operation;
  5. a creditworthy person under such standards as the corporation may establish;
  6. able to provide and maintain adequate security for the loan by a mortgage on real property or a security agreement and perfected financing statement on personal property;
  7. able to demonstrate that the applicant is responsible and able to manage responsibilities as owner or operator of the farm operation, agricultural facility, or forest products business;
  8. able to demonstrate that the applicant has made adequate provision for insurance protection of the mortgaged or secured property while the loan is outstanding;
  9. a person who possesses the legal capacity to incur loan obligations;
  10. in compliance with such other reasonable eligibility standards as the corporation may establish;
  11. able to demonstrate that the project plans comply with all regulations of the municipality where it is to be located and of the State of Vermont;
  12. able to demonstrate that the making of the loan will be of public use and benefit;
  13. able to demonstrate that the proposed loan will be adequately secured by a mortgage on real property or by a security agreement on personal property; and
  14. there will be sufficient projected cash flow to service a reasonable level of debt, including the loan or loans, being considered by the corporation.

HISTORY: Added 1999, No. 25 , § 1; amended 2003, No. 67 , § 7, eff. June 16, 2003; 2015, No. 157 (Adj. Sess.), § A.6, eff. June 2, 2016.

History

Amendments

—2015 (Adj. Sess.). Subdiv. (4): Substituted “agricultural facility, farm operation, or forest products business” for “agricultural facility, or farm operation”.

Subdiv. (7): Substituted “farm operation, agricultural facility, or forest products business” for “farm operation, or agricultural facility”.

Subdiv. (13): Deleted “with a satisfactory maturity date in no event later than 20 years from the date of inception of the mortgage” following “mortgage on real property” and “with a satisfactory maturity date in no event longer than the average remaining useful life of the assets in which the security interest is being taken” following “agreement on personal property”.

—2003. Subsec. (a): Deleted the subsec. designation and “Asset acquisition loan” at the beginning and substituted “a farm ownership or operating loan” for “an asset acquisition loan”.

Subsec. (b): Deleted.

Chapter 17. Vermont Home Mortgage Credit Agency

§§ 351-376. Repealed. 1973, No. 260 (Adj. Sess.), § 6, eff. April 11, 1974.

History

Former §§ 351-376. Former § 351, relating to purpose, was derived from 1967, No. 282 (Adj. Sess.), § 1.

Former § 352, relating to the Vermont home mortgage credit agency, was derived from 1967, No. 282 (Adj. Sess.), § 3, and amended by 1971, No. 21 , § 1.

Former § 353, relating to powers of the agency, was derived from 1967, No. 282 (Adj. Sess.), § 4.

Former § 354, relating to authority to purchase loans, was derived from 1967, No. 282 (Adj. Sess.), § 5, and amended by 1969, No. 78 , § 1; 1969, No. 285 (Adj. Sess.), § 1; 1971, No. 21 , § 2.

Former § 355, relating to lenders certification, was derived from 1967, No. 282 (Adj. Sess.), § 6.

Former § 356, relating to the right of the agency to decline to purchase any loan or obligation, was derived from 1967, No. 282 (Adj. Sess.), § 7, and amended by 1969, No. 285 (Adj. Sess.), § 2.

Former § 357, relating to consideration for loans purchased, was derived from 1967, No. 282 (Adj. Sess.), § 8.

Former § 358, relating to bonds of the agency, was derived from 1967, No. 282 (Adj. Sess.), § 9, and amended by 1969, No. 285 (Adj. Sess.), § 3.

Former § 359, relating to the use of proceeds from the sale of bonds, was derived from 1967, No. 282 (Adj. Sess.), § 10, and amended by 1971, No. 21 , § 3.

Former § 360, relating to application of receipts, was derived from 1967, No. 282 (Adj. Sess.), § 11, and amended by 1971, No. 21 , § 4.

Former § 361, relating to pledging of the full faith and credit of the state, was derived from 1967, No. 282 (Adj. Sess.), § 12, and amended by 1969, No. 285 (Adj. Sess.), § 4.

Former § 362, relating to limitations on aggregate loans, was derived from 1967, No. 282 (Adj. Sess.), § 13, and amended by 1969, No. 285 (Adj. Sess.), § 5.

Former § 363, relating to authority to make and apply for guaranty of certain loans, was derived from 1967, No. 282 (Adj. Sess.), § 14, and amended by 1969, No. 78 , § 2; 1969, No. 285 (Adj. Sess.), § 6; 1973, No. 40 , § 1.

Former § 364, relating to guaranty by the agency, was derived from 1967, No. 282 (Adj. Sess.), § 15.

Former § 365, relating to the conclusivity of the agency’s certificate of guaranty, was derived from 1967, No. 282 (Adj. Sess.), § 16.

Former § 366, relating to subrogation and order of payment, was derived from 1967, No. 282 (Adj. Sess.), § 17, and amended by 1969, No. 285 (Adj. Sess.), § 7.

Former § 367, relating to guaranty fee, was derived from 1967, No. 282 (Adj. Sess.), § 18.

Former § 368, relating to liquidation of the security, was derived from 1967, No. 282 (Adj. Sess.), § 19, and amended by 1969, No. 78 , § 3; 1971, No. 185 (Adj. Sess.), § 236(a).

Former § 369, relating to the pledging of the full faith and credit of the state, was derived from 1967, No. 282 (Adj. Sess.), § 20, and amended by 1969, No. 285 (Adj. Sess), § 8.

Former § 370, relating to limitation on guaranties, was derived from 1967, No. 282 (Adj. Sess.), § 21, and amended by 1969, No. 285 (Adj. Sess.), § 9; 1971, No. 160 (Adj. Sess.); 1973, No. 40 , § 2.

Former § 371, relating to rules and regulations, was derived from 1967, No. 282 (Adj. Sess.), § 22, and amended by 1969, No. 16 , § 1; 1971, No. 185 (Adj. Sess.), § 236.

Former § 372, relating to members and employees not profiting from operation of the agency, was derived from 1967, No. 282 (Adj. Sess.), § 23.

Former § 373, relating to exemption from taxation, was derived from 1967, No. 282 (Adj. Sess.), § 24.

Former § 374, relating to farm dwellings, was derived from 1967, No. 282 (Adj. Sess.), § 25.

Former § 375, relating to the annual report, was derived from 1967, No. 282 (Adj. Sess.), § 27.

Former § 376, relating to termination and disposition of assets, was derived from 1967, No. 282 (Adj. Sess.), § 28.

Chapter 18. Home Mortgage Guarantee Program

History

Repeal of chapter. Pursuant to 1999, No. 1 , § 104, chapter 18 of Title 10 is repealed effective upon the closing of the sale of the assets and liabilities of the Vermont home mortgage guarantee board and certification by the board of the Vermont home mortgage guarantee board to the secretary of administration that all outstanding liabilities and responsibilities of the Vermont home mortgage guarantee board have been satisfied, but in no event later than December 31, 1999. Notwithstanding the foregoing sentence, outstanding loan guarantees made pursuant to sections 398 and 400 of chapter 18 are assigned to and assumed by the Vermont housing finance agency.

§§ 381-400. Repealed. 1999, No. 1, § 104, eff. December 31, 1999.

History

Former §§ 381-400. Former § 381, relating to purpose, was derived from 1973, No. 260 (Adj. Sess.), § 5.

Former § 382, relating to home mortgage guarantee board, was derived from 1973, No. 260 (Adj. Sess.), § 5 and amended by 1987, No. 92 , § 3; 1989, No. 225 (Adj. Sess.), § 25(b); 1995, No. 24 , § 1 and 1995, No. 180 (Adj. Sess.), § 38(a); No. 190 (Adj. Sess.), § 1(a).

Former § 383, relating to authority to make and apply for guaranty of certain loans, was derived from 1973, No. 260 (Adj. Sess.), § 5 and amended by 1997, No. 47 , § 1; 1979, No. 36 , § 1; 1981, No. 88 , § 1; 1987, No. 41 , § 7 and 1995, No. 24 , § 2.

Former § 384, relating to guaranty by the board, was derived from 1973, No. 260 (Adj. Sess.), § 5 and amended by 1981, No. 88 , § 2; 1993, No. 184 (Adj. Sess.), § 1 and 1995, No. 24 , § 3.

Former § 385, relating to guaranty certificate conclusive, was derived from 1973, No. 260 (Adj. Sess.), § 5.

Former § 386, relating to subrogation and order of payment, was derived from 1973, No. 260 (Adj. Sess.), § 5.

Former § 387, relating to guaranty fee, was derived from 1973, No. 260 (Adj. Sess.), § 5 and amended by 1981, No. 88 , § 3; 1995, No. 24 , § 4 and 1997, No. 50 , § 4.

Former § 388, relating to liquidation of the security, was derived from 1973, No. 260 (Adj. Sess.), § 5 and amended by 1995, No. 24 , § 5.

Former § 389, relating to guaranty; credit of state pledged, was derived from 1973, No. 260 (Adj. Sess.), § 5.

Former § 390, relating to limitations on guaranties, was derived from 1973, No. 260 (Adj. Sess.), § 5 and amended by 1975, No. 216 (Adj. Sess.), § 6; 1979, No. 36 , § 3; 1981, No. 88 , § 4; 1989, No. 1 , § 1; 1993, No. 184 (Adj. Sess.), § 2 and 1997, No. 50 , § 5.

Former § 391, relating to rules and regulations, was derived from 1973, No. 260 (Adj. Sess.), § 5.

Former § 392, relating to members and employees not to profit, was derived from 1973, No. 260 (Adj. Sess.), § 5 and amended by 1989, No. 225 (Adj. Sess.), § 25(b) and 1995, No. 180 (Adj. Sess.), § 38(a) and No. 190 (Adj. Sess.), § 1(b).

Former 393, relating to exemption from taxation, was derived from 1973, No. 260 (Adj. Sess.), § 5.

Former § 394, relating to farm dwellings, was derived from 1973, No. 260 (Adj. Sess.), § 5.

Former § 395, relating to annual report, was derived from 1973, No. 260 (Adj. Sess.), § 5.

Former § 396, relating to termination; disposition of assets, was derived from 1973, No. 260 (Adj. Sess.), § 5.

Former § 397, relating to health care facilities, was derived from 1975, No. 221 (Adj. Sess.), § 7.

Former § 398, relating to home improvement loans, was derived from 1977, No. 88 , § 1 and amended by 1995, No. 24 , § 6.

Former § 399, relating to energy conservation loans, was derived from 1981, No. 88 , § 5, and was previously repealed by 1995, No. 24 , § 7.

Former § 400, relating to lead-based paint hazard reduction, was derived from 1993, No. 229 (Adj. Sess.), § 3.

Chapter 19. Scenery Preservation

History

Amendments

—2011. 2011, No. 62 , § 21, deleted “Council” from the chapter heading.

Sections 421-425 of this chapter are subject to a severability clause pursuant to 1966, No. 67 , § 7.

Legislative findings and purpose. 1966, No. 67 , § 1, provided:

“(1) That the State of Vermont possesses unique scenic resources which the State seeks to safeguard.

“(2) That it is the policy of the State of Vermont to protect its scenic resources because of their intangible contribution to the welfare of its citizens and visitors and for their tangible contributions to the economic well-being of the State.

“(3) That immediate action is needed to protect Vermont’s scenic country-side against the detrimental effects of the decrease in active farming, of the metropolitan development surrounding the State, and of encroachments along its highways.”

1977, No. 58 , § 1, provided: “It is the policy of the state of Vermont to preserve through planning the scenic quality of its rural landscape, and enable municipalities to designate town scenic highways which may be improved in accordance with standards combining aesthetic and functional criteria.”

CROSS REFERENCES

Bicycle routes, see 19 V.S.A. § 2301 et seq.

Register of scenic roads, see 19 V.S.A. § 2503 .

Tourist information services, see § 481 et seq. of this title.

§ 421. Purposes.

This chapter is designed to preserve and to enhance Vermont’s scenic values.

HISTORY: 1966, No. 67 (Sp. Sess.), § 2, eff. March 14, 1966.

§ 422. Acquisition of rights and interests in land for scenery protection.

  1. Power to acquire.   To further carry out the purposes set forth in section 421 of this title, the Agency of Transportation, the Departments of Forests, Parks and Recreation, Fish and Wildlife, Environmental Conservation and the Division for Historic Preservation, hereafter called Department, may acquire land and any rights and interests therein by purchase with any authorized funds, donation, device, exchange, transfer from any other governmental agency (federal, state, or local).  All proposed acquisitions, exchanges, and transfers of lands or rights therein shall be submitted to the Natural Resources Interagency Committee for review of conformance to the plan prepared under section 424 of this title.  The recommendations of the Interagency Committee on Natural Resources need not be binding on the departments.
  2. Types of interests to be acquired.   The Department shall determine the types of rights and interests in land to be acquired in order to fulfill the purposes of section 421 of this title. In the case of acquisition subject to a right of occupancy and use or reconveyance, or lease, the Department shall, so far as possible, give priority to the former owner in selecting the grantee or lessee, as the case may be.
  3. Injunction.   In any case where rights and interests in land are divided between the State and private co-owners, the Department may begin injunction proceedings to enforce compliance in accordance with the provisions of this chapter.

HISTORY: 1966, No. 67 (Sp. Sess.), § 3, eff. March 14, 1966; amended 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1987, No. 76 , § 18.

History

References in text.

The natural resources interagency committee, referred to in subsec. (a), was repealed by 1979, No. 159 (Adj. Sess.), § 21.

Revision note—

The following references in subsec. (a) were changed to conform to new titles and reorganization of state government:

  1. Department of highways changed to agency of transportation.  See § 3102 of Title 3.
  2. Department of forests and parks changed to department of forests, parks and recreation. See §§ 2802 and 2872 of Title 3.
  3. Department of water resources changed to department of water resources and environmental engineering.  See §§ 2802 and 2873 of Title 3.
  4. Board of historic sites, which had been previously changed to division of historic sites, was changed to division for historic preservation.  See § 2473 of Title 3.

Amendments

—1987. Subsec. (a): Substituted “environmental conservation” for “water resources and environmental engineering” following “fish and wildlife” in the first sentence.

—1983 (Adj. Sess.). Subsec. (a): Substituted “fish and wildlife” for “fish and game” preceding “water resources”.

CROSS REFERENCES

Acquisition of interests in land by public agencies, see § 6301 et seq. of this title.

§ 423. Improvement of land.

To further carry out the purposes set forth in section 421 of this title, the departments listed in subsection 422(a) of this title may improve lands held for those purposes with publicly owned and controlled rest and recreation areas which may include, among other things, sanitary facilities, and other facilities reasonably necessary to accommodate the traveling public.

HISTORY: 1966, No. 67 (Sp. Sess.), § 4, eff. March 14, 1966.

CROSS REFERENCES

Restrictions on smoking in public places, see 18 V.S.A. § 1741 et seq.

§ 424. Planning provisions.

The Vermont Planning Council shall carry on a continuing comprehensive planning process to inventory and classify scenic corridors, areas, and sites, and analyze the scenic values and various elements thereof in keeping with the purposes of section 421 of this title, including the general location of areas of special need and specific proposals for such new areas. The Vermont Planning Council shall prepare and submit to the Governor for adoption, and from time to time, revise, a comprehensive plan for the protection of the State’s scenic resources. This plan shall become a part of the State’s comprehensive master plan.

The Vermont Planning Council shall cooperate with federal and local governments, and with interested private groups and individuals in joint planning to protect and to develop historic, cultural, and scenic resources.

HISTORY: Added 1966, No. 67 (Sp. Sess.), § 3, eff. March 14, 1966; amended 1967, No. 167 , § 6, eff. April 15, 1967.

History

References in text.

The Vermont planning council, referred to in this section, was repealed by 1969, No. 244 (Adj. Sess.), §§ 7, 8, eff. Jan. 10, 1971.

Amendments

—1967. Substituted “Vermont planning council” for “state central planning office”.

§ 425. Repealed. 2015, No. 40, § 28.

History

Former § 425. Former § 425, relating to the Byways Advisory Council, was derived from 1966, No. 67 (Sp. Sess.), § 6 and amended by 1977, No. 58 , § 2; 1987, No. 76 , § 18; 2009, No. 123 (Adj. Sess.), § 49; and 2011, No. 62 , § 22.

Chapter 20. Vermont Trails System

§ 441. Statement of purpose.

  1. In order to provide access to the use and enjoyment of the outdoor areas of Vermont, to conserve and use the natural resources of this State for healthful and recreational purposes, and to provide transportation from one place to another, it is declared to be the policy of this State to provide the means for maintaining and improving a network of trails to be known as the “Vermont trails system.”
  2. It is the intent of the Legislature that trails be established within and without boundaries of State parks and forests and, when feasible, to interconnect units of the State park and forest system, as well as such federal and municipal lands as may be appropriate.
  3. The development, operation, and maintenance of the Vermont trails system is declared to be a public purpose and in this context, the Agency of Natural Resources together with other governmental agencies is authorized to spend public funds for such purposes and to accept gifts and grants of funds, property, or property rights from public or private sources to be used for such purposes where permission is granted.
  4. It is the intent of the Legislature to maintain Vermont’s eligibility for receiving and spending federal funds for trails.
  5. It is the intent of the Legislature that whenever a railroad line not already owned by the State of Vermont is proposed for abandonment, and continuation of railroad service is not economically feasible under present conditions, the right-of-way may be acquired by the State of Vermont for railbanking and interim trail use under 5 V.S.A. chapter 58.

HISTORY: Added 1993, No. 211 (Adj. Sess.), § 28.

§ 442. Definitions.

As used in this chapter:

  1. “Agency” means the Agency of Natural Resources.
  2. “Nonhighway recreational fuel taxes” means State taxes on fuel used in vehicles on recreational trails or back country terrain.
  3. “Trails” means land used for hiking, walking, bicycling, cross-country skiing, snowmobiling, all-terrain vehicle riding, horseback riding, and other similar activities. Trails may be used for recreation, transportation, and other compatible purposes.
  4. “Trails and Greenways Council” means the Vermont Trails and Greenways Council, Inc. as incorporated with the Secretary of State’s office.

HISTORY: Added 1993, No. 211 (Adj. Sess.), § 28.

§ 443. Vermont trails system.

The Vermont trails system shall consist of those individual trails recognized by the Agency of Natural Resources with the advice of the Greenways Council. The Agency, with the advice of the Council, shall establish criteria for recognition of single use and shared use trails.

HISTORY: Added 1993, No. 211 (Adj. Sess.), § 28.

§ 444. Responsibilities of the Agency of Natural Resources.

The Agency of Natural Resources may:

  1. Acquire by permission, the use of any section of land for the purpose of developing and maintaining the Vermont trails system. Permission shall be acquired from a willing land owner and shall be in writing and signed by both parties. The Agency or a person authorized by the Agency shall obtain landowner permission before establishing or allowing a trails group to establish a trail across private land. The written permission shall contain a clearly written statement expressing both parties’ rights and obligations, including the obligation to maintain the trail, and the liability for property damage or personal injury, or both, to persons using trails created pursuant to this chapter. A dedication or any adverse right shall not arise from the granting of permission, under any circumstances.
  2. Acquire by gift, or purchase, the fee simple absolute title or any lesser interest in land, including easements, for the purposes of developing and maintaining the Vermont trails system. The Agency shall hold harmless from any liability for personal injury or property damage sustained on a trail, subject to the provisions of section 448 of this chapter, any private landowner from whom an interest has been granted or conveyed under this subdivision.
  3. Assign responsibilities for any trail, path, easement, or right-of-way to another governmental entity or not-for-profit agency upon agreement by such entity or agency to maintain and manage it for purposes consistent with this chapter.
  4. Coordinate the activities of all governmental units and bodies that desire to participate in the development of the Vermont trails system.
  5. Publish, sell, and distribute information and maps related to the development and maintenance of recreational trails.
  6. Develop and oversee the implementation of a Vermont trails plan. The plan may include guidance on expenditure of funds, standards, provision for uniform signing, user and landowner educational programs.
  7. Provide for public involvement in the development and management of the Vermont trails system.

HISTORY: Added 1993, No. 211 (Adj. Sess.), § 28.

§ 445. Advisory council designated.

  1. The Vermont Trails and Greenways Council, Inc., an organization of trail using and trail providing groups, is designated as an advisory council to the Agency of Natural Resources and shall advise on all matters related to this chapter, including the allocation of State and federal funds appropriated for the purposes of this chapter.
  2. [Repealed.]

HISTORY: Added 1993, No. 211 (Adj. Sess.), § 28; amended 2011, No. 153 (Adj. Sess.), § 29.

History

Amendments

—2011 (Adj. Sess.) Subsec. (b): Repealed.

§ 446. Vermont Recreational Trails Fund.

The Recreational Trails Fund is established, which shall be subject to the provisions of 32 V.S.A. chapter 7, subchapter 5. There shall be an annual transfer from the Transportation Fund to the Recreational Trails Fund in the amount of $370,000.00. In each fiscal year, this amount shall be included in the budget estimates and statements submitted under 32 V.S.A. § 301 for purposes of determining appropriations by the General Assembly. Appropriations may be made from the Fund to design, construct, and maintain recreational trails, to conduct studies and prepare plans, publish maps and information, and to make grants to State and municipal agencies and nonprofit organizations. The Agency of Natural Resources shall administer the Fund and adopt rules for its use and all monies appropriated shall be used on State, federal, and municipal lands and on maintenance of trails on public as well as private lands where permission is granted, as follows:

  1. 40 percent to the Department of Forests, Parks and Recreation;
  2. 20 percent for providing grants to municipalities and nonprofit agencies;
  3. 40 percent to the Vermont Association of Snow Travelers.

HISTORY: Added 1993, No. 211 (Adj. Sess.), § 28; amended 1995, No. 63 , § 212a, eff. May 4, 1995; 2015, No. 68 (Adj. Sess.), § 70, eff. March 8, 2016.

History

Revision note

—2019. Substituted “Trails” for “Trains” in the section heading for purposes of clarity.

Amendments

—2015 (Adj. Sess.). Section amended generally.

—1995. Subsec. (a): Substituted “transfer” for “appropriation” following “annual” in the second sentence of the introductory paragraph.

§ 447. Coordination with the Agency of Transportation.

  1. The Agency of Natural Resources shall coordinate the development of trails and the Agency of Transportation shall coordinate the development of bicycle and pedestrian paths.
  2. The Agency of Transportation shall endeavor to purchase railroads over which rail service has been discontinued that then may be retained for transportation use or leased to the Agency of Natural Resources for management as trails.

HISTORY: Added 1993, No. 211 (Adj. Sess.), § 28.

§ 448. Landowner liability.

No public or private owner of land that is a part of the Vermont trails system shall be liable for any property damage or personal injury sustained by any person using these trails unless the public or private owner intentionally inflicts the damage or injury.

HISTORY: Added 1993, No. 211 (Adj. Sess.), § 28.

§ 449. Relation to other laws.

The provisions of this chapter shall not be construed to limit the powers of any governmental body under any other law or municipal charter.

HISTORY: Added 1993, No. 211 (Adj. Sess.), § 28.

Chapter 21. Tourist Information Services

History

1967, No. 333 (Adj. Sess.), § 27(b) provided: “It is hereby declared to be the legislative intent that, if any provision of this act [which enacted this chapter] is declared to be invalid in whole or in part, the effect of such decision shall be limited to those provisions which are expressly declared to be invalid, and the remainder of the act shall not be affected thereby.”

On-premise sign on limited access facility. 2009, No. 123 (Adj. Sess.), § 57 provides: “Notwithstanding the restriction on on-premise signs located as to be readable primarily from a limited access facility set forth in 10 V.S.A. § 495(b) and the requirement set forth in 10 V.S.A. § 493(1) that on-premise signs be erected no more than 1,500 feet from a main entrance from the highway to the activity or premises advertised, an on-premise sign directing traffic to the facilities of a postsecondary educational institution may be erected at the intersection of U.S. Route 4 Western Bypass and U.S. Route 7 in the city of Rutland.”

CROSS REFERENCES

Agency of Transportation, see 19 V.S.A. § 1 et seq.

Regional travel and tourism marketing grants, see § 669 et seq. of this title.

Scenery preservation council, see § 421 et seq. of this title.

Travel promotion matching fund program, see § 661 et seq. of this title.

Law Reviews —

For note relating to constitutional aspects of billboard regulation, see 9 Vt. L. Rev. 341 (1984).

§ 481. Definitions.

As used in this chapter, the following terms are defined as follows:

  1. “Limited access facility” shall have the same meaning as defined in 19 V.S.A. § 1702 .
  2. “Official business directional sign” means a sign erected and maintained by the State to indicate to the travelling public the route and the distance to public accommodations, commercial services for the travelling public, and points of scenic, historic, cultural, educational, and religious interest.
  3. “On-premises sign” means an accessory sign that directs attention to a business, profession, commodity, service, or entertainment carried on, sold, or offered on the same premises.
  4. “Outdoor advertising” means a sign that advertises, calls attention, or directs a person to a business, association, profession, commodity, product, institution, service, entertainment, person, place, thing, or activity of any kind whatsoever, and is visible from a highway or other public right-of-way.
  5. “Residential directional sign” means an off-premises sign erected and maintained by an individual to indicate the location of his or her residence.
  6. A “sign” is any structure, display, device, or representation, either temporary or permanent, portable or ground-mounted, that is designed or used to advertise or call attention to any thing, person, business, activity, or place and is visible from any highway or other right-of-way. It does not include the flag, pennant, or insignia of any nation, state, or town. Whenever dimensions of a sign are specified, they shall include panels and frames.
  7. “Sign plaza” means any area established and maintained by the Agency of Transportation adjacent to a highway, where official information plaza plaques are grouped in tiers or on panels.
  8. “Traffic control sign or device” means an official route marker, guide sign, warning sign, or sign directing traffic to or from a bridge, ferry, or airport, or sign regulating traffic, that has been erected by officers having jurisdiction over the highway.
  9. “Official information plaza plaque” means a plaque erected and maintained by the State to indicate to the travelling public: public accommodations, commercial services for the travelling public, and points of scenic, historic, cultural, educational, and religious interest, installed at an information plaza.
  10. “Full-sized official business directional sign” means a sign not exceeding 1,200 square inches.  “Half-sized official business directional sign” means a sign not exceeding 300 square inches.
  11. “Owner” means the person or persons who own a sign. Wherever it is required under this chapter to provide notice to the actual owner or owners of a sign but is impractical to do so, it shall be conclusively presumed that the person, firm, or corporation advertised on the sign is the agent of the actual owner or owners. Notice served on any such agent shall have the same effect as notice provided the actual owner or owners.
  12. “Travel information” means the various communication media and methods available to collect and distribute information to the traveling public.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 1, eff. March 23, 1968; amended 1969, No. 92 , § 1, eff. April 19, 1969; 1983, No. 167 (Adj. Sess.), §§ 1, 2; 1993, No. 121 (Adj. Sess.), §§ 1, 2.

History

Revision note

—2018. In subdiv. (12), replaced “ ‘Travel information means’ shall include the various” with “ ‘Travel information’ means the various”.

—2010. In subdiv. (1), corrected the statutory reference to the definition of “limited access facility”.

Amendments

—1993 (Adj. Sess.). Subdiv. (6): Inserted “either temporary or permanent, portable or ground-mounted” following “representation” in the first sentence.

Subdiv. (11): Added.

Subdiv. (12): Added.

—1983 (Adj. Sess.). Subdiv. (7): Substituted “agency of transportation” for “highway department” preceding “adjacent to a highway, where official” and “information plaza plaques” for “business directional signs” thereafter.

Subdiv. (9): Added.

Subdiv. (10): Added.

—1969. Subdiv. (4): Amended generally.

ANNOTATIONS

Sign.

Definition of “sign” in 10 V.S.A. § 481 was specifically limited to chapter 21 of Title 10, regulating outdoor advertising, and did not apply to 10 V.S.A. § 6081 , concerned with the granting of land use permits. Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995).

Cited.

Cited in In re Peel Gallery of Fine Arts, 149 Vt. 348, 543 A.2d 695, 1988 Vt. LEXIS 41 (1988).

Notes to Opinions

Logos.

Logos, to the extent they indicate the availability of a particular product or brand of motor fuel, do not qualify for an exemption under this chapter, and if they were not erected before the effective date of this chapter and were not licensed by the travel information council, they are illegal under state law and must be either licensed or removed. 1970 Op. Atty. Gen. 124. See also § 494 of this title.

On-premises signs.

Where same persons held controlling interest in two separate corporations, each of which owned land, the land owned by each corporation could not be considered as the same premises; a sign on the premises of one corporation advertising the activities of the other corporation would not be considered legal as an on-premises sign. 1970 Op. Atty. Gen. 213. See also § 493 of this title.

§ 482. Legislative findings.

The General Assembly of the State of Vermont makes the following findings of fact:

  1. A large and increasing number of tourists has been coming to Vermont, and as a result the tourist industry is one of the largest sources of income for Vermonters, with an increasing number of persons directly or indirectly dependent upon the tourist industry for their livelihood.
  2. Very few convenient facilities and coordinated means exist in the State to provide information on available public accommodations, commercial services for the traveling public and other lawful businesses, and points of scenic, historic, cultural, educational, and religious interest. Provision of those facilities can be a major factor in encouraging the development of the tourist industry in Vermont.
  3. Scenic resources of great value are distributed throughout the State, and have contributed greatly to its economic development, by attracting tourists, permanent and part-time residents, and new industries and cultural facilities.
  4. The scattering of outdoor advertising throughout the State is detrimental to the preservation of those scenic resources, and so to the economic base of the State, and is also not an effective method of providing information to tourists about available facilities.
  5. The proliferation of outdoor advertising is hazardous to highway users.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 2; amended 1993, No. 121 (Adj. Sess.), § 3.

History

Amendments

—1993 (Adj. Sess.). Subdiv. (2): Inserted “and coordinated means” preceding “exist” in the first sentence.

§ 483. Purposes and policy.

In order to promote the public health, safety, and other aspects of the general welfare, it is in the public interest to provide information about and help guide travelers to public accommodations and services, other businesses, and points of scenic, historic, cultural, educational, and religious interest. To provide that information, it is the policy of the State and the purpose of this chapter:

  1. To establish means by which the traveling public may receive general and specific travel information in a timely manner utilizing current marketing and technological systems.
  2. To provide for the effective collection and distribution of travel information.
  3. To prohibit the indiscriminate use of other outdoor advertising.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 3; amended 1993, No. 121 (Adj. Sess.), § 4.

History

Amendments

—1993 (Adj. Sess.). Rewrote subdivs. (1) and (2).

§ 484. Travel Information Council; creation, membership, terms.

  1. The Travel Information Council is created to administer the provisions of this chapter.
    1. The Agency of Transportation shall be responsible for the administration and maintenance of the official business directional sign program, information plazas, and other tourist information facilities deemed appropriate by the Council.
    2. The Agency of Commerce and Community Development shall be responsible for the collection and distribution of travel information, as deemed appropriate by the Council.
    1. The Council may adopt rules consistent with this chapter relating to the determination of locations for official business directional signs and to all other matters necessary and appropriate to the administration of this chapter. In adopting those rules it shall give consideration to the adequacy of information provided by highway directional signs and the preservation of scenic and aesthetic values and shall consult with the Agency of Transportation as to matters of highway safety. (b) (1) The Council may adopt rules consistent with this chapter relating to the determination of locations for official business directional signs and to all other matters necessary and appropriate to the administration of this chapter. In adopting those rules it shall give consideration to the adequacy of information provided by highway directional signs and the preservation of scenic and aesthetic values and shall consult with the Agency of Transportation as to matters of highway safety.
    2. It shall determine whether official business directional signs at a particular location shall be displayed in tiers or upon panels.
    3. It shall advise the Agency of Commerce and Community Development on policies and matters pertaining to collection and distribution of tourist information.
    1. The Council shall have seven members, comprising the Secretary of Commerce and Community Development or designee, who shall chair the Council, and six appointed members as follows: one representing the lodging industry, one the restaurant industry, one the recreation industry, one the Agency of Transportation, one the general public, and one agriculture. (c) (1) The Council shall have seven members, comprising the Secretary of Commerce and Community Development or designee, who shall chair the Council, and six appointed members as follows: one representing the lodging industry, one the restaurant industry, one the recreation industry, one the Agency of Transportation, one the general public, and one agriculture.
    2. The six appointed members shall be appointed by the Governor with the advice and consent of the Senate in two-year staggered terms so that three members are appointed annually. The members are eligible for reappointment.
    3. Members of the Council shall be entitled to per diem compensation and reimbursement of expenses as permitted under 32 V.S.A. § 1010 , which shall be paid by the Agency of Transportation.
    1. The Council shall designate, in each State transportation district, a person to represent business, a person to represent the public, and a person to represent the district planning or development agencies as a committee to act for it in those districts in considering applications for signs and the location thereof. (d) (1) The Council shall designate, in each State transportation district, a person to represent business, a person to represent the public, and a person to represent the district planning or development agencies as a committee to act for it in those districts in considering applications for signs and the location thereof.
    2. The members of the committee shall serve at the pleasure of the Council, and a majority of a committee shall constitute a quorum for the conduct of any business.
    3. A person aggrieved by a decision of a committee may ask for and shall be granted a hearing before the Council and may appeal on questions of law to the Superior Court under V.R.C.P. 74 from a decision of the Council.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 4, eff. March 23, 1968; amended 1969, No. 92 , § 2, eff. April 19, 1969; 1971, No. 115 , § 1, eff. April 26, 1971; 1983, No. 167 (Adj. Sess.), § 3; 1993, No. 121 (Adj. Sess.), § 5; 1995, No. 190 (Adj. Sess.), § 1(a), (b); 2019, No. 61 , § 5.

History

Amendments

—2019. Subsec. (a): Added subdiv. (a)(1) and (a)(2) designations.

Subsec. (b): Added subdiv. (b)(1) designation, deleted “Travel Information,” substituted “adopt” for “make” preceding “rules” in the first sentence, substituted “adopting” for “making” in the second sentence, and added the subdiv. (b)(2) and (b)(3) designations.

Subsec. (c): Added the subdiv. (c)(1) designation, deleted “Travel Information” preceding “Council shall,” and inserted “comprising” preceding “the Secretary of Commerce”, added the subdiv. (c)(2) designation, and amended generally, and added subdiv. (c)(3) designation and amended generally.

Subsec. (d): Added the subdiv. (d)(1) designation, and deleted “Travel Information” preceding “Council shall”, added the subdiv. (d)(2) designation, added the subdiv. (d)(3) designation, and deleted “Travel Information” near the middle.

—1995 (Adj. Sess.) Substituted “agency of commerce and community development” for “agency of development and community affairs” in subsecs. (a) and (b), and “secretary of commerce and community development” for “secretary of development and community affairs” in subsec. (c).

—1993 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Inserted “the adequacy of information provided by highway directional signs” following “consideration to”, inserted “agency of” preceding “transportation” and deleted “board” thereafter in the second sentence, and added the fourth sentence.

Subsec. (c): Inserted “or his or her designee” following “community affairs” and substituted “chair” for “be chairman of” preceding “the council” in the first sentence.

Subsec. (d): Substituted “transportation” for “highway” following “state” in the first sentence, and substituted “superior” for “supreme” preceding “court” and inserted “under Rule 74 of the Vermont Rules of Civil Procedure” thereafter in the third sentence.

—1983 (Adj. Sess.). Subsec. (a): Substituted “agency of transportation” for “office of the secretary of state”.

Subsec. (b): Substituted “transportation” for “highway” preceding “board” in the second sentence and “give consideration” for “consult with the scenery preservation council as” preceding “to preservation of scenic and aesthetic values and” and inserted “shall consult” thereafter in that sentence.

Subsec. (c): Substituted “development and community affairs” for “state” following “secretary of”, “agency of transportation” for “department of highways” following “recreation industry, one the” and “general public” for “scenery preservation council” preceding “and one agriculture” in the first sentence.

—1971. Subsec. (d). Substituted “a person to represent the district planning or development agencies” for “the district highway engineer” in the first sentence, and deleted “except for the district engineer” from the beginning of the second sentence.

—1969. Subsec. (d): Added the second sentence.

Compensation and expenses of members of council. 1979, No. 59 , § 25, eff. July 1, 1979, provided: “Members of the travel information council who are not employees of the state shall be entitled to reimbursement for reasonable and necessary expenses incurred in the performance of their official duty and per diem compensation in the amount of $30.00 per day for each day devoted to duties of the council. Compensation and expenses shall be paid from funds appropriated to the agency of transportation, to which the travel information council was transferred for administrative support pursuant to Executive Order No. 10, of September 27, 1977.”

ANNOTATIONS

Locations for business directional signs.

Travel information council rule requiring business directional signs to be located in the same town as the business, when applied to an establishment located in close proximity to a town line, effectively denied that establishment its statutory eligibility for an official business directional sign. In re Peel Gallery of Fine Arts, 149 Vt. 348, 543 A.2d 695, 1988 Vt. LEXIS 41 (1988).

Travel information council rule requiring business directional signs to be located in the same town as the business bore no reasonable or logical relationship to any of the factors included in section 492 of this title and, therefore, exceeded the council’s statutory authority. In re Peel Gallery of Fine Arts, 149 Vt. 348, 543 A.2d 695, 1988 Vt. LEXIS 41 (1988).

§ 485. Official tourist information centers.

The Agency of Commerce and Community Development shall establish official tourist information centers, near the principal entrance points into the State, as determined by the Agency, and at such other locations as the Agency deems appropriate, in order to provide information about public accommodations, commercial services for the travelling public, other businesses, and points of scenic, historic, cultural, educational, and religious interest.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 5, eff. March 23, 1968; amended 1969, No. 92 , § 3, eff. April 19, 1969; 1983, No. 167 (Adj. Sess.), § 4; 1995, No. 190 (Adj. Sess.), § 1(a).

History

Amendments

—1995 (Adj. Sess.) Substituted “agency of commerce and community development” for “agency of development and community affairs”.

—1983 (Adj. Sess.). Substituted “agency of development and community affairs” for “department of development” preceding “shall establish” and “agency” for “department” wherever it appeared.

—1969. Inserted “as determined by the development department” following “points into the state” and “such” preceding “other”, deleted “appropriate” preceding “locations”, and added “as the department deems appropriate” thereafter.

§ 485a. Connecticut River valley tourism district.

There is created the Connecticut River valley tourism district consisting of all towns bordering on the Connecticut River.

HISTORY: Added 1999, No. 152 (Adj. Sess.), § 215a, eff. May 29, 2000.

§ 486. Official directional signs.

  1. The Agency of Transportation, under the direction of the Travel Information Council, shall furnish, erect, and maintain official business directional signs licensed under this chapter at locations specified in the license.  The Agency of Transportation may contract for the satisfaction of all or any portion of its duties under this subsection.  That furnishing, erection, and maintenance are declared to be for highway purposes under Title 19 and any amendments thereto.
  2. The Agency of Transportation shall furnish, erect, and maintain certain official directional signs at interstate highway exits wherever the exit is five miles or less from the nearest State Police office or barracks.  These exit signs shall bear the words “State Police,” with an indication of the distance to the State Police office or barracks.
  3. The Travel Information Council may enter into such contractual or other arrangements as it may consider appropriate under all the circumstances with any town or city of this State, providing for the erection and maintenance of official business directional signs and the fees charged therefor, within that town or city, which may be distinctive to that town or city, or providing for the administration of such official business directional signs, or for any other matter arising under this chapter which the Council considers appropriate to be administered by that town or city; provided, however, that any such arrangement or agreement, and all actions taken thereto, shall comply with this chapter and with the regulations adopted hereto.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 6, eff. March 23, 1968; amended 1969, No. 92 , § 4, eff. April 19, 1969; 1975, No. 60 ; 1983, No. 167 (Adj. Sess.), § 5.

History

Amendments

—1983 (Adj. Sess.). Subsec. (a): Substituted “agency of transportation” for “highway department” in the first and second sentences.

Subsec. (b): Substituted “agency of transportation” for “highway department” preceding “shall furnish” in the first sentence.

—1975. Subsec. (b): Added. Former subsec. (b) redesignated as present subsec. (c).

Subsec. (c): Redesignated from former subsec. (b).

—1969. Section amended generally.

§ 487. Other information.

The Agency of Commerce and Community Development shall provide travel information regarding the location of available public accommodations, commercial services for the traveling public and other businesses, and points of scenic, historic, and cultural interest. It may include in guidebooks and other published materials, paid advertising, identified as such. This information shall be made available to the general public at places the Agency may find desirable, such as interstate rest areas, information plazas, information centers and booths, service stations and garages, hotels, motels, and restaurants, historical attractions, and education facilities, using the most appropriate methods and means, such as publications, audio/visual, computer, and telephone.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 7, eff. March 23, 1968; amended 1969, No. 92 , § 5, eff. April 19, 1969; 1983, No. 167 (Adj. Sess.), § 6; 1993, No. 121 (Adj. Sess.), § 6; 1995, No. 190 (Adj. Sess.), § 1(a).

History

Amendments

—1995 (Adj. Sess.) Substituted “agency of commerce and community development” for “agency of development and community affairs” in the first sentence.

—1993 (Adj. Sess.). Rewrote the section catchline, substituted “travel information regarding” for “guidebooks, local maps, and other published information, showing” following “provide” in the first sentence, and rewrote the second sentence as the second and third sentences.

—1983 (Adj. Sess.). Substituted “agency of development and community affairs” for “department of development” preceding “shall provide” in the first sentence and “agency” for “department” preceding “may find” in the second sentence.

—1969. Deleted “a limited amount of” preceding “paid advertising” in the second sentence.

CROSS REFERENCES

Inclusion in State informational material of information relating to beverage container law, see § 1526 of this title.

§ 488. Prohibition of other outdoor advertising.

No person may erect or maintain outdoor advertising visible to the travelling public except as provided in this chapter.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 8, eff. March 23, 1968.

Notes to Opinions

Out-of-state signs.

Since Vermont businesses maintaining signs in New Hampshire which were visible only from Vermont and which would have been illegal if erected in Vermont were in violation of this section, the travel information council could not properly approve an application for an official business directional sign or informational plaque from such businesses. 1972 Vt. Op. Att'y Gen. 126.

§ 489. Eligibility for official business directional signs.

  1. Lawful businesses and points of interest and cultural, educational, and religious facilities are eligible for official business directional signs, subject to the provisions of this chapter and to rules and regulations promulgated by the Travel Information Council, and subject further to any federal law, rule, or regulation affecting the allocation of federal highway funds or other funds to or for the benefit of this State or any agency or subdivision thereof of the State.
  2. Notwithstanding any provision of this chapter, brown-and-white official business directional signs as requested by the local byways organization may be allowed for the purpose of directing travelers to interpretive information sites along officially designated State and federal byways only. An official business directional sign authorized under this subsection shall be located on the same State-designated byway as the interpretive information site to which the sign directs attention.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 9, eff. March 23, 1968; amended 1969, No. 92 , § 6, eff. April 19, 1969; 2007, No. 75 , § 25.

History

Amendments

—2007. Added the designation (a) to the existing text and added “of the state” at the end of that subsec. and added new subsec. (b).

—1969. Added “and subject further to any federal law, rule or regulation affecting the allocation of federal highway funds or other funds to or for the benefit of this state or any agency or subdivision thereof” following “travel information council”.

ANNOTATIONS

Location of signs.

Travel information council rule requiring business directional signs to be located in the same town as the business, when applied to an establishment located in close proximity to a town line, effectively denied that establishment its statutory eligibility for an official business directional sign. In re Peel Gallery of Fine Arts, 149 Vt. 348, 543 A.2d 695, 1988 Vt. LEXIS 41 (1988).

§ 490. Types and arrangement of signs.

  1. The Travel Information Council shall regulate the size, shape, color, lighting, manner of display, and lettering of official business directional signs. Distinctive symbols shall be established to the extent considered practicable by the Council for each type of service or facility, different from those for other types; and appropriate signs shall be provided for each eligible applicant within a given category. When appropriate because of the number of signs at one location, the signs shall be replaced or substituted with an information plaza on which applicants may purchase advertising plaques.
  2. Subject to traffic safety regulations specifically adopted by the Agency of Transportation for the purposes of this chapter, locations of official business directional signs shall conform to the following:
    1. Official business directional signs shall be located in the same town as the applicant business unless one or more of the following conditions are present:
      1. The location of the sign must be in a town other than that of the applicant business in order to satisfy the traffic safety regulations. In such case, the sign shall be located as close to the turnoff for the business as possible;
      2. The business is located on an unnumbered highway, the turnoff from the numbered highway is in another town and this turnoff is the only access point for the business from the nearest numbered highway;
      3. The absence of highway destination signs directing travelers to the town in which the business is located; and
      4. The absence of an official business directional sign creates a safety hazard for the traveling public.
    2. Official business directional signs shall be located in those vicinities where the traveler must change direction from one highway to another highway to reach the business or point of interest, provided the sign is not on the same highway as the business or its on-premises sign unless the sign is needed to alleviate a safety hazard or to eliminate an unsafe situation as described in this section; and provided a travel information directional sign is not located at that point and travel to that information source will cause neither undue inconvenience to the traveler nor traffic congestion. Signs may be approved on the same highway as the business, or its legal on-premises signing only when, in the opinion of the Travel Information Council or its district committees, the traveling public is placed in an unsafe situation without one or more official business directional signs. For the purposes of this chapter, an unsafe situation shall exist when there is insufficient visibility of a business’ on-premises signing that cannot be improved by the applicant business. Adequate visibility shall be determined by the Travel Information Council in consultation with the Agency of Transportation.
  3. When the signs at one location are too numerous, or when highway safety requires for other reasons, as determined by the Travel Information Council, the signs may be removed and the applicant business given the option to purchase advertising plaques on information plazas, located and designed so that drivers of motor vehicles may leave the main traffic lanes and inspect them. Information plazas may contain maps and other information, depending on space availability, and may have telephone and other information facilities attached to them. Sign plazas shall include the international symbol to indicate that gasoline service is available to people with disabilities. The Agency of Commerce and Community Development shall be responsible for the costs of installing new information plazas and for the installation of advertising plaques on State-owned information plazas, provided that the Secretary of Commerce and Community Development or designee gives prior approval for such costs and installation. If it is not practical to install information plazas or individual official business directional signs at any given location, because of the number of signs or because of traffic conditions, the Travel Information Council may in its discretion adopt some alternative method for providing information conveniently for travelers, including directions to zones or other geographic areas, and locally operated information booths and offices or multi-facility official business directional signs, or both.
  4. If an official business directional sign cannot be sited in conformity with the traffic safety rules adopted by the Agency of Transportation, a person who believes that he or she is eligible under section 489 of this title for such a sign may request the Secretary of Transportation to grant a variance from the rules, setting forth in the request the physical circumstances or conditions that make it impossible to locate an official business directional sign in strict conformity with the traffic safety rules. The request shall show that variance, if authorized, will not be detrimental to the public welfare or safety and will represent the minimum variance that will afford relief and will represent the least deviation possible from the traffic safety rules. The Secretary’s denial of a variance request under this subsection may be appealed to the Transportation Board within 30 days of the denial. The Board’s determination of such an appeal shall be final.

HISTORY: Added 1995, No. 46 , § 41; amended 1995, No. 190 (Adj. Sess.), § 1(a), (b); 2013, No. 96 (Adj. Sess.), § 33.

History

Revision note

—2018. In subdiv. (b)(2), replaced “on-premise” with “on-premises” to conform to definition of “on-premises sign” in section 481 of this title.

Amendments

—2013 (Adj. Sess.). Subsec. (c): Deleted “handicapped” following “symbol to indicate that” and inserted “to people with disabilities” at the end of the third sentence.

—1995 (Adj. Sess.) Subsec. (c): Substituted “agency of commerce and community development” for “agency of development and community affairs” and substituted “secretary of commerce and community development” for “secretary of development and community affairs”.

Former § 490. Former § 490, related to types and arrangement of signs, was derived from 1967, No. 333 (Adj. Sess.), § 10, eff. March 23, 1968; and amended by 1969, No. 92 , § 7, eff. April 19, 1969; 1983, No. 167 (Adj. Sess.), § 7; 1991, No. 48 , § 2; 1993, No. 121 (Adj. Sess.), § 7; No. 172 (Adj. Sess.), § 11; 1995, No. 190 (Adj. Sess.), § 1(a), and repealed by 1999, No. 18 , § 41g(a), eff. May 13, 1999.

CROSS REFERENCES

Traffic signs, signals, and markings, see 23 V.S.A. § 1021 et seq.

§ 490a. Redesignated.

History

Former § 490a. 1999, No. 18 , § 41g(b), eff. May 13, 1999, redesignated former § 490a as section 490 of this title.

§ 491. Number of signs.

Notwithstanding the provisions of section 499 of this title, the Council shall not issue more than four licenses for official business directional signs for any one place of business eligible therefor under section 490 of this title, not more than one of which is visible to traffic moving in any one direction on any one highway leading to the place, unless the Travel Information Council finds that enforcement of this subsection will be unreasonable and will result in unnecessary hardship to the applicant.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 11, eff. March 23, 1968; amended 1969, No. 92 , § 8, eff. April 19, 1969.

History

Amendments

—1969. Added “Notwithstanding the provisions of section 499 of this title” preceding “the council” at the beginning of the section.

§ 492. Permitted locations.

In adopting rules relating to locations for official business directional signs, the Council shall take into consideration such factors as the effect upon highway safety, the convenience of the travelling public, and the preservation of scenic beauty.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 12, eff. March 23, 1968; amended 1969, No. 92 , § 9, eff. April 19, 1969.

History

Amendments

—1969. Substituted “official business directional” for “those” preceding “signs”.

ANNOTATIONS

Authority of council.

Travel information council rule requiring business directional signs to be located in the same town as the business bore no reasonable or logical relationship to any of the factors included in this section and, therefore, exceeded the council’s statutory authority. In re Peel Gallery of Fine Arts, 149 Vt. 348, 543 A.2d 695, 1988 Vt. LEXIS 41 (1988).

§ 493. On-premises signs.

Owners or occupants of real property may erect and maintain on the property, on-premises signs advertising the sale or lease of the property or activities being conducted on the property. Those signs shall be subject to the regulations set forth below.

  1. On-premises signs may be erected or maintained, with a total area of not more than 150 square feet, advertising activities being conducted on the same premises. However, this limitation does not apply to signs existing on May 1, 1971, or attached to or part of the building in which the activities are being carried on. An on-premises sign shall not be located more than 1,500 feet from a main entrance from the highway to the activity or premises advertised. The 1,500-foot distance shall be measured along the centerline of the highway or highways between the sign and a main entrance. A main entrance shall be a principal, private roadway or driveway that leads from a public highway to the advertised activity. For the purposes of this subdivision, premises shall not include land that is separated from the activity by a public highway, or other intervening land use not related to the advertised activity. Undeveloped land or farmland shall not be considered as an intervening land use.
  2. A sign advertising the sale or lease of real estate by the owner or an agent shall not have an area of more than six square feet, including the panel and the frame. Signs attached to “for sale” or “for lease” signs that state “sold,” “sale pending,” “sale under contract” or similar messages shall not be permitted.
  3. A permitted on-premises sign shall not extend more than 25 feet above the ground level or, if the sign is attached to or is part of a building, ten feet above the roof of the building. However, this limitation does not apply to signs existing on November 1, 1967.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 13, eff. March 23, 1968; amended 1969, No. 92 , § 10, eff. April 19, 1969; 1971, No. 115 , § 2, eff. April 26, 1971; 1983, No. 167 (Adj. Sess.), § 8; 1993, No. 121 (Adj. Sess.), § 8.

History

Revision note

—2018. Throughout, replaced “on-premise” with “on-premises” to conform to definition of “on-premises sign” in section 481 of this title.

Amendments

—1993 (Adj. Sess.). Substituted “on the property” for “thereon” following “maintain” and following “conducted”, and “of the property” for “thereof” following “lease” in the first sentence of the introductory paragraph, rewrote subdiv. (1) as subdivs. (1) and (2), and redesignated former subdiv. (2) as subdiv. (3).

—1983 (Adj. Sess.). Subdiv. (1): Inserted “or lease” following “sale” in the fourth sentence.

—1971. Subdiv. (1): Substituted “one hundred fifty” for “four hundred” preceding “square feet” in the first sentence and “May 1, 1971” for “November 1, 1967” in the second sentence.

—1969. Subdiv. (3): Deleted.

ANNOTATIONS

Cited.

Cited in In re Peel Gallery of Fine Arts, 149 Vt. 348, 543 A.2d 695, 1988 Vt. LEXIS 41 (1988).

Notes to Opinions

Entrances.

The word “entrance” in this section means a private driveway or roadway leading from a public highway to the premises or activities advertised. 1972 Vt. Op. Att'y Gen. 131.

§ 494. Exempt signs.

The following signs are exempt from the requirements of this chapter except as indicated in section 495 of this title:

  1. Signs located on or in the rolling stock of common carriers.
  2. Signs on registered and inspected motor vehicles except those that are determined by the Travel Information Council to be circumventing the intent of this chapter.
  3. Signs, with an area of not more than 260 square inches, identifying stops or fare zone limits of common carriers by motor bus.
  4. Signs erected and maintained by or with the approval of a town outside the highway right-of-way, each of which does not exceed 64 square feet in area, excluding panel and frame, which may show the place and time of services or meetings of churches and civic organizations in the town, and which may include a panel which identifies the name of the town, the charter date, the date the town was founded, or any other significant date in the history of the town, and which the town wishes to identify. The panel may bear the wording “welcome to” the particular town. Not more than two such signs may be erected and maintained readable by traffic proceeding in any one direction on any one highway. The signs shall meet the criteria of the Agency of Transportation and the Travel Information Council. A sign that otherwise meets the requirements of this subdivision may refer to a census-designated place within a town rather than the town itself. As used in this subdivision, “census-designated place” means a statistical entity consisting of a settled concentration of population that is identifiable by name, is not legally incorporated under the laws of the State, and is delineated as such a place by the U.S. Census Bureau according to its guidelines.
  5. Residential directional signs, each of which does not exceed four square feet in area, along highways other than limited-access facilities (but not within the highway right-of-way), except that a license is required if the person maintains a professional, commercial, or business activity at this residence and wishes to indicate its existence.
    1. Official traffic control signs, including signs on limited access highways, consistent with the Manual on Uniform Traffic Control Devices (MUTCD) adopted under 23 V.S.A. § 1025 , directing persons to: (6) (A) Official traffic control signs, including signs on limited access highways, consistent with the Manual on Uniform Traffic Control Devices (MUTCD) adopted under 23 V.S.A. § 1025 , directing persons to:
      1. other towns;
      2. international airports;
      3. postsecondary educational institutions;
      4. cultural and recreational destination areas;
      5. nonprofit diploma-granting educational institutions for persons with disabilities; and
      6. official State visitor information centers.
    2. After having considered the six priority categories in subdivision (A) of this subdivision (6), the Travel Information Council may approve installation of a sign for any of the following provided the location is open a minimum of 120 days each year and is located within 15 miles of an interstate highway exit:
      1. nonprofit museums;
      2. cultural and recreational attractions owned by the State or federal government;
      3. officially designated scenic byways;
      4. park and ride or multimodal centers; and
      5. fairgrounds or exposition sites.
    3. The Agency of Transportation may approve and erect signs, including signs on limited access highways, consistent with the MUTCD, directing persons to State-owned airports and intercity passenger rail stations located within 25 miles of a limited access highway exit.
    4. Notwithstanding the limitations of this subdivision (6), supplemental guide signs consistent with the MUTCD for the President Calvin Coolidge State Historic Site may be installed at the following highway interchanges:
      1. Interstate 91, Exit 9 (Windsor); and
      2. Interstate 89, Exit 1 (Quechee).
    5. Signs erected under this subdivision (6) shall not exceed a maximum allowable size of 80 square feet.
  6. Signs of a duly constituted governmental body, including traffic and similar regulatory devices, legal notices, or warnings at railroad crossings.
  7. Small signs displayed for the direction, instruction, or convenience of the public, including signs which identify rest rooms, freight entrances, posted areas or the like, with a total surface area not exceeding four square feet.
  8. Signs to be maintained for not more than two weeks announcing an auction, or a campaign, drive, or event of a civic, philanthropic, or religious organization.
  9. Memorial signs or tablets.
  10. Signs erected by county fairs and expositions for a period not to exceed six weeks.
  11. Directional signs, subject to regulations adopted by the Federal Highway Administration, with a total surface area not to exceed six square feet providing directions to places of business offering for sale agricultural products harvested or produced on the premises where the sale is taking place, or to farmers’ markets that are members of the Vermont Farmers’ Market Association selling Vermont agricultural products.
  12. Murals that relate exclusively to a downtown designated under 24 V.S.A. chapter 76A, whether located within or outside the designated downtown itself, provided that all of the following apply: the mural is hand-painted; it is painted directly on the outside surface of a structure that has been in existence on the site for at least the preceding 25 years; it is located no more than three miles from the designated downtown; its placement has been authorized by the legislative body of the municipality in which it is located; and any words used pertain only to the direction or distance to, and the name of, the designated downtown. A mural exempted under this subdivision that is visible from the off-ramp of a limited access facility and not otherwise visible from such a facility shall also be exempt from compliance with subsection 495(b) of this title.
  13. Up to two directional signs with a surface area not to exceed one square foot per sign, erected by a town on any existing highway signpost on highways over which the town has jurisdiction, except class 1 town highways. The colors of the directional signs shall be in contrast to the colors used on highway signs. Directional signs on the same highway signpost shall be for different purposes. The erection of signs shall be under guidelines adopted by the town. Towns may charge a reasonable fee for the installation of approved signs.
  14. Municipal informational and guidance signs. A municipality may provide alternative signs of a guidance or informational nature and creative design to assist persons in reaching destinations that are transportation centers, geographic districts, historic monuments, and significant or unique educational, recreational, or cultural landmarks, including farmers’ markets that are members of the Vermont Farmers’ Market Association selling Vermont agricultural products, provided that such destinations are not private, for-profit enterprises. A proposal to provide alternative signs shall contain color, shape, and sign placement requirements that shall be of a uniform nature within the municipality. The surface area of alternative signs shall not exceed 12 square feet, and the height of such signs shall not exceed 12 feet in height. The proposal shall be approved by the municipal planning commission for submission to and adoption by the local legislative body. Alternative signs shall be responsive to the particular needs of the municipality and to the values expressed in this chapter. These proposals shall be subject to and consistent with any plan duly adopted pursuant to 24 V.S.A. chapter 117, shall be enforced under the provisions of 24 V.S.A. §§ 4444 and 4445 and may emphasize each municipality’s special characteristics. No fees shall be assessed against a municipality that provides signs under this section and, upon issuance of permits under 19 V.S.A. § 1111 , such signs may be placed in any public right-of-way other than interstates. This section shall take effect upon the Travel Information Council securing permission for alternative municipal signs in accordance with 23 V.S.A. § 1029 .
  15. Signs displaying a message of congratulations, condolences, birthday wishes, or displaying a message commemorating a personal milestone or event; provided, however, any such message is maintained for not more than two weeks.
  16. Within a downtown district designated under the provisions of 24 V.S.A. chapter 76A, municipal information and guidance signs. A municipality may erect alternative signs to provide guidance or information to assist persons in reaching destinations that are transportation centers, geographic districts, and significant or unique educational, recreational, historic, or cultural landmarks, including farmers’ markets that are members of the Vermont Farmers’ Market Association selling Vermont agricultural products. A proposal to provide alternative signs shall contain color, shape, and sign placement requirements that shall be uniform within the municipality. The surface area of alternative signs shall not exceed 12 square feet, and the highest point of such signs shall not exceed 12 feet above the ground, road surface, or sidewalk. The proposal shall be approved by the municipal planning commission for submission to and adoption by the local legislative body. The sign proposal then shall be submitted to the Travel Information Council for final approval. Denial may be based only on safety considerations. Reasons for denial shall be stated in writing. Alternative signs shall be responsive to the particular needs of the municipality and to the values expressed in this chapter. These proposals shall be subject to and consistent with any municipal plan duly adopted pursuant to 24 V.S.A. chapter 117, shall be enforced under the provisions of 24 V.S.A. §§ 4444 and 4445, and may emphasize each municipality’s special characteristics. No fees shall be assessed against a municipality that provides signs under this section and upon issuance of permits under 19 V.S.A. § 1111 , such signs may be placed in any public right-of-way other than an interstate highway. Notwithstanding subdivision 495(a)(7) or any other provision of this title or of 23 V.S.A. § 1029 , alternative signs permitted under this subsection shall not be required to comply with any nationally recognized standard.
    1. A sign that is a banner erected over a highway right-of-way for not more than 21 days if the bottom of the banner is not less than 16 feet 6 inches above the surface of the highway and is securely fastened with breakaway fasteners and the proposed banner has been authorized by the legislative body of the municipality in which it is located. (18) (A) A sign that is a banner erected over a highway right-of-way for not more than 21 days if the bottom of the banner is not less than 16 feet 6 inches above the surface of the highway and is securely fastened with breakaway fasteners and the proposed banner has been authorized by the legislative body of the municipality in which it is located.
    2. As used in this subdivision (18), “banner” means a sign that is constructed of soft cloth or fabric or flexible material such as vinyl or plastic cardboard.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 14, eff. March 23, 1968; amended 1971, No. 115 , § 3, eff. April 26, 1971; 1979, No. 135 (Adj. Sess.), § 2; 1983, No. 167 (Adj. Sess.), § 9; 1991, No. 197 (Adj. Sess.), § 1; 1991, No. 207 (Adj. Sess.), §§ 1, 2; 1991, No. 220 (Adj. Sess.), § 1; 1993, No. 121 (Adj. Sess.), § 8a; 1995, No. 190 (Adj. Sess.), § 12b; 1997, No. 120 (Adj. Sess.), § 8; 1997, No. 150 (Adj. Sess.), § 6; 1999, No. 18 , §§ 41e, 41g(c), eff. May 13, 1999; 1999, No. 156 (Adj. Sess.), § 33, eff. May 29, 2000; 2003, No. 160 (Adj. Sess.), § 59, eff. June 9, 2004; 2007, No. 164 (Adj. Sess.), § 55; 2009, No. 51 , § 4; 2011, No. 62 , § 29, eff. June 1, 2011; 2015, No. 158 (Adj. Sess.), § 53; 2017, No. 158 (Adj. Sess.), § 17; 2019, No. 50 , § 1; 2021, No. 55 , § 35.

History

Amendments

—2021. Subdiv. (6): Substituted “persons” for “people” in the intro. para. of subdiv. (6)(A) and in subdiv. (6)(A)(v); added subdiv. (6)(C); and redesignated former subdivs. (6)(C) and (6)(D) as (6)(D) and (6)(E).

Subdiv. (18)(A): Added “and the proposed banner has been authorized by the legislative body of the municipality in which it is located” at the end.

—2019. Subdiv. (18): Added.

—2017 (Adj. Sess.). Subdiv. (6): Amended generally.

—2015 (Adj. Sess.). Subdiv. (4): Inserted “or with the approval of” following “maintained by” in the first sentence, and added the fifth and sixth sentences.

—2011. Subdiv. (16): Added.

—2009. Subdiv. (12): Substituted “six” for “four” preceding “square feet” and added “or to farmers’ markets that are members of the Vermont farmers’ market association selling Vermont agricultural products” following “taking place”.

Subdiv. (15): Inserted “including farmers’ markets that are members of the Vermont farmers’ market association selling Vermont agricultural products” following “cultural landmarks” in the second sentence.

Subdiv. (17): Added “including farmers’ markets that are members of the Vermont farmers’ market association selling Vermont agricultural products” following “cultural landmarks” in the second sentence.

—2007 (Adj. Sess.) Added subdiv. (13) which had been repealed.

—2003 (Adj. Sess.). Subdiv. (6): Deleted “green” preceding “traffic” in the first clause of the first sentence, and preceding “sign” in the second sentence, and “blue” preceding “traffic control” in the first sentence.

Subdiv. (12): Substituted “Federal Highway Administration” for “bureau of public roads” and “four square” for “4 square”.

—1999 (Adj. Sess.) Subdiv. (6): Amended generally.

—1999. Subdiv. (6): Inserted “official state visitor information centers” preceding “nonprofit museums” and substituted “people with disabilities and postsecondary educational institutions” for “the language delayed” in the introductory paragraph and “15 miles” for “fifteen miles” in subdiv. (B).

Subdiv. (13): Repealed.

—1997 (Adj. Sess.). Subdiv. (6): Act No. 150 added “fairgrounds or exposition sites” in the introductory paragraph.

Subdiv. (17): Added by Act No. 120.

—1995 (Adj. Sess.) Subdiv. (16): 1995, No. 190 (Adj. Sess.), § 12b, added the subsec., authorizing tourist information and travel advisory signs to alert the traveling public to tune to a low-power radio station for tourist information and travel advisories for an area within ten miles of the sign. Section 12c(c) of the act repealed subdiv. (16), effective July 1, 1998.

—1993 (Adj. Sess.). Subdiv. (6): Inserted “or nonprofit diploma granting educational institutions for the language delayed, subject to rules adopted by the travel information council” following “museums” in the introductory paragraph.

—1991 (Adj. Sess.). Subdiv. (6): Amended generally by Act No. 207.

Subdiv. (13): Added by Act No. 197, Act No. 207 and Act No. 220.

—1983 (Adj. Sess.). Subdiv. (4): Inserted “outside the highway right-of-way, each of which does not exceed 64 square feet in area, excluding panel and frame” preceding “which may show” in the first sentence and substituted “two” for “one” preceding “such” and “signs” for “sign” thereafter in the third sentence.

—1979 (Adj. Sess.). Subdiv. (4): In the first sentence, deleted “outside the highway right of way” following “maintained by a town”, substituted “which may show” for “showing” thereafter, and added “and which may include a panel which identifies the name of the town, the charter date, the date the town was founded, or any other significant date in the history of the town, and which the town wishes to identify” at the end of the sentence; in the third sentence substituted “one” for “two” preceding “such sign”; added the second and fourth sentences.

—1971. Subdiv. (2): Added “except those which are determined by the travel information council to be circumventing the intent of this chapter” at the end of the sentence.

1995 (Adj. Sess.) amendment. 1995, No. 190 (Adj. Sess.), § 12c(a), provided in part that section 12b of the act, which added former subdiv. (16) of this section, was limited to the approval of signs in the municipalities of Cambridge and Stowe.

Removal of signs erected pursuant to subdiv. (13). 1999, No. 18 , § 41f, eff. May 13, 1999, provided: “All signs erected pursuant to 10 V.S.A. § 494(13) and in place before passage of this act [May 13, 1999] shall be removed no later than November 30, 2001.”

§ 495. Other regulations applying to permitted signs.

  1. No official business directional sign, on-premises sign, residential directional sign, or exempt sign may be erected or maintained, along a highway and visible from the highway, that:
    1. Interferes with, imitates or resembles any official traffic control sign, signal or device, or attempts or appears to attempt to direct the movement of traffic.
    2. Prevents the driver of a motor vehicle from having a clear and unobstructed view of official traffic control signs and approaching or merging traffic.
    3. Contains, includes, or is illuminated by any flashing intermittent or moving lights, or moves or has any animated or moving parts, except that this restriction shall not apply to a traffic control sign, barber poles, theatre marquees that are determined by the Travel Information Council to contribute to the historic significance of a building listed, or eligible for listing, in the national register of historic places and that are operated in accordance with any conditions prescribed by the travel information council, or signs of a public service nature as determined by the Travel Information Council.
    4. Has any lighting, unless such lighting is so effectively shielded as to prevent beams or rays of light from being directed at any portion of the main travelled way of a highway, or is of such low intensity or brilliance as not to cause glare or to impair the vision of the driver of any motor vehicle or otherwise to interfere with the operation thereof.
    5. Is located upon a tree, or painted or drawn upon a rock or other natural feature, except that this restriction shall not apply to residential directional signs.
    6. Advertises or calls attention to a business or other activity, or a profession, commodity, product, service, or entertainment not carried on, produced, sold, or offered in this State, or to an activity of any kind which has already occurred or has otherwise terminated.
    7. Is in violation of or at variance with any federal law or regulation, including one containing or providing for conditions to or affecting the allocation of federal highway or other funds to or for the benefit of this State or any subdivision thereof.
  2. No on-premises or exempt sign may be erected if it is so located as to be readable primarily from a limited access facility.
  3. No on-premises sign, residential directional, or exempt sign may be erected or maintained that:
    1. Advertises activities that are illegal under any State or federal law applicable at the location of the sign or of the activities.
    2. Is not clean or in good repair.
    3. Is not securely affixed to a substantial structure.
    4. Is not consistent with the standards in this chapter or regulations of the Travel Information Council.
  4. Notwithstanding any other provisions of this title, a person, firm, or corporation shall not erect or maintain any outdoor advertising structure, device, or display within the limits of the highway right-of-way; however, this limitation shall not apply to the signs and devices referred to in subdivisions 494(1), (2), (3), (6), (7), (10), (14), and (17) of this title.
  5. Except on those highways maintained exclusively by the Agency of Transportation and on limited access facilities, the limitation established by subsection (d) of this section shall not apply to the signs and devices referred to in subdivisions 494(9) and (11) of this title.
  6. Except on limited access facilities, the limitation established by subsection (d) of this section shall not apply to the signs referred to in subdivision 494(18) of this title.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 15, eff. March 23, 1968; amended 1969, No. 92 , § 17, eff. April 19, 1969; 1977, No. 13 ; 1983, No. 167 (Adj. Sess.), §§ 10, 11; 1985, No. 97 , eff. May 30, 1985; 1991, No. 220 (Adj. Sess.), § 2; 1993, No. 121 (Adj. Sess.), § 9; 1997, No. 120 (Adj. Sess.), § 9; 1999, No. 18 , § 41h, eff. May 13, 1999; 2019, No. 50 , § 2.

History

Revision note

—2018. Throughout, replaced “on-premise” with “on-premises” to conform to definition of “on-premises sign” in section 481 of this title.

Amendments

—2019. Subsec. (f): Added.

—1999. Subsec. (e): Added.

—1997 (Adj. Sess.). In subsec. (d) “and” was deleted and “and (17)” was added.

—1993 (Adj. Sess.). Subsec. (b): Inserted “or exempt” preceding “sign”.

—1991 (Adj. Sess.). Subsec. (d): Deleted “and” preceding “(10)”, added “and (13)” thereafter and made a minor change in punctuation.

—1985. Subdiv. (a)(3): Substituted “barber poles” for “barbers’ poles” and inserted “theatre marquees which are determined by the travel information council to contribute to the historic significance of a building listed, or eligible for listing, in the national register of historic places and which are operated in accordance with any conditions prescribed by the travel information council” thereafter.

—1983 (Adj. Sess.). Subsec. (c): Deleted “or” preceding “residential directional” and inserted “or exempt” thereafter.

Subsec. (d): Added.

—1977. Subdiv. (a)(3): Inserted “barbers’ poles” following “traffic control sign”.

—1969. Subdivs. (a)(6), (7): Added.

ANNOTATIONS

Purpose.

The purpose of subsecs. (d) and (e) is not to inhibit any particular message from reaching the public. That it allows, through exemption, certain informational and directional signs to be posted by municipalities in the restricted areas, denotes no favoritism. Lewis v. Searles, 2002 U.S. Dist. LEXIS 20673 (D. Vt. Oct. 23, 2002).

§ 496. Repealed. 1993, No. 121 (Adj. Sess.), § 10.

History

Former § 496. Former § 496, relating to funding for the removal of outdoor advertising, was derived from 1967, No. 333 (Adj. Sess.), § 16 and amended by 1969, No. 92 , § 10; 1971, No. 110 , § 2; 1971, No. 253 (Adj. Sess.), § 4; 1975, No. 13 , § 9, and 1983, No. 167 (Adj. Sess.), § 12.

§ 497. Removal of signs.

The owner of a sign that is not licensed under this chapter and that is not a legal on-premises or exempt sign meeting the requirements set forth in this chapter, other than a sign that was lawfully erected and maintained prior to March 23, 1968, shall be in violation of this chapter until it is removed. The Travel Information Council, or the Secretary of Transportation or designee pursuant to authority delegated by the Council, may, upon failure of the owner to remove such sign, order its removal by the Agency of Transportation, and the Agency of Transportation shall thereupon remove the sign without notice or further proceeding, at the expense of the owner. The expense may be recovered by the State in an action on this statute, that shall be instituted in the Superior Court in the unit for the area in which the sign is located. A copy of the notice of removal shall be sent by certified mail to the owner at the last known address. If an illegal sign is re-erected after the initial removal notice is executed, the Agency of Transportation shall have the authority to remove that illegal sign without additional prior notice to the owner. The Agency of Transportation or the legislative body of a municipality shall have the authority to remove or relocate, or both, without prior notice, any sign, device, or display that is temporary in nature and not affixed to a substantive structure that is erected within 24.75 feet of the actual centerline of any highway under its jurisdiction and within the public highway right-of-way.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 17, eff. March 23, 1968; amended 1969, No. 92 , § 12, eff. April 19, 1969; 1983, No. 167 (Adj. Sess.), § 13; 1993, No. 121 (Adj. Sess.), § 11; 2009, No. 154 (Adj. Sess.), § 61.

History

Revision note

—2018. In the first sentence, replaced “on-premise” with “on-premises” to conform to definition of “on-premises sign” in section 481 of this title.

Amendments

—2009 (Adj. Sess.) Made a gender neutral change in the second sentence and deleted “or Vermont district court having jurisdiction” following “superior court” and inserted “the unit for” preceding “the area” in the third sentence.

—1993 (Adj. Sess.). Section amended generally.

—1983 (Adj. Sess.). Subsec. (a): Substituted “transportation or his designee” for “state” following “secretary of” in the third sentence, “superior” for “county” preceding “court or Vermont” in the fourth sentence, and “agency of transportation” for “highway department” wherever it appeared in the third and fifth sentences.

Subsec. (b): Substituted “transportation or his designee” for “state” following “secretary of” in the second sentence and “agency of transportation” for “highway department” wherever it appeared in that sentence and “superior” for “county” preceding “court or Vermont” in the third sentence.

—1969. Section amended generally.

CROSS REFERENCES

Exempt signs, see § 494 of this title.

On-premises sign defined, see § 481 of this title.

Notes to Opinions

Construction.

Provision of this section allowing the travel information council to order removal of a sign by the highway department does not give the council discretion to not seek removal but, rather, allows it to seek removal by legal enforcement of a removal notice if it may not be practical to have the sign removed by the state; in any case, the council must seek removal. 1972 Vt. Op. Att'y Gen. 127.

§ 498. Repealed. 1993, No. 121 (Adj. Sess.), § 12.

History

Former § 498. Former § 498, relating to termination of sign licenses, was derived from 1967, No. 333 (Adj. Sess.), § 18.

§ 499. Applications and licensing of official business directional signs.

  1. Any person who believes that he or she is eligible under section 489 of this title for an official business directional sign may submit a written application on a form prescribed by the Travel Information Council. The application shall set forth the name and address of the applicant; the name, nature, and location of the business; the location where an official business directional sign is desired; and such other information as the Council may require. The applicant shall tender with the application the standard license fee stated in section 501 of this title for each sign requested.
  2. Upon receipt of an application for an official business directional sign, the Travel Information Council shall refer the application to the appropriate district committee of the Travel Information Council with a report and the facts relative to the location. The committee shall approve or disapprove the application. The committee shall not approve an application unless the requested location conforms to the rules of the Agency of Transportation under section 490 of this title and of the Council and, in the case of town highways, of the town’s selectboard, and the applicant is complying with all statutes and rules of the Departments of Health and Labor regarding places of public accommodation. If the application is approved, the Council shall issue the license and forward a copy to the division of the Agency of Transportation responsible for erection and maintenance of official highway signs. If it is not approved, the Travel Information Council shall return the application and fee, stating the reasons for refusal and giving the applicant opportunity to correct any defects or to be heard within 30 days by the Travel Information Council, and to present evidence, with or without counsel in his or her discretion. Upon written request, the Council shall hear the matter and notify the applicant of its findings and decision. The applicant may then appeal on questions of law to the Supreme Court.
  3. The Travel Information Council shall establish a procedure and schedule for periodic on-site evaluation of licenses that have been granted, to determine whether such licenses have been issued in conformance with the rules of the Agency of Transportation and the Travel Information Council under section 490 of this title.
  4. The Travel Information Council shall have the authority to deny renewal of those licenses that are found to violate the rules of the Agency of Transportation and the Travel Information Council. A licensee who is denied renewal shall have the right to appeal under subsection (b) of this section.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 19, eff. March 23, 1968; amended 1969, No. 92 , § 13, eff. April 19, 1969; 1983, No. 167 (Adj. Sess.),§§ 14, 15; 1993, No. 172 (Adj. Sess.), § 12.

History

Revision note

—2018. In subsec. (b), deleted “and Industry” following “Labor” in the third sentence in light of Executive Order No. 21-8.

Amendments

—1993 (Adj. Sess.). Subsec. (a): Inserted “or she” following “he” and deleted “therefor” following “application” in the first sentence.

Subsec. (b): Substituted “rules” for “regulations” in two places, inserted “agency of” preceding “transportation”, deleted “board” thereafter and substituted “town’s selectboard” for “selectmen of the town” following “highways, of the” in the third sentence, deleted “thereof” following “copy” in the fourth sentence, and substituted “30” for “thirty” and inserted “or her” following “his” in the fifth sentence.

Subsec. (c): Substituted “rules” for “regulations” following “conformance with the”, inserted “agency of” preceding “transportation” and deleted “board” thereafter.

Subsec. (d): Substituted “rules” for “duly adopted regulations” following “violate the”, inserted “agency of” preceding “transportation” and deleted “board” thereafter.

—1983 (Adj. Sess.). Subsec. (b): Substituted “transportation” for “highway” preceding “board” in the third sentence, “labor and industry” for “public safety” following “health and” in that sentence, and “agency of transportation” for “highway department” preceding “responsible” in the fourth sentence.

Subsec. (c): Added.

Subsec. (d): Added.

—1969. Subsec. (b): Amended generally.

Notes to Opinions

Location of signs contingent upon federal approval.

The granting of permits for business directional signs on the interstate system by the travel information council, or any committee thereof, is contingent upon the highway board’s approval of proposed location and necessarily upon any requirement precedent to such approval, such as the concurrence of federal officials. 1970 Vt. Op. Att'y Gen. 240.

The travel information council has no authority to authorize the location of business directional signs until federal approval is granted or denied, or granted subject to certain restrictions. 1970 Vt. Op. Att'y Gen. 240.

§ 500. Repealed. 1969, No. 92, § 18, eff. April 19, 1969.

History

Former § 500. Former § 500, relating to erection and maintenance of business directional signs, was derived from 1967, No. 333 (Adj. Sess.), § 20.

§ 501. Fees.

Subject to the provisions of subsection 486(c) of this title, an applicant for an official business directional sign or an information plaza plaque shall pay to the Travel Information Council an initial license fee and an annual renewal fee as established by this section.

  1. Initial license fees shall be as follows:
    1. for full-sized or half-sized business directional signs, $175.00 per sign;
    2. for information plaza plaques, $25.00 per plaque; however, if more than one plaque is requested by a business at the same time, a ten percent discount shall be given on the second and subsequent plaques.
  2. Annual renewal fees shall be as follows:
    1. for full and half-sized official business directional signs, $100.00 per sign;
    2. information plaza plaques, $25.00 per plaque.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 21, eff. March 23, 1968; amended 1969, No. 92 , § 14, eff. April 19, 1969; 1983, No. 168 (Adj. Sess.); 2009, No. 50 , § 61; 2009, No. 123 (Adj. Sess.), § 54.

History

Amendments

—2009 (Adj. Sess.) Subdiv. (2)(A): Substituted “$100.00” for “$125.00”.

—2009. Substituted “subsection 486(c)” for “section 486(c)” in the introductory paragraph; substituted “$175.00” for “$75.00” in subdiv. (1)(A), and rewrote subdiv. (2).

—1983 (Adj. Sess.). Section amended generally.

—1969. Section amended generally.

Notes to Opinions

Prorated fees.

One maintaining a sign which has been up for one year could, after travel information council established July 1 to July 30 as the license year, be billed for the next year beginning July 1 and in addition, on a prorated basis, for the period from the first anniversary of the initial license and June 30. 1972 Vt. Op. Att'y Gen. 125.

§ 502. Repealed. 1993, No. 121 (Adj. Sess.), § 12.

History

Former § 502. Former § 502, relating to notice of outdoor sign removal, was derived from 1967, No. 333 (Adj. Sess.), § 22 and amended by 1969, No. 92 , § 15.

§ 503. Penalty.

A person who violates this chapter shall be assessed a civil penalty of not more than $50.00. Each day the violation continues shall be a separate offense.

HISTORY: Added 1967, No. 333 (Adj. Sess.), § 23, eff. March 23, 1968; amended 1969, No. 92 , § 16, eff. April 19, 1969; 2019, No. 59 , § 48.

History

Amendments

—2019. Substituted “assessed a civil penalty of” for “fined,” and “$50.00” for “$100.00 or imprisoned not more than 30 days, or both” in the first sentence.

—1969. Deleted the third sentence.

§ 504. Repealed. 1993, No. 121 (Adj. Sess.), § 12.

History

Former § 504. Former § 504, relating to enforcement dates, was derived from 1967, No. 333 (Adj. Sess.), § 24.

§ 505. Relation to other laws; local ordinances.

  1. This chapter shall not supersede the provisions of any local ordinances whose requirements are more strict than those of this chapter, and not inconsistent therewith, whether those ordinances were enacted before or after the effective date of this chapter.
  2. The provisions of this chapter with respect to sign control are not exclusive of any rights or remedies provided the Agency of Transportation and the legislative bodies of municipalities, in their respective jurisdictions, by Title 19, any other statute, municipal charter or ordinance, the doctrines of equity, or the common law.

HISTORY: 1967, No. 333 (Adj. Sess.), § 25; amended 1993, No. 121 (Adj. Sess.), § 13.

History

Amendments

—1993 (Adj. Sess.). Rewrote the section catchline, designated the existing provisions of the section as subsec. (a) and added subsec. (b).

§ 506. Newspaper or other vending machines; delivery tubes.

  1. Newspaper or other vending machines may be allowed within the highway right-of-way subject to the requirements of 19 V.S.A. § 1111 .
  2. The copy permitted on newspaper delivery tubes shall be limited to identification markings that do not occupy a space of more than six square inches.

HISTORY: Added 1993, No. 121 (Adj. Sess.), § 14.

Chapter 22. The Vermont Training Program

History

Amendments

—2013 (Adj. Sess.). Chapter heading: Substituted “The Vermont” for “Employment”.

Vermont Training Program. 2013, No. 50 , § E.800 provides: “(a) Notwithstanding 10 V.S.A. § 531 , the Secretary may authorize up to ten percent of the funds allocated within the Vermont Training Program for employers that meet at least one but fewer than three of the criteria specified within 10 V.S.A. § 531 (b) and (c)(3). The Secretary shall report to the House Committee on Commerce and Economic Development and the Senate Committee on Economic Development, Housing and General Affairs by January 15, 2014 on the use or proposed use of funds under this provision.”

§ 531. The Vermont Training Program.

  1. Authority.
    1. The Secretary of Commerce and Community Development, in consultation with the State Workforce Development Board, shall have the authority to design and implement a Vermont Training Program, the purpose of which shall be to issue performance-based grants to employers and to education and training providers to increase employment opportunities in Vermont consistent with this chapter.
    2. The Secretary shall structure the Vermont Training Program to serve as a flexible, nimble, and strategic resource for Vermont businesses and workers across all sectors of the economy.
  2. Eligibility for grant.   The Secretary of Commerce and Community Development may award a grant to an employer if:
    1. the training is for preemployment, new employees, or incumbent employees in the methods, either singularly or in combination, relating to preemployment training, on-the-job training, upgrade training, crossover training, or specialized instruction, either on-site or through a training provider;
    2. the employer provides its employees with at least three of the following:
      1. health care benefits with 50 percent or more of the premium paid by the employer;
      2. dental assistance;
      3. paid vacation;
      4. paid holidays;
      5. child care;
      6. other extraordinary employee benefits;
      7. retirement benefits;
      8. other paid time off, excluding paid sick days;
    3. the training is directly related to the employment responsibilities of the trainee; and
    4. compensation for each trainee at the completion of the training program equals or exceeds the livable wage as defined in 2 V.S.A. § 526 , provided that the Secretary shall have the authority to modify this requirement if he or she determines that the employer offers compensation or benefits, the value of which exceeds the compensation and benefit assumptions in the basic needs budget and livable wage calculated pursuant to 2 V.S.A. § 526 .
  3. Disclosure.   In the case of a grant to a training provider, the Secretary shall require as a condition of the grant that the provider shall disclose to the Secretary the name of the employer and the number of employees trained prior to final payment for the training.
  4. Conditions.   In order to avoid duplication of programs or services and to provide the greatest return on investment from training provided under this section, the Secretary of Commerce and Community Development shall:
    1. consult with the Commissioner of Labor regarding whether the grantee has accessed, or is eligible to access, other workforce education and training resources;
    2. disburse grant funds only for training hours that have been successfully completed by employees, provided that:
      1. a grant for on-the-job training shall either provide not more than 50 percent of wages for each employee in training or not more than 50 percent of trainer expense, but not both; and
      2. training shall be performed in accordance with a training plan that defines the subject of the training, the number of training hours, and how the effectiveness of the training will be evaluated; and
    3. use funds under this section only to supplement training efforts of employers and not to replace or supplant training efforts of employers.
  5. Work-based learning activities.
    1. In addition to eligible training authorized in subsection (b) of this section, the Secretary of Commerce and Community Development may annually allocate up to 10 percent of the funding appropriated for the Program to fund work-based learning programs and activities with eligible employers to introduce Vermont students in a middle school, secondary school, career technical education program, or postsecondary school to manufacturers and other regionally significant employers.
    2. An employer with a defined work-based learning program or activity developed in partnership with a middle school, secondary school, career technical education program, or postsecondary school may apply to the Program for a grant to offset the costs the employer incurs for the work-based learning program or activity, including the costs of transportation, curriculum development, and materials.
  6. Certificate.   Upon completion of the training program for any individual, the Secretary of Commerce and Community Development shall review the records and shall award to the trainee, if appropriate, a certificate of completion for the training.
  7. -(j) [Repealed.]

    (k) Report. Annually on or before January 15, the Secretary shall submit a report to the House Committee on Commerce and Economic Development and the Senate Committee on Economic Development, Housing and General Affairs. In addition to the reporting requirements under section 540 of this title, the report shall identify:

    1. all active and completed contracts and grants;
    2. from among the following, the category the training addressed:
      1. preemployment training or other training for a new employee to begin a newly created position with the employer;
      2. preemployment training or other training for a new employee to begin in an existing position with the employer;
      3. training for an incumbent employee who, upon completion of training, assumes a newly created position with the employer;
      4. training for an incumbent employee who, upon completion of training assumes a different position with the employer;
      5. training for an incumbent employee to upgrade skills;
    3. for the training identified in subdivision (2) of this subsection whether the training is on-site or classroom-based;
    4. the number of employees served;
    5. the average wage by employer;
    6. any waivers granted;
    7. the identity of the employer, or, if unknown at the time of the report, the category of employer;
    8. the identity of each training provider;
    9. whether training results in a wage increase for a trainee, and the amount of increase;
    10. the aggregated median wage for employees invoiced for training during the reporting period;
    11. the percentage growth in wages and the percentage growth in the median wage for all wage earners in the State during the reporting period; and
    12. the number, type, and description of grants for work-based learning programs and activities awarded pursuant to subsection (e) of this section.

HISTORY: Added 1977, No. 214 (Adj. Sess.), § 1, eff. April 12, 1978; amended 1981, No. 211 (Adj. Sess.); 1985, No. 172 (Adj. Sess.), § 5; 1989, No. 66 ; 1991, No. 50 , § 230; 1993, No. 89 , § 3, eff. June 15, 1993; 1995, No. 46 , § 33; 1995, No. 190 (Adj. Sess.), § 1(b); 1997, No. 66 (Adj. Sess.), § 67a, eff. Feb. 20, 1998; 1997, No. 71 (Adj. Sess.), § 54; 1999, No. 147 (Adj. Sess.), § 4; 2003, No. 122 (Adj. Sess.), § 233a; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 174 (Adj. Sess.), § 16; 2007, No. 46 , § 3, eff. May 23, 2007; 2009, No. 78 (Adj. Sess.), § 14a, April 15, 2010; 2009, No. 146 (Adj. Sess.), § G13, eff. June 1, 2010; 2011, No. 52 , § 10, eff. May 27, 2011; 2013, No. 176 (Adj. Sess.), § 2; 2013, No. 199 (Adj. Sess.), § 42; 2015, No. 51 , § G.4, eff. Jan. 1, 2015; 2015, No. 157 (Adj. Sess.), § H.2, eff. Jan. 1, 2017; 2015, No. 157 (Adj. Sess.), §§ D.1, K.2; 2019, No. 14 , § 13, eff. April 30, 2019; 2019, No. 80 , § 2.

History

Revision note

—2020. In subdiv. (b)(4), substituted “ 2 V.S.A. § 526 ” for “ 2 V.S.A. § 505 ” twice in accordance with 2019, No. 144 (Adj. Sess.), § 12(3).

—2014. In subdiv. (k)(3), inserted “(2) of this subsection” following “subdivision” for clarity.

—Revision note—2006. 2005, No. 174 (Adj. Sess.) amended subsec. (d) of this section as did 2005, No. 103 (Adj. Sess.). The text of subsec. (d) set out above is based upon a harmonization of the two acts, reflecting the enacted changes made by the Legislature.

Amendments

—2019. Act No. 14 added subsec. headings to subsecs. (a), (c), (d), (f) and (k).

Subsec. (d): Act No. 80 in subdiv. (d)(2) deleted “, except for an award under an enhanced incentive for workforce training as provided in 32 V.S.A § 3336,” following “provided, that”; added the subdiv. (A) and (B) designations; and in subdiv. (d)(2)(A), deleted “further provided that” following “both;”.

Subsec. (k): Act No. 80 added subdivs. (k)(10) and (k)(11) and redesignated former subdiv. (k)(11) as present subdiv. (k)(12).

—2015 (Adj. Sess.). Subdiv. (a)(1): Substituted “State Workforce Development Board” for “Workforce Investment Board”.

Subdiv. (b)(2)(H): Substituted “excluding paid” for “including paid”.

Subdiv. (d)(2): Substituted “enhanced incentive for work force training” for “enhanced training incentive” and “ 32 V.S.A. § 3336 ” for “ 32 V.S.A. § 5930b(h) ”.

Subsec. (e): Added.

Subdiv. (k)(10): Added.

—2015. Subdiv. (d)(2): Added “that, except for an award under an enhanced training incentive as provided in 32 V.S.A. § 5930b(h) ” following “successfully completed by employees; provided” near the beginning of the sentence.

—2013 (Adj. Sess.). Section amended generally.

—2011. Section amended generally.

—2009 (Adj. Sess.) Subsec. (i): Added by Act Nos. 78 and 146.

—2007. Subsec. (a): In subdiv. (1), deleted the section symbol preceding “212(6)” and added the “, provided that for the purposes of this section, eligible facility may be broadly interpreted to include employers in sectors other than manufacturing including the fields of information technology, telecommunications, health care, and environmental technologies; and”.

—2005 (Adj. Sess.). Subsec. (d): Act No. 103 substituted “commissioner of labor” for “commissioner of employment and training”.

Act No. 174 substituted “commissioner for children and families” for “commissioner of prevention, assistance, transition, and health access”.

—2003 (Adj. Sess.). Subdiv. (c)(1): Substituted “30 percent” for “25 percent” and “20 percent” for “15 percent”.

—1999 (Adj. Sess.). Subsec. (d): Substituted “commissioner of prevention, assistance, transition, and health access” for “commissioner of social welfare”.

—1997 (Adj. Sess.). Subsec. (a): Act No. 66 in the introductory language substituted “issue grants” for “contract with” and inserted “contract with” and in subdiv. (a)(1) substituted “issuing grants” for “contracting with” and “as a condition of the grant” for “in the contract”.

Subsec. (b): Act No. 66 added “grant or” in the introductory language.

Act No. 71 added subdiv. (b)(3).

Subsec. (c): Act No. 66 substituted “as a condition of the grant” for “in the contract”.

Act No. 71 added subdiv. (c)(3) and in subdiv. (c)(1) added “new” before “persons” at the beginning and substituted “25 percent” for “15 percent”.

Subsec. (d): Act No. 66 added “issuing a grant or” and “apprenticeship programs, on-the-job training programs, and” and substituted “and the commissioner of social welfare regarding welfare to work priorities” for “the commissioner of labor and industry regarding apprenticeship and on-the-job training programs”.

—1995 (Adj. Sess.) Substituted “secretary of commerce and community development” for “secretary of development and community affairs” in subsecs. (a), (b), (d), (e) and (f) and in subdiv. (c)(1).

—1995. Subsec. (h): Added.

—1993. Subdiv. (a)(1): Substituted “eligible facility” for “industrial facility” in three places and “Vermont economic development authority” for “Vermont industrial development authority” preceding “relating to”.

—1991. Subdiv. (a)(1): Inserted “or provide training to enhance employment stability” following “increase employment”.

Subdiv. (a)(2): Inserted “upgrade training and crossover training” preceding “or specialized”.

—1989. Subdiv. (c)(1): Amended generally.

—1985 (Adj. Sess.) Subsec. (g): Added.

—1981 (Adj. Sess.) Section amended generally.

Repeal of sunset of subsec. (b). 2011, No. 52 , § 10a(b) provided for the repeal of subsec. (b) of this section, effective June 30, 2012; however, pursuant to 2011, No. 162 (Adj. Sess.), § E.801.1, effective May 17, 2012, the sunset of subsec. (b) was repealed.

Retroactive effective date of 2015 amendment. 2015, No. 51 , § H.1(f)(1) provides that the amendment to this section by that act shall take effect on January 1, 2015.

CROSS REFERENCES

Apprenticeship Division and Council within the Department of Labor, see 21 V.S.A. § 1101 et seq.

Vermont Employment Service, see 21 V.S.A. § 1201 et seq.

Vermont Industrial Development Authority, see § 210 et seq. of this title.

Vermont State Colleges, see 16 V.S.A. § 2170 et seq.

Chapter 22A. Workforce Education and Training

History

Labor market measures. 2007, No. 182 (Adj. Sess.), § 3 provides: “The department of labor shall collaborate with the joint fiscal office and the agency of commerce and community development to develop a mutually acceptable set of employment measures and a means of communicating them to the general assembly.”

Implementation of the Vermont career internship program; workers’ compensation. 2011, No. 52 , § 12 provides: “(a)(1) Program costs in fiscal year 2012 for the Vermont career internship program created in 10 V.S.A. § 544 shall be funded through an appropriation from the next generation initiative fund established in 16 V.S.A. § 2887 .

“(2) Funding in subsequent years shall be recommended by the department of labor, in collaboration with the agency of agriculture, food and markets, the department of education and state-funded postsecondary educational institutions, the workforce development council, and other state agencies and departments that have workforce development and training monies.

“(b) The state may provide workers’ compensation coverage to participants in the Vermont career internship program authorized in 10 V.S.A. § 544 . The state shall be considered a single entity solely for purposes of purchasing a single workers’ compensation insurance policy providing coverage for interns. This subsection is intended to permit the state to provide workers’ compensation coverage, and the state shall not be considered the employer of the participants for any other purposes. The cost of coverage may be deducted from grants provided for the internship program.”

§ 540. Workforce education and training leader.

The Commissioner of Labor shall be the leader of workforce education and training in the State, and shall have the authority and responsibility for the coordination of workforce education and training within State government, including the following duties:

  1. Perform the following duties in consultation with the State Workforce Development Board:
    1. advise the Governor on the establishment of an integrated system of workforce education and training for Vermont;
    2. create and maintain an inventory of all existing workforce education and training programs and activities in the State;
    3. use data to ensure that State workforce education and training activities are aligned with the needs of the available workforce, the current and future job opportunities in the State, and the specific credentials needed to achieve employment in those jobs;
    4. develop a State plan, as required by federal law, to ensure that workforce education and training programs and activities in the State serve Vermont citizens and businesses to the maximum extent possible;
    5. ensure coordination and nonduplication of workforce education and training activities;
    6. identify best practices and gaps in the delivery of workforce education and training programs;
    7. design and implement criteria and performance measures for workforce education and training activities;
    8. establish goals for the integrated workforce education and training system; and
    9. with the assistance of the Secretaries of Commerce and Community Development, of Human Services, of Education, of Agriculture, Food and Markets, and of Transportation and of the Commissioner of Public Safety, develop and implement a coordinated system to recruit, relocate, and train workers to ensure the labor force needs of Vermont’s businesses are met.
  2. Require from each business, training provider, or program that receives State funding to conduct workforce education and training a report that evaluates the results of the training. Each recipient shall submit its report on a schedule determined by the Commissioner and shall include at least the following information:
    1. name of the person who receives funding;
    2. amount of funding;
    3. activities and training provided;
    4. number of trainees and their general description;
    5. employment status of trainees; and
    6. future needs for resources.
  3. Review reports submitted by each recipient of workforce education and training funding.
  4. Issue an annual report to the Governor, the House Committees on Appropriations and on Commerce and Economic Development, and the Senate Committees on Appropriations and on Economic Development, Housing and General Affairs on or before December 1 that includes a systematic evaluation of the accomplishments of the State workforce investment system and the performance of participating agencies and institutions. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subdivision.
  5. Coordinate public and private workforce programs to ensure that information is easily accessible to students, employees, and employers, and that all information and necessary counseling is available through one contact.
  6. Facilitate effective communication between the business community and public and private educational institutions.
  7. Notwithstanding any provision of State law to the contrary, and to the fullest extent allowed under federal law, ensure that in each State and State-funded workforce education and training program, the program administrator collects and reports data and results at the individual level by Social Security number or an equivalent.
  8. Coordinate intentional outreach and connections between students graduating from Vermont’s colleges and universities and employment opportunities in Vermont.

HISTORY: Added 2013, No. 199 (Adj. Sess.), § 41; amended 2015, No. 11 , § 9; 2015, No. 157 (Adj. Sess.), § K.1; 2017, No. 154 (Adj. Sess.), § 19, eff. May 21, 2018; 2017, No. 189 (Adj. Sess.), § 15.

History

Amendments

—2017 (Adj. Sess.). Subdiv. (1)(I): Added by Act No. 189.

Subdiv. (4): Act No. 154 substituted “, the House Committees on Appropriations and on Commerce and Economic Development, and the Senate Committees on Appropriations and on Economic Development, Housing and General Affairs” for “and the General Assembly” and added the last sentence.

Subdiv. (8): Added by Act No. 189.

—2015 (Adj. Sess.) Subdiv. (1): Substituted “Development” for “Investment” following “Workforce”.

—2015. Subdiv. (7): Substituted “results” for “outcomes” following “reports data and”.

§ 541. Repealed. 2013, No. 199 (Adj. Sess.), § 41.

History

Former § 541. Former § 541, relating to the Workforce Development and the State Workforce Investment Board; members, terms, was derived from 2005, No. 212 (Adj. Sess.), § 1 and amended by 2009, No. 33 , § 21; 2009, No. 146 (Adj. Sess.), § G14 and 2011, No. 52 , §§ 8, 8a. For present provisions, see § 541a of this title.

§ 541a. State Workforce Development Board.

  1. Board established; duties.   Pursuant to the requirements of 29 U.S.C. § 3111, the Governor shall establish the State Workforce Development Board to assist the Governor in the execution of his or her duties under the Workforce Innovation and Opportunity Act of 2014 and to assist the Commissioner of Labor as specified in section 540 of this title.
  2. Additional duties; planning; process.
    1. To inform its decision making and to provide effective assistance under subsection (a) of this section, the Board shall:
      1. conduct an ongoing public engagement process throughout the State that brings together employers and potential employees, including students, the unemployed, and incumbent employees seeking further training, to provide feedback and information concerning their workforce education and training needs; and
      2. maintain familiarity and promote alignment with the federal, State, and regional Comprehensive Economic Development Strategies and other economic development planning processes and coordinate workforce and education activities in the State, including the development and implementation of the State plan required under the Workforce Innovation and Opportunity Act of 2014, with economic development planning processes occurring in the State, as appropriate.
    2. To ensure that State-funded and federally funded workforce development and training efforts are of the highest quality and aligned with the State’s workforce and economic goals, the Board shall regularly:
      1. review and approve State-endorsed Career Pathways that reflect a shared vision across multiple sectors and agencies for improving employment outcomes, meeting employers’ and workers’ needs, and leveraging available State and federal funding; and
      2. publicize the State-endorsed Career Pathways, including on websites managed by the Agency of Education, Department of Labor, and Department of Economic Development.
    3. The Board shall have the authority to approve State-endorsed and industry-recognized credentials and certificates, excluding high school diplomas and postsecondary academic degrees, that are aligned with the Career Pathways.
  3. Membership.   The Board shall consist of the Governor and the following members who are appointed by the Governor in conformance with the federal Workforce Innovation and Opportunity Act and who serve at his or her pleasure, unless otherwise indicated:
    1. the Commissioner of Labor;
    2. two members of the Vermont House of Representatives appointed by the Speaker of the House;
    3. two members of the Vermont Senate appointed by the Senate Committee on Committees;
    4. the President of the University of Vermont;
    5. the Chancellor of the Vermont State Colleges;
    6. the President of the Vermont Student Assistance Corporation;
    7. a representative of an independent Vermont college or university;
    8. a director of a regional technical center;
    9. a principal of a Vermont high school;
    10. two representatives of labor organizations who have been nominated by a State labor federation;
    11. two representatives of individuals and organizations who have experience with respect to youth activities, as defined in 29 U.S.C. § 3102(71);
    12. two representatives of individuals and organizations who have experience in the delivery of workforce investment activities, as defined in 29 U.S.C. § 3102(68);
    13. the lead State agency officials with responsibility for the programs and activities carried out by one-stop partners, as described in 29 U.S.C. § 3151(b) , or if no official has that responsibility, representatives in the State with responsibility relating to these programs and activities;
    14. the Commissioner of Economic Development;
    15. the Secretary of Commerce and Community Development;
    16. the Secretary of Human Services;
    17. the Secretary of Education;
    18. two individuals who have experience in, and can speak for, the training needs of underemployed and unemployed Vermonters; and
    19. a number of appointees sufficient to constitute a majority of the Board who:
      1. are owners, chief executives, or operating officers of businesses, and other business executives or employers with optimum policymaking or hiring authority;
      2. represent businesses with employment opportunities that reflect in-demand sectors and employment opportunities in the State; and
      3. are appointed from among individuals nominated by State business organizations and business trade associations.
  4. Operation of Board.
    1. Member representation.
      1. A member of the State Board may send a designee that meets the requirements of subdivision (B) of this subdivision (1) to any State Board meeting who shall count toward a quorum and shall be allowed to vote on behalf of the Board member for whom he or she serves as a designee.
      2. Members of the State Board or their designees who represent organizations, agencies, or other entities shall be individuals with optimum policymaking authority or relevant subject matter expertise within the organizations, agencies, or entities.
      3. The members of the Board shall represent diverse regions of the State, including urban, rural, and suburban areas.
    2. Chair.   The Governor shall select a chair for the Board from among the business representatives appointed pursuant to subdivision (c)(18) of this section.
    3. Meetings.   The Board shall meet at least three times annually and shall hold additional meetings upon call of the Chair.
    4. Committees; work groups; ad hoc committees.   The Chair, in consultation with the Commissioner of Labor, may:
      1. assign one or more members or their designees to standing committees, ad hoc committees, or work groups to carry out the work of the Board; and
      2. appoint one or more nonmembers of the Board to a standing committee, ad hoc committee, or work group and determine whether the individual serves as an advisory or voting member, provided that the number of voting nonmembers on a standing committee shall not exceed the number of Board members or their designees.
    5. Quorum meetings; voting.
      1. A majority of the sitting members of the Board shall constitute a quorum, and to be valid any action taken by the Board shall be authorized by a majority of the members present and voting at any regular or special meeting at which a quorum is present.
      2. The Board may permit one or more members to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication, including an electronic, telecommunications, and video- or audio-conferencing conference telephone call, by which all members participating may simultaneously or sequentially communicate with each other during the meeting. A member participating in a meeting by this means is deemed to be present in person at the meeting.
      3. The Board shall deliver electronically the minutes for each of its meetings to each member of the Board and to the Chairs of the House Committees on Education and on Commerce and Economic Development, and to the Senate Committees on Education and on Economic Development, Housing and General Affairs.
      4. The Board may adopt in its bylaws the quorum, membership, and procedural requirements for standing committees.
    6. Reimbursement.
      1. Legislative members of the Board shall be entitled to compensation and expenses as provided in 2 V.S.A. § 23 .
      2. Unless otherwise compensated by his or her employer for performance of his or her duties on the Board, a nonlegislative member of the Board shall be eligible for per diem compensation of $50.00 per day for attendance at a meeting of the Board, and for reimbursement of his or her necessary expenses, which shall be paid through funds available for that purpose under the Workforce Innovation and Opportunity Act of 2014.
    7. Conflict of interest.   A member of the Board shall not:
      1. vote on a matter under consideration by the Board:
        1. regarding the provision of services by the member, or by an entity that the member represents; or
        2. that would provide direct financial benefit to the member or the immediate family of the member; or
      2. engage in any activity that the Governor determines constitutes a conflict of interest as specified in the State Plan required under 29 U.S.C. § 3112 or 3113.
    8. Sunshine provision.   The Board shall make available to the public, on a regular basis through open meetings, information regarding the activities of the Board, including information regarding the State Plan adopted pursuant to 29 U.S.C. § 3112 or 3113 and prior to submission of the State Plan to the U.S. Secretary of Labor, information regarding membership, and, on request, minutes of formal meetings of the Board.

HISTORY: Added 2013, No. 199 (Adj. Sess.), § 41; amended 2015, No. 157 (Adj. Sess.), § K.1; 2017, No. 189 (Adj. Sess.), § 3; 2019, No. 80 , § 19.

History

References in text.

The Workforce Innovation and Opportunity Act of 2014, referred to in subsec. (a) and subdiv. (d)(6)(B), is codified as 29 U.S.C. 3241(a).

Revision note

—2020. In subdiv. (d)(6)(A), substituted “ 2 V.S.A. § 23 ” for “ 2 V.S.A. § 406 ” in accordance with 2019, No. 144 (Adj. Sess.), § 12(2).

Amendments

—2019. Subdiv. (d)(1)(B): Inserted “or relevant subject matter expertise” after “policymaking authority”.

Subdiv. (d)(4): Substituted “Committees; work groups; ad hoc committees” for “Work groups; task forces”.

Subdiv. (d)(4)(A): Inserted “or their designees to standing committees, ad hoc committees, or”.

Subdiv. (d)(4)(B): Amended generally.

Subdiv. (d)(5)(D): Added.

—2017 (Adj. Sess.). Subsec. (a): Substituted “shall establish the State” for “shall establish a State”.

Subsec. (b): Amended generally.

—2015 (Adj. Sess.) Section heading: Substituted “Development” for “Investment” following “Workforce” in the section heading.

Subsec. (a): Substituted “29 U.S.C. § 3111” for “29 U.S.C. § 2821”, “Development” for “Investment” preceding “Board” and “Workforce Innovation and Opportunity Act of 2014” for “Workforce Investment Act of 1998”.

Subdiv. (b)(2): Substituted “Workforce Innovation and Opportunity Act of 2014” for “Workforce Investment Act of 1998”.

Subsec. (c): Amended generally.

Subdiv. (d)(1): Added new subdiv. (A) and redesignated former subdivs. (A) and (B) as present subdivs. (B) and C) and inserted “or their designees” following “State Board” in subdiv. (B).

Subdiv. (d)(6)(B): Substituted “through” for “by the Department of Labor solely from” preceding “funds available” and “Workforce Innovation and Opportunity Act of 2014” for “Workforce Investment Act of 1998”.

Subdiv. (d)(7)(B): Substituted “29 U.S.C. § 3112 or 3113” for “29 U.S.C. § 2822”.

Subdiv. (d)(8): Substituted “29 U.S.C. § 3112 or 3113” for “29 U.S.C. § 2822”.

§ 541b. Workforce education and training; duties of other State agencies, departments, and private partners.

  1. To ensure the State Workforce Development Board and the Commissioner of Labor are able to fully perform their duties under this chapter, each agency and department within State government, and each person who receives funding from the State, shall comply within a reasonable period of time with a request for data and information made by the Board or the Commissioner in furtherance of their duties under this chapter.
  2. The Agency of Commerce and Community Development shall coordinate its work in adopting a statewide economic development plan with the activities of the Board and the Commissioner of Labor.

HISTORY: Added 2013, No. 199 (Adj. Sess.), § 41; amended 2015, No. 157 (Adj. Sess.), § K.1.

History

Amendments

—2015 (Adj. Sess.). Substituted “State Workforce Development Board” for “Workforce Investment Board” in subsec. (a), and deleted “including the development and implementation of the State Plan for workforce education and training required under the Workforce Investment Act of 1998” following “Labor” in subsec. (b).

§ 542. Regional workforce education and training.

  1. The Commissioner of Labor, in coordination with the Secretary of Commerce and Community Development, and in consultation with the State Workforce Development Board, is authorized to issue performance grants to one or more persons to perform workforce education and training activities in a region.
  2. Each grant shall specify the scope of the workforce education and training activities to be performed and the geographic region to be served, and shall include performance measures and results to evaluate the grantee’s performance.
  3. The Commissioner of Labor and the Secretary of Commerce and Community Development shall jointly develop a grant process and eligibility criteria, as well as an outreach process for notifying potential participants of the grant program. The Commissioner of Labor shall have final authority to approve each grant.

HISTORY: Added 1995, No. 45 , § 1; amended 1999, No. 27 , § 3, eff. May 19, 1999; 1999, No. 119 (Adj. Sess.), § 5, eff. May 18, 2000; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 212 (Adj. Sess.), § 1; 2009, No. 33 , § 22; 2009, No. 146 (Adj. Sess.), § G14, eff. June 1, 2010; 2011, No. 52 , § 14, eff. May 27, 2011; 2013, No. 199 (Adj. Sess.), § 41; 2015, No. 11 , § 10; 2015, No. 157 (Adj. Sess.), § K.1.

History

Revision note

—2006. Substituted “workforce development council” for “human resources investment council” in accordance with the provisions of 2005, No. 212 (Adj. Sess.) § 1, which created the “workforce development council” as the “successor to and continuation of the governor’s human resource investment council”.

Amendments

—2015 (Adj. Sess.). Subsec. (a): Substituted “State Workforce Development Board” for “Workforce Investment Board” preceding “is authorized”.

—2015. Subsec. (b): Substituted “include performance measures and results to” for “include outcomes and measures to”.

—2013 (Adj. Sess.). Section heading: Substituted “education and training” for “development” following “Workforce”.

Subsec. (a): Substituted “Investment Board” for “education and training Council” following “with the Workforce”.

—2011. Rewrote the section.

—2009 (Adj. Sess.) Section amended generally.

—2009. Subsec. (d): Deleted subdiv. (3).

—2005 (Adj. Sess.) Subdiv. (c)(8): Substituted “department of labor” for “department of employment and training”.

—1999 (Adj. Sess.). Subsec. (b): Inserted “or chambers of commerce, or both” following “development organizations” in the first sentence.

Subsec. (d): Amended generally.

—1999. Section amended generally.

§ 543. Workforce education and training fund; grant programs.

  1. Creation.   There is created the Workforce Education and Training Fund in the Department of Labor to be managed in accordance with 32 V.S.A. chapter 7, subchapter 5.
  2. Purposes.   The Department shall use the Fund for the following purposes:
    1. training for Vermont workers, including those who are unemployed, underemployed, or in transition from one job or career to another;
    2. internships to provide students with work-based learning opportunities with Vermont employers;
    3. apprenticeship, preapprenticeship, and industry-recognized credential training; and
    4. other workforce development initiatives related to current and future job opportunities in Vermont as determined by the Commissioner of Labor.
  3. Administrative and other support.   The Department of Labor shall provide administrative support for the grant award process. When appropriate and reasonable, the State Workforce Development Board and all other public entities involved in economic development and workforce education and training shall provide other support in the process.
  4. Eligible activities.
    1. The Department, in collaboration with the Agency of Education when applicable, shall grant awards from the Fund to employers and entities, including private, public, and nonprofit entities, institutions of higher education, high schools, K-12 school districts, supervisory unions, technical centers, and workforce education and training programs that:
      1. create jobs, offer education, training, apprenticeship, preapprenticeship and industry-recognized credentials, mentoring, career planning, or work-based learning activities, or any combination;
      2. employ student-oriented approaches to workforce education and training; and
      3. link workforce education and economic development strategies.
    2. The Department may fund programs or projects that demonstrate actual increased income and economic opportunity for employees and employers for more than one year.
    3. The Department may fund student internships and training programs that involve the same employer in multiple years, with approval of the Commissioner.
  5. [Repealed.]
  6. Awards.   The Commissioner of Labor, in consultation with the Chair of the State Workforce Development Board, shall develop award criteria and may grant awards to the following:
    1. Training programs.
      1. Public, private, and nonprofit entities, including employers and education and training providers, for existing or new training programs that enhance the skills of Vermont workers and:
        1. train workers for trades or occupations that are expected to lead to jobs paying at least 200 percent of the current minimum wage or at least 150 percent if benefits are included; this requirement may be waived when warranted based on regional or occupational wages or economic reality;
        2. do not duplicate, supplant, or replace other available training funded with public money;
        3. provide a project timeline, including performance goals, and identify how the effectiveness and outcomes of the program will be measured, including for the individual participants, the employers, and the program as a whole; and
        4. articulate the need for the training and the direct connection between the training and the job.
      2. The Department shall grant awards under this subdivision (1) to programs or projects that:
        1. offer innovative programs of intensive, student-centric, competency-based education, training, apprenticeship, preapprenticeship and industry-recognized credentials, mentoring, or any combination of these;
        2. address the needs of workers who are unemployed, underemployed, or at risk of becoming unemployed, and workers who are in transition from one job or career to another;
        3. address the needs of employers to hire new employees or retrain incumbent workers, when the employer has demonstrated a need not within the normal course of business, with priority to training that results in new or existing job openings for which the employer intends to hire; or
        4. in the discretion of the Commissioner, otherwise serve the purposes of this chapter.
    2. Vermont Internship Program. Funding for eligible internship programs and activities under the Vermont Internship Program established in section 544 of this title.
    3. Vermont Returnship Program. Funding for eligible returnship programs and activities under the Vermont Returnship Program established in section 545 of this title.
    4. Apprenticeship Program. The Vermont Apprenticeship Program established under 21 V.S.A. chapter 13. Awards under this subdivision may be used to fund the cost of apprenticeship-related instruction provided by the Department of Labor.
    5. Career focus and planning programs. In collaboration with the Agency of Education, funding for one or more programs that institute career training and planning for young Vermonters, beginning in middle school.
  7. Career Pathways.   Programs that are funded under this section resulting in a credit, certificate, or credential shall demonstrate alignment with a Career Pathway.
  8. Expanding offerings.   A regional career and technical education center that develops an adult technical education program of study using funding under this section shall:
    1. make the program materials available to other regional career and technical education centers and adult technical education programs;
    2. to the extent possible, align the program with subsequent programs offered through the Vermont State College System, the University of Vermont and State Agricultural College, or an accredited independent college located in Vermont; and
    3. respond to current or projected occupational demands.

HISTORY: Added 2007, No. 46 , § 4, eff. May 23, 2007; amended 2007, No. 182 (Adj. Sess.), § 7, eff. June 2, 2008; 2009, No. 33 , § 23; 2009, No. 54 , § 9, eff. June 1, 2009; 2009, No. 1 (Sp. Sess.), § E.401.1; 2009, No. 1 46 (Adj. Sess.), § G14, eff. June 1, 2010; 2011, No. 52 , § 13, eff. May 27, 2011; 2013, No. 199 (Adj. Sess.), § 41; 2015, No. 51 , § C.3; 2015, No. 157 (Adj. Sess.), § K.1; 2017, No. 69 , § E.2, eff. June 28, 2017; 2017, No. 189 (Adj. Sess.), § 10.

History

Revision note

—2013. In subsec. (e), substituted “Economic Development” for “Economic, Housing, and Community Development” in light of Executive Order No. 3-56 (No. 01-13), effective April 12, 2013.

Amendments

—2017 (Adj. Sess.). Subsec. (f): Deleted “Strong” preceding “Internship Program” twice in subiv. (2), added subdiv. (3) and redesignated remaining subdivs. accordingly.

Subsecs. (g)-(h): Added.

—2017. Subsec. (a): Substituted “the” for “a” preceding “Workforce Education”.

Subsec. (c): Inserted a comma following “reasonable” in the second sentence; and substituted “Development” for “Investment” following “Workforce” in the second sentence.

Subdiv. (d)(1): Amended generally.

Subdiv. (d)(1)(A): Inserted “career planning,” following “mentoring,”.

Subdiv. (d)(3): Inserted a comma following “multiple years”.

Subdiv. (f)(1)(B)(ii): Deleted “are” preceding “at risk”.

Subdiv. (f)(1)(B)(iii): Deleted the comma following “new employees”.

Subdiv. (f)(4): Added.

—2015 (Adj. Sess.). Subsec. (f): Substituted “Development” for “Investment” preceding “Board”.

—2015. Section amended generally.

—2013 (Adj. Sess.). Section amended generally.

—2011. Subdiv. (f)(2): Amended generally.

—2009 (Adj. Sess.) Subsecs. (e), (f): Amended generally.

—2009. Subsec. (g): Repealed by Act No. 54.

—2009 (Sp. Sess.). Subdiv. (f)(1): Act No. 1 (Sp. Sess.) deleted the former fourth sentence.

—2007 (Adj. Sess.). Subdiv. (b)(2): Added the language beginning “, and for students” and ending “schools out of state” at the end.

Subsec. (d): Inserted “and training programs” following “Student internships” in the last sentence.

Subdiv. (f)(1)(G): Substituted “specific employment opportunities, including an effort and consideration by participating employers to hire those who successfully complete a training program” for “employment” at the end of the first sentence, and deleted the second sentence.

Subdiv. (f)(1)(H): Added, but was inserted into subdiv. (f)(1) in order to conform with V.S.A. style.

Effective date of 2017 amendment. 2017, No. 69 , § N.1(b) provides that the amendments to this section shall take effect on the date of enactment of the fiscal year 2018 annual budget bill, which occurred on June 28, 2017.

§ 544. Vermont Internship Program.

    1. The Department of Labor, in consultation with the Agency of Education, shall develop, and the Department shall implement, a statewide Vermont Internship Program for students who are in high school or in college and for those who are recent graduates of 24 months or less. (a) (1) The Department of Labor, in consultation with the Agency of Education, shall develop, and the Department shall implement, a statewide Vermont Internship Program for students who are in high school or in college and for those who are recent graduates of 24 months or less.
    2. The Department of Labor shall coordinate and provide funding to public and private entities for internship programs that match Vermont employers with students from public and private secondary schools, regional technical centers, the Community High School of Vermont, colleges, and recent graduates of 24 months or less.
    3. Funding awarded through the Vermont Internship Program may be used to build and administer an internship program and to provide participants with a stipend during the internship, based on need. Funds may be made only to programs or projects that:
      1. do not replace or supplant existing positions;
      2. expose students to the workplace or create real workplace expectations and consequences;
      3. provide a process that measures progress toward mastery of skills, attitude, behavior, and sense of responsibility required for success in that workplace;
      4. are designed to motivate and educate participants through work-based learning opportunities with Vermont employers;
      5. include mechanisms that promote employer involvement with secondary and postsecondary students and curriculum and the delivery of education at the participating schools; or
      6. offer participants a continuum of learning, experience, and relationships with employers that will make it financially possible and attractive for graduates to continue to work and live in Vermont.
    4. As used in this section, “internship” means a learning experience working with an employer where the intern may, but does not necessarily, receive academic credit, financial remuneration, a stipend, or any combination of these.
  1. The Department of Labor, in collaboration with the Agencies of Agriculture, Food and Markets and of Education, State-funded postsecondary educational institutions, the State Workforce Development Board, and other State agencies and departments that have workforce education and training and training monies, shall:
    1. identify new and existing funding sources that may be allocated to the Vermont Internship Program;
    2. collect data and establish program goals and performance measures that demonstrate program results for internship programs funded through the Vermont Internship Program;
    3. develop or enhance a website that will connect students and graduates with internship opportunities with Vermont employers;
    4. engage appropriate agencies and departments of the State in the Internship Program to expand internship opportunities with State government and with entities awarded State contracts; and
    5. work with other public and private entities to develop and enhance internship programs, opportunities, and activities throughout the State.

HISTORY: Added 2011, No. 52 , § 11, eff. May 27, 2011; amended 2013, No. 92 (Adj. Sess.), § 253, eff. Feb. 14, 2014; 2013, No. 199 (Adj. Sess.), § 41; 2015, No. 11 , § 11; 2015, No. 51 , § C.3; 2015, No. 157 (Adj. Sess.), § K.1; 2017, No. 189 (Adj. Sess.), § 11.

History

Editor’s note

—2013 (Adj. Sess.). The text of subsec. (b) is based on a harmonization of two amendments. During the 2013 Adjourned Session, this section was amended twice. In order to reflect all of the changes enacted by the Legislature during the 2013 Adjourned Session, the text of Act No. 92 § 253 and Act No. 199 , § 41 were merged to arrive at a single version of that subsec.

Amendments

—2017 (Adj. Sess.). Deleted “Strong” preceding “Internship” in the section heading and throughout the text.

—2015 (Adj. Sess.). Subsec. (b): Substituted “Development” for “Investment” preceding “Board”.

—2015. Section amended generally.

—2013 (Adj. Sess.). Subdiv. (a)(1): Act No. 92 substituted “Agency of Education” for “department of education”.

Subdiv. (a)(4): Act No. 199 substituted “As used in” for “For the purposes of” at the beginning.

Subsec. (b): Act No. 199 substituted “Investment Board” for “Development Council” following “the Workforce”.

§ 545. Vermont Returnship Program.

  1. As used in this section, “returnship” means an on-the-job learning experience working with an employer where an individual may, but does not necessarily, receive academic credit, financial remuneration, a stipend, or any combination of these for an individual who is returning to the workforce after an extended absence or is seeking a limited-duration on-the-job work experience in a different occupation or occupational setting.
    1. The Department of Labor shall develop and implement the statewide Vermont Returnship Program. (b) (1) The Department of Labor shall develop and implement the statewide Vermont Returnship Program.
    2. The Department of Labor shall coordinate and provide funding to public and private entities for returnship programs and opportunities that match experienced workers with Vermont employers.
    3. Funding awarded through the Program may be used to build and administer coordinated and cohesive programs and to provide participants with a stipend during the returnship, based on need. Funds may be made available only to programs or projects that:
      1. do not replace or supplant existing positions;
      2. expose individuals to real and meaningful workplace experiences;
      3. provide a process that measures progress toward mastery of hard and soft professional skills and other factors that indicate a likelihood of success in the workplace;
      4. are designed to motivate and educate participants through work-based learning opportunities with Vermont employers; or
      5. offer participants a continuum of learning, experience, and relationships with employers that will make it financially possible and attractive for individuals to continue to work and live in Vermont.
  2. The Department of Labor shall:
    1. identify new and existing funding sources that may be allocated to the Program;
    2. collect data and establish program goals and performance measures that demonstrate program results for returnship programs funded through the Program;
    3. engage appropriate agencies and departments of the State in the Program to expand returnship opportunities within State government and with entities awarded State contracts; and
    4. work with other public and private entities to develop and enhance returnship programs, opportunities, and activities throughout the State.

HISTORY: Added 2017, No. 189 (Adj. Sess.), § 12.

§ 546. State postsecondary attainment goal.

  1. It shall be the goal of the State of Vermont that not less than 70 percent of working-age Vermonters will hold a credential of value, as defined by the State Workforce Development Board, by the year 2025.
  2. It is the policy of the State of Vermont to:
    1. promote awareness of career pathways and the value of postsecondary education and training;
    2. expand access to postsecondary education and training to students of all ages;
    3. increase completion of postsecondary education and training programs by ensuring that Vermonters have the supports they need to succeed; and
    4. maximize partnerships across and within sectors to achieve State workforce development and education goals.
  3. In its annual report required in section 540 of this title, the Department shall include the number of postsecondary credentials awarded and the data sets that are used to inform the report.

HISTORY: Added 2019, No. 80 , § 5.

Chapter 23. Air Pollution Control

CROSS REFERENCES

Enforcement of environmental laws generally, see § 8001 et seq. of this title.

Powers of Agency of Natural Resources relating to provisions of this chapter, see 3 V.S.A. § 2822 .

Administration of this chapter by Department of Environmental Conservation, see 3 V.S.A. § 2873 .

Conservation commissions; inventories and recommendations relating to air pollution, see 24 V.S.A. § 4505 .

Waste management, see § 6601 et seq. of this title.

ANNOTATIONS

Cited.

Cited in Board of Health v. Town of Waterbury, 129 Vt. 168, 274 A.2d 495, 1970 Vt. LEXIS 219 (1970); Secretary v. Henry, 161 Vt. 556, 641 A.2d 1345, 1994 Vt. LEXIS 38 (1994).

§ 551. Declaration of policy and purpose.

  1. It is hereby declared to be the public policy of this State and the purpose of this chapter to achieve and maintain such levels of air quality as will protect human health and safety, and to the greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of the people, promote the economic and social development of this State, and facilitate the enjoyment of the natural attractions of this State.
  2. It is also declared that local and regional air pollution control programs are to be supported to the extent practicable as essential instruments for the securing and maintenance of appropriate levels of air quality.
  3. To these ends it is the purpose of this chapter to provide for a coordinated statewide program of air pollution prevention, abatement, and control, for an appropriate distribution of responsibilities among the State and local units of government, and to facilitate cooperation across jurisdictional lines in dealing with problems of air pollution not confined within single jurisdictions, and to provide a framework within which all values may be balanced in the public interest.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 1.

§ 552. Definitions.

As used in this chapter:

  1. “Agency” means the Agency of Natural Resources.
  2. “Air contaminant” means dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substances, or any combination thereof.
  3. “Air pollution” means the presence in the outdoor atmosphere of one or more air contaminants in such quantities, and duration as is or tends to be injurious to human health or welfare, animal or plant life, or property, or would unreasonably interfere with the enjoyment of life or property. Such effects may result from direct exposure to air contaminants, from deposition of air contaminants to other environmental media, or from alterations caused by air contaminants to the physical or chemical properties of the atmosphere.
  4. [Repealed.]
  5. “Emission” means a release into the outdoor atmosphere of air contaminants.
  6. “Person” shall mean an individual, partnership, corporation, association, unincorporated organization, trust, or any other legal or commercial entity, including a joint venture or affiliated ownership. The word “person” also means any subdivision, agency, or instrumentality of this State, of any other state, of the United States, or of any interstate body.
  7. “Secretary” means the Secretary of Natural Resources or the Secretary’s duly authorized representative.
  8. “Ozone-depleting chemical” means manufactured substances that are known or reasonably may be anticipated to cause or contribute to depletion of ozone in the earth’s stratosphere.
    1. Primary ozone-depleting chemicals include:
      1. chlorofluorocarbon-11.
      2. chlorofluorocarbon-12.
      3. chlorofluorocarbon-113.
      4. chlorofluorocarbon-114.
      5. chlorofluorocarbon-115.
      6. halon-1211.
      7. halon-1301.
      8. halon-2402.
      9. carbon tetrachloride.
      10. methyl chloroform.
    2. Other ozone-depleting chemicals include:
      1. hydrochlorofluorocarbon-22.
      2. hydrochlorofluorocarbon-123.
      3. hydrochlorofluorocarbon-124.
      4. hydrochlorofluorocarbon-141(b).
      5. hydrochlorofluorocarbon-142(b).
    3. The Secretary may list, by rule, other manufactured substances that are known or reasonably may be anticipated to cause or contribute to depletion of stratospheric ozone.
  9. “Reasonably available control technology” means devices, systems, process modifications, or other apparatus or techniques designed to prevent or control emissions that are reasonably available, taking into account the social, environmental, and economic impact of such controls, and alternative means of emission control.
  10. “Schedule of compliance” means a schedule of remedial measures, including an enforceable sequence of actions or operations, leading to timely compliance with applicable requirements related to the control of air contaminant emissions or the prevention or control of air pollution.
  11. “Greenhouse gas” means any chemical or physical substance that is emitted into the air and that the Secretary may reasonably anticipate to cause or contribute to climate change, including carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 2; amended 1971, No. 212 (Adj. Sess.), § 1; 1979, No. 195 (Adj. Sess.), § 1, eff. May 6, 1980; 1987, No. 76 , § 18; 1991, No. 266 (Adj. Sess.), § 3; 1993, No. 92 , § 2; 2003, No. 115 (Adj. Sess.), § 11; 2007, No. 209 (Adj. Sess.), § 3.

History

Revision note

—2018. In subdiv. (11), deleted “, but not limited to,” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2007 (Adj. Sess.). Subdiv. (11): Added.

—2003 (Adj. Sess.). Subdiv. (4): Repealed.

Subdiv. (7): Substituted “the secretary’s duly authorized representative” for “such person as the secretary may designate”.

—1993. Subdiv. (3): Deleted “in accordance with the establishment of ambient air quality standards for the state as a whole or any part thereof, based on nationally recognized criteria applicable to the state of Vermont” at the end of the first sentence and added the second sentence.

Subdiv. (6): Substituted “any subdivision, agency, or instrumentality of this state, of any other state, of the United States, or of any interstate body” for “a municipality or state agency” following “means” in the second sentence.

Subdiv. (9): Added.

Subdiv. (10): Added.

—1991 (Adj. Sess.). Subdiv. (8): Added.

—1987. Subdiv. (1): Substituted “agency of natural resources” for “agency of environmental conservation”.

Subdiv. (7): Substituted “agency of natural resources” for “agency of environmental conservation” following “secretary of the”.

—1979 (Adj. Sess.). Subdiv. (4): Inserted “solid waste and” preceding “air quality”.

—1971 (Adj. Sess.). Redesignated former subdivs. (1)-(4) as present subdivs. (2), (3), (5) and (6), respectively, and added subdivs. (1), (4) and (7).

CROSS REFERENCES

Agency of Natural Resources, see 3 V.S.A. § 2802 .

§ 553. Agency.

The Agency is designated as the air pollution control agency for the State. The Secretary or the Secretary’s duly authorized representative, within the Agency, shall perform the functions vested in the Agency, as specified in the following sections of this chapter.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 3; amended 1971, No. 212 (Adj. Sess.), § 2; 1979, No. 195 (Adj. Sess.), § 2, eff. May 6, 1980; 2003, No. 115 (Adj. Sess.), § 12, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Deleted the subsec. (a) designation; substituted “the secretary’s” for “his” and “authorized” for “designated” and deleted subsec. (b).

—1979 (Adj. Sess.). Subsec. (b): Inserted “solid waste and” preceding “air quality variance board”.

—1971 (Adj. Sess.). Section amended generally.

§ 554. Powers.

In addition to any other powers conferred on him or her by law, the Secretary shall have power to:

  1. Appoint and employ personnel and consultants as may be necessary for the administration of this chapter.
  2. Adopt, amend, and repeal rules, implementing the provisions of this chapter.
  3. Hold hearings related to any aspect of or matter in the administration of this chapter, and in connection therewith, subpoena witnesses and the production of evidence.
  4. Issue orders as may be necessary to effectuate the purposes of this chapter and enforce the same by all appropriate administrative and judicial proceedings.
  5. Prepare and develop a comprehensive plan or plans for the prevention, abatement, and control of air pollution in this State.
  6. [Repealed.]
  7. Encourage local units of government to handle air pollution problems within their respective jurisdiction, and by compact on a cooperative basis, and to provide technical and consultative assistance therefor.
  8. Encourage and conduct studies, investigations, and research relating to air contamination and air pollution and their causes, effects, prevention, abatement, and control.
  9. Determine by appropriate means the degree of air contamination and air pollution in the State and the several parts thereof.
  10. Make a continuing study of the effects of the emission of air contaminants from motor vehicles on the quality of the outdoor atmosphere of this State and the several parts thereof, and make recommendations to appropriate public and private bodies with respect thereto.
  11. Establish ambient air quality standards for the State as a whole or for any part thereof, based on nationally recognized criteria applicable to the State of Vermont.
  12. Collect and disseminate information and conduct educational and training programs relating to air contamination and air pollution.
  13. Advise, consult, contract, and cooperate with other agencies of the State, local governments, industries, other states, interstate or interlocal agencies, and the federal government, and with interested persons or groups.
  14. Consult, upon request, with any person proposing to construct, install, or otherwise acquire an air contaminant source or device or system for the control thereof, concerning the efficacy of the device or system, or the air pollution problem that may be related to the source, device or system.  Nothing in any consultation shall be construed to relieve a person from compliance with this chapter, rules in force pursuant thereto, or any other provision of law.
  15. Accept, receive, and administer grants or other funds or gifts from public and private agencies, including the federal government, for the purpose of carrying out any of the functions of this chapter.  The funds received by the Secretary pursuant to this section shall be deposited in the State Treasury to the account of the Secretary.
  16. Have access to records relating to emissions that cause or contribute to air contamination.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 4; amended 1971, No. 212 (Adj. Sess.), § 3; 1989, No. 98 , § 4(b).

History

Amendments

—1989. Subdiv. (6): Repealed.

—1971 (Adj. Sess.). In the introductory clause, substituted “him” for “it”.

Subdiv. (15): Substituted “secretary” for “state board of health” in the second sentence.

Permit fees. 1987, No. 76 , § 19, provides: “It is the intention of the general assembly that the provisions of this act [which amended section 2822 of Title 3, sections 555, 905b, 1263, 1265, 1395, 1927, 1936, 6083, 6089, and 6231 of this title, and section 252 of Title 21] governing permit fees shall supersede fees established elsewhere for these permits.”

CROSS REFERENCES

Enforcement of subpoenas issued by administrative agencies generally, see 3 V.S.A. § 809a .

Modification of subpoenas or discovery orders issued by administrative agencies, see 3 V.S.A. § 809b .

Procedure for adoption of administrative rules, see 3 V.S.A. part 1, chapter 25.

ANNOTATIONS

Emissions control standards.

The air pollution control regulations adopted by the Vermont Agency of Natural Resources (ANR) pursuant to 10 V.S.A. § 554(2) employ a three-step process to determine whether the emission of hazardous air contaminants will be authorized: ANR must (1) determine whether the emission rate will exceed the action level specified in the regulations for that contaminant; if the emission does not exceed the action level, there is no further regulation of that contaminant, but if it does, then (2) the source of the emissions is required to use control technologies to achieve the hazardous most stringent emission rate (HMSER), then (3) even if the second step is met, ANR may not issue a permit allowing the discharge of hazardous air contaminants which cause or contribute to ambient air concentrations in excess of any Hazard Limiting Value as listed in the regulations. Conservation Law Foundation v. Burke, 162 Vt. 115, 645 A.2d 495, 1993 Vt. LEXIS 190 (1993).

§ 555. Classification, reporting and registration.

  1. The Secretary, by rule, may classify air contaminant sources, which in his or her judgment may cause or contribute to air pollution, according to levels and types of emissions and other characteristics that relate to air pollution, and may require reporting by any class. Classifications made pursuant to this subsection may apply to the State as a whole or to any designated area of the State, and shall be made with special reference to effects on health, economic, and social factors, and physical effects on property.
  2. Any person operating or responsible for the operation of air contaminant sources of any class for which the rules of the Secretary require reporting shall make reports containing information as required by the Secretary concerning location, size, and height of contaminant outlets, processes employed, fuels used and the nature and time periods of duration of emissions, and such other information relevant to air pollution and available or reasonably capable of being assembled.
    1. Any person operating or responsible for the operation of an air contaminant source shall register the source with the Secretary and renew the registration annually if the source emits: (c) (1) Any person operating or responsible for the operation of an air contaminant source shall register the source with the Secretary and renew the registration annually if the source emits:
      1. more than or equal to five tons of contaminants per year; or
      2. less than five tons of contaminants per year and is a source specified in rule by the Secretary.
    2. Each day of operating an air contaminant source without a valid, current registration shall constitute a separate violation and subject the operator to a civil penalty not to exceed $100.00 per violation. The Secretary shall, after notice and opportunity for public hearing, adopt rules to carry out this section.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 5; amended 1971, No. 212 (Adj. Sess.), § 3; 1987, No. 76 , § 3; 2015, No. 23 , § 96; 2015, No. 57 , § 22b.

History

Amendments

—2015. Subsec. (a): Inserted “or her” following “him” in the first sentence.

Subsec. (c): Amended generally.

—1987. Deleted “and” preceding “reporting” and added “and registration” thereafter in the section catchline and added subsec. (c).

—1971 (Adj. Sess.). Subsec. (a): Substituted “secretary” for “state board of health” in the first sentence.

Subsec. (b): Substituted “secretary” for “state board of health”.

CROSS REFERENCES

Procedure for adoption of administrative rules, see 3 V.S.A. part 1, chapter 25.

§ 556. Permits for the construction or modification of air contaminant sources.

  1. No person shall construct or install any air contaminant source classified within a class or category identified by rule of the Secretary as being subject to permitting requirements under this section without first submitting a complete application to and obtaining a permit from the Secretary pursuant to this section. A complete application shall contain such plans, specifications and other information as the Secretary deems necessary in order to determine whether the proposed construction or installation will be in compliance with the provisions of this chapter and with the rules adopted under this chapter. Each applicant shall pay an application fee as required by 3 V.S.A. § 2822 .
  2. The Secretary may require an applicant to submit any additional information that the Secretary considers necessary to make the completeness determination required in subsection (a) of this section and shall not grant a permit until the information is furnished and evaluated. When an application is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title.
  3. If the Secretary determines that the proposed construction or installation of an air contaminant source will be in compliance with all requirements of this chapter and the rules adopted under this chapter, the Secretary shall issue a permit containing such terms and conditions as may be necessary to carry out the purposes of this chapter. If the Secretary determines that the proposed construction or installation of an air contaminant source will not be in compliance with all requirements of this chapter and the rules adopted under this chapter, the Secretary shall deny the permit, shall notify the applicant in writing, and shall state in that document the reasons for the permit denial.
  4. The Secretary may suspend, terminate, modify, or revoke for cause and may reissue any permit issued under this section.
  5. The Secretary may issue an operating permit required under section 556a of this title in conjunction with or as a part of a permit to construct or install, issued under this section, provided that there is compliance with all applicable requirements of both sections.
  6. For the purposes of this chapter, the addition to or enlargement or replacement of an air contaminant source, or any major alteration therein, shall be construed as the construction or installation of a new air contaminant source.
  7. All facilities or parts thereof identified in the plans, specifications or other information submitted pursuant to subsection (a) of this section shall be maintained in good working order.
  8. The absence or failure to issue a permit pursuant to this section shall not relieve any person from compliance with any emission control requirements or with any other provision of law.
  9. Notwithstanding any provisions of this section, section 5-503 of the air pollution control regulations, as adopted through April 27, 2007 (indirect source permits) is hereby repealed.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 6; amended 1971, No. 212 (Adj. Sess.), § 3; 1993, No. 92 , § 3; 2009, No. 54 , § 56, eff. June 1, 2009; 2009, No. 146 (Adj. Sess.), § F8; 2015, No. 150 (Adj. Sess.), § 6, eff. Jan. 1, 2018.

History

Amendments

—2015 (Adj. Sess.). Subdiv. (b): Rewritten.

—2009 (Adj. Sess.) Subsec. (b): Amended generally.

—2009. Subsec. (i): Added.

—1993. Rewrote the section catchline and subsecs. (a) and (b), added new subsecs. (c) through (e), redesignated former subsec. (c) as subsec. (f) and inserted “the” preceding “addition” and preceding “construction” in that subsec., redesignated former subsec. (d) as subsec. (g) and substituted “identified in the” for “called for by” preceding “plans” in that subsec., and redesignated former subsec. (f) as subsec. (h) and substituted “permit” for “rule or order” following “issue a” in that subsec.

—1971 (Adj. Sess.). Subsec. (a): Substituted “him” for “it”, “his” for “its”, “he” for “it”, and “secretary” for “state board of health”.

Subsec. (b): Substituted “secretary” for “state board of health”.

Subsec. (e): Substituted “secretary” for “state board of health”.

ANNOTATIONS

Permits.

In approving an air pollution permit for the operation of an asphalt plant, the trial court erred in ordering the applicant to collect an additional six months of surface meteorological data at the plant site. This condition was unsupported by any findings of the court; there were no findings to the effect that the data were not representative, that local weather was substantially different from the Burlington or Albany sampling, or that the Agency of Natural Resources acted unreasonably in relying on its Guidelines. In re LiCausi, 2008 VT 59, 184 Vt. 75, 955 A.2d 1177, 2008 Vt. LEXIS 53 (2008).

Although a neighbor was correct that the meteorological data used in a 2004 application for an air pollution permit were more than 16 years old, the applicant was not required to submit an updated evaluation with its 2004 permit application. No emission from the proposed asphalt plant exceeded 50 tons per year; the increase in carbon monoxide would not cause the plant to exceed the regulatory significant level for this particular contaminant; and because there had been no change in background criteria pollutants that would cause a violation of National Ambient Air Quality Standards, the Agency of Natural Resources did not require the applicant to submit a revised evaluation. In re LiCausi, 2008 VT 59, 184 Vt. 75, 955 A.2d 1177, 2008 Vt. LEXIS 53 (2008).

Because the projected emissions of a proposed asphalt plant did not include any pollutant in excess of the respective significance level, an applicant for an air pollution permit was not required by Agency of Natural Resources regulations to include the impact of nearby sources in its evaluation. In re LiCausi, 2008 VT 59, 184 Vt. 75, 955 A.2d 1177, 2008 Vt. LEXIS 53 (2008).

§ 556a. Operating permits.

  1. Upon a date specified in the rules adopted by the Secretary to implement this section, it shall be unlawful for any person to operate an air contaminant source that has allowable emissions of more than 10 tons per year of all contaminants, excluding greenhouse gases, except in compliance with a permit issued by the Secretary under this section. The Secretary may require that air contaminant sources with allowable emissions of 10 tons or less per year obtain such a permit, upon determining that the toxicity and quantity of hazardous air contaminants emitted may adversely affect susceptible populations, or if deemed appropriate based on an evaluation of the requirements of the federal Clean Air Act.
  2. Any person required by this section to have a permit shall, not later than 12 months after the date on which the source becomes subject to rules adopted by the Secretary to implement this section, submit a complete permit application and related materials to the Secretary. The Secretary may require any applicant, including a person requesting permission to operate under the terms of a previously issued general permit, to submit any additional information that the Secretary considers necessary in order to determine whether the operation of the air contaminant source will be in compliance with the provisions of this chapter and with the rules adopted under this chapter. The Secretary may refuse to grant a permit, or permission to operate under the terms of a general permit, until that information is furnished and evaluated, and until that determination has been made. If a person submits a timely and complete application for a permit required by this section, but final action has not been taken on that application, the source’s failure to have a permit shall not be a violation of this section, unless the delay in final action was due to the failure of the applicant to submit, in a timely manner, information required or requested to process the application.
  3. When an application is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title.
  4. Each permit issued under this section shall contain such terms and conditions as may be necessary to assure compliance with the requirements of this chapter and applicable rules and shall be issued for a fixed term, not to exceed five years. In addition, the Secretary shall, where necessary, include in a permit issued under this section conditions that revise existing or set new emission control requirements for the source based on, at a minimum, the application of reasonably available control technology. For any source that, in whole or in part, is not in compliance with all applicable requirements, the permit shall include an appropriate schedule of compliance that is acceptable to the Secretary.
  5. A person may renew a permit issued under this section upon application to the Secretary for a fixed period of time, not to exceed five years. The Secretary shall not issue a permit renewal unless the applicant first demonstrates that the emissions from the subject source meet all applicable emission control requirements or are subject to, and in compliance with, an appropriate schedule of compliance.
  6. If an application for a permit renewal has been submitted to the Secretary six months prior to the termination of the permit, and any additional information requested by the Secretary has been submitted in a timely manner, but the Secretary has failed to issue or deny the renewal permit before the end of the term of the previous permit, the permit shall not expire until the renewal permit has been issued or denied. In the event of a conflict between this subsection and 3 V.S.A. § 814(b) , the provisions of this section shall govern.
  7. The Secretary shall have power to suspend, terminate, modify, or revoke for cause and to reissue any permit issued under this section.
  8. The Secretary may adopt, as a rule under 3 V.S.A. chapter 25, a general operating permit covering numerous similar sources.
  9. Failure of the Secretary to act on a permit application or a permit renewal application within 18 months after the date of receipt of a completed application shall be treated as a final permit action solely for purposes of obtaining judicial review of such action by the applicant, by any person who participated in the public comment process or by any other adversely affected person in order to compel the Secretary to act on such application without additional delay.
  10. Except in compliance with a permit issued by the Secretary under this section, it shall be unlawful for a person to operate an air contaminant source that has allowable emissions of greenhouse gases that equal or exceed any threshold established by the U.S. Environmental Protection Agency at or above which such emissions are subject to the requirements of subchapter V (permits) of 42 U.S.C. chapter 85 (air pollution prevention and control). Based on available emission control technologies or energy efficiency measures, or as otherwise appropriate to implement the provisions of this chapter, the Secretary may adopt rules to require air contaminant sources with allowable emissions below such threshold to obtain a permit under this section.

HISTORY: Added 1993, No. 92 , § 4; amended 2009, No. 146 (Adj. Sess.), § F9, eff. May 7, 2010; 2015, No. 75 (Adj. Sess.), § 4; 2015, No. 150 (Adj. Sess.), § 7, eff. Jan. 1, 2018.

History

References in text.

The federal Clean Air Act, referred to in the second sentence of subsec. (a), is codified as 42 U.S.C. § 7401 et seq.

Amendments

—2015 (Adj. Sess.). Subsec. (c): Rewritten by Act No. 150.

Subsec. (e): Act No. 150 amended generally.

Subsec. (f): Act No. 75 Substituted “Secretary six” for “secretary 12” preceding “months”.

Subsec. (h): Rewritten by Act No. 150.

—2009 (Adj. Sess.) Subsec. (a): Added “excluding greenhouse gases” following “contaminants” in the first sentence.

Subsec. (c): Amended generally.

Subsec. (e): Amended generally.

Subsec. (j): Added.

§ 557. Inspections.

Any duly authorized officer, employee, or representative of the Secretary may enter and inspect any property, premise or place on or at which an air contaminant source is located or is being constructed or installed at any reasonable time for the purpose of ascertaining the state of compliance with this chapter and rules in force pursuant thereto. No authorized person shall refuse entry or access to any authorized representative of the Secretary who requests entry for purposes of inspection, and who presents appropriate credentials; nor shall any person obstruct, hamper, or interfere with the inspection. If requested, the owner or operator of the premises shall receive a report setting forth all facts found that relate to compliance status.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 7; amended 1971, No. 212 (Adj. Sess.), § 3.

History

Amendments

—1971 (Adj. Sess.). Substituted “secretary” for “state board of health” in the first and second sentences.

§ 558. Emission control requirements.

The Secretary may establish such emission control requirements, by rule, as in his or her judgment may be necessary to prevent, abate, or control air pollution. The requirements may be for the State as a whole or may vary from area to area, as may be appropriate to facilitate accomplishment of the purposes of this chapter, and in order to take necessary or desirable account of varying local conditions.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 8; amended 1971, No. 212 (Adj. Sess.), § 3.

History

Amendments

—1971 (Adj. Sess.). Substituted “secretary” for “state board of health” in the first sentence.

ANNOTATIONS

Open burning.

Regulations regarding open burning were well designed to avoid unreasonable hardship, and as such were a valid exercise of the police power of the State. Board of Health v. Town of Waterbury, 129 Vt. 168, 274 A.2d 495, 1970 Vt. LEXIS 219 (1970).

§ 559. Repealed. 1989, No. 98, § 4(b).

History

Former § 559. Former § 559, establishing the procedure for enforcement of the chapter and rules promulgated under it, was derived from 1967, No. 310 (Adj. Sess.), § 9, and amended by 1971, No. 212 (Adj. Sess.), § 3.

§ 560. Emergency procedure.

  1. Any other provisions of law to the contrary notwithstanding, if the Secretary finds that a generalized condition of air pollution exists and that it creates an emergency requiring immediate action to protect human health or safety, with the concurrence of the Governor, the Secretary shall order persons causing or contributing to the air pollution to reduce or discontinue immediately the emission of air contaminants and such order shall fix a place and time not later than 24 hours thereafter for a hearing to be held before the Director.  Not more than 24 hours after the commencement of such hearing and without adjournment thereof, the Director shall affirm, modify or set aside the order.
  2. In the absence of a generalized condition of air pollution of the type referred to in subsection (a) of this section, if the Secretary finds that emissions from the operation of one or more air contaminant sources is causing imminent danger to human health or safety, the Director of Occupational Health may order the person or persons responsible for the operation or operations in question to reduce or discontinue emissions immediately, without regard to the provisions of section 559 of this title.  In that event, the requirements for hearing and affirmance, modification, or setting aside of orders set forth in subsections 559(a) and (b) shall apply.
  3. Nothing in this section shall be construed to limit any power that the Governor or any other officer may have to declare an emergency and act on the basis of such declaration.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 10; amended 1971, No. 205 (Adj. Sess.), § 6; 1971, No. 212 (Adj. Sess.), § 3.

History

References in text.

Section 559 of this title and subsecs. 559(a) and (b), referred to in subsec. (b), were repealed by 1989, No. 98 , § 4(b). In subsec. (a), the “Director” appears to refer to the Director of Occupational Health. When this chapter was first adopted, it was administered by the State Board of Health. 1967, No. 310 (Adj. Sess.).

Amendments

—1971 (Adj. Sess.). Subsec. (a): Act No. 212 substituted “secretary” for “state board of health” in the first sentence.

Subsec. (b): Act No. 205 substituted “director of occupational health” for “director of industrial hygiene” in the first sentence. Act No. 212 substituted “secretary” for “state board of health” in the first sentence.

CROSS REFERENCES

Occupational Safety and Health, see 21 V.S.A. § 221 et seq.

§ 561. Variances.

  1. A person who owns or is in control of any plant, building, structure, process, or equipment may apply to the Secretary for a variance from the rules adopted under this chapter. The Secretary may grant a variance if the Secretary finds that:
    1. the emissions occurring or proposed to occur do not endanger or tend to endanger human health or safety; and
    2. compliance with the rules from which variance is sought would produce serious hardship without equal or greater benefits to the public.
  2. No variance shall be granted pursuant to this section except after public notice and an opportunity for a public meeting and until the Secretary has considered the relative interests of the applicant, other owners of property likely to be affected by the discharges, and the general public.
  3. Any variance or renewal thereof shall be granted within the requirements of subsection (a) of this section and for time periods and under conditions consistent with the reasons therefore, and within the following limitations:
    1. If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, abatement, or control of the air pollution involved, it shall be only until the necessary practicable means for prevention, abatement, or control become known and available, and subject to the taking of any substitute or alternate measures that the Secretary may prescribe.
    2. If the variance is granted on the ground that compliance with the particular requirement or requirements from which variance is sought will necessitate the taking of measures that, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the Secretary is requisite for the taking of the necessary measures. A variance granted on the ground specified herein shall contain a time schedule for the taking of action in an expeditious manner and shall be conditioned on adherence to the time schedule.
    3. If the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in subdivisions (1) and (2) of this subsection, it shall be for not more than one year, except that a variance granted from the rules of the Secretary pertaining to stage II vapor recovery controls at gasoline dispensing facilities shall be for a period that extends until January 1, 2013.
  4. Any variance granted pursuant to this section may be renewed on terms and conditions and for periods that would be appropriate on initial granting of a variance. If complaint is made to the Secretary on account of the variance, no renewal thereof shall be granted, unless following public notice and an opportunity for a public meeting on the complaint, the Secretary finds that renewal is justified. No renewal shall be granted except on application therefore. The application shall be made at least 60 days prior to the expiration of the variance. Immediately upon receipt of an application for renewal, the Secretary shall give public notice of the application.
  5. A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the Secretary.
  6. Nothing in this section and no variance or renewal granted pursuant hereto shall be construed to prevent or limit the application of the emergency provisions and procedures of section 560 of this chapter to any person or the person’s property.
  7. On application from a person who is subject to an increased air emission fee caused by amendments to the provisions of 3 V.S.A. § 2822(j) , (k), and (l), the Secretary may grant an amendment in fee amount. A fee amendment under this subsection may be granted only if the applicant establishes that payment of fees would produce serious hardship. Fee amendments granted under this subsection shall not be subject to the findings required for the issuance of a variance under subsection (a) of this section, but fee amendments shall otherwise be subject to the provisions of this chapter regarding variances.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 11; amended 1971, No. 212 (Adj. Sess.), § 3; 1993, No. 92 ,§§ 5, 19; 1993, No. 232 (Adj. Sess.), § 38, eff. March 15, 1995; 2003, No. 115 (Adj. Sess.), § 13, eff. Jan. 31, 2005; 2005, No. 26 , § 4; 2009, No. 22 , § 9(c).

History

Amendments

—2009. Subsec. (c)(3): Added “, except that a variance granted from the rules of the secretary pertaining to stage II vapor recovery controls at gasoline dispensing facilities shall be for a period that extends until January 1, 2013” following “one year”.

—2005. Subsec. (a): Deleted the former second sentence.

—2003 (Adj. Sess.). Subsec. (a): Substituted “secretary” for “board” preceding “for a variance” and “adopted under this chapter” for “of the secretary” following “rules” and made a minor change in punctuation in the first sentence; and substituted “secretary” for “board” preceding “may grant” and “the secretary” for “it” preceding “finds that” in the third sentence of the introductory paragraph.

Subsec. (b): Deleted “hearing on due” preceding “notice”; inserted “and an opportunity for a public meeting” thereafter and substituted “secretary” for “board” preceding “has considered”.

Subsec. (c): Substituted “secretary” for “board” preceding “may prescribe” and made minor changes in punctuation in subdiv. (1), and substituted “secretary” for “board” preceding “is requisite” in the first sentence of subdiv. (2).

Subsec. (d): Substituted “secretary” for “board” wherever it appeared throughout the subsec.; deleted “hearing on the complaint on due” preceding “notice” and inserted “and an opportunity for a public meeting on the complaint” thereafter in the second sentence; substituted “60 days” for “sixty days” in the fourth sentence; and deleted “in accordance with rules of the board” following “application” and made a minor change in punctuation in the fifth sentence.

Subsec. (e): Substituted “secretary” for “board” following “discretion of the” and deleted the second sentence.

Subsec. (f): Substituted “the person’s” for “his” preceding “property”.

Subsec. (g): Substituted “secretary” for “board” preceding “may grant” and made a minor change in punctuation in the first sentence.

—1993 (Adj. Sess.). Subsec. (e): Substituted “environmental court” for “environmental law division” in the second sentence.

—1993. Subsec. (a): Added the second sentence.

Subsec. (e): Inserted “or denied” following “granted” and substituted “by appealing that decision within 30 days to the environmental law division established under 4 V.S.A. chapter 27, according to the provisions of section 562 of this title” for “by a proceeding in the appropriate court” following “review thereof” in the second sentence.

Subsec. (g): Added.

—1971 (Adj. Sess.). Subsec. (a): Substituted “the rules of the secretary” for “its rules” following “a variance from” in the first sentence and “board” for “state board of health” wherever it appeared.

Subsec. (b): Substituted “board” for “state board of health”.

Subsec. (c): Substituted “board” for “state board of health” wherever it appeared.

Subsec. (d): Substituted “board” for “state board of health” in the second and fifth sentences.

Subsec. (e): Substituted “board” for “state board of health” wherever it appeared.

ANNOTATIONS

Cited.

Cited in Conservation Law Foundation v. Burke, 162 Vt. 115, 645 A.2d 495, 1993 Vt. LEXIS 190 (1993).

§ 562. Hearings and judicial review appeals.

  1. No rule or regulation and no amendment or repeal thereof shall take effect except after public hearing. The Secretary shall appoint a time and place for the hearing and shall order the publication of the substance thereof and of the time and place of hearing two weeks successively in the daily newspapers of the State, the last publication to be at least seven days before the day appointed for the hearing.
  2. Appeals of any act or decision of the Secretary under this chapter shall be made in accordance with chapter 220 of this title.
  3. [Repealed.]
  4. -(f) [Repealed.]

    (g) If a permit is denied under this section, and that denial is the subject of either an appeal or a request for a variance, the applicant need not commence application proceedings anew, once those issues are resolved.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 12; amended 1971, No. 185 (Adj. Sess.), § 24, eff. March 29, 1972; 1971, No. 212 (Adj. Sess.), § 3; 1993, No. 92 , § 6; 1993, No. 92 , § 6; 1993, No. 232 (Adj. Sess.), § 38, eff. March 15, 1995; 2003, No. 115 (Adj. Sess.), § 14, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Added “appeals” following “review” in the section catchline, rewrote subsec. (b) and repealed former subsecs. (d)-(f).

§ 563. Confidential records; penalty.

  1. Confidential records.   The Secretary shall not withhold emissions data and emission monitoring data from public inspection or review. The Secretary shall keep confidential any record or other information furnished to or obtained by the Secretary concerning an air contaminant source, other than emissions data and emission monitoring data, that qualifies as a trade secret pursuant to 1 V.S.A. § 317(c)(9) .
  2. Penalty.   A person who knowingly violates this section shall be fined not to exceed $100.00.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 13; amended 1971, No. 212 (Adj. Sess.), § 3; 2015, No. 75 (Adj. Sess.), § 3.

History

Amendments

—2015 (Adj. Sess.). Subsec. (a): Rewritten.

—1971 (Adj. Sess.). Subsec. (a): Substituted “secretary” for “state board of health” wherever it appeared.

§ 564. Local air pollution control programs.

  1. A municipality may establish and thereafter administer within its jurisdiction an air pollution control program that:
    1. provides by ordinance or local law for requirements compatible with, or stricter or more extensive than, those imposed by sections 558, 560, and 561 of this title and regulations issued thereunder;
    2. provides for the enforcement of such requirements by appropriate administrative and judicial process;
    3. provides for administrative organizations, staff, financial and other resources necessary to effectively and efficiently carry out its program; and
    4. is approved by the Secretary as adequate to meet the requirements of this chapter and any applicable rules and regulations pursuant thereto.
  2. A municipality may administer all or part of its air pollution control program in a compact if the program meets the requirements of subsection (a) of this section.
  3. If an approved local air pollution authority so petitions and the Secretary finds that the control of a particular class of air contaminant source because of its complexity or magnitude is beyond the reasonable capability of the local air pollution control authorities or may be more efficiently and economically performed at the State level, he or she may assume and retain jurisdiction over that class of air contaminant source.  Classifications pursuant to this subsection may be either on the basis of the nature of the sources involved or on the basis of their relationship to the size of the communities in which they are located.
  4. Nothing in this chapter shall be construed to supersede or oust the jurisdiction of any local air pollution control program in operation on July 1, 1968, provided that within two years from such date any such program shall meet all requirements of this chapter for a local air pollution control program.  Any approval required from the Secretary shall be deemed granted unless the Secretary takes specific action to the contrary.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 14; amended 1971, No. 212 (Adj. Sess.), § 3.

History

Revision note—

In subdiv. (a)(1), added comma after “more extensive than” to correct the punctuation.

Amendments

—1971 (Adj. Sess.). Subdiv. (a)(4): Substituted “secretary” for “state board of health”.

Subsec. (c): Substituted “secretary” for “state board of health” in the first sentence.

Subsec. (d): Substituted “secretary” for “state board of health” in the second sentence.

§ 565. Burning wood within municipality.

  1. Any other provision notwithstanding, the legislative branch of a municipality may authorize the burning of natural wood and chemically untreated wood at a place within the municipality. The burning of the wood shall be conducted under the direction and at such times as the fire warden for the municipality determines.
  2. [Repealed.]

HISTORY: Added 1971, No. 244 (Adj. Sess.), eff. April 6, 1972; amended 1973, No. 224 (Adj. Sess.), eff. April 3, 1974; 1977, No. 56 , § 1, eff. April 21, 1977.

History

Amendments

—1977. Subsec. (b): Repealed.

—1973 (Adj. Sess.). Designated existing provisions of section as subsec. (a) and added subsec. (b).

CROSS REFERENCES

Permits for open burning, see § 2645 of this title.

§ 566. State and federal aid.

Local air pollution control agencies established or approved pursuant to this chapter may make application for, receive, administer, and expend federal funds for the control of air pollution or the development and administration of programs related to air pollution control, provided the application is first submitted to and approved by the Secretary. The Secretary shall approve the application if it is consistent with this chapter and any other applicable requirements of law.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 15; amended 1971, No. 212 (Adj. Sess.), § 3.

History

Amendments

—1971 (Adj. Sess.). Substituted “secretary” for “state board of health” wherever it appeared.

§ 567. Motor vehicle pollution.

  1. The Secretary in conjunction with the Department of Motor Vehicles may provide rules for the control of emissions from motor vehicles.  Such rules may prescribe requirements for the installation and use of equipment designed to reduce or eliminate emissions and for the proper maintenance of the equipment and the vehicles.  Rules pursuant to this section shall be consistent with provisions of federal law, if any, relating to control of emissions from the vehicles concerned and shall not require, as a condition precedent to the initial sale of a vehicle or vehicular equipment, the inspection, certification, or other approval of any feature or equipment designed for the control of emissions from motor vehicles, if the feature or equipment has been certified, approved, or otherwise authorized pursuant to federal law.
  2. Except as permitted or authorized by law, no person shall fail to maintain in good working order or remove, dismantle, or otherwise cause to be inoperative any equipment or feature constituting an operational element of the air pollution control system or mechanism of a motor vehicle and required by rules pursuant to this chapter to be maintained in or on the vehicle.  Any failure to maintain in good working order or removal, dismantling, or causing of inoperability shall subject the owner or operator to suspension or cancellation of the registration for the vehicle by the Department of Motor Vehicles. The vehicle shall not thereafter be eligible for registration until all parts and equipment constituting operational elements of the motor vehicle have been restored, replaced, or repaired and are in good working order.
  3. The Secretary shall consult with the Department of Motor Vehicles and furnish it with technical information, including testing techniques, standards, and instructions for emission control features and equipment.
  4. When rules have been issued requiring the maintenance of features or equipment in or on motor vehicles for the purpose of controlling emissions therefrom, no motor vehicle shall be issued an inspection sticker unless all the required features or equipment have been inspected in accordance with the standards, testing techniques, and instructions furnished pursuant to subsection (b) hereof and has been found to meet those standards.
  5. The remedies and penalties provided here apply to violations of this section and provisions of section 568 of this title shall not apply.
  6. As used in this section, “motor vehicle” shall have the same meaning as defined in 23 V.S.A. § 4 .

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 16; amended 1971, No. 212 (Adj. Sess.), § 3.

History

Amendments

—1971 (Adj. Sess.). Subsec.(a): Substituted “secretary” for “state board of health” in the first sentence.

Subsec. (c): Substituted “secretary” for “state board of health”.

§ 568. Penalties.

  1. Any person who knowingly violates any provisions of this chapter or the rules adopted under this chapter or who knowingly fails or refuses to obey or comply with any order or the terms or conditions of any permit issued in accordance with this chapter, shall be fined not more than $100,000.00 or be imprisoned not more than five years, or both. Each violation may be considered a separate and distinct offense and, in the case of a continuing violation, each day’s continuance may be deemed a separate and distinct offense. These penalties shall not apply to violations of section 563 of this title.
  2. Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter, or by any permit, rule, regulation, or order issued under this chapter, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this chapter or by any permit, rule, regulation, or order issued under this chapter, shall, upon conviction, be punished by a fine of not more than $50,000.00 or by imprisonment for not more than one year, or by both. Each violation may be considered a separate and distinct offense and, in the case of a continuing violation, each day’s continuance may be deemed a separate and distinct offense.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 17; amended 1971, No. 212 (Adj. Sess.), § 3; 1993, No. 92 , § 7.

History

Amendments

—1993. Section amended generally.

—1971 (Adj. Sess.). Substituted “secretary” for “state board of health” wherever it appeared in the second paragraph.

§ 569. Limitations.

Nothing in this chapter shall be construed to:

  1. Affect the relations between employers and employees with respect to or arising out of any condition of air contamination or air pollution.
  2. Supersede or limit the applicability of any law or ordinance relating to sanitation, industrial health, or safety.
  3. Grant to the Director any jurisdiction or authority with respect to air contamination existing solely within commercial and industrial plants, works, or shops or private property appurtenant thereto.

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 18.

History

References in text.

In subdiv. (3), the “Director” appears to be a reference to the Director of Occupational Health. When this chapter was first adopted, it was administered by the State Board of Health. 1967, No. 310 (Adj. Sess.).

CROSS REFERENCES

Occupational safety and health, see 21 V.S.A. § 221 et seq.

§ 570. Exemption from taxation.

Approved air pollution treatment facilities shall be exempted from real and personal property taxation in the same manner provided tax exemption of water treatment facilities under the provisions of 32 V.S.A. § 3802 .

HISTORY: Added 1967, No. 310 (Adj. Sess.), § 19.

§ 571. Repealed. 1989, No. 98, § 4(b).

History

Former § 571. Former § 571, relating to the establishment and implementation of an air and water pollution abatement program, was derived from 1967, No. 310 (Adj. Sess.), § 21 and amended by 1971, No. 212 (Adj Sess.), § 3.

§ 572. Exemption; steam locomotives and engines.

The provisions of this chapter shall not apply to any steam locomotives, engines and rolling stock used in connection with the operation of a railroad within the State.

HISTORY: Added 1971, No. 174 (Adj. Sess.), eff. March 28, 1972.

CROSS REFERENCES

Railroads generally, see 5 V.S.A. § 3421 et seq.

§ 573. Motor vehicle air conditioning.

  1. After January 1, 1991, no person, for compensation, may perform service on motor vehicle air conditioners, unless that person uses equipment that is certified by the Underwriters Laboratories, or an institution determined by the Secretary to be comparable, as meeting the Society of Automotive Engineers standard applicable to equipment for the extraction and reclamation of refrigerant from motor vehicle air conditioners.
  2. The Secretary, by rule, shall establish a phased schedule for the acquisition of that equipment by establishments that repair motor vehicles, requiring early acquisition by high-volume establishments and subsequent acquisition by lower-volume establishments, providing that all establishments that wish to continue to service motor vehicle air conditioning shall have that equipment in use by January 1, 1991.  The Secretary, by rule, shall require these establishments to document motor vehicles repaired and chlorofluorocarbons (CFCs) purchased.
  3. After October 1, 1989, no person shall sell any CFC coolant in a container smaller than 15 pounds, unless it bears a warning label indicating the product’s danger to ozone in the stratosphere.  After January 1, 1991, no person shall sell or offer for sale:
    1. CFC coolant, suitable for use in motor vehicle air conditioners, for noncommercial or nonindustrial usage; or
    2. CFC coolant, suitable for use in motor vehicle air conditioners, in containers smaller than 15 pounds.
  4. No motor vehicle with a model year of 1995 or later may be registered in the State or sold to a consumer or dealer in the State, if it contains air conditioning that uses CFCs.  No new motor vehicle may be sold or offered for retail sale in the State, if it contains air conditioning that uses CFCs unless it bears an 8-inch, by 11-inch placard attached to a passenger window, that reads as follows: “AIR CONDITIONING IN THIS VEHICLE CONTAINS CHLOROFLUOROCARBONS (CFCS).  CFCS DEPLETE THE EARTH’S PROTECTIVE OZONE LAYER, CAUSING SKIN CANCER AND ENVIRONMENTAL DAMAGE.”
  5. As used in this section, “motor vehicle” shall have the same meaning as defined in 23 V.S.A. § 4 .
  6. The Secretary, by January 15, 1992, shall report to the general assembly with regard to the condition of the stratospheric ozone layer and the latest information as to the causes of that condition.  The report also shall address the progress being made by manufacturers of motor vehicles that are commonly sold or registered in this State in developing and completing production of motor vehicles that have air conditioning that use refrigerants other than CFCs.  This report shall include any appropriate recommendations.

HISTORY: Added 1989, No. 59 , § 1; amended 1991, No. 46 , § 1.

History

Amendments

—1991. Subsec. (d): Substituted “1995” for “1993” and added the second and third sentences.

§ 574. Regulation of ozone-depleting products.

  1. After January 1, 1990, no person shall sell or offer to sell fire extinguishers for noncommercial or nonindustrial usage, if those fire extinguishers contain halons or other ozone-depleting substances as may be identified by rule of the Secretary; sales to fire departments, for their own use, shall not be prohibited.
  2. After January 1, 1990, no person shall sell or offer to sell:
    1. CFC cleaning sprays for noncommercial or nonindustrial usage in cleaning electronic and photographic equipment,
    2. CFC propelled plastic party streamers, or
    3. CFC noise horns.
  3. The Secretary, by rule adopted no earlier than March 1, 1990, may require the usage of equipment that meets standards established by the Underwriters Laboratories, or an institution determined by the Secretary to be comparable, for recovery and recycling of CFC coolant during the servicing of building air conditioning and of large refrigeration units, if the Secretary finds that equipment to be portable and suitable for those purposes.
  4. By January 15, 1990, the Secretary shall report to the natural resources and energy committees of the General Assembly with the following:
    1. an analysis of the uses within the State of ozone-depleting chemicals;
    2. the advantages and disadvantages of alternatives to those chemicals (both in terms of impacts on the ozone and in terms of other health and environmental impacts);
    3. opportunities for recovery and recycling of these chemicals;
    4. any rules proposed under subsection (c) of this section; and
    5. any appropriate recommendations for action by the State.
  5. The Secretary, by January 15, 1991, shall report to the natural resources and energy committees of the General Assembly with recommendations for the systematic retrieval, storage, and appropriate reuse of CFCs from refrigerators, air conditioners, and motor vehicles that face immediate disposal. This report shall consider, but shall not be limited to considering, regional CFC removal centers, circuit riding CFC removal equipment, or other appropriate procedures or equipment.
  6. After January 1, 1993, no person shall sell or offer to sell any aerosol-propelled consumer product, if it contains hydrochlorofluorocarbons (HCFCs). The Secretary, on application, may postpone the effect of the prohibition established under this subsection, on a case-by-case basis, upon finding that the product is a health, safety-related, or industrial product, for which acceptable alternatives are not available. Any postponement granted under this subsection shall be granted for a specified period of time, not to exceed one year. Extensions granted may be renewed, if appropriate.
  7. After January 1, 1993, no disposal facility or transfer station may dispose of a residential, institutional, commercial, or industrial refrigerator, freezer, refrigerator-freezer, air conditioner, or other cooling device or machine that uses CFCs, without ensuring the item in question is properly drained of CFCs, according to procedures established by rule of the Secretary.
  8. After January 1, 1993, no person shall sell or offer to sell cleaning liquid for the heads of videotape recorders, receivers, and other related machines, if that liquid contains ozone-depleting chemicals.
    1. The Secretary, by rule, shall provide for the reclamation of CFCs recovered under the provisions of this section and section 573 of this title. The rules may provide standards for reclamation equipment and equipment operators, may allow reclamation through a central facility or by the establishment of on-site reclamation capabilities, may allow reclamation by the private sector, the municipalities, or solid waste management districts, and may establish State-operated reclamation efforts. (i) (1) The Secretary, by rule, shall provide for the reclamation of CFCs recovered under the provisions of this section and section 573 of this title. The rules may provide standards for reclamation equipment and equipment operators, may allow reclamation through a central facility or by the establishment of on-site reclamation capabilities, may allow reclamation by the private sector, the municipalities, or solid waste management districts, and may establish State-operated reclamation efforts.
    2. Costs of CFC reclamation under this subsection shall be borne by the State.

HISTORY: Added 1989, No. 59 , § 1; amended 1991, No. 266 (Adj. Sess.), §§ 1, 4.

History

Revision note—

1991, No. 266 (Adj. Sess.), §§ 1 and 4 both purported to add a new subsec. (g) to this section; however, in order to avoid a conflict, subsec. (g), as added by § 4 of the act, was redesignated as subsec. (h), and subsec. (h), as added by § 1 of the act, was redesignated as subsec. (i) in view of its content.

Amendments

—1991 (Adj. Sess.). Subsec. (f): Added by Act No. 266, § 1.

Subsec. (g): Added by Act No. 266, §§ 1 and 4.

Subsec. (h): Added by Act No. 266, § 1.

§ 574a. Ozone-depleting chemicals in industry.

  1. By July 1, 1993, any person who uses an ozone-depleting chemical as part of a manufacturing process (excluding any associated refrigeration or air conditioning) shall notify the Secretary of the person’s plans for eliminating the use of ozone-depleting chemicals through changes in production methods or processes, through the use of environmentally benign substitute chemicals, or through other methods acceptable to the Secretary, which shall:
    1. identify the alternatives considered, the alternative selected, and the basis for the selection;
    2. identify any discharges to the air and other media associated with the alternative selected;
    3. include interim measures, designed to minimize the release of the ozone-depleting chemicals to the environment until use of the ozone depleter ceases, or as expeditiously as practicable, but in no event later than July 1, 1995.
  2. Any emissions that may be associated with the alternative selected shall be in compliance with all other provisions of this chapter and rules adopted pursuant to this chapter.
  3. After July 1, 1995, no person shall use primary ozone-depleting chemicals, including those listed in subdivision 552(8)(A) of this title, as part of a manufacturing process, excluding any associated refrigeration and air conditioning.
  4. The Secretary, upon application by any person subject to this section, may extend the date provided in subdivision (a)(3) of this section, on a case-by-case basis, upon finding that acceptable methods for eliminating ozone-depleting chemicals are not available.
    1. An extension granted under this subsection shall be granted for a specified period of time, not to exceed one year. Extensions granted may be renewed, if appropriate.
    2. The Secretary may impose interim requirements to limit the emissions of ozone-depleting chemicals as a condition of any extension granted pursuant to this subsection.

HISTORY: Added 1991, No. 266 (Adj. Sess.), § 2.

§ 575. Hazardous air contaminant monitoring program.

The Secretary shall establish a hazardous air contaminant monitoring program. The goals of the program shall be to:

  1. measure the presence of hazardous air contaminants in ambient air;
  2. identify sources of hazardous air contaminants;
  3. assess human health and ecological risk to focus studies on those air contaminants that pose the greatest risk;
  4. gather sufficient data to allow the Secretary to establish appropriately protective standards; and
  5. ensure adequate data are collected to support the State’s operating permit program.

HISTORY: Added 1993, No. 92 , § 15.

§ 576. Small equipment for burning waste oil.

Effective July 1, 1997, the burning of waste oil in small fuel burning equipment described as “pot burners” or “vaporizing” burners shall be prohibited, as shall the retail sale of these burners.

HISTORY: Added 1993, No. 219 (Adj. Sess.), § 2.

History

Adoption of rules governing burning of motor oil for space heating. 1993, No. 219 (Adj. Sess.), § 3, provided: “The secretary of natural resources shall adopt rules creating a general permit allowing for small fuel burning equipment that burns used motor oil for space heating. In adopting these rules, the secretary shall consider the full environmental and economic impacts of various options for used oil management, including but not limited to effects on air and water quality, costs of transportation and impact on small business.”

CROSS REFERENCES

Curbside collection of waste oil, see § 6603j of this title.

§ 577. Prohibition on addition of gasoline ethers to fuel products.

  1. Effective January 1, 2007, no person shall knowingly sell at retail in this State, sell for use in this State, or store in an underground or aboveground storage tank in this State any fuel product that contains a gasoline ether in a quantity greater than one-half of one percent per volume unless authorized under subsection (c) of this section. Nothing in this subsection shall be interpreted to prohibit the transshipment of a fuel product containing a gasoline ether in a quantity greater than one-half of one percent per volume through the State for disposition outside the State. Transshipment does not include the storage of a fuel product coincident to shipment.
  2. As used in this section:
    1. “Ether” means an organic compound formed by the treatment of an alcohol with a dehydrating agent resulting in two organic radicals joined by an oxygen atom.
    2. “Fuel product” means gasoline, reformulated gasoline, benzene, benzol, diesel fuel, kerosene, or any other volatile and inflammable liquid that is produced, compounded, offered for sale, or used to generate power in an internal combustion engine.
    3. “Gasoline ether” means any ether added to a fuel product, including methyl tertiary butyl ether (MTBE), tertiary amyl methyl ether (TAME), di-isopropyl ether (DIPE), and ethyl butyl ether (ETBE). “Gasoline ether” shall not include prepackaged goods intended for retail use, including starting fluid and octane booster.
    4. “Motor vehicle” means all vehicles propelled or drawn by power other than muscular power, except farm tractors, vehicles running only upon stationary rails or tracks, motorized highway building equipment, road-making appliances, snowmobiles, motorcycles, all-terrain vehicles, tracked vehicles, or electric personal assistive mobility devices.
    5. “Race” means a race or contest on an oval track permitted under 26 V.S.A. § 4802 involving a motor vehicle at which prizes or other consideration is awarded to participants or admission is charged to spectators. However, this subdivision shall not apply to sports car events as that term is defined in 26 V.S.A. § 4801 .
  3. A fuel product used by a motor vehicle in a race may contain a gasoline ether and may be sold at retail or sold at wholesale for use in a race in the State, provided that it is sold in prepackaged drums, pails, or containers.

HISTORY: Added 2005, No. 26 , § 2; amended 2007, No. 55 , § 1, eff. May 29, 2007.

History

Amendments

—2007. Subsec. (a): Added “unless authorized under subsection (c) of this section” at the end of the first sentence.

Subsec. (b): Added subdivs. (4) and (5).

Subsec. (c): Added.

Findings. 2005, No. 26 , § 1 provides: “(a) Methyl tertiary butyl ether (“MTBE”), the most common oxygenate added to gasoline and other fuel products used in the state and throughout the United States, may leak into and contaminate groundwater supplies.

“(b) MTBE is water soluble and, therefore, difficult and costly to remove from water.

“(c) MTBE, while colorless, has a turpentine-like taste and smell which can be detected at extremely low concentrations.

“(d) MTBE and other chemically similar oxygenates may be human carcinogens and pose other potential health risks, including, but not limited to, memory loss, asthma, and skin irritation.

“(e) As water is a precious and vital resource to the state’s growing population, agricultural and tourism industries, and unique environment, it is imperative that the state halt further contamination and pollution of the state’s groundwater supplies by potentially harmful oxygenates.

“(f) Underground storage tanks that leak, motor boats on our lakes that discharge fuel, junkyards with autos and trucks and motor vehicle accidents can lead to gasoline with MTBE leaking into the soils and entering our water supplies.

“(g) Two Vermont communities, Craftsbury Fire District #2 and the Town of Hartland, have filed lawsuits against the manufacturers of MTBE, and in New Hampshire, the state and two communities have actions pending.”

Effective date; rules required by this section. 2007, No. 55 , § 3(a), provided: “Secs. 1 (MTBE in racing fuel) [which amended this section] and 2 (vehicle emissions labeling program) [which enacted § 579 of this title] of this act shall take effect upon passage [May 29, 2007].”

§ 578. Greenhouse gas reduction requirements.

  1. Greenhouse gas reduction requirements.   Vermont shall reduce emissions of greenhouse gases from within the geographical boundaries of the State and those emissions outside the boundaries of the State that are caused by the use of energy in Vermont, as measured and inventoried pursuant to section 582 of this title, by:
    1. not less than 26 percent from 2005 greenhouse gas emissions by January 1, 2025 pursuant to the State’s membership in the United States Climate Alliance and commitment to implement policies to achieve the objectives of the 2016 Paris Agreement;
    2. not less than 40 percent from 1990 greenhouse gas emissions by January 1, 2030 pursuant to the State’s 2016 Comprehensive Energy Plan; and
    3. not less than 80 percent from 1990 greenhouse gas emissions by January 1, 2050 pursuant to the State’s 2016 Comprehensive Energy Plan.
  2. Vermont climate collaborative.   The Secretary will participate in the Vermont climate collaborative, a collaboration between State government and Vermont’s higher education, business, agricultural, labor, and environmental communities. Wherever possible, members of the collaborative shall be included among the membership of the program development working groups established by the climate change oversight committee created under 2008 Acts and Resolves No. 209, Sec. 14. State entities shall cooperate with the climate change oversight committee in pursuing the priorities identified by the committee. The Secretary shall notify the general public that the collaborative is developing greenhouse gas reduction programs and shall provide meaningful opportunity for public comment on program development. Programs shall be developed in a manner that implements State energy policy, as specified in 30 V.S.A. § 202a .
  3. Implementation of State programs to reduce greenhouse gas emissions.   In order to facilitate the State’s compliance with the goals established in this section, all State agencies shall consider any increase or decrease in greenhouse gas emissions in their decision-making procedures with respect to the purchase and use of equipment and goods; the siting, construction, and maintenance of buildings; the assignment of personnel; and the planning, design, and operation of programs, services, and infrastructure.
  4. Advocacy for cap and trade program for greenhouse gases, including those caused by transportation, heating, cooling, and ventilation.   In order to increase the likelihood of the State meeting the goals established under this section, the Public Utility Commission, the Secretary of Natural Resources, and the Commissioner of Public Service shall advocate before appropriate regional or national entities and working groups in favor of the establishment of a regional or national cap and trade program for greenhouse gas emissions, including those caused by transportation, heating, cooling, and ventilation. This may take the form of an expansion of the existing regional greenhouse gas initiative (RGGI), or it may entail the creation of an entirely new and separate regional or national cap and trade initiative that includes a 100 percent consumer allocation system.

HISTORY: Added 2005, No. 168 (Adj. Sess.), § 1; amended 2007, No. 209 (Adj. Sess.), § 3a; 2019, No. 153 (Adj. Sess.), § 3, eff. Sept. 22, 2020.

History

Revision note

—2017. In subsec. (b), replaced “this act” with the specific session law reference.

In subsec. (d), substituted “Public Utility Commission” for “Public Service Board” in the first sentence accordance with 2017, No. 53 , § 12.

Amendments

—2019 (Adj. Sess.). Section heading: Substituted “Requirements” for “Goals”.

Subsec. (a): Rewrote subsec.

Subsec. (c): Deleted “, whenever practicable,” following “shall consider”.

—2007 (Adj. Sess.). Subsec. (b): Amended generally.

Subsec. (c): Repealed reference to climate change action plan.

Subsec. (d): Added.

Legislative findings. 2007, No. 92 , § 2, provides: “The general assembly finds that:

“(1) Global climate change, which is threatening our environment and perhaps ultimately our existence, has been caused in part by an energy policy that is largely dependent on the burning of fossil fuels.

“(2) In order to reduce greenhouse gas emissions and environmental degradation, it is essential that we reduce or eliminate our dependency on fossil fuels by significantly improving energy efficiency and shifting to nonpolluting benign forms of energy such as wind, sun, and water power.

“(3) In order for Vermont to meet the greenhouse gas reduction goals set by the conference of the New England governors and Eastern Canadian premiers’ climate change action plan, Vermont needs to provide effective weatherization services, new funding strategies, green building practices, and installation of renewable energy systems.

“(4) The ‘Vermont energy efficiency potential study for non-regulated fuels’ recently completed by the department of public service indicates that Vermont has cost-effective potential energy savings of $486 million over the next ten years with 63 percent of those savings from building shell improvements.

“(5) Although workforce development in the field of green building, renewable energy, and energy efficiency is an essential component of the battle to combat global climate change, there are few trained applicants to fill the new well-paying jobs being created in this field.”

Short title. 2019, No. 153 (Adj. Sess.), § 1 provides: “This act may be cited as the Vermont Global Warming Solutions Act of 2020.”

Legislative findings. 2019, No. 153 (Adj. Sess.), § 2 provides: “The General Assembly finds that:

“(1) According to the Intergovernmental Panel on Climate Change (IPCC), the climate crisis is both caused and exacerbated by greenhouse gas emissions that result from human activity. The IPCC has determined that industrialized countries must cut their emissions to net zero by 2050, which is necessary to achieve the Paris Agreement’s goal of keeping the increase in global average temperature to below 2°C. A climate emergency threatens our communities, State, and region and poses a significant threat to human health and safety, infrastructure, biodiversity, our common environment, and our economy.

“(2) The State of Vermont is part of the U.S. Climate Alliance, a bipartisan coalition of 25 states that have committed to reducing greenhouse gas emissions consistent with the goals of the Paris Agreement. Working in parallel with other members of the U.S. Climate Alliance, the State of Vermont will help accelerate solutions that address the climate crisis in the absence of federal action. By implementing climate mitigation, adaptation, and resilience strategies, Vermont will also position its economy to benefit and thrive from the global transition to carbon neutrality and national and international efforts to address the crisis.

“(3) According to the IPCC and the World Bank, a failure to substantially reduce emissions over the next ten years will require even more substantial reductions later and will increase the costs of decarbonization. Delaying necessary policy action to address the climate crisis risks significant economic damage to Vermont.

“(4) According to the IPCC and the State of Vermont, adaptation and resilience measures are necessary to address climate risks.

“(5) According to the IPCC, the climate crisis disproportionately impacts rural and marginalized, disenfranchised, and disinvested communities, which already bear significant public health, environmental, socioeconomic, and other burdens. Mitigation, adaptation, and resilience strategies must prioritize the allocation of investment of public resources to these communities and minimize, to the greatest extent practicable, potential regressive impacts.

“(6) According to the Vermont Agency of Natural Resources, the adverse impacts of climate change in Vermont include an increase in the severity and frequency of extreme weather events, a rise in vector-borne diseases including Lyme disease, more frequent cyanobacteria blooms, adverse impacts to forest and agricultural soils, forest and crop damage, shorter and irregular sugaring seasons, a reduction in seasonal snow cover, and variable and rising average temperatures that result in uncertain and less snowfall.

“(7) According to the Vermont Agency of Natural Resources, the conservation and restoration of Vermont forests, floodplains, and wetlands and the promotion of forest management and farming practices that sequester and store carbon are critical to achieving climate mitigation, adaptation, and resilience and support a host of co-benefits, such as improving air and water quality, economic vitality, ecosystem functions, local food systems, and creating more climate resilient communities and landscapes.

“(8) The credit rating industry is now analyzing the adaptation and resilience strategies of issuers of state and municipal bonds and may apply a negative credit factor for issuers with insufficient strategies. Establishing robust adaptation and resilience strategies for Vermont will help protect the State from a climate crisis-related credit downgrade.”

§ 579. Vehicle emissions labeling program for new motor vehicles.

  1. The Secretary of Natural Resources, in consultation with the Commissioner of Motor Vehicles, shall establish, by rule, a vehicle emissions labeling program for new motor vehicles sold or leased in the State with a model year of 2010 or later. The rules adopted under this section shall require automobile manufacturers to install the labels.
  2. Vehicle emissions labels under this program shall include the vehicle’s emissions score. The label required by subsection (a) of this section and the vehicle score included in the label shall be consistent with the labels and information required by other states, including the California motor vehicle greenhouse gas and smog index label and any revisions thereto. A label that complies with the requirements of the California vehicle labeling program shall be deemed to meet the requirements of this section and the rules adopted thereunder for the content of labels.
  3. The vehicle emissions label shall be affixed to the vehicle in a clearly visible location, as set forth by the Secretary of Natural Resources in rule.
  4. On or after the effective date of the rules adopted under subsection (a) of this section, no new motor vehicle shall be sold or leased in the State unless a vehicle emissions label that meets the requirements of this section and the rules adopted thereunder is affixed to the vehicle except in the case of a trade of a new motor vehicle by a Vermont dealer, as that term is defined in 23 V.S.A. § 4(8) , with a dealer from another state that does not have a similar labeling law, provided that the motor vehicle involved in the trade is sold within 30 days of the trade.
  5. As used in this section, “motor vehicle” means all passenger cars, light duty trucks with a gross vehicle weight of 8,500 pounds or less, and medium duty passenger vehicles with a gross vehicle weight of less than 10,000 pounds that are designed primarily for the transportation of persons.

HISTORY: Added 2007, No. 55 , § 2, eff. May 29, 2007.

History

Effective date; rules required by this section. 2007, No. 55 , § 3(b), provided: “The rules required by 10 V.S.A. § 579 shall take effect for new motor vehicles with model year 2010 or at such time as the California motor vehicle greenhouse gas labeling specifications are implemented, whichever is later.”

§ 580. 25 by 25 State goal.

  1. It is a goal of the State, by the year 2025, to produce 25 percent of the energy consumed within the State through the use of renewable energy sources, particularly from Vermont’s farms and forests.
  2. By no later than January 15, 2009, the Secretary of Agriculture, Food and Markets, in consultation with the Commissioner of Public Service and the Commissioner of Forests, Parks and Recreation, shall present to the Committees on Agriculture and on Natural Resources and Energy of the General Assembly a plan for attaining this goal. Plan updates shall be presented no less frequently than every three years thereafter, and a progress report shall be due annually on January 15.
  3. By no later than January 15, 2009, the Department of Public Service shall present to the legislative committees on natural resources and energy an updated Comprehensive Energy Plan that shall give due consideration to the public engagement process required under 30 V.S.A. § 254 and under 2006 Acts and Resolves No. 208, Sec. 2. By that time, the Department of Public Service shall incorporate plans adopted under this section into the State Comprehensive Energy Plan adopted under 30 V.S.A. § 202b .

HISTORY: Added 2007, No. 92 (Adj. Sess.), § 5.

History

Revision note

—2007 (Adj. Sess.). This section was enacted as section 579 of this title, but was redesignated as section 580 in order to avoid a conflict with the existing 10 V.S.A. § 579 and to conform to V.S.A. style.

Reports. 2015, No. 131 (Adj. Sess.), § 36 provides: “The reports set forth in this section shall not be subject to expiration under the provisions of 2 V.S.A. § 20(d) (expiration of required reports) until July 1, 2018.

§ 581. Building efficiency goals.

It shall be goals of the State:

  1. To improve substantially the energy fitness of at least 20 percent of the State’s housing stock by 2017 (more than 60,000 housing units), and 25 percent of the State’s housing stock by 2020 (approximately 80,000 housing units).
  2. To reduce annual fuel needs and fuel bills by an average of 25 percent in the housing units served.
  3. To reduce total fossil fuel consumption across all buildings by an additional one-half percent each year, leading to a total reduction of six percent annually by 2017 and 10 percent annually by 2025.
  4. To save Vermont families and businesses a total of $1.5 billion on their fuel bills over the lifetimes of the improvements and measures installed between 2008 and 2017.
  5. To increase weatherization services to low-income Vermonters by expanding the number of units weatherized or the scope of services provided, or both, as revenue becomes available in the Home Weatherization Assistance Fund.

HISTORY: Added 2007, No. 92 (Adj. Sess.), § 6; amended 2013, No. 50 , § E.324.3.

History

Redesignation by Legislative Council. 2013, No. 50 , § E.324.3, provides: “(a) The Legislative Council is directed to remove the word “trust” from the name “home weatherization assistance trust fund” and from the name “home heating fuel assistance trust fund” wherever it appears in the Vermont Statutes Annotated.”

§ 582. Greenhouse gas inventories; registry.

  1. Inventory and forecasting.   The Secretary shall work, in conjunction with other states or a regional consortium, to establish a periodic and consistent inventory of greenhouse gas emissions. The Secretary shall publish the Vermont Greenhouse Gas Emission Inventory and Forecast by no later than June 1, 2010, and updates shall be published annually until 2028, until a regional or national inventory and registry program is established in which Vermont participates, or until the federal National Emissions Inventory includes mandatory greenhouse gas reporting.
  2. Inventory updates.   To develop the Inventory under this section, the Secretary, in coordination with the Secretaries of Administration, of Transportation, of Agriculture, Food and Markets, and of Commerce and Community Development, and the Commissioner of Public Service, shall aggregate all existing statewide data on greenhouse gas emissions currently reported to State or federal entities, existing statewide data on greenhouse gas sinks, and otherwise publicly available data. Greenhouse gas emissions data that is more than 36 months old shall be updated either by statistical methods or seeking updated information from the reporting agency or department. The information shall be standardized to reflect the emissions in tons per CO2 equivalent, shall be set out in the inventory by sources or sectors such as agriculture, manufacturing, automobile emissions, heating, and electricity production, shall be compatible with the inventory included with the Governor’s Commission on Climate Change final report and shall include, the following sources:
    1. information collected for reporting in the National Emissions Inventory, which includes air toxics, criteria pollutants, mobile sources, point sources, and area sources;
    2. in-state electricity production using RGGI and State permit information;
    3. vehicle miles traveled and vehicle registration data; and
    4. agricultural activities, including livestock and crop practices.
  3. Forecast.   The Secretary shall use best efforts to forecast statewide emissions for a five- and ten-year period based on the inventory data and other publicly available information.
  4. Registry.   The Secretary shall work, in conjunction with other states or a regional consortium, to establish a regional or national greenhouse gas registry.
    1. Any registry in which Vermont participates shall be designed to apply to the entire State and to as large a geographic area beyond State boundaries as is possible.
    2. It shall accommodate as broad an array of sectors, sources, facilities, and approaches as is possible, and shall allow sources to start as far back in time as is permitted by good data, affirmed by third-party verification.
  5. Rules.   The Secretary may adopt rules to implement the provisions of this section and shall review existing and proposed international, federal, and State greenhouse gas emission reporting programs and make reasonable efforts to promote consistency among the programs established pursuant to this section and other programs, and to streamline reporting requirements on greenhouse gas emission sources. Except as provided in subsection (g) of this section, nothing in this section shall limit a State agency from adopting any rule within its authority.
  6. Participation by government subdivisions.   The State and its municipalities may participate in the inventory for purposes of registering reductions associated with their programs, direct activities, or efforts, including the registration of emission reductions associated with the stationary and mobile sources they own, lease, or operate.
  7. Greenhouse gas accounting.   In consultation with the Department of Public Service created under 30 V.S.A. § 1 , the Secretary shall research and adopt by rule greenhouse gas accounting protocols that achieve transparent and accurate life cycle accounting of greenhouse gas emissions, including emissions of such gases from the use of fossil fuels and from renewable fuels such as biomass. On adoption, such protocols shall be the official protocols to be used by any agency or political subdivision of the State in accounting for greenhouse gas emissions.

HISTORY: Added 2007, No. 209 (Adj. Sess.), § 4; amended 2011, No. 170 (Adj. Sess.), § 14.

History

Revision note

—2008. This section was enacted as section 580 of this title, but was redesignated as 10 V.S.A. § 582 in order to avoid a conflict with section 580 added by 2007, No. 92 (Adj. Sess.), § 5.

Amendments

—2011 (Adj. Sess.). Amended the last sentence in subsec. (e); and added subsec. (g).

Adoption of rules. 2011, No. 170 (Adj. Sess.), § 17(d) provides: “No later than September 1, 2013, the secretary of natural resources shall adopt rules pursuant to Sec. 14 of this act, 10 V.S.A. § 582(g) (greenhouse gas accounting).”

§ 583. Repeal of stage II vapor recovery requirements.

  1. Effective January 1, 2013, all rules of the Secretary pertaining to stage II vapor recovery controls at gasoline dispensing facilities are repealed. The Secretary may not issue further rules requiring such controls. For purposes of this section, “stage II vapor recovery” means a system for gasoline vapor recovery of emissions from the fueling of motor vehicles as described in 42 U.S.C. § 7511a (b)(3).
  2. Prior to January 1, 2013, stage II vapor recovery rules shall not apply to:
    1. Any newly constructed gasoline dispensing facility that commences operation after May 1, 2009;
    2. Any existing gasoline dispensing facility that has an annual gasoline throughput of 400,000 gallons or more for the first time beginning with the 2009 calendar year;
    3. Any existing gasoline dispensing facility that, after May 1, 2009, commences excavation for the installation or repair of any below-ground component of the stage II vapor recovery system, including gasoline storage tanks, upon verification and approval by the Secretary; or
    4. Any existing gasoline dispensing facility that, after May 1, 2009, replaces all of its existing gasoline dispensers with gasoline dispensers that support triple data encryption standard (TDES) usage or replaces one or more of its gasoline dispensers pursuant to a plan to achieve full TDES compliance, upon verification and approval by the Secretary.
  3. Within two years of January 1, 2013, or of the Secretary’s verification and approval that such stage II vapor recovery rules do not apply to a gasoline dispensing facility pursuant to subdivision (b)(3) or (4) of this section, whichever is earlier, each gasoline dispensing facility shall decommission its stage II vapor recovery systems, including below-ground components, pursuant to methods approved by the Secretary.

HISTORY: Added 2009, No. 22 , § 9(b); amended 2009, No. 123 (Adj. Sess.), § 43.

History

Amendments

—2009 (Adj. Sess.) Subdiv. (b)(4): Deleted “new” preceding “gasoline dispensers”.

Retroactive effective date. 2009, No. 123 (Adj. Sess.), § 58(7) provides: “Sec. 43 (replacement of gasoline dispensers) [which amended this section]. Notwithstanding 1 V.S.A. § 214 , Sec. 43 shall apply retroactively to gasoline dispensers installed at an existing gasoline dispensing facility after May 1, 2009.”

§ 584. Inefficient outdoor wood-fired boiler change-out program; retirement.

  1. At the earliest feasible date, the Secretary shall create and put into effect a change-out program within the Air Pollution Control Division of the Department of Environmental Conservation to purchase the retirement of inefficient, high emission outdoor wood-fired boilers (OWB) that will be replaced with OWBs or other heating appliances with substantially lower emissions and higher fuel efficiency.
  2. The Secretary shall fund this program using funds available to the State of Vermont for environmental mitigation projects under the consent decree approved on or about October 9, 2007, in the case of United States, et al. v. American Elec. Power Service Corp., et al., Civil Actions No. C2-99-1182, C2-99-1250, C2-04-1098, C2-05-360 (the AEP consent decree). The Secretary may add to this funding such additional monies as may be appropriated to the program authorized under this section or otherwise may be available by grant, contribution, or donation.
  3. The Secretary shall take all steps necessary to secure use of the funds from the AEP consent decree in the manner described in subsection (a) of this section.
    1. To be eligible for the program under this section, an OWB shall be one that is not certified under the air pollution control regulations as meeting either the Phase I emission limit for particulate matter of 0.44 pounds per million British thermal units (BTUs) of heat input or the Phase II emission limit for particulate matter of 0.32 pounds per million BTUs of heat output. (d) (1) To be eligible for the program under this section, an OWB shall be one that is not certified under the air pollution control regulations as meeting either the Phase I emission limit for particulate matter of 0.44 pounds per million British thermal units (BTUs) of heat input or the Phase II emission limit for particulate matter of 0.32 pounds per million BTUs of heat output.
    2. The Secretary may develop program eligibility criteria that are in addition to the criteria of subdivision (1) of this subsection. Such additional criteria may allow an OWB to be eligible for the program under this section even if the OWB does not meet the requirements of subdivision (1) of this subsection. In developing these additional criteria, the Secretary shall consult with affected persons and entities such as the American Lung Association.
  4. An eligible OWB that is accepted into the change-out program under this section shall be:
    1. replaced with an OWB that is certified under the air pollution control regulations as a Phase II OWB with a particulate matter emission rate of no more than 0.32 pounds per million BTUs of heat output or another heating appliance that the Secretary determines has an equivalent or more stringent emission rate; and
    2. retired within a specified period not to exceed six months after acceptance into the program.
  5. In implementing the program required by this section, the Secretary:
    1. Shall give priority to replacing eligible OWBs that have resulted in complaints regarding emissions, including particulate matter or smoke, that the Agency has determined are valid, and have the highest emission rates, cause nuisance, or are within 200 feet of a residence, school, or health care facility.
    2. May allow replacement of an eligible OWB that is less than the required setback distance from a residence, school, or health care facility that is neither served by the OWB nor owned by the owner or lessee of the OWB with an OWB or heating appliance that is also less than the required setback distance from a residence, school, or health care facility, unless such location of the replacement OWB or heating appliance will cause a nuisance or will not comply with all applicable local ordinances and bylaws. For the purposes of this subdivision (2), “required setback distance” means the setback distance applicable to the OWB that is required by the air pollution control regulations.
    3. May require that an eligible OWB be replaced with a heating appliance that is not an OWB if, based on the Secretary’s consideration of area topography, air flows, site conditions, and other relevant factors, the Secretary determines that the replacement OWB would cause nuisance.
    4. To the extent practical, should provide over time for decreasing emission rates and increasing fuel efficiency requirements for replacement OWBs under this program as new technology for boilers becomes commercially available.
  6. Any OWB in the State that is not certified under the air pollution control regulations to meet the Phase I, Phase II, or a more stringent emission limit shall be retired on or before December 31, 2012, if the OWB is located within 200 feet of a residence, school, or health care facility that is neither served by the OWB nor owned by the owner or lessee of the OWB or has resulted or results in a complaint regarding emissions, including particulate matter or smoke, that the Agency has determined is valid.
  7. For the purpose of this section:
    1. “Outdoor wood-fired boiler” or “OWB” means a fuel-burning device designed to burn primarily wood that the manufacturer specifies should or may be installed outdoors or in structures not normally occupied by humans, such as attached or detached garages or sheds, and that heats spaces or water by the distribution through pipes of a fluid heated in the device, typically water or a mixture of water and antifreeze. In addition, this term also means any wood-fired boiler that is actually installed outdoors or in structures not normally occupied by humans, such as attached or detached garages or sheds, regardless of whether such use has been specified by the manufacturer.
    2. “Retire” means to remove an OWB permanently from service, disassemble it into its component parts, and either recycle those parts or dispose of them in accordance with applicable law.
  8. For the purpose of determinations under subdivisions (f)(1) (priority for change-out), (2) (installation of replacement OWB closer than the setback distance), and (3) (non-OWB replacement) of this section, “nuisance” means interference with the ordinary use or enjoyment of property caused by particulate matter, smoke, or other emissions of an OWB that a reasonable person would find disturbing, annoying, or physically uncomfortable. Precedence in time and balancing of harm shall be irrelevant to such determinations. This section shall not affect the burden or elements of proof with respect to a claim of nuisance caused by an OWB brought in a civil court under common law.
  9. The Secretary may adopt rules to implement this section.

HISTORY: Added 2009, No. 94 (Adj. Sess.), § 2, eff. May 7, 2010; amended 2015, No. 75 (Adj. Sess.), § 2.

History

Amendments

—2015 (Adj. Sess.). Subsec. (b): Deleted “at least $500,000.00 of the” preceding “funds” and substituted “monies” for “moneys” following “such additional”.

§ 585. Heating oil content; sulfur; biodiesel.

  1. Definitions.   In this section:
    1. “Heating oil” means No. 2 distillate that meets the specifications or quality certification standard for use in residential, commercial, or industrial heating applications established by the American Society for Testing and Materials (ASTM).
    2. “Biodiesel” means monoalkyl esters derived from plant or animal matter that meet the registration requirements for fuels and fuel additives established by the Environmental Protection Agency under section 211 of the Clean Air Act (42 U.S.C. § 7545), and the requirements of ASTM D6751-10.
  2. Sulfur content.   Unless a requirement of this subsection is waived pursuant to subsection (e) of this section:
    1. On or before July 1, 2014, all heating oil sold within the State for residential, commercial, or industrial uses, including space and water heating, shall have a sulfur content of 500 parts per million or less.
    2. On or before July 1, 2018, all heating oil sold within the State for residential, commercial, or industrial uses, including space and water heating, shall have a sulfur content of 15 parts per million or less.
  3. Biodiesel content.   Subsection (c) effective date delayed; see note set out below.Unless a requirement of this subsection is waived pursuant to subsection (e) of this section, all heating oil sold within the State for residential, commercial, or industrial uses, including space and water heating, by volume shall:
    1. On or before July 1, 2012, contain at least three percent biodiesel.
    2. On or before July 1, 2015, contain at least five percent biodiesel.
    3. On or before July 1, 2016, contain at least seven percent biodiesel.
  4. Blending; certification.   In the case of biodiesel and heating oil that has been blended by a dealer or seller of heating oil, the Secretary may allow the dealer or seller to demonstrate compliance with this section by providing documentation that the content of the blended fuel in each delivery load meets the requirements of this section.
  5. Temporary suspension.   The Governor, by executive order, may temporarily suspend the implementation and enforcement of subsection (b) or (c) of this section if the Governor determines, after consulting with the Secretary and the Commissioner of Public Service, that meeting the requirements is not feasible due to an inadequate supply of the required fuel.
  6. Rules.   The Secretary may adopt rules to implement this section. This section does not limit any authority of the Secretary to control the sulfur or biodiesel content of distillate or residual oils that do not constitute heating oil as defined in this section.

HISTORY: Added 2011, No. 47 , § 19.

History

Effective date of subsec. (c). 2011, No. 47 , § 21(d) provides: “(1) In Sec. 19 [which enacted this section] of this act, 10 V.S.A. § 585(c) (heating fuel; biodiesel requirement) shall take effect on the later of the following:

“(A) July 1, 2012.

“(B) The date on which, through legislation, rule, agreement, or other binding means, the last of the surrounding states has adopted requirements that are substantially similar to or more stringent than the requirements contained in 10 V.S.A. § 585(c) . The attorney general shall determine when this date has occurred.

“(2) For the purpose of this subsection, the term ‘surrounding states’ means the states of Massachusetts, New Hampshire, and New York, and the term ‘last’ requires that all three of the surrounding states have adopted a substantially similar or more stringent requirement.”

§ 586. Regulation of hydrofluorocarbons.

  1. As used in this section:
    1. “Class I substance” and “class II substance” mean those substances listed in the 42 U.S.C. § 7671a , as it read on November 15, 1990 and Appendix A or B of Subpart A of 40 C.F.R. Part 82, as those read on January 3, 2017.
    2. “Hydrofluorocarbon” means a class of greenhouse gases that are saturated organic compounds containing hydrogen, fluorine, and carbon.
    3. “Residential consumer refrigeration product” has the same meaning as in Section 430.2 of Subpart A of 10 C.F.R. Part 430.
    4. “Retrofit” has the same meaning as in section 152 of Subpart F of 40 C.F.R. Part 82, as that section existed as of January 3, 2017.
    5. “Substitute” means a chemical, product, or alternative manufacturing process, whether new or retrofit, that is used to perform a function previously performed by a class I substance or class II substance and any substitute subsequently adopted to perform that function, including hydrofluorocarbons.
    1. Except where existing equipment is retrofit, nothing in this subsection requires a person that acquired a restricted product or equipment prior to an effective date of the restrictions in subdivision (b)(4) of this section to cease use of that product or equipment. (b) (2) Except where existing equipment is retrofit, nothing in this subsection requires a person that acquired a restricted product or equipment prior to an effective date of the restrictions in subdivision (b)(4) of this section to cease use of that product or equipment.
      1. January 1, 2021, for propellants, rigid polyurethane applications and spray foam, flexible polyurethane, integral skin polyurethane, flexible polyurethane foam, polystyrene extruded sheet, polyolefin, phenolic insulation board and bunstock, supermarket systems, remote condensing units, stand-alone units, and vending machines;
      2. January 1, 2021, for refrigerated food processing and dispensing equipment, compact residential consumer refrigeration products, polystyrene extruded boardstock and billet, and rigid polyurethane low-pressure two component-spray foam;
      3. January 1, 2022, for residential consumer refrigeration products other than compact and built-in residential consumer refrigeration products;
      4. January 1, 2023, for cold storage warehouses and built-in residential consumer refrigeration products;
      5. January 1, 2024, for centrifugal chillers and positive displacement chillers; and
      6. January 1, 2020, or the effective date of the restrictions identified in appendix U or V, Subpart G of 40 C.F.R. Part 82, as those read on January 3, 2017, whichever comes later, for all other applications and end uses for substitutes not covered by the categories listed in subdivisions (A) through (E) of this subsection (b).

        (1) A person may not offer any product or equipment for sale, lease, or rent, or install or otherwise cause any equipment or product to enter into commerce in Vermont if that equipment or product consists of, uses, or will use a substitute, as set forth in Appendix U or V, Subpart G of 40 C.F.R. Part 82, as those read on January 3, 2017, for the applications or end uses restricted by Appendix U or V, as those read on January 3, 2017, and consistent with the dates established in subdivision (b)(4) of this section.

    (3) Products or equipment manufactured prior to an applicable effective date of the restrictions in subdivision (b)(4) of this section may be sold, imported, exported, distributed, installed, and used after the specified effective date.

    (4) The restrictions under subdivision (b)(1) of this section shall take effect beginning:

  2. The Secretary may adopt rules that include any of the following:
    1. The modification of the date of a prohibition established pursuant to subsection (b) of this section if the Secretary determines that the modified deadline meets both of the following criteria:
      1. reduces the overall risk to human health or the environment; and
      2. reflects the earliest date that a substitute is currently or potentially available.
    2. The prohibition on the use of any substitute if the Secretary determines that the prohibition meets both of the following criteria:
      1. reduces the overall risk to human health or the environment; and
      2. a lower-risk substitute is currently or potentially available.
    3. The creation of a list of approved substitutes, use conditions, or use limits, if any, and the addition or removal of substitutes, use conditions, or use limits to or from the list of approved substitutes if the Secretary determines those substitutes reduce the overall risk to human health and the environment.
    4. The creation of a list of exemptions from this section for medical uses of hydrofluorocarbons.
  3. If the U.S. Environmental Protection Agency approves a previously prohibited hydrofluorocarbon blend with a global warming potential of 750 or less for foam blowing of polystyrene extruded boardstock and billet and rigid polyurethane low-pressure two-component spray foam pursuant to the Significant New Alternatives Policy Program under section 7671(k) of the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.), the Secretary shall expeditiously propose a rule to conform to the requirements established under this section with that federal action.

HISTORY: Added 2019, No. 65 , § 1.

Chapter 24. Vermont Climate Council and Climate Action Plan

History

Former chapter 24. Former chapter 24, consisting of § 591 and relating to outdoor lighting, was derived from 2005, No. 155 (Adj. Sess.), § 1 and was previously repealed by 2009, No. 135 (Adj. Sess.), § 26(3)(D).

Effective date of enactment of chapter. 2019, No. 153 (Adj. Sess.), § 9 provides: “This act [which enacted this chapter consisting of §§ 590-594] shall take effect on September 22, 2020.”

Short title. 2019, No. 153 (Adj. Sess.), § 1 provides: “This act may be cited as the Vermont Global Warming Solutions Act of 2020.”

§ 590. Definitions.

As used in this chapter:

  1. “Adaptation” means reducing vulnerability and advancing resilience through planned and implemented enhancements to, or avoiding degradation of, natural and built systems and structures.
  2. “Greenhouse gas” has the same meaning as in section 552 of this title.
  3. “Mitigation” means reduction of anthropogenic greenhouse gas emissions, and preservation and enhancement of natural systems to sequester and store carbon, in order to stabilize and reduce greenhouse gases in the atmosphere.
  4. “Resilience” means the capacity of individuals, communities, and natural and built systems to withstand and recover from climatic events, trends, and disruptions.

HISTORY: Added 2019, No. 153 (Adj. Sess.), § 4, eff. Sept. 22, 2020.

§ 591. Vermont Climate Council.

  1. There is created the Vermont Climate Council (Council). The Council shall be composed of the following members:
    1. the Secretary of Administration, who shall serve as the Chair of the Council;
    2. the Secretary of Natural Resources or designee;
    3. the Secretary of Agriculture, Food and Markets or designee;
    4. the Secretary of Commerce and Community Development or designee;
    5. the Secretary of Human Services or designee;
    6. the Secretary of Transportation or designee;
    7. the Commissioner of Public Safety or designee;
    8. the Commissioner of Public Service or designee;
    9. the following members who shall be appointed by the Speaker of the House:
      1. one member with expertise and professional experience in the design and implementation of programs to reduce greenhouse gas emissions;
      2. one member to represent rural communities;
      3. one member to represent municipal governments;
      4. one member to represent distribution utilities;
      5. one member to represent a statewide environmental organization;
      6. one member to represent the fuel sector;
      7. one member with expertise in climate change science; and
      8. one member to represent Vermont manufacturers.
    10. the following members who shall be appointed by the Committee on Committees:
      1. one member with expertise in the design and implementation of programs to increase resilience to and respond to natural disasters resulting from climate change;
      2. one member to represent the clean energy sector;
      3. one member to represent the small business community;
      4. one member to represent the Vermont Community Action Partnership;
      5. one member to represent the farm and forest sector;
      6. one youth member; and
      7. one member of a Vermont-based organization with expertise in energy and data analysis.
  2. The Council shall:
    1. Identify, analyze, and evaluate strategies and programs to reduce greenhouse gas emissions; achieve the State’s reduction requirements pursuant to section 578 of this title; and build resilience to prepare the State’s communities, infrastructure, and economy to adapt to the current and anticipated effects of climate change, including:
      1. creating an inventory of all existing programs that impact greenhouse gas emissions and their efficacy;
      2. evaluating and analyzing the technical feasibility and cost-effectiveness of existing strategies and programs and identifying, evaluating, and analyzing new strategies and programs that are based upon emerging scientific and technical information;
      3. analyzing each source or category of sources of greenhouse gas emissions and identifying which strategies and programs will result in the largest greenhouse gas emissions reductions in the most cost-effective manner;
      4. identifying, analyzing, and evaluating public and private financing strategies to support the transition to a reduced greenhouse gas emissions economy and a more resilient State; and
      5. evaluating and analyzing existing strategies and programs that build resilience, and identifying, evaluating, and analyzing new strategies and programs to prepare the State’s communities, infrastructure, and economy to adapt to the current and anticipated effects of climate change.
    2. On or before December 1, 2021, adopt the Vermont Climate Action Plan (Plan) and update the Plan on or before July 1 every four years thereafter. The Plan shall set forth the specific initiatives, programs, and strategies that the State shall pursue to reduce greenhouse gas emissions; achieve the State’s reduction requirements pursuant to section 578 of this title; and build resilience to prepare the State’s communities, infrastructure, and economy to adapt to the current and anticipated effects of climate change.
    3. Identify the means to accurately measure:
      1. the State’s greenhouse gas emissions and progress towards meeting the reduction requirements pursuant to section 578 of this title, including publishing emissions data in a timely manner;
      2. the effectiveness of the specific initiatives, programs, and strategies set forth in the Plan and updates to the Plan in reducing greenhouse gas emissions;
      3. the effect of climate change on the State’s climate, wildlife, and natural resources; and
      4. the existing resilience of the State’s communities, infrastructure, and economy and progress towards improving resilience to adapt to the current and anticipated effects of climate change.
    4. Provide guidance to the Secretary of Natural Resources concerning the form, content, and subject matter of rules to be adopted pursuant to section 593 of this chapter.
  3. The Council shall create the subcommittees listed in this subsection and may also create other subcommittees to advise the Council, assist in preparing the Plan, and carry out other duties. The Council may appoint members of the Council to serve as members of subcommittees and may also appoint individuals who are not members of the Council to serve as members of subcommittees.
    1. Rural Resilience and Adaptation Subcommittee.   The Rural Resilience and Adaptation Subcommittee shall focus on the pressures that climate change adaptation will impose on rural transportation, electricity, housing, emergency services, and communications infrastructure, and the difficulty of rural communities in meeting the needs of its citizens. The Subcommittee shall:
      1. develop a municipal vulnerability index to include factors measuring a municipality’s population, average age, employment, and grand list trends; active public and civic organizations; and distance from emergency services and shelter;
      2. develop best practice recommendations specific to rural communities for reducing municipal, school district, and residential fossil fuel consumption; fortifying critical transportation, electricity, and community infrastructure; and creating a distributed, redundant, storage-supported local electrical system;
      3. recommend a means of securely sharing self-identified vulnerable residents’ information with State and local emergency responders and utilities;
      4. recommend tools for municipalities to assess their climate emergency preparedness, evaluate their financial capacity to address infrastructure resilience, and prioritize investment in that infrastructure; and
      5. utilize Vermont Emergency Management biennial reports to recommend program, policy, and legislative changes that will enhance municipal resilience to increased hazards presented by climate change.
    2. Cross-Sector Mitigation Subcommittee.   This subcommittee shall focus on identifying the most scientifically and technologically feasible strategies and programs that will result in the largest possible greenhouse gas emissions reductions in the most cost-effective manner.
    3. Just Transitions Subcommittee.   This subcommittee shall focus on ensuring that strategies to reduce greenhouse gas emissions and to build resilience to adapt to the effects of climate change benefit and support all residents of the State fairly and equitably. This subcommittee shall ensure that strategies consider the disproportionate impact of climate change on rural, low-income, and marginalized communities and that programs and incentives for building resilience are designed to be accessible to all Vermonters and do not unfairly burden any groups, communities, geographic locations, or economic sectors. This subcommittee may adopt a measurement tool to assess the equitability of programs and strategies considered by the Council.
    4. Agriculture and Ecosystems Subcommittee.   This subcommittee shall focus on the role Vermont’s natural and working lands play in carbon sequestration and storage, climate adaptation, and ecosystem and community resilience. This subcommittee will seek to understand current initiatives in the agricultural and forestry sectors and the businesses that depend on them and to develop actions and policies that restore wetlands; increase carbon stored on agricultural and forest land and in forest products; and support healthy agricultural soils and local food systems.
  4. The Council shall recommend necessary legislation to the General Assembly concerning:
    1. adopting market-based or alternative compliance mechanisms as part of the State’s greenhouse gas emissions reduction strategies;
    2. changes to land use and development, including to chapter 151 of this title and 30 V.S.A. § 248 , to reduce greenhouse gas emissions and promote resilience in response to climate change;
    3. statutory authority necessary to implement the Plan; and
    4. any other matter the Council deems appropriate.
  5. The Council shall have the administrative, technical, and legal assistance of the Agency of Natural Resources and the Department of Public Service and may request the assistance of any Executive Branch Agency and Department.
  6. A majority of the sitting members of the Council shall constitute a quorum, and action taken by the Council may be authorized by a majority of the members present and voting at any meeting at which a quorum is present. The Council may permit any or all members to participate in a meeting by, or conduct the meeting through the use of, any means of communication, including electronic, telecommunications, and video- or audio-conferencing technology, by which all members participating may simultaneously or sequentially communicate with each other during the meeting. A member participating in a meeting by this means is deemed to be present in person at the meeting. The Council shall meet at the call of the Chair or a majority of the members of the Council, and the Council may elect officers and adopt any other procedural rules as it shall determine necessary and appropriate to perform its work.
  7. Members of the Council and members of subcommittees who are not State employees shall be entitled to per diem compensation and reimbursement of expenses for each day spent in the performance of their duties, as permitted under 32 V.S.A. § 1010 . These payments shall be made from monies appropriated to the Agency of Natural Resources.
  8. The members of the Council appointed pursuant to subdivision (a)(9) of this section shall be appointed to initial terms of two years, and members appointed pursuant to subdivision (a)(10) of this section shall be appointed to initial terms of three years. Thereafter, each appointed member shall serve a term of three years or until his or her earlier resignation or removal. A vacancy shall be filled by the appointing authority for the remainder of the unexpired term. An appointed member shall not serve more than three full consecutive three-year terms.
  9. On or before January 15, 2021 and every January 15 thereafter, the Council shall submit a written report to the General Assembly concerning the Council’s activities and the State’s progress towards meeting the greenhouse gas reduction requirements pursuant to section 578 of this title. On or before November 1, 2021 and every second November 1 thereafter, the Director of Vermont Emergency Management shall file a report with the Council concerning Vermont’s overall municipal resilience to increased hazards presented by climate change that shall include hazard mitigation plans, local emergency management plans, and survey results as deemed appropriate by the Director. Subsequent reports shall include updates to document progress in local resilience. The report shall inform Council recommendations on policies to address gaps in local resilience.

HISTORY: Added 2019, No. 153 (Adj. Sess.), § 4, eff. Sept. 22, 2020; amended 2021, No. 3 , § 58, eff. March 2, 2021; 2021, No. 20 , §§ 46, 47.

History

Former § 591. Former § 591, relating to outdoor lighting, was derived from 2005, No. 155 (Adj. Sess.), § 1. This section was previously repealed by 2009, No. 135 (Adj. Sess.), § 26(3)(D).

Revision note

—2020. In subsec. (h), substituted “subdivision (a)(9)” for “subdivision (a)(8)” and “subdivision (a)(10)” for “subdivision (a)(9)” to correct errors in the references.

Amendments

—2021. Subdiv. (a)(9)(C): Act No. 20 deleted “the” preceding “municipal.”

Subsec. (c): Act No. 20 deleted the subsection heading.

Subsec. (g): Act No. 3 inserted “and members of subcommittees” following “Council” in the first sentence.

Vermont Climate Council; appointment of members and first meeting. 2019, No. 153 (Adj. Sess.), § 6 provides: “All members of the Vermont Climate Council established pursuant to section 10 V.S.A. § 591 shall be appointed within 60 days of the effective date of this act, and the Chair shall call the first meeting of the Council within 30 days after all members have been appointed.”

§ 592. The Vermont Climate Action Plan.

  1. On or before December 1, 2021, the Vermont Climate Council (Council) shall adopt the Vermont Climate Action Plan (Plan) and update the Plan on or before July 1 every four years thereafter.
  2. The Plan shall set forth the specific initiatives, programs, and strategies, including regulatory and legislative changes, necessary to achieve the State’s greenhouse gas emissions reduction requirements pursuant to section 578 of this title and build resilience to prepare the State’s communities, infrastructure, and economy to adapt to the current and anticipated effects of climate change. The Plan shall include specific initiatives, programs, and strategies that will:
    1. reduce greenhouse gas emissions from the transportation, building, regulated utility, industrial, commercial, and agricultural sectors;
    2. encourage smart growth and related strategies;
    3. achieve long-term sequestration and storage of carbon and promote best management practices to achieve climate mitigation, adaption, and resilience on natural working lands;
    4. achieve net zero emissions by 2050 across all sectors;
    5. reduce energy burdens for rural and marginalized communities;
    6. limit the use of chemicals, substances, or products that contribute to climate change; and
    7. build and encourage climate adaptation and resilience of Vermont communities and natural systems.
  3. The analysis, development, and selection of the specific initiatives, programs, and strategies contained in the Plan and updates to the Plan shall be based upon:
    1. the Council’s analysis and evaluation of strategies and programs pursuant to subdivision 591(b)(1) of this chapter;
    2. reports, plans, and information pertaining to greenhouse gas emissions reduction and climate resilience strategies from the Agency of Natural Resources, the Department of Public Service, other State agencies and departments, and, where appropriate, the State Comprehensive Energy Plan prepared pursuant to 30 V.S.A. § 202b and the 2018 Vermont Climate Action Commission Report to the Governor; and
    3. other reports, plans, and information.
  4. The specific initiatives, programs, and strategies contained in the Plan and updates to the Plan shall further the following objectives:
    1. to prioritize the most cost-effective, technologically feasible, and equitable greenhouse gas emissions reduction pathways and adaptation and preparedness strategies informed by scientific and technical expertise;
    2. to provide for greenhouse gas emissions reductions that reflect the relative contribution of each source or category of source of emissions;
    3. to minimize negative impacts on marginalized and rural communities and upon individuals with low and moderate income;
    4. to ensure that all regions of the State benefit from greenhouse gas emissions reductions, including sharing in the resulting economic, quality-of-life, and public health benefits;
    5. to support economic sectors and regions of the State that face the greatest barriers to emissions reductions, especially rural and economically distressed regions and industries;
    6. to support industries, technology, and training that will allow workers and businesses in the State to benefit from greenhouse gas emissions reduction solutions;
    7. to support the use of natural solutions to reduce greenhouse gas emissions and increase resilience, including the use of working lands to sequester and store carbon and protect against severe weather events; and
    8. to maximize the State’s involvement in interstate and regional initiatives and programs designed to reduce regional greenhouse gas emissions and build upon state, national, and international partnerships and programs designed to mitigate climate change and its impacts.
  5. The Plan shall form the basis for the rules adopted by the Secretary of Natural Resources pursuant to section 593 of this chapter. If the Council fails to adopt the Plan or update the Plan as required by this chapter, the Secretary shall proceed with adopting and implementing rules pursuant to subsection 593(j) of this chapter to achieve the greenhouse gas emissions reductions requirements pursuant to section 578 of this title.

HISTORY: Added 2019, No. 153 (Adj. Sess.), § 4, eff. Sept. 22, 2020.

§ 593. Rules.

  1. The Secretary of Natural Resources shall adopt rules pursuant to 3 V.S.A. chapter 25 consistent with the Vermont Climate Action Plan (Plan). In adopting rules pursuant to this section the Secretary shall:
    1. Ensure that the rules are consistent with the specific initiatives, programs, and strategies set forth in the Plan and updates to the Plan; follow the Vermont Climate Council’s guidance provided pursuant to subdivision 591(b)(4) of this chapter; and further the objectives pursuant to subsection 592(d) of this chapter.
    2. Develop a detailed record containing facts; data; and legal, scientific, and technical information sufficient to establish a reasonable basis to believe that the rules shall achieve the State’s greenhouse gas emissions reductions requirements pursuant to section 578 of this title. This detailed record shall be included with the rule and filed with the Secretary of State pursuant to 3 V.S.A. § 838 .
  2. On or before December 1, 2022, the Secretary shall adopt and implement rules consistent with the specific initiatives, programs, and strategies set forth in the Plan and achieve the 2025 greenhouse gas emissions reduction requirement pursuant to section 578 of this title.
  3. The Secretary shall conduct public hearings across the State concerning the proposed rules. The Secretary shall conduct a portion of these hearings in areas and communities that have the most significant exposure to the impacts of climate change, including disadvantaged, low-income, and rural communities and areas.
  4. The Secretary shall, on or before July 1, 2024, review and, if necessary, update the rules required by subsection (b) of this section in order to ensure that the 2025 greenhouse gas emissions reduction requirement pursuant to section 578 of this title is achieved. In performing this review and update, the Secretary shall observe the requirements of subsection (c) of this section.
  5. On or before July 1, 2026, the Secretary shall adopt and implement rules consistent with the specific initiatives, programs, and strategies set forth in the Plan and updates to the Plan and achieve the 2030 greenhouse gas emissions reduction requirement pursuant to section 578 of this title. The Secretary shall observe the requirements of subsection (c) of this section.
  6. The Secretary shall, at his or her discretion, but not less frequently than once every two years between 2026 and 2030, review and, if necessary, update the rules required by subsection (e) of this section in order to ensure that the 2030 greenhouse gas emissions reduction requirement pursuant to section 578 of this title is achieved. In performing this review and update, the Secretary shall observe the requirements of subsection (c) of this section.
  7. On or before July 1, 2040, the Secretary shall adopt and implement rules consistent with the specific initiatives, programs, and strategies set forth in the Plan and updates to the Plan and achieve the 2050 greenhouse gas emissions reduction requirement pursuant to section 578 of this title.
  8. The Secretary shall, at his or her discretion, but not less frequently than once every two years between 2040 and 2050, review and, if necessary, update the rules required by subsection (g) of this section in order to ensure that the 2050 greenhouse gas emissions reduction requirement pursuant to section 578 of this title is achieved. In performing this review and update, the Secretary shall observe the requirements of subsection (c) of this section.
  9. The Secretary may establish alternative reduction mechanisms to be used by sources of greenhouse gas emissions, if necessary, to achieve net zero emissions after 2050.
    1. The use of alternative reduction mechanisms shall account for not more than 20 percent of statewide greenhouse gas emissions estimated as a percentage of 1990 emissions. The use of a mechanism must offset a quantity of greenhouse gas emissions equal to or greater than the amount of greenhouse gasses emitted.
    2. The Secretary shall verify that any greenhouse gas emissions offset projects authorized as alternative reduction mechanisms represent equivalent emissions reductions or carbon sequestration that are real, additional, verifiable, enforceable, and permanent.
  10. If the Council fails to adopt the Plan or update the Plan as required by section 592 of this chapter, the Secretary shall adopt and implement rules pursuant to 3 V.S.A. chapter 25 to achieve the greenhouse gas emissions reductions requirements pursuant to section 578 of this title.
  11. Nothing in this section shall be construed to limit the existing authority of a State agency, department, or entity to regulate greenhouse gas emissions or establish strategies or adopt rules to mitigate climate risk and build resilience to climate change.
  12. The General Assembly may repeal, revise, or modify any rule or amendment to any rule, and its action shall not be abridged, enlarged, or modified by subsequent rule.

HISTORY: Added 2019, No. 153 (Adj. Sess.), § 4, eff. Sept. 22, 2020.

History

Rules required pursuant to 10 V.S.A. § 593 . 2019, No. 153 (Adj. Sess.), § 5 provides: “(a) Any proposed rules and access to the detailed record required pursuant to section 10 V.S.A. § 593 shall be:

“(1) provided to the Vermont Climate Council not less than 45 days prior to submitting the proposed rule or rules to the Interagency Committee on Administrative Rules (ICAR);

“(2) provided to the members of the House Committees on Energy and Technology, on Natural Resources, Fish, and Wildlife, and on Transportation, to the Senate Committees on Finance, on Natural Resources and Energy, and on Transportation, and to the Joint Carbon Emissions Reduction Committee not less than 30 days prior to submitting the proposed rule or rules to ICAR; and

“(3) filed with ICAR on or before July 1, 2022.

“(b) Upon the adoption of the Action Plan (Plan) pursuant to 10 V.S.A. § 592 , the Joint Fiscal Office of the General Assembly (JFO) shall prepare, or hire a consultant to prepare, an analysis of the economic, budgetary, and fiscal costs and benefits of the Plan. JFO shall submit the analysis to the House Committees on Energy and Technology, on Natural Resources, Fish, and Wildlife, on Appropriations and on Transportation, to the Senate Committees on Finance, on Appropriations, on Natural Resources and Energy, and on Transportation, and to the Joint Carbon Emissions Reduction Committee.”

§ 594. Cause of action.

  1. Any person may commence an action based upon the failure of the Secretary of Natural Resources to adopt or update rules pursuant to the deadlines in section 593 of this chapter.
    1. The action shall be brought pursuant to Rule 75 of the Vermont Rules of Civil Procedure in the Civil Division of the Superior Court of Washington County.
    2. The complaint shall be filed within one year after expiration of the time in which the Secretary of Natural Resources was required to adopt or update rules pursuant to section 593 of this chapter. However, a person shall not commence an action under this subsection until at least 60 days after providing notice of the alleged violation to the Secretary.
    3. If the court finds that the Secretary has failed to adopt or update rules pursuant to the deadlines in section 593 of this chapter, the court shall enter an order directing the Secretary to adopt or update rules. If the court finds that the Secretary is taking prompt and effective action to adopt or update rules, the court may grant the Secretary a reasonable period of time to do so.
  2. Any person may commence an action alleging that rules adopted by the Secretary pursuant to section 593 of this chapter have failed to achieve the greenhouse gas emissions reductions requirements pursuant to section 578 of this title.
    1. The action shall be brought in the Civil Division of the Superior Court of Washington County.
    2. The complaint shall be filed within one year after the Vermont Greenhouse Gas Emission Inventory and Forecast published pursuant to section 582 of this title indicates that the rules adopted by the Secretary have failed to achieve the greenhouse gas emissions reductions requirements pursuant to section 578 of this title. However, a person shall not commence an action under this subsection until at least 60 days after providing notice of the alleged violation to the Secretary.
    3. If the court finds that the rules adopted by the Secretary pursuant to section 593 of this chapter are a substantial cause of failure to achieve the greenhouse gas emissions reductions requirements pursuant to section 578 of this title, the court shall enter an order remanding the matter to the Secretary to adopt or update rules that achieve the greenhouse gas emissions reductions requirements consistent with this chapter. If the court finds that the Secretary is taking prompt and effective action to comply, the court may grant the Secretary a reasonable period of time to do so.
  3. In an action brought pursuant to this section, a prevailing party or substantially prevailing party:
    1. that is a plaintiff shall be awarded reasonable costs and attorney’s fees unless doing so would not serve the interests of justice; or
    2. that is a defendant may be awarded reasonable costs and attorney’s fees if the action was frivolous or lacked a reasonable basis in law or fact.
  4. Nothing in this section shall be construed to limit the rights, procedures, and remedies available under any law, including the Vermont Administrative Procedure Act pursuant to 3 V.S.A. chapter 25.

HISTORY: Added 2019, No. 153 (Adj. Sess.), § 4, eff. Sept. 22, 2020.

Chapter 25. Vermont Housing Finance Agency

History

Citation. 1973, No. 260 (Adj. Sess.), § 1, provided: “This act [which added this chapter and chapter 18 of this title and repealed chapter 17 of this title] may be cited as the ‘Vermont Housing Finance Agency Act’.”

Declaration of policy and purpose. 1973, No. 260 (Adj. Sess.), § 2, provided:

“(a) It is the policy of this state to promote the expansion of the supply of funds available for mortgages on residential housing and to encourage an adequate supply of safe and decent housing at reasonable costs through the creation of a state housing finance agency.

“(b) It is hereby further declared that all of the foregoing are public purposes and uses for which public moneys may be borrowed, expended, advanced, loaned, or granted, and that such activities serve a public purpose in improving or otherwise benefiting the people of this state; that the necessity of enacting the provisions hereinafter set forth is in the public interest and is hereby so declared as a matter of express legislative determination.”

CROSS REFERENCES

Federal home loan banks, see 12 U.S.C. § 1421 et seq.

Federal home loan mortgage corporation, see 12 U.S.C. § 1451 et seq.

Subchapter 1. General Provisions

§ 601. Definitions.

The following words and terms, unless the context clearly indicates a different meaning, shall have the following meaning:

  1. “Agency” means the Vermont Housing Finance Agency created by this chapter.
  2. “Bonds, notes, and other obligations” or “bonds, bond anticipation notes, or other obligations” means any bonds, notes, debentures, interim certificates, or other evidences of financial indebtedness issued by the Agency pursuant to this chapter.
  3. “Eligible security” means any security or obligation payable from or evidencing an interest in mortgages or other obligations securing loans to finance residential housing in the State.
  4. “Federally insured mortgage loan” means a mortgage loan for residential housing insured or guaranteed by the United States or an agency or instrumentality thereof, or a commitment by the United States or an agency or instrumentality thereof to insure such a mortgage.
  5. “Federal mortgage loan” means a mortgage loan for residential housing made by the United States or an agency or instrumentality thereof or a commitment by the United States or an agency or instrumentality thereof to make such a mortgage loan.
  6. “Housing development costs” means the costs incurred in connection with the acquisition, construction, or rehabilitation of residential housing, including the costs of its physical construction, the costs of acquisition of land, real or personal property, rights, rights-of-way, easements, and franchises necessary or convenient for the construction, and the costs of legal, administrative, architectural and related professional services, the costs of insurance, project reports, survey, other preliminary expenses, and the costs of working capital, reserves, and carrying charges.
  7. “Housing sponsor” or “sponsor” means a person who is organized on a nonprofit or limited profit basis or agrees to appropriate conditions as described in subdivision 624(b)(5) of this title and who is approved by the Agency as qualified either to own, construct, acquire, rehabilitate, operate, manage, or maintain residential housing.
  8. “Mortgage” means a mortgage deed, deed of trust, or other instrument that shall constitute a lien on real property in fee simple or on a leasehold under a lease having a remaining term, at the time such mortgage is acquired, that does not expire prior to the maturity date.
  9. “Mortgage lender” means any bank or trust company, mortgage company approved by any government-sponsored entity, savings bank, savings and loan association, industrial bank, credit union, National Banking Association, federal savings and loan association, federal credit union, or other financial institution or governmental agency or instrumentality that customarily provides or otherwise aids in the financing of mortgage loans on residential housing located in the State.
  10. “Mortgage loan” means and includes:
    1. an interest-bearing or noninterest bearing obligation secured by either a mortgage or other security instrument constituting a lien on land and improvements in the State;
    2. an interest-bearing or noninterest bearing obligation secured by a pledge of a cooperative interest and a conditional assignment of the proprietary lease incidental thereto;
    3. an interest-bearing or noninterest bearing obligation secured by the owner-occupant’s interest in a mobile home, provided that:
      1. the mobile home is to be sited in a manner intended for continuous residential occupancy by the owner on land owned by the owner of the mobile home and shall be secured by a mortgage that shall constitute a first lien on the mobile home and the real property to which it is affixed; or
      2. the mobile home is to be sited in a manner intended for continuous residential occupancy on land leased by the owner of the mobile home and shall be secured by a note or otherwise and collateral assignment of a lease of real property that shall constitute a first lien upon the mobile home. Notwithstanding any other provision of this chapter, the lease of the land upon which the mobile home is sited shall be for a term of at least one year, shall be renewable for periods of at least one year, and shall comply with the requirements of section 6236 of this title. This definition shall not preclude the requirement of security in addition to that specified in this subsection for any mortgage loan.
  11. “Persons and families of low and moderate income” means persons and families irrespective of race, creed, national origin, sex, sexual orientation, or gender identity deemed by the Agency to require such assistance as is made available by this chapter on account of insufficient personal or family income, taking into consideration, without limitation, such factors as:
    1. the amount of the total income of such persons and families available for housing needs;
    2. the size of the family;
    3. the cost and condition of residential housing available;
    4. the cost and availability of mortgage loans on residential housing in the State;
    5. the eligibility of such persons and families for federal housing assistance of any type predicated upon a low-income basis or upon the basis of the age of such persons;
    6. the ability of such persons and families to compete successfully in the normal housing market and to pay the amounts at which private enterprise is providing decent, safe, and sanitary housing, and deemed by the Agency therefore to be eligible to occupy residential housing constructed and financed, wholly or in part, with insured or guaranteed construction loans or insured or guaranteed mortgages, or with other public or private assistance other than as provided by this chapter.
  12. “Real property” means all lands, including improvements, and fixtures thereon, and property of any nature appurtenant thereto, or used in connection therewith, and every estate, interest and right, legal or equitable, therein, including terms of years and liens by way of judgment, mortgage, or otherwise and the indebtedness secured by such liens.
  13. “Rehabilitation” means the rehabilitation, improvement, and repair of residential housing and facilities incidental thereto undertaken primarily to provide dwelling accommodations for occupancy by persons and families in this State.
  14. “Residential housing” means residential housing units designed primarily to provide principal dwelling accommodations whether on a permanent or temporary basis for persons or families, which may include the land and improvements thereon and such nonhousing facilities or services considered necessary or convenient or part of a community development plan by the Agency in connection with the residential housing, including commercial enterprises and government functions within the same building. “Residential housing” includes single or multi-family dwellings, congregate homes, residential care homes as defined in 33 V.S.A. § 7102 , nursing homes, transitional housing, emergency shelters for the homeless or displaced, mobile homes, single room occupancy dwellings, and group homes for persons with psychiatric or developmental disabilities. “Residential housing” also means cooperative interests and mobile home parks as defined in section 6201 of this title.
  15. “Cooperative Housing Corporation” means a domestic corporation qualified under 11 V.S.A. chapter 14.
  16. “Cooperative interest” means a cooperative interest as defined in 11 V.S.A. chapter 14.
  17. “Member” means a person who owns a cooperative interest in a Cooperative Housing Corporation.
  18. “Mobile home” means “mobile home” as that term is defined in 9 V.S.A. chapter 72.
  19. “Equity loan” means a mortgage loan to a housing sponsor secured by a mortgage on property constituting residential housing in an amount that, when added to the amount of any prior mortgages on the property, does not exceed 90 percent of the value of the property plus the value of additional collateral deemed appropriate and as determined by the Agency, provided the Agency has made a finding that the effect of such loan will be to maintain or increase the supply of residential housing in the State for persons and families of low and moderate income.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974; amended 1975, No. 176 (Adj. Sess.), § 1, eff. March 26, 1976; 1987, No. 41 , § 1; 1987, No. 250 (Adj. Sess.), § 1, eff. June 13, 1988; 1989, No. 77 , §§ 1, 2, eff. June 7, 1989; 1991, No. 135 (Adj. Sess.), § 13; 1993, No. 141 (Adj. Sess.), § 18, eff. May 6, 1994; 2005, No. 189 (Adj. Sess.), § 1; 2007, No. 41 , § 16; 2013, No. 96 (Adj. Sess.), § 34.

History

Amendments

—2013 (Adj. Sess.). Subdiv. (14): Deleted “, but is not limited to,” following “includes” and substituted “persons with psychiatric or developmental disabilities” for “the mentally ill or developmentally disabled”.

—2007. Subdiv. (11): Deleted “or” preceding “sexual” and inserted “, or gender identity” following “orientation”.

—2005 (Adj. Sess.). Subdiv. (7): Inserted “or agrees to appropriate conditions as described in subdivision 624(b)(5) of this title” following “basis”.

Subdiv. (8): Substituted “prior to” for “for at least that number of years beyond” and deleted “of the obligation secured by the mortgage as is equal to the number of years remaining until the maturity date of the obligation or on a cooperative interest or on an interest in a mobile home” following “maturity date” in the first sentence, and deleted the second sentence.

Subdiv. (9): Substituted “mortgage company approved by any government-sponsored entity” for “federal national mortgage association approved mortgage banker” preceding “savings”.

Subdiv. (10)(A): Inserted “or noninterest bearing” following “interest-bearing” and substituted “other security instrument” for “note or bond”.

Subdivs. (10)(B) and (10)(C): Inserted “or noninterest bearing” following “interest-bearing”.

Subdiv. (14): Inserted “or part of a community development plan” following “convenient” and “including commercial enterprises and government functions within the same building” following “housing” in the first sentence.

Subdiv. (19): Substituted “90 percent” for “ninety percent” and inserted “plus the value of additional collateral deemed appropriate and” following “property”.

—1993 (Adj. Sess.). Subdiv. (10)(C)(ii): Deleted “and lease” following “upon the mobile home” in the first sentence.

—1991 (Adj. Sess.). Subdiv. (11): Substituted “sex or sexual orientation” for “or sex” preceding “deemed” in the introductory paragraph.

—1989. Subdiv. (10)(B): Amended generally.

Subdiv. (10)(C)(i): Deleted “permanently” preceding “sited”, substituted “that” for “which” following “mortgage” and deleted “thereto” following “affixed”.

Subdiv. (10)(C)(ii): Substituted “is to be” for “to be permanently” preceding “sited” and “that” for “which” following “property” in the first sentence and added the second sentence.

Subdiv. (14): Deleted “housing cooperative corporations and cooperative interests” preceding “congregate” in the second sentence and added the third sentence.

Subdiv. (15): Amended generally.

Subdiv. (16): Amended generally.

Subdiv. (19): Added.

—1987 (Adj. Sess.). Deleted “first” preceding “lien on real property” in the first sentence of subdiv. (8) and preceding “lien on land” in subdiv. (10)(A).

—1987. Subdiv. (6): Inserted “acquisition” following “connection with the”.

Subdiv. (8): Added “or on a cooperative interest or on an interest in a mobile home” following “until the maturity date of the obligation” and substituted “guarantee board” for “credit agency” following “Vermont home mortgage”.

Subdiv. (9): Substituted “mortgage loans” for “mortgages” preceding “on residential”.

Subdiv. (10): Amended generally.

Subdiv. (14): Amended generally.

Subdiv. (15): Added.

Subdiv. (16): Added.

Subdiv. (17): Added.

Subdiv. (18): Added.

—1975 (Adj. Sess.). Added present subdivs. (6) and (7), deleted former subdiv. (9), and redesignated former subdivs. (6), (7), (8), and (10)-(13) as present subdivs. (8), (9), and (10)-(14).

§ 602. Statutory purposes.

The statutory purpose of the exemption for the Vermont Housing Finance Agency in subsection 641(a) of this title is to provide and promote affordable housing.

HISTORY: Added 2013, No. 200 (Adj. Sess.), § 8.

Subchapter 2. Establishment and Organization

History

Investment of state monies. 2007, No. 176 (Adj. Sess.), § 19 provides: “The treasurer is hereby authorized to establish a short-term credit facility for the Vermont housing finance agency in an amount of up to $50,000,000.00 to be used as interim financing for its homeownership mortgage loan program as authorized under chapter 25 of Title 10.”

Repeal of short-term loan to VHFA. 2007, No. 176 (Adj. Sess.), § 19a provides: “Sec. 19 (Short-Term Loan from State Treasury to VHFA) of this act shall be repealed on July 1, 2009.”

§ 611. Creation of the Vermont Housing Finance Agency.

  1. There is created and established a body politic and corporate with such duties and powers as are set forth in this chapter, to be known as the “Vermont Housing Finance Agency” to carry out the provisions of this chapter.  The Agency is constituted a public instrumentality exercising public and essential governmental functions, and the exercise by the Agency of the powers conferred by this chapter shall be deemed and held to be the performance of an essential governmental function of the State.
  2. The Agency shall consist of nine commissioners, including ex officio the Commissioner of Financial Regulation, the State Treasurer, the Secretary of Commerce and Community Development, the Executive Director of the Vermont Housing and Conservation Board or their designees, and five commissioners, who shall be residents of the State, and who shall in the opinion of the Governor with consideration of statewide geographic representation be knowledgeable in housing, finance, and financial planning or other related areas, to be appointed by the Governor with the advice and consent of the Senate for terms of four years. Any vacancies in the membership of the Agency shall be filled in like manner but only for the remainder of an unexpired term. Each commissioner shall hold office for the term of his or her appointment and until his or her successor is appointed and qualified. A commissioner appointed by the Governor may be removed from office by the Governor for misfeasance, malfeasance, or willful neglect of duty or other cause after notice and public hearing unless such notice or hearing is expressly waived in writing.
  3. The Governor shall designate annually a chair of the Agency from among the commissioners. The commissioners shall elect from among their number a vice chair annually and such other officers as they may determine. Meetings shall be held at the call of the Chair or whenever two commissioners so request. Five commissioners of the Agency shall constitute a quorum, and any action taken by the Agency under the provisions of this chapter may be authorized by resolution approved by a majority but not less than four of the commissioners present at any regular or special meeting. Resolutions of the Agency shall be made available to the public. No vacancy in the membership of the Agency shall impair the right of a quorum to exercise all the rights and perform all the duties of the Agency.
  4. Commissioners other than ex officio members shall receive compensation authorized under 32 V.S.A. § 1010 for each day spent in the performance of their duties and each such commissioner shall be reimbursed from the funds of the Agency for his or her reasonable expenses incurred in carrying out his or her duties under this chapter.
  5. Notwithstanding the provisions of any other law, no officer or employee of this State shall be deemed to have forfeited or shall forfeit his or her office or employment by reason of his or her acceptance of membership of the Agency or his or her service thereto.
  6. The commissioners shall employ an executive director of the Agency.  The Executive Director shall be the Secretary of the Agency and shall administer, manage, and direct the affairs and business of the Agency, subject to the policies, control, and direction of the commissioners.  The commissioners may employ technical experts and such other officers, agents and employees and fix their qualifications, duties and compensation.
  7. The Secretary shall keep a record of the proceedings of the Agency and shall be custodian of all books, documents, and papers filed with the Agency and of its minute book and seal. The Secretary shall have authority to cause to be made copies of all minutes and other records and documents of the Agency and to give certificates under the seal of the Agency to the effect that the copies are true copies and all persons dealing with the Agency may rely upon those certificates.
  8. Before entering into his or her duties, each commissioner of the Agency shall take and subscribe an oath to perform the duties of his or her office faithfully, impartially, and justly to the best of his or her ability. A record of the oath shall be filed in the Office of the Secretary of State.
  9. Notwithstanding any other law to the contrary it shall not be or constitute a conflict of interest for a trustee, director, officer, or employee of any financial institution, savings institution, investment banking firm, brokerage firm, commercial bank or trust company, architecture firm, insurance company, or any other firm, person, or corporation to serve as a member of the Agency, provided the trustee, director, officer, or employee abstains from deliberation, action and vote by the Agency in each instance where the business affiliation of any such trustee, director, officer, or employee is involved.
  10. The Agency and its existence shall continue so long as it shall have notes, bonds, or other obligations, or any indebtedness outstanding, including notes, bonds, or other obligations or any such indebtedness hereafter issued or incurred, and until its existence is terminated by law.  The net earnings of the Agency, beyond that necessary for retirement of its notes, bonds, or other obligations or any such indebtedness or to implement the public purposes and programs authorized in this chapter, shall not inure to the benefit of any person other than the State.  Upon termination of the existence of the Agency, title to all of the property owned by the Agency, including any net earnings of the Agency, shall vest in the State.  The State reserves the right at any time to alter, amend, repeal, or otherwise change the structure, organization, programs, or activities of the Agency, including the power to terminate the Agency, except that no law shall impair the obligation of any contract or contracts entered into by the Agency to the extent the law would contravene the Constitution of the State or the Constitution of the United States of America.
  11. Notwithstanding any general or special law to the contrary, the provisions of 8 V.S.A. chapters 73 and 83 shall not apply to the Agency or to any loan heretofore or hereafter made or serviced by the Agency in accordance with this title.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974; amended 1975, No. 176 (Adj. Sess.), § 3, eff. March 26, 1976; 1987, No. 203 (Adj. Sess.), § 19, eff. May 27, 1988; 1989, No. 225 (Adj. Sess.), § 25; 1995, No. 180 (Adj. Sess.), § 38; 1995, No. 190 (Adj. Sess.), § 1(b); 2005, No. 75 , § 18; 2009, No. 96 (Adj. Sess.), § 2; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.

History

Amendments

—2011 (Adj. Sess.) Subsec. (b): Substituted “commissioner of financial regulation” for “commissioner of banking, insurance, securities, and health care administration” in the first sentence.

—2009 (Adj. Sess.) Subsec. (k): Substituted “chapters 73 and 83” for “chapter 73” and inserted “or serviced” following “hereafter made”.

—2005. Subsec. (b): Amended generally.

Subsec. (c): Made gender-neutral changes in the first through third sentences and substituted “five commissioners” for “four commissioners” and “four” for “three” preceding “of the commissioners” in the fourth sentence.

Subsec. (d): Substituted “compensation authorized under section 1010 of Title 32” for “$30.00 per day” and inserted “or her” following “his” in two places.

Subsecs. (e), (g), and (h): Made references gender-neutral.

—1995 (Adj. Sess.) Subsec. (b): Act No. 180 substituted “commissioner of banking, insurance, securities, and health care administration” for “commissioner of banking, insurance, and securities” in the first sentence.

Act No. 190 substituted “secretary of commerce and community development” for “secretary of development and community affairs” in the first sentence.

—1989 (Adj. Sess.). Subsec. (b): Substituted “commissioner of banking, insurance, and securities” for “commissioner of banking and insurance” in the first sentence.

—1987 (Adj. Sess.). Subsec. (k): Added.

—1975 (Adj. Sess.). Subsec. (j): Added.

Retroactive application of 1987 (Adj. Sess.) amendment. 1987, No. 203 (Adj. Sess.), § 22, eff. May 27, 1988, provided that the amendment to this section by section 19 of the act shall apply retroactively to the Vermont Housing Finance Agency to the date of the establishment of the Agency, which was April 11, 1974.

Subchapter 3. Powers and Duties

§ 621. General powers and duties.

The Agency shall have all of the powers necessary and convenient to carry out and effectuate the purposes and provisions of this chapter, including those general powers provided a business corporation by 11A V.S.A. § 3.02 and those general powers provided a nonprofit corporation by 11B V.S.A. § 3.02 and including, without limiting the generality of the foregoing, the power to:

  1. make and execute contracts and all other instruments necessary or convenient for the exercise of its powers and functions under this chapter, including contracts and instruments that may be made and executed with the State or the United States or any agency or instrumentality of either of them or with private corporations or individuals, including contracts with mortgage lenders or other qualified entities for the servicing of mortgages made or acquired by the Agency pursuant to this chapter or for assistance rendered the Agency in the location of all eligible mortgagees or to pay the reasonable value of services rendered to the Agency pursuant to these contracts;
  2. acquire real or personal property, or any interest therein, on either a temporary or long-term basis in its own name by gift, transfer, foreclosure, lease, pledge, assignment, or otherwise, including rights or easements in real property; hold, sell, assign, lease, encumber, mortgage, or otherwise dispose of any real or personal property or any interest therein; hold, sell, assign, or otherwise dispose of any mortgage lien interest owned by it or under its control, custody or in its possession; and release or relinquish any right, title, claim, lien, interest, easement, or demand however acquired, including any equity or right of redemption in property foreclosed by it and to do any of the foregoing by public or private sale, with or without public bidding, notwithstanding the provisions of any other law;
  3. receive and accept grants, aid, or contributions, from any source, of money, property, labor, or other things of value, to be held, used, and applied or awarded to carry out the purposes of this chapter subject to the conditions upon which the grants, aid, and contributions may be made, including gifts or grants from any agency or instrumentality of the United States or of this State for payment of rent supplements to eligible persons or families or for the payment in whole or in part of the interest expense of residential housing or for any other purpose consistent with this chapter;
  4. provide, contract, or arrange for consolidated processing of any aspect of the financing of residential housing under this chapter in order to avoid duplication thereof by either undertaking the processing in whole or in part on behalf of any department, agency, or instrumentality of the United States or of this State, or, in the alternative, to delegate or contract for the processing in whole or in part to any department, agency, or instrumentality of the United States or of this State, or to a private contractor acceptable to the Agency;
  5. provide advice, technical information, assistance in obtaining federal and State aid, and make such grants, loans, or advances as will assist the planning, construction, rehabilitation, and operation of residential housing primarily for persons of low and moderate income, including assistance in community development and organization, advisory services, the formation of cooperative housing corporations and to encourage community organizations to assist in developing same;
  6. conduct research and promote development in housing, building technology, and related fields;
  7. stimulate environmental planning for housing for persons of low and moderate income in order to enhance opportunities of such persons for self-development and employment;
  8. procure insurance against any loss in connection with its property and other assets, including mortgages and mortgage loans, in such amounts and from such insurers as it deems desirable;
  9. subject to any agreement with bondholders or noteholders, invest monies of the Agency not required for immediate use, including proceeds from the sale of any bonds or notes, at the discretion of the Agency in the same manner as permitted for investment of funds belonging to the State or held in the Treasury;
  10. include in any borrowing such amounts as may be deemed necessary by the Agency to pay financing charges, interest on its obligations for a period not exceeding one year from their date, consultant advisory and legal fees, and such other expenses as are necessary or incident to such borrowing;
  11. subject to any agreement with bondholders or noteholders, purchase bonds or notes of the Agency out of any funds or money of the Agency available therefor, and to hold, cancel, or resell such bonds or notes;
  12. make and publish rules and regulations respecting its housing programs and such other rules and regulations as are necessary to effectuate its corporate purposes;
  13. borrow money and issue bonds and notes or other evidences of indebtedness thereof, issue mortgage credit certificates as hereinafter provided;
  14. subject to any agreement with bondholders or noteholders, refinance any mortgage loan made by the Agency in accordance with this chapter and consent to any modification with respect to rate of interest, time and payment of any installment of principal or interest, security or any other term of any contract, mortgage, mortgage loan, mortgage loan commitment, contract, or agreement of any kind to which the Agency is a party, and refinance any loan made by others if the Agency finds that such refinancing will maintain or increase the supply of residential housing in the State for persons and families of low and moderate income;
  15. procure or agree to the procurement of insurance or guarantees from the federal government of the payment of any bonds or notes or any other evidences of indebtedness thereof issued by the Agency including the power to pay premiums on any such insurance;
  16. purchase and enter into commitments to purchase eligible securities from mortgage lenders provided the proceeds of such purchase are reinvested by such mortgage lenders in new mortgage loans on residential housing for occupancy by persons and families of low and moderate income;
  17. do any and all things necessary or convenient to effectuate the purposes and provisions of this chapter and to carry out its purposes and exercise the powers given and granted in this chapter;
  18. make grants and loans or advances for predevelopment activities related to the development of residential housing;
  19. make loans or advances secured by a mortgage to housing sponsors for the acquisition, construction, rehabilitation, operation, or maintenance of residential housing;
  20. make loans to members of a housing cooperative corporation to finance their cooperative interests in such housing cooperative corporation and make mortgage loans and loans to persons or families to finance mobile homes;
  21. use funds received from real estate trust and escrow accounts established under 26 V.S.A. § 2214(c) , IORTA funds, for down payment and closing cost assistance with priority given to persons and families at or below 90 percent of median income and to persons and families purchasing perpetually affordable housing;
  22. Subdivision (22) repealed on July 1, 2039.

    issue bonds, notes, and other obligations secured by the property transfer tax revenues transferred to the Agency pursuant to 32 V.S.A. § 9610(d) ; and

  23. develop a program to finance and promote housing weatherization using funds appropriated by the State, funds generated through issuing bonds, notes and other obligations of the Agency, and funds from other sources obtained through grants or other arrangements, giving priority to programs benefiting persons and families at or below 120 percent of median income with high energy burdens and to programs to expand the pool of qualified weatherization contractors in the State.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974; amended 1975, No. 176 (Adj. Sess.), § 4, eff. March 26, 1976; 1987, No. 8 , § 1, eff. April 14, 1987; 1987, No. 41 , § 2; 1987, No. 250 (Adj. Sess.), § 2, eff. June 13, 1988; 1989, No. 77 , § 3, eff. June 7, 1989; 1991, No. 86 , § 2, eff. Jan. 1, 1992; 2005, No. 189 (Adj. Sess.), § 2; 2017, No. 85 , § I.5; 2017, No. 85 , § I.11; 2021, No. 74 , § E.802.

History

Revision note

—2018. In the introductory paragraph, deleted “without limitation” following “including” in accordance with 2013, No. 5 , § 4.

—2011. Corrected two V.S.A. references, in the introductory paragraph.

Amendments

—2021. Subdiv. (23): Added.

—2017. Subdiv. (21): Added a semicolon.

Subdiv. (22): Added.

—2005 (Adj. Sess.). Inserted “or other qualified entities” following “lenders” in subdiv. (1); inserted “or contract for” following “delegate” and “or to a private contractor acceptable to the agency” following “state” in subdiv. (4); inserted “make” preceding “such” in subdiv. (5); substituted “for predevelopment activities related to the development of residential housing” for “secured by a mortgage to housing sponsors” in subdiv. (18); added new subdiv. (19) and redesignated former subdivs. (19) and (20) as present subdivs. (20) and (21) and substituted “90 percent” for “90%” in subdiv. (21).

—1991. Subdiv. (20): Added.

—1989. Subdiv. (5): Deleted “and” preceding “technical information” and “including” thereafter, inserted “and such grants, loans, or advances” following “state aid” and “primarily for persons of low and moderate income” following “residential housing” and substituted “cooperative housing corporations” for “mutual housing associations” following “formation of”.

—1987 (Adj. Sess.). Inserted “and those general powers provided a nonprofit corporation by section 2352 of Title 11” following “section 1852 of Title 11” in the introductory paragraph and rewrote subdiv. (14).

—1987. Subdiv. (2): Act No. 41 inserted “pledge, assignment” preceding “or otherwise, including”.

Subdiv. (3): Act No. 41 inserted “or awarded” following “used and applied”.

Subdiv. (5): Act No. 41 deleted “and” preceding “advisory services” and inserted “the formation of mutual housing associations” thereafter.

Subdiv. (13): Act No. 8 inserted “issue mortgage credit certificates” preceding “as hereinafter”.

Subdiv. (17): Act No. 41 made minor changes in punctuation.

Subdiv. (18): Act No. 41 inserted “grants and” preceding “loans” and made other minor changes in punctuation.

Subdiv. (19): Added by Act No. 41.

—1975 (Adj. Sess.). Subdiv. (18): Added.

Prospective repeal of subsec. (22). 2017, No. 85 , § I.11(a), provides for the repeal of subsec. (22) of this section on July 1, 2039.

CROSS REFERENCES

Acquisition of interests in land by public agencies, see § 6301 et seq. of this title.

§ 622. Powers relative to purchase of and sale to mortgage lenders of mortgage loans; loans through mortgage lenders.

The Agency shall have the following powers in addition to others granted in this chapter:

  1. To invest in, purchase or make commitments to purchase, and take assignments from mortgage lenders, of notes and mortgages evidencing mortgage loans for the purchase or refinancing of residential housing, whether or not for occupancy by persons and families of low and moderate income in this State upon the terms set forth in section 623 of this title.
  2. To make loans to mortgage lenders under terms and conditions set forth in section 623 of this title.
  3. To make commitments to purchase, and to purchase, service, and sell mortgage loans and to make loans directly upon the security of any such mortgage, provided the underlying mortgage loans shall have been made and shall be continued to be used solely to finance or refinance the construction, rehabilitation, purchase, or leasing of residential housing in this State.
  4. To sell, at public or private sale, with or without public bidding, any mortgage or other obligation held by the Agency.
  5. Subject to any agreement with bondholders or noteholders, to collect, enforce the collection of, and foreclose on any collateral securing its loans to mortgage lenders and acquire or take possession of such collateral and sell the same at public or private sale, with or without public bidding, and otherwise deal with such collateral as may be necessary to protect the interest of the Agency therein.
  6. Renegotiate, refinance, or foreclose or sell, or contract for the foreclosure of or sale of, any mortgage in default; waive any default or consent to the modification of the terms of any mortgage; commence any action to protect or enforce any right conferred upon it by any law, mortgage, contract or other agreement, and bid for and purchase such property at any foreclosure or at any other sale, or acquire or take possession of any such property; operate, manage, lease, dispose of, and otherwise deal with such property, in such manner as may be necessary to protect the interests of the Agency and the holders of its bonds, notes or other obligations.
  7. To purchase, make, or otherwise participate in the making, to enter into commitments, for the purchase, making, or participation in the making, of eligible loans for rehabilitation to persons and families of low and moderate income, and to owners of existing residential housing for occupancy by those persons and families, for the rehabilitation of existing residential housing owned by them. The loans may be insured or uninsured and shall be made with such security as the Agency considers advisable. They may be made in amounts sufficient to refinance existing indebtedness secured by the property, if the refinancing is determined by the Agency to be necessary to permit the owner to meet his or her housing costs without expending an unreasonable portion of his or her income on it. A loan for rehabilitation shall not be made unless the Agency determines that the loan is to be used primarily to make the housing more desirable to live in, to increase the market value of the housing, to comply with building, housing maintenance, fire, health, or similar codes and standards applicable to housing, to accomplish energy conservation related improvements, or to ensure independent living for elders or persons who have a disability.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974; amended 1977, No. 59 , § 1, eff. April 23, 1977; 1987, No. 41 , § 3; 2005, No. 189 (Adj. Sess.), § 3; 2013, No. 96 (Adj. Sess.), § 35.

History

Amendments

—2013 (Adj. Sess.). Subdiv. (7): Substituted “ensure” for “insure” and “have a disability” for “are handicapped or elderly”, and inserted “elders or”.

—2005 (Adj. Sess.). Subdiv. (3): Made a minor change in punctuation, deleted “federally insured” preceding “mortgage loans” and “or mortgages guaranteed by the Vermont home mortgage credit agency or its successors” thereafter.

Subdiv. (7): Deleted the last sentence.

—1987. Subdiv. (6): Inserted “or sell” preceding “or contract for the foreclosure of” and “or sale of” thereafter.

—1977. Subdiv. (7): Added.

§ 623. Terms and conditions of the purchase and sale to mortgage lenders of mortgage loans; loans through mortgage lenders.

  1. No mortgage or other obligation purchased from a mortgage lender shall be eligible for purchase or commitment to purchase by the Agency hereunder unless at or before the time of transfer thereof to the Agency such mortgage lender certifies:
    1. That in its judgment the loan would in respect of the security therefor be a prudent investment for its own account;
    2. That the proceeds of sale or its equivalent shall be reinvested in new mortgage loans on residential housing for occupancy by persons and families primarily of low and moderate income within the State, or in loans for the rehabilitation of such residential housing, which rehabilitation loans need not be secured by a first mortgage lien, or invested in short-term obligations pending the purchase of those mortgages, or that the mortgage loans purchased or to be purchased by the Agency are new mortgage loans on residential housing for occupancy by persons and families primarily of low and moderate income within the State.  However, each such new mortgage loan shall have been initiated for the purpose of sale to the Agency; and
    3. That mortgage loans or rehabilitation loans made by mortgage lenders from the proceeds of sale of mortgages to the Agency shall bear a rate or rates of interest less than the prevailing rate of interest on comparable mortgage loans or rehabilitation loans available in the State without the assistance of the Agency, except when such proceeds arise from the sale to the Agency of new mortgage loans on residential housing for occupancy by persons and families primarily of low and moderate income within the State.
  2. The Agency shall purchase mortgage loans at a purchase price equal to the outstanding principal balance thereof.  However, a discount from the principal balance or the payment of a premium may be employed to effect a fair rate of return, as determined by the rate of return on comparable investments under market conditions existing at the time of purchase.  In addition to the payment of outstanding principal balance, the Agency shall pay the accrued interest due thereon, on the date the loan or obligation is delivered against payment therefor.
  3. Loans purchased or sold hereunder shall consist of federally insured mortgage loans or loans that are insured, guaranteed, or assisted by the State or by an agency or instrumentality thereof or for which there is a commitment by the United States or the State or an agency or instrumentality thereof to insure, guarantee, or assist such loan, and other mortgage loans that the Agency deems to be of reasonably comparable security.
  4. The Agency shall from time to time adopt, modify, or repeal rules and regulations governing the making of loans to mortgage lenders and the purchase and sale of mortgage loans and the application of the proceeds thereof, including rules and regulations as to any or all of the following:
    1. procedures for the submission of requests or the invitation of proposals for the purchase and sale of mortgage loans or for loans to mortgage lenders;
    2. limitations or restrictions as to location or other qualifications or characteristics of residences to be financed from the proceeds of such purchase or loans;
    3. restrictions as to the interest rates on loans made from the proceeds of purchase of mortgage loans or from loans to mortgage lenders or the return realized therefrom by mortgage lenders;
    4. requirements as to commitments by mortgage lenders with respect to the application of the proceeds of such purchase or loan;
    5. schedules of any fees and charges necessary to provide for expenses and reserves of the Agency;
    6. requirements and specifications as to recourse; and
    7. any other matters related to the duties and the exercise of the powers of the Agency under this section.
  5. The rules and regulations shall be designed to effectuate the general purposes of this chapter and the following specific objectives:
    1. the expansion of the supply of funds in the State available for mortgage loans for residential housing generally and particularly for occupancy by persons and families of low and moderate income;
    2. provision for additional housing or rehabilitated housing needed to remedy the shortage of adequate housing in the State and to eliminate the existence of a large number of substandard dwellings; and
    3. the restriction of the financial return and benefit on mortgage loans for residential housing for persons and families of low and moderate income to that level necessary to protect against the realization of mortgage lenders of a financial return or benefit in excess of prevailing market conditions;
    4. in the case of mortgage loans secured by cooperative interest in cooperative housing corporations, to ensure that the purchase of such mortgage loans with the proceeds of bonds of the Agency will not, without the consent of the Agency, cause such bonds to be “other than qualified mortgage bonds.”
  6. The interest rates and other terms of loans to mortgage lenders made from the proceeds of any issue of bonds of the Agency shall be at least sufficient so as to ensure the payment, from the amounts received by the Agency in repayment of the loans and interest thereon, of the bonds and the interest thereon as the same become due, including bonds and the interest thereon issued by the Agency to fund reserves.
  7. The Agency shall require as a condition of each loan to a mortgage lender:
    1. that the mortgage lender shall on or prior to the 180th day, or such earlier day as shall be prescribed by rules and regulations of the Agency, following the receipt of the loan proceeds, have entered into written commitments to make, and shall thereafter proceed as promptly as practicable to make and disburse from the loan proceeds, mortgage loans on residential housing primarily for occupancy by persons and families of low and moderate income in an aggregate principal amount equal to the amount of the loan less any fees and expenses of the mortgage lender approved by the Agency or loans for the rehabilitation of such residential housing, which rehabilitation loans need not be secured by a first mortgage lien; and
    2. that mortgage loans or rehabilitation loans made by mortgage lenders with the proceeds of a loan to such mortgage lender shall bear a rate or rates of interest less than the prevailing rate of interest on comparable mortgage loans or rehabilitation loans available in the State without the assistance of the Agency.
  8. The Agency may require that the loans to mortgage lenders shall be additionally secured as to payment of both principal and interest by a pledge of and lien upon collateral security in such amounts as the Agency shall by resolution determine to be necessary to ensure the payment of the loans and the interest thereon as they become due. The collateral security shall consist of:
    1. direct obligations of, or obligations guaranteed by the United States of America;
    2. obligations, satisfactory to the Agency, issued by any of the following federal agencies: Bank for Cooperatives, Federal Intermediate Credit Bank, Federal Home Loan Bank System, Federal Land Banks, the Government National Mortgage Association; Federal National Mortgage Association; or Federal Home Loan Mortgage Corporation;
    3. direct obligations of or obligations guaranteed by the State; or
    4. mortgages insured or guaranteed as to payment of principal and interest by the United States of America or an agency or instrumentality thereof or by the State or an agency or instrumentality thereof;
    5. mortgages that the Agency deems to be of reasonably comparable security.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974; amended 1975, No. 14 , § 1, eff. March 17, 1975; 1983, No. 52 , § 2, eff. April 23, 1983; 1987, No. 41 , § 4; 2005, No. 189 (Adj. Sess.), § 4.

History

References in text.

The Bank for Cooperatives, referred to in subdiv. (h)(2), is codified as 12 U.S.C. § 2121 et seq.

The Federal Intermediate Credit Bank and the Federal Land Banks, referred to in subdiv. (h)(2), are codified as 12 U.S.C. § 2011 et seq. and are also referred to as Farm Credit Banks.

The Federal Home Loan Bank System, referred to in subdiv. (h)(2), is codified as 12 U.S.C. § 1421 et seq.

The Federal National Mortgage Association, referred to in subdiv. (h)(2), is codified as 12 U.S.C. § 1716 et seq.

The Federal Home Loan Mortgage Corporation, referred to in subdiv. (h)(2), is codified as 12 U.S.C. § 1451 et seq.

Revision note

—2018. In subsec. (d), deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2005 (Adj. Sess.). Subdiv. (h)(2): Deleted “or issued by” preceding “Federal National Mortgage Association” and added “or Federal Home Loan Mortgage Corporation”.

—1987. Subdiv. (e)(4): Added.

—1983. Subdiv. (g)(1): Deleted “having a stated maturity of not less than twenty years from the date thereof” following “moderate income”.

—1975. Subdiv. (a)(2): Inserted “or that the mortgage loans purchased or to be purchased by the agency are new mortgage loans on residential housing for occupancy by persons and families primarily of low and moderate income within the state. However, each such new mortgage loan shall have been initiated for the purpose of sale to the agency;” following “purchase of those mortgages”.

Subdiv. (a)(3): Added “except when such proceeds arise from the sale to the agency of new mortgage loans on residential housing for occupancy by persons and families primarily of low and moderate income within the state” following “assistance of the agency”.

CROSS REFERENCES

Federal intermediate credit banks, see 12 U.S.C. § 2011 et seq.

Federal production credit associations, see 12 U.S.C. § 2071 et seq.

§ 624. Making of loans to housing sponsors.

  1. The Agency may:
    1. Make, undertake commitments to make, purchase, undertake commitments to purchase, and participate with mortgage lenders in the making of mortgage loans, and to make grants, loans, and advances to housing sponsors to finance the acquisition, construction, or rehabilitation of residential housing, provided, that this subdivision shall not be construed to include equity loans.
    2. Institute any action or proceeding against any housing sponsor receiving a loan under the provisions of this chapter, or owning any residential housing under this chapter in any court of competent jurisdiction in order to enforce the provisions of this chapter or the terms and provisions of any agreement or contract between the Agency and the recipients of loans under the provisions of this chapter, or to foreclose its mortgage, or to protect the public interest, the occupants of the residential housing, or the stockholders or creditors, if any, of the housing sponsors.  In connection with any such action or proceeding it may apply for the appointment of a receiver to take over, manage, operate, and maintain the affairs of the housing sponsor and the Agency, through such agent as it designates, may accept the appointment of the receiver of any housing sponsor when so appointed by a court of competent jurisdiction.  In the event of the reorganization of any housing sponsor, to the extent possible under the provisions of law, the reorganization shall be subject to the supervision and control of the Agency and no reorganization may be accomplished without the prior written consent of the Agency.  In the event of a judgment against any housing sponsor in any action not pertaining to the foreclosure of a mortgage, there may be no sale of any of the real property included in any residential housing of that housing sponsor except upon 60 days written notice to the Agency.  Upon receipt of the notice the Agency shall take such steps as in its judgment may be necessary to protect the rights of all parties.
    3. Make, undertake commitments to make, purchase, undertake commitments to purchase, and participate with mortgage lenders in the making of equity loans.
  2. The Agency shall provide by rules or regulations for the terms and conditions of mortgage loans to housing sponsors of residential housing.  Mortgage loans made by the Agency to housing sponsors, in addition to such other terms and conditions as the Agency may by rule or regulation provide, shall be subject to the following:
    1. No application for a mortgage loan may be approved unless the applicant is a housing sponsor as defined in section 601 of this title;
    2. The mortgage loan may be in an amount not to exceed the value of the residential housing as determined by the Agency. The value determined may include the value of additional collateral as deemed appropriate by the Agency;
    3. The mortgage loan shall be secured in such manner and be repaid in such period, not exceeding 40 years, as may be determined by the Agency and shall bear interest at a rate determined by the Agency.  The interest rates shall be established by the Agency at the lowest level consistent with the Agency’s cost of operation and its responsibilities to the holders of its bonds, bond anticipation notes, and other obligations.  In addition to such interest charges, the Agency may make and collect such fees and charges, including reimbursement of the Agency’s operating expenses, financing costs, service charges, insurance premiums, and mortgage insurance premiums, as the Agency determines to be reasonable;
    4. Each mortgage and promissory note accompanying the mortgage shall contain such terms and provisions and be in such form as approved by the Agency;
    5. Each mortgage loan to a housing sponsor for residential housing shall be subject to an agreement between the agency and the housing sponsor which will subject the housing sponsor and its principals or stockholders, if any, to limitations established by the agency as to sale prices, rental, and other charges, builder’s and developer’s profits and fees, and the disposition of its property and franchise to the extent more restrictive limitations are not provided by the law under which the housing sponsor is incorporated or organized or by this chapter; and
    6. The Agency shall have the power at all times during the construction or rehabilitation of residential housing and its operation:
      1. to enter upon and inspect any residential housing including all parts thereof, for the purpose of investigating the physical and financial condition thereof, and its construction, rehabilitation, operation, management, and maintenance, and to examine all books and records of the housing sponsor with respect to capitalization, income, and other matters relating thereto and to make those charges as may be required to cover the cost of the inspections and examinations;
      2. to order such alterations, changes, or repairs as may be necessary to protect the security of its investment in residential housing or the health, safety, and welfare of the occupants or its users and to ensure that the residential housing is or has been constructed or rehabilitated in conformity with all applicable plans and specifications and building codes; and
      3. to order any managing agent or sponsor of residential housing to do those acts as may be necessary to comply with the provisions of all applicable laws, ordinances, or building codes or any rule or regulation of the Agency or the terms of any agreement concerning the residential housing or to refrain from doing any acts in violation of it, and in this regard the Agency shall be a proper party to file a complaint and to prosecute thereon for any violations of law, ordinances or building codes as set forth in this chapter.
  3. [Repealed.]

HISTORY: Added 1975, No. 176 (Adj. Sess.), § 5, eff. March 26, 1976; amended 1977, No. 47 , § 2, eff. April 20, 1977; 1977, No. 199 (Adj. Sess.), § 1; 1987, No. 41 , § 5; 1989, No. 77 , § 4, eff. June 7, 1989; 2005, No. 189 (Adj. Sess.), §§ 5, 6.

History

Revision note

—2018. In subdiv. (b)(3), deleted “, but not limited to,” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2005 (Adj. Sess.). Subdiv. (a)(1): Deleted “including federally insured mortgage loans and loans guaranteed by the Vermont home mortgage guarantee board” following “mortgage loans”; substituted “grants” for “temporary”; deleted “in anticipation of mortgage loans” following “advances” and made a minor change in punctuation.

Subdiv. (b)(2): Added the second sentence.

Subdiv. (b)(5): Inserted “sale prices” preceding “rental” and made a minor change in punctuation.

—1989. Subdiv. (a)(1): Added “provided, that this subdivision (a)(1) shall not be construed to include equity loans” following “housing”.

Subdiv. (a)(3): Added.

—1987. Subdiv. (a)(1): Inserted “acquisition” preceding “construction”.

—1977 (Adj. Sess.). Subsec. (a): Deleted “to the extent of available bonding authority under section 631(a)(1) of this title” following “the agency may” in the introductory clause.

Subsec. (c): Repealed.

—1977. Subdiv. (a)(1): Inserted “purchase, undertake commitments to purchase” preceding “and participate”.

§ 625. Procedure prior to financing of multi-family housing undertaken by housing sponsors.

The Agency may not finance any residential housing undertaken by a housing sponsor under subdivision 624(a)(1) of this title unless:

  1. the residential housing is primarily for occupancy by persons and families of low and moderate income, or qualifies for financing with proceeds of federally tax-exempt obligations, or at least 20 percent of the units are for occupancy by persons and families of low and moderate income;
  2. the Agency determines that the acquisition, construction, or rehabilitation costs incurred or to be incurred by the housing sponsor under agreement are for housing development costs within the meaning of this chapter;
  3. the Agency determines that there exists, or without the proposed residential housing there will exist, a shortage of decent, safe, and sanitary housing at rentals or prices that persons and families of low or moderate income are able to afford within the general housing market area or there is a shortage of temporary transitional or emergency housing to be served by the proposed residential housing; and
  4. the Agency determines that the housing sponsor or sponsors undertaking the proposed housing development will maintain or increase the supply of well-planned, well-designed permanent, temporary, transitional, or emergency housing for persons or families of low and moderate income and that the sponsors are financially responsible persons or institutions.

HISTORY: Added 1975, No. 176 (Adj. Sess.), § 6, eff. March 26, 1976; amended 1987, No. 41 , § 6; 1989, No. 77 , § 5, eff. June 7, 1989; 2005, No. 189 (Adj. Sess.), §§ 7, 8; 2007, No. 176 (Adj. Sess.), § 11, eff. July 1, 2008.

History

Amendments

—2007 (Adj. Sess.). Subdiv. (1): Inserted “, or at least 20 percent of the units are for occupancy by persons and families of low and moderate income” at the end.

—2005 (Adj. Sess.). Subdiv. (1): Added “or qualifies for financing with proceeds of federally tax-exempt obligations, or at least 20 percent of the units are for occupancy by persons and families of low and moderate income”.

Subdiv. (3): Deleted “and that private enterprise and investment are unable, without assistance, to provide an adequate supply of the residential housing and sufficient mortgage financing for residential housing for occupancy by the persons or families” following “residential housing”.

—1989. Substituted “subdivision 624(a)(1)” for “section 624” following “under” in the introductory paragraph.

—1987. Subdiv. (2): Inserted “acquisition” preceding “construction”.

Subdiv. (3): Inserted “or without the proposed residential housing there will exist” preceding “a shortage of decent” and “or there is a shortage of temporary transitional or emergency housing” following “market area”.

Subdiv. (4): Inserted “maintain or” preceding “increase the supply of well-planned, well-designed” and “permanent, temporary transitional or emergency” thereafter.

Prospective repeal of 2005, No. 189 (Adj. Sess.), § 7 amendment. 2005, No. 189 (Adj. Sess.), § 7a, provided: “In Sec. 7 [which amended subdiv. (1) of this section], the words ‘, or at least 20 percent of the units are for occupancy by persons and families of low and moderate income’ shall take effect upon passage, and shall be repealed July 1, 2008. The Vermont Housing Finance Agency shall report by January 15, 2008, to the House Committees on Commerce, on General, Housing and Military Affairs and on Ways and Means, and to the Senate Committees on Finance, and on Economic Development, Housing and General Affairs on the projects financed by VHFA using the lower requirement of at least 20 percent of qualified housing units.”

Effective date; repeal of sunset. 2005, No. 189 (Adj. Sess.), § 7a as amended by 2007, No. 176 (Adj. Sess.), § 11a, provided: “Sec. 11 (VHFA sunset repeal) of this act [which amended subdiv. (1) of this section] shall take effect on July 1, 2008, at which time the prospective repeal provisions of Sec. 7a of No. 189 of the Acts of the 2005 Adj. Sess. (2006) shall have no force or effect.”

§ 626. Rules; insulation of structures.

  1. The Agency may adopt rules, but they shall be under 3 V.S.A. chapter 25, providing standards for the insulation, design, and equipping of buildings to minimize, insofar as is practicable and economical, the transfer of heat or cold between the interior and exterior of the building.  The rules shall:
    1. be consistent with standard practices and techniques in the construction industry; and
    2. be, insofar as is practicable, consistent with nationally recognized building codes and regulations adopted under the authority of Congress; and
    3. not require the installation of devices, equipment, or materials that would substantially alter the basic architecture of an existing building.
  2. The Agency shall publish a manual that shall be made available, at cost, to any person upon his or her request. The manual shall show by diagram and otherwise various acceptable methods, materials, and devices that may be used by the owners of buildings and others to comply with the standards adopted by rule under subsection (a) of this section.

HISTORY: Added 1977, No. 59 , § 2, eff. April 23, 1977.

§ 627. Mortgage purchases.

  1. In addition to other powers granted in this chapter, the Agency shall have the power to participate with mortgage lenders in a program whereby mortgage loans, rehabilitation loans, and eligible securities are purchased from mortgage lenders by the Agency or by others.  Before participating in any such program, the Agency shall determine that its participation will tend to expand the supply of funds in the State available for mortgage loans for residential housing generally and particularly for occupancy by persons and families of low and moderate income.  The Agency may enter into contracts or other instruments for the administration and implementation of such programs.  The Agency shall adopt rules and regulations in respect of such program as provided in subsections (d) and (e) of section 623 of this title but such program shall not otherwise be subject to the requirements of sections 622 and 623.  If the purchaser of such loans and securities pursuant to this section is the Agency or a trust established under subsection (c) of this section, such purchase may be financed through the issue of bonds, notes, or other obligations by the Agency under subsection (b) of this section or through the issue of eligible securities by the Agency or a trust under subsections (c), (d), and (e) of this section.  Such purchase may be refinanced by any of such methods whether previously financed or refinanced under any of such methods or otherwise.  If the purchaser of such loans and securities pursuant to this section is not the Agency or such a trust, or if a purchase by the Agency or trust is for purposes of resale to others and does not involve the issue of bonds, notes, or other obligations or eligible securities by the Agency or trust, the Agency and trust shall each have power:
    1. to cooperate with such other purchasers, with mortgage lenders, and with others;
    2. to provide and agree to provide services in pooling and servicing such loans and securities;
    3. to agree to bear risk of loss subject to such limitations as the Agency may prescribe; and
    4. to do anything necessary or appropriate to participate in programs of other government agencies, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, their successors, or other financial institutions or intermediaries involved in the residential mortgage market that are not inconsistent with the purposes of this chapter.
  2. Bonds, notes, and other obligations issued by the Agency pursuant to this section shall not be general obligations of the Agency, shall not be secured in whole or in part by a debt service reserve fund to which State funds may be appropriated pursuant to subsection 632a(f) of this title, shall not be subject to subdivision 631(b)(1) of this title, and shall not be taken into account for purposes of the limitation on indebtedness of the Agency contained in the last sentence of subdivision 631(a)(1). Such bonds, notes, and other obligations shall be payable solely from the receipts, revenues, or other income derived in respect of loans and securities purchased pursuant to this section or from the proceeds of such bonds, notes, and other obligations, or from receipts, revenues, or other income derived in respect of such proceeds or reserves established therefrom. Any official statement or other prospectus used by the Agency in offering such obligations for sale shall clearly indicate that such obligations are not the debt or obligation of the State or of the Agency except to the extent provided in this section.
  3. Eligible securities issued pursuant to this section may be issued by the Agency itself.  The Agency, by indenture or otherwise, may also establish a trust as the issuer of eligible securities under this section.  The Agency may but need not be trustee of such a trust.  Such a trust shall be established in such manner and subject to such provisions as the Agency deems necessary or appropriate to carry out the purposes of this section.  A trust so established shall be a public instrumentality of the State acting on behalf of the State to the same extent as the Agency itself.
    1. In issuing eligible securities pursuant to this section, the Agency and any trust established by it shall have, in addition to its other powers under this chapter or general law, all the powers the Agency has in issuing bonds, notes, and other obligations pursuant to subsection (b) of this section, subject to the special provisions of subsection (b) of this section, including the following powers: (d) (1) In issuing eligible securities pursuant to this section, the Agency and any trust established by it shall have, in addition to its other powers under this chapter or general law, all the powers the Agency has in issuing bonds, notes, and other obligations pursuant to subsection (b) of this section, subject to the special provisions of subsection (b) of this section, including the following powers:
      1. to authorize such securities, to issue them as negotiable investment securities, to execute them through appropriate present or former officers, and to sell them at public or private sale;
      2. to make agreements and contracts with, and valid and effective pledges of property to, securities holders by resolution or otherwise;
      3. to issue taxable securities, cause them to be registered, and grant appropriate indemnification;
      4. to purchase and deal in such securities;
      5. to secure such securities by appropriate trust instruments and agree that its contracts with securities holders will not be impaired by the State; and
      6. to use and invest proceeds of securities and refunding securities.
    2. The Agency’s exercise of the powers set forth in subdivision (1) of this subsection shall be in the manner more fully provided in this chapter for bonds, notes, and other obligations, or in a manner the Agency determines is reasonably comparable thereto taking into account the different characteristics of eligible securities, or of the issuer thereof, and other matters the Agency considers necessary or appropriate to effectively issue such securities.
  4. Without limiting the generality of subsection (d) of this section:
    1. eligible securities issued by the Agency or a public instrumentality pursuant to this section shall be legal investments to the same extent as bonds and notes issued under this chapter;
    2. the holders of such securities shall be entitled to the same remedies, so far as apt, as are provided to holders of bonds and notes under section 635 of this title; and
    3. if such securities evidence the issuer’s interest in mortgages otherwise than by the issuer’s promise to pay principal and interest in fixed amounts and at stated times, they shall not be subject to the provisions of this chapter governing amounts and times of payment of principal and interest on bonds, notes, and other obligations, and no finding under section 631(b)(2) of this title as to sufficiency of receipts, revenues, or other income to pay such securities shall be required with respect to them.

HISTORY: Added 1981, No. 23 , § 2, eff. April 14, 1981; amended 1983, No. 52 , § 3, eff. April 23, 1983; 2019, No. 14 , § 14, eff. April 30, 2019.

History

References in text.

The Federal National Mortgage Association, referred to in subdiv. (a)(4), is codified as 12 U.S.C. § 1716 et seq.

The Federal Home Loan Mortgage Corporation, referred to in subdiv. (a)(4), is codified as 12 U.S.C. § 1451 et seq.

Subsec. 632(d) of this title, referred to in subsec. (b), does not exist. Section 632 was repealed by 2009, No. 1 (Sp. Sess.), § H.13, effective June 2, 2009.

Revision note

—2018. In subsec. (d), deleted “without limitation” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2019. Subsec. (b): Substituted “632a(f)” for “632(d).

Subsec. (d): Added the new subdiv. (1) designation, redesignated former subdivs. (d)(1) through (d)(6) as (d)(1)(A) through (d)(1)(F), added the new subdiv. (2) designation, and in subdiv. (d)(2) substituted “The Agency’s exercise of the powers set forth in subdivision (1) of this subsection” for “All of the foregoing” at the beginning of the paragraph.

—1983. Section amended generally.

Legislative findings and purpose. 1981, No. 23 , § 1, eff. April 14, 1981, provided: “It is hereby found and determined that the shortage of funds available in the state for residential mortgage loans has severely restricted the ability of the people of the state to acquire adequate residential housing; that it is the policy of the state to promote the expansion of the supply of such funds in order to encourage an adequate supply of safe and decent housing available at reasonable costs; and that to accomplish such policy and purpose, the public interest requires that the state housing finance agency created by 10 V.S.A. chapter 25 have the powers authorized by this act [which added this section and amended section 631(e)]. It is further found and determined that the agency will be performing an essential governmental function in the exercise of the powers conferred upon it by this act and that this act is necessary to assure an adequate supply of capital to provide safe, adequate and sufficient housing for the state’s population.”

Validity of prior actions taken by agency. 1981, No. 23 , § 4, eff. April 14, 1981, provided, in part: “Any action taken by the agency in connection with entering into or participating in such a program prior to the effective date of this act [April 14, 1981] shall be deemed to be as effective as if this act had then been in effect.”

CROSS REFERENCES

Federal home loan mortgage corporation, see 12 U.S.C. § 1451 et seq.

Federal national mortgage association, see 12 U.S.C. § 1716 et seq.

§ 628. Mortgage credit certificates.

In addition to other powers granted in this chapter, the Agency shall have the power to establish a qualified mortgage credit certificate program and to issue mortgage credit certificates as provided in this section. The terms “qualified mortgage credit certificate program” and “mortgage credit certificate” shall have the meaning prescribed in Section 25 of the Internal Revenue Code, as amended. Before establishing a qualified mortgage credit certificate program, the Agency shall determine that to do so will effectuate the purposes of this chapter. In carrying out such a program, the Agency shall have the power to take all appropriate actions for such purpose, including formulating and implementing administration procedures, making all necessary reports and filings, and electing not to issue bonds or notes otherwise authorized by this chapter. In lieu of the requirements of this chapter applicable to the purchase and sale by the Agency of mortgage loans and rehabilitation loans, any qualified mortgage certificate program established by the Agency shall comply with and be subject to the provisions of Section 25 of the Internal Revenue Code, as amended, and regulations thereunder as in effect from time to time. Any rule, regulation, practice, policy, or procedure adopted by the Agency for the purpose of implementing or administering a mortgage credit certificate program shall not be subject to the requirements of 3 V.S.A. chapter 25.

HISTORY: Added 1987, No. 8 , § 2, eff. April 14, 1987.

History

Revision note

—2018. In the fourth sentence, deleted “without limitation” following “including” in accordance with 2013, No. 5 , § 4.

References in text.

Section 25 of the Internal Revenue Code, referred to in this section, is codified as 26 U.S.C. § 25.

Subchapter 4. Form and Nature of Bonds and Notes

CROSS REFERENCES

Federal taxation of interest on bonds, see 32 V.S.A. § 995 et seq.

Issuance of private activity bonds, see 32 V.S.A. §§ 991 , 992.

§ 631. Bonds and notes.

    1. The Agency may issue its negotiable notes and bonds in such principal amount as the Agency determines to be necessary to provide sufficient funds for achieving any of its corporate purposes, including the payment of interest on notes and bonds of the Agency, establishment of reserves to secure the notes and bonds including the reserve funds created under section 632 of this title, and all other expenditures of the Agency incident to and necessary or convenient to carry out its corporate purposes and powers. (a) (1) The Agency may issue its negotiable notes and bonds in such principal amount as the Agency determines to be necessary to provide sufficient funds for achieving any of its corporate purposes, including the payment of interest on notes and bonds of the Agency, establishment of reserves to secure the notes and bonds including the reserve funds created under section 632 of this title, and all other expenditures of the Agency incident to and necessary or convenient to carry out its corporate purposes and powers.
    2. The Agency shall have the power, from time to time, to issue notes to renew notes and bonds to pay notes, including the interest thereon and, whenever it deems refunding expedient, to refund any bonds by the issuance of new bonds, whether the bonds to be refunded have or have not matured, and to issue bonds partly to refund bonds then outstanding and partly for any of its corporate purposes.
    3. Except as may otherwise be expressly provided by resolution of the Agency, every issue of its notes and bonds shall be general obligations of the Agency payable out of any revenues or monies of the Agency, subject only to any agreements with the holders of particular notes or bonds pledging any particular revenues.
  1. The notes and bonds shall be authorized by resolution or resolutions of the Agency, shall bear such date or dates and shall mature at such time or times as the resolution or resolutions may provide, except that no bond shall mature more than 42 years from the date of its issue. The bonds may be issued as serial bonds or as term bonds or as a combination thereof. The notes and bonds shall bear interest at such rate or rates, be in such denominations, be in such form, either coupon or registered, carry such registration privileges, be executed in such manner, be payable in such medium of payment, at such place or places within or without the State, and be subject to such terms of redemption as the resolution or resolutions may provide; provided, however, that at the time of the authorization of the issuance of such bonds or notes the Agency determines in such resolution:
    1. that mortgage loans made by or on behalf of the Agency, directly or indirectly, with the proceeds of such bonds or notes in accordance with section 621 or 622 of this title can be issued bearing a rate or rates of interest that will be less than the prevailing rate of interest on comparable mortgage loans available in the State without the assistance of the Agency at the time the bonds or notes are sold; and
    2. that the Agency will derive receipts, revenues, or other income from mortgages purchased or loans made through mortgage lenders with the proceeds of such bonds or notes sufficient to provide, together with all other available receipts, revenues, and income of the Agency, for the payment of such bonds or notes and the payment of all costs and expenses incurred by the Agency with respect to the program or purpose for which such bonds or notes are issued. The notes and bonds of the Agency may be sold by the Agency, at public or private sale, at such price or prices as the Agency shall determine.
  2. Any resolution or resolutions authorizing any notes or bonds or any issue thereof may contain provisions, which shall be a part of the contract or contracts with the holders thereof, as to:
    1. pledging all or any part of the revenues of the Agency to secure the payment of the notes or bonds or of any issue thereof, subject to such agreements with noteholders or bondholders as may then exist;
    2. pledging all or any part of the assets of the Agency, including mortgages and obligations securing the same, to secure the payment of the notes or bonds or of any issue of notes or bonds, subject to such agreements with noteholders or bondholders as may then exist;
    3. the use and disposition of the gross income from mortgages owned by the Agency and payments upon other obligations held by the Agency;
    4. the setting aside of reserves or sinking funds and the regulation and disposition thereof;
    5. limitations on the purpose to which the proceeds of sale of notes or bonds may be applied and pledging the proceeds to secure the payment of the notes or bonds or of any issue thereof;
    6. limitations on the issuance of additional notes or bonds, the terms upon which additional notes or bonds may be issued and secured, and the refunding of outstanding or other notes or bonds;
    7. the procedure, if any, by which the terms of any contract with noteholders or bondholders may be amended or abrogated, the amount of notes or bonds the holders of which must consent thereto, and the manner in which consent may be given;
    8. limitations on the amount of monies to be expended by the Agency for operating expenses of the Agency;
    9. vesting in a trustee or trustees, within or without the State, such property, rights, powers, and duties in trust as the Agency may determine, which may include any or all of the rights, powers, and duties of the trustee appointed by the bondholders pursuant to this chapter and limiting or abrogating the right of the bondholders to appoint a trustee under this chapter or limiting the rights, powers, and duties of the trustee;
    10. defining the acts or omissions to act that shall constitute a default in the obligations and duties of the Agency to the holders of the notes or bonds and providing for the rights and remedies of the holders of the notes or bonds in the event of such default, including as a matter of right the appointment of a receiver; provided, however, that the rights and remedies shall not be inconsistent with the general laws of the State and other provisions of this chapter; and
    11. any other matters, of like or different character, that in any way affect the security or protection of the holders of the notes or bonds.
  3. Any pledge made by the Agency shall be valid and binding from the time when the pledge is made; the revenues, monies, or property so pledged and thereafter received by the Agency shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act; and such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract, or otherwise against the Agency, irrespective of whether such parties have notice thereof.
  4. Bonds, notes, and other obligations authorized under this chapter may, in the discretion of the Agency, be issued with such terms as will cause the interest thereon to be subject to federal income taxation.  To the extent required for their sale, the Agency may register such obligations, including the obligations of a trust established pursuant to section 627 of this title, under applicable federal and State securities laws.  No person executing any bonds, notes, and other obligations issued by the Agency or others under authority of this chapter shall be subject to any personal liability or accountability by reason of the issuance thereof.  The Agency shall indemnify any person who shall have served as a commissioner, officer, or employee of the Agency against financial loss or litigation expense arising out of or in connection with any claim or suit involving allegations that pecuniary harm has been sustained as a result of any transaction authorized by this chapter, unless such person is found by a final judicial determination not to have acted in good faith and for a purpose that he or she reasonably believed to be lawful and in the best interests of the Agency.
  5. The Agency, subject to such agreements with noteholders or bondholders as may then exist, shall have power out of any funds available therefor to purchase notes or bonds of the Agency at a price as shall be determined in the economic best interests of the Agency.
  6. In the discretion of the Agency, the notes or bonds may be secured by a trust indenture by and between the Agency and a corporate trustee, which may be any trust company or bank having the power of a trust company within or without the State. The trust indenture may contain such provisions for protecting and enforcing the rights and remedies of the noteholders or bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the Agency in relation to the exercise of its corporate powers and the custody, safeguarding, and application of all monies. The Agency may provide by such trust indenture for the payment of the proceeds of the notes or bonds and the revenues to the trustee under such trust indenture or other depository, and for the method of disbursement thereof, with such safeguards and restrictions as it may determine. All expenses incurred in carrying out the trust indenture may be treated as a part of the operating expenses of the Agency. If the notes or bonds shall be secured by a trust indenture, the noteholders and bondholders shall have no authority to appoint a separate trustee to represent them.
  7. Any law to the contrary notwithstanding, a bond or note issued under this chapter is fully negotiable for all purposes of 9A V.S.A. § 1-101 et seq., and each holder or owner of a bond or note, or of any coupon appurtenant thereto, by accepting the bond or note or coupon shall be conclusively deemed to have agreed that the bond, note, or coupon is fully negotiable for those purposes.
  8. Any provision of this chapter or of any other law or any recitals in any bonds or notes issued under this chapter to the contrary notwithstanding, all bonds, notes, and interest coupons appertaining thereto issued by the Agency shall have and are hereby declared to have all the qualities and incidents, including negotiability, of investment securities under 9A V.S.A. § 1-101 et seq., but no provision of those sections respecting the filing of a financing statement to perfect a security interest shall be applicable to any security interest created in connection with the issuance of the bonds, notes, or coupons.
  9. In case any of the commissioners, executive director, or officers of the Agency whose signatures appear on any notes or bonds or coupons shall cease to be commissioners, executive director, or officers before the delivery of such notes or bonds, the signatures shall, nevertheless, be valid and sufficient for all purposes, the same as if such commissioners,  executive director, or officers had remained in office until such delivery.
  10. Interest rate exchange agreements. The Agency may enter into one or more agreements for the exchange of interest rates, cash flows, or payments to reduce net borrowing costs, achieve desirable net effective interest rates in connection with its issuance and sale of debt obligations and to provide for an efficient means of debt management.
    1. (l) (1)
    2. The Agency may issue the bonds, notes, and other obligations in one or more series at one time or from time to time, provided that the aggregate annual debt service on the bonds, notes, and other obligations shall not exceed $2,500,000.00 at any time.
    3. The Agency shall transfer the proceeds of the bonds, notes, and other obligations, less issuance fees and costs and required reserves, to the Vermont Housing and Conservation Trust Fund established pursuant to section 312 of this title for use by the Vermont Housing and Conservation Board as provided in section 314 of this title.
    4. The Agency, the Vermont Housing and Conservation Board, and the State Treasurer may execute one or more agreements governing the terms and conditions under which the property transfer tax revenues that secure the bonds, notes, and obligations shall be transferred to the Agency, and any other issues they determine appropriate.

    Subsection (l) repealed on July 1, 2039.

    The bonds, notes, and other obligations authorized to be issued pursuant to subdivision 621(22) of this title shall be secured by a pledge of the property transfer tax revenues to be transferred to the Agency pursuant to 32 V.S.A. § 9610(d) and shall mature on or before June 30, 2039.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974; amended 1975, No. 176 (Adj. Sess.), § 2, eff. March 26, 1976; 1977, No. 47 , §§ 3, 4, eff. April 20, 1977; 1977, No. 199 (Adj. Sess.), § 2; 1979, No. 36 , § 2, eff. April 18, 1979; 1979, No. 97 (Adj. Sess.), § 1, eff. March 20, 1980; 1981, No. 23 , § 3, eff. April 14, 1981; 1983, No. 52 , § 4, eff. April 23, 1983; 1985, No. 94 , §§ 1, 2; 1987, No. 250 (Adj. Sess.), § 3, eff. June 13, 1988; 1989, No. 145 (Adj. Sess.), § 1, eff. April 20, 1990; 2005, No. 75 , § 19; 2005, No. 189 (Adj. Sess.), § 9; 2007, No. 86 (Adj. Sess.), § 1, eff. March 3, 2008; 2009, No. 1 (Sp. Sess.), § H.12, eff. June 2, 2009; 2017, No. 85 , § I.6; 2017, No. 85 , § I.11.

History

References in text.

Section 632 of this title, referred to in subdiv. (a)(1), was repealed by 2009, No. 1 (Sp. Sess.), § H.13, effective June 2, 2009.

Section 103A of the Internal Revenue Code, referred to in subdiv. (a)(4), was codified as 26 U.S.C. § 103A. The provisions of that section were repealed by P.L. 99-514, § 1301(j)(1), effective for bonds issued after August 15, 1986. The general rule for tax exemptions for state and local bonds is set out in 26 U.S.C. § 103. Specific tax exemption requirements for state and local bonds are set out in 26 U.S.C. § 141 et seq.

Amendments

—2017. Subsec. ( l ): Added.

—2009 (Sp. Sess.). Subsec. (f): Amended generally.

—2007 (Adj. Sess.). Subdiv. (a)(1): Deleted the former second sentence.

—2005 (Adj. Sess.). Subdiv. (a)(4): Deleted.

Subsec. (b): Deleted “payable in annual installments” following “bonds” in the second sentence in the introductory paragraph, and inserted “at the time the bonds or notes are sold” following “agency” in subdiv. (b)(1).

—2005. Subsec. (k): Added.

—1989 (Adj. Sess.). Subdiv. (a)(1): Substituted “$900,000,000.00” for “$600,000,000.00” following “exceed” in the second sentence.

—1987 (Adj. Sess.). Subdiv. (a)(1): Substituted “$600,000,000.00” for “$500,000,000.00” at the end of the subdiv.

—1985. Subdiv. (a)(1): Substituted “$500,000,000.00” for “$400,000,000.00” in the second sentence.

Subdiv. (a)(4): Added.

—1983. Subdiv. (a)(1): Substituted “$400,000,000.00” for “$300,000,000.00” following “exceed” in the second sentence.

—1981. Subsec. (e): Amended generally.

—1979 (Adj. Sess.). Subdiv. (a)(1): Substituted “$300,000,000” for “$185,000,000” following “exceed” in the second sentence.

—1979. Subdiv. (a)(1): Substituted “$185,000,000” for “$110,000,000” following “exceed” in the second sentence.

—1977 (Adj. Sess.). Subdiv. (a)(1): Substituted “$110,000,000” for “$84,000,000” following “exceed” in the second sentence.

—1977. Subdiv. (a)(1): Substituted “$84,000,000” for “$74,000,000” following “exceed” and deleted “and no more than $5,000,000.00 of bonds or notes shall be outstanding at any one time to provide funds for programs authorized under section 624 of this title” thereafter in the second sentence.

Subsec. (b): Substituted “42” for “40” preceding “years” in the first sentence.

—1975 (Adj. Sess.). Subdiv. (a)(1): Amended generally.

Prospective repeal of subsec. (l). 2017, No. 85 , § I.11(a)(3), provides for the repeal of subsec. ( l ) of this section on July 1, 2039.

§ 632. Repealed. 2009, No. 1 (Sp. Sess.), § H.13, eff. June 2, 2009.

History

Former § 632. Former § 632, relating to authorizing the Vermont Housing and Finance Agency to establish reserve funds, was derived from 1973, No. 260 (Adj. Sess.), § 3 and amended by 1977, No. 199 (Adj. Sess.), § 3; 1989, No. 145 (Adj. Sess.), § 2; 2005, No. 189 (Adj. Sess.), § 10 and 2007, No. 176 (Adj. Sess.), § 11b.

§ 632a. Reserve and pledged equity funds.

  1. The Agency may create and establish one or more special funds, herein referred to as “debt service reserve funds” or “pledged equity funds.”
  2. The Agency shall pay into each debt service reserve fund:
    1. Any monies appropriated and made available by the State for the purpose of such fund.
    2. Any proceeds of the sale of notes, bonds, or other debt instruments to the extent provided in the resolution or resolutions of the Agency authorizing their issuance.
    3. Any other monies or financial instruments such as surety bonds, letters of credit, or similar obligations that may be made available to the Agency for the purpose of such fund from any other source or sources. All monies or financial instruments held in any debt service reserve fund created and established under this section except as hereinafter provided shall be used, as required, solely for the payment of the principal of the bonds, notes, or other debt instruments secured in whole or in part by such fund or of the payments with respect to the bonds, notes, or other debt instruments specified in any resolution of the Agency as a sinking fund payment, the purchase or redemption of the bonds, the payment of interest on the bonds, notes, or other debt instruments, or the payment of any redemption premium required to be paid when the bonds, notes, or other debt instruments are redeemed prior to maturity, or to reimburse the issuer of a liquidity or credit facility, bond insurance, or other credit enhancement for the payment by such party of any of the foregoing amounts on the Agency’s behalf; provided, however, that the monies or financial instruments in any such debt reserve fund shall not be drawn upon or withdrawn therefrom at any time in such amounts as would reduce the amount of such funds to less than the debt service reserve requirement established by resolution of the Agency for such fund as provided in this section except for the purpose of paying, when due, with respect to bonds secured in whole or in part by such fund, the principal, interest, redemption premiums, and sinking fund payments and of reimbursing, when due, the issuer of any credit enhancement for any such payments made by it, for the payment of which other monies of the Agency are not available. Any income or interest earned by or increment to any debt service reserve fund due to the investment thereof may be transferred by the Agency to other funds or accounts of the Agency to the extent it does not reduce the amount of such debt service reserve fund below the debt service reserve requirement for such fund.
  3. The Agency shall pay into each pledged equity fund:
    1. Any monies appropriated and made available by the State for the purpose of such fund.
    2. Any proceeds of the sale of notes, bonds, or other debt instruments to the extent provided in the resolution or resolutions of the Agency authorizing the issuance thereof.
    3. Any other monies or financial instruments such as surety bonds, letters of credit, or similar obligations that may be made available to the Agency for the purpose of such fund from any other source or sources. All monies or financial instruments held in any pledged equity fund created and established under this section except as provided in this section shall be used, as required, solely to provide pledged equity or over-collateralization of any trust estate of the Agency to the issuer of a liquidity or credit facility, bond insurance, or other credit enhancement obtained by the Agency; provided, however, that the monies or financial instruments in any pledged equity fund shall not be drawn upon or withdrawn from such fund at any time in such amounts as would reduce the amount of such funds to less than the pledged equity requirement established by resolution of the Agency for such fund as provided in this section except for the purposes set forth in and in accordance with the governing resolution. Any income or interest earned by or increment to any pledged equity fund due to the investment thereof may be transferred by the Agency to other funds or accounts of the Agency to the extent it does not reduce the amount of such pledged equity fund below the requirement for such fund. Anything in this subdivision to the contrary notwithstanding, upon the defeasance of the bonds, notes, or other debt instruments with respect to which the pledged equity requirement was established, the Agency may transfer amounts in such fund to another fund or account of the Agency proportionately to the amount of such defeasance, provided that the Agency shall repay to the State any amount appropriated by the State pursuant to subsection (f) of this section.
  4. The debt service reserve and pledged equity requirements for any fund established under this section shall be established by resolution of the Agency prior to the issuance of any bonds, notes, or other debt instruments secured in whole or in part by a debt service reserve fund or prior to entering into any credit enhancement agreement and shall be the amount determined by the Agency to be reasonably required in light of the facts and circumstances of the particular debt issue or credit enhancement, provided that the maximum amount of the State’s commitment with respect to any pledged equity fund shall be determined by the Agency at or prior to entering into any credit enhancement agreement related to such pledged equity fund. The Agency shall not at any time issue bonds, notes, or other debt instruments secured in whole or in part by a debt service reserve fund or enter into any credit enhancement agreement that requires establishment of a pledged equity fund created and established under this section unless:
    1. the Agency at the time of such issuance or execution shall deposit in such fund from the proceeds of such bonds, notes, or other debt instruments or from other sources an amount that, together with the amount then in such fund, will not be less than the requirement established for such fund at that time;
    2. the Agency has made a determination at the time of the authorization of the issuance of such bonds, notes, or other debt instruments or at the time of entering into such credit enhancement agreement that the Agency will derive revenues or other income from the mortgage loans that secure such bonds, notes, or other debt instruments or that relate to any credit enhancement agreement sufficient to provide, together with all other available revenues and income of the Agency other than any amounts appropriated by the State pursuant to this section for the payment or purchase of such bonds, notes, and other debt instruments and reimbursement to the issuer of any credit enhancement the payment of any expected deposits into any pledged equity fund established with respect to such credit enhancement, and the payment of all costs and expenses incurred by the Agency with respect to the program or purpose for which such bonds, notes, or other debt instruments are issued; and
    3. the State Treasurer or designee has provided written approval to the Agency that the Agency may issue such bonds, notes, or other debt instruments and enter into any related credit enhancement agreement.
  5. In computing the amount of the debt service reserve or pledged equity funds for the purpose of this section, securities in which all or a portion of such funds shall be invested shall be valued at par if purchased at par or at amortized value, as that term is defined by resolution of the Agency, if purchased at other than par.
  6. In order to ensure the maintenance of the debt service reserve fund requirement in each debt service reserve fund established by the Agency under this section, there may be appropriated annually and paid to the Agency for deposit in each fund a sum as shall be certified by the Chair of the Agency to the Governor, the President of the Senate, and the Speaker of the House as is necessary to establish or restore each such debt service reserve fund to an amount equal to the requirement for each such fund. The Chair shall annually, on or about February 1, make, execute, and deliver to the Governor, the President of the Senate, and the Speaker of the House a certificate stating the sum required to restore each such fund to the amount required by this section, and the Governor shall, on or before March 1, submit a request for appropriations in the amount so certified, and such amount may be appropriated and, if appropriated, shall be paid to the Agency during the then current State fiscal year. In order to ensure the funding of the pledged equity fund requirement in each pledged equity fund established by the Agency under this section at the time and in the amount determined at the time of entering into any credit enhancement agreement related to a pledged equity fund, there may be appropriated and paid to the Agency for deposit in each fund a sum as shall be certified by the Chair of the Agency to the Governor, the President of the Senate, and the Speaker of the House as is necessary to establish each pledged equity fund to an amount equal to the amount determined by the Agency at the time of entering into any credit enhancement agreement related to a pledged equity fund; provided that the amount requested, together with any amounts previously appropriated pursuant to this subsection for a particular pledged equity fund, shall not exceed the maximum amount of the State’s commitment as determined by the Agency pursuant to subsection (d) of this section. The Chair shall, on or about the February 1 next following the designated date for fully funding a pledged equity fund, make, execute, and deliver to the Governor, the President of the Senate, and the Speaker of the House a certificate stating the sum required to bring each fund to the amount required by this section or to otherwise satisfy the State’s commitment with respect to each fund, and the Governor shall, on or before March 1, submit a request for appropriations in the amount so certified, and such amount may be appropriated and, such amount, if appropriated, shall be paid to the Agency during the then current State fiscal year. The combined principal amount of bonds, notes, and other debt instruments outstanding at any time and secured in whole or in part by a debt service reserve fund established under this section and the aggregate commitment of the State to fund pledged equity funds pursuant to this subsection shall not exceed $155,000,000.00 at any time, provided that the foregoing shall not impair the obligation of any contract or contracts entered into by the Agency in contravention of the Constitution of the United States. Notwithstanding anything in this section to the contrary, the State’s obligation with respect to funding any pledged equity fund shall be limited to its maximum commitment, as determined by the Agency pursuant to subsection (d) of this section, and the State shall have no other obligation to replenish or maintain any pledged equity fund.

HISTORY: Added 2009, No. 1 (Sp. Sess.), § H.14, eff. June 2, 2009; amended 2011, No. 40 , § 55, eff. May 20, 2011.

History

Amendments

—2011. Subsec. (f): Substituted “and the governor shall, on or before March 1, submit a request for appropriations in the amount” for “and the sum” and inserted “, and such amount” following “certified” in the second sentence; substituted “the governor shall, on or before March 1, submit a request for appropriations in the amount” for “sum”; and inserted “, and such amount” following “certified” and “such amount” following “appropriated and” in the fourth sentence.

Savings clause. 2009, No. 1 (Sp. Sess.), § H.15 provides: “Nothing in Sec. H.14 of this act [which enacted this section] shall be construed to impair the obligation of any preexisting contract or contracts entered into by the agency or by the state.”

§ 633. Refunding obligations — Issuance.

The Agency may provide for the issuance of refunding obligations for the purpose of refunding any obligations then outstanding that have been issued under the provisions of this chapter, including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such obligations and for any corporate purpose of the Agency. The issuance of such obligations, the maturities and other details thereof, the rights of the holders thereof, and the rights, duties, and obligations of the Agency in respect of the same shall be governed by the provisions of this chapter that relate to the issuance of obligations, insofar as those provisions may be appropriate.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974.

§ 634. Refunding obligations — Sale.

Refunding obligations issued as provided in section 633 of this title may be sold or exchanged for outstanding obligations issued under this chapter and, if sold, the proceeds thereof may be applied, in addition to any other authorized purposes, to the purchase, redemption, or payment of such outstanding obligations. Pending the application of the proceeds of any refunding obligations, with any other available funds, to the payment of the principal, accrued interest, and any redemption premium on the obligations being refunded, and, if so provided or permitted in the resolution authorizing the issuance of such refunding obligations or in the trust agreement securing them to the payment of any interest on such refunding obligations and any expenses in connection with such refunding, such proceeds may be invested in direct obligations of, or obligations the principal of and the interest on that are unconditionally guaranteed by the United States of America that shall mature or that shall be subject to redemption by the holders thereof, at the option of such holders, not later than the respective dates when the proceeds, together with the interest accruing thereon, will be required for the purposes intended.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974.

§ 635. Remedies of bondholders and noteholders.

  1. In the event that the Agency defaults in the payment of principal or of interest on any bonds or notes issued under this chapter after they become due, whether at maturity or upon call for redemption, and the default continues for a period of 30 days, or in the event that the Agency fails or refuses to comply with the provisions of this chapter, or defaults in any agreement made with the holders of an issue of bonds or notes of the Agency, the holders of 25 percent in aggregate principal amount of the bonds or notes of such issue then outstanding, by instrument or instruments filed in the Office of the Secretary of State and proved or acknowledged in the same manner as a deed to be recorded, may appoint a trustee to represent the holders of such bonds or notes for the purposes herein provided.
  2. Such trustee may, and upon written request of the holders of 25 percent in principal amount of such bonds or notes then outstanding shall, in his or her or its own name:
    1. enforce all rights of the bondholders or noteholders, including the right to require the Agency to collect interest and amortization payments on the mortgages or other obligations held by it adequate to carry out any agreement as to, or pledge of, the interest and amortization payments, and to require the Agency to carry out any other agreements with the holders of such bonds or notes and to perform its duties under this chapter;
    2. enforce all rights of the bondholders or noteholders, including the right to collect and enforce the payment of principal of and interest due or becoming due on loans to mortgage lenders and collect and enforce any collateral securing the loans or sell the collateral, so as to carry out any contract as to, or pledge of revenues, and to require the Agency to carry out and perform the terms of any contract with the holders of such bonds or notes or its duties under this chapter;
    3. bring suit upon all or any part of such bonds or notes;
    4. by action or suit, require the Agency to account as if it were the trustee of an express trust for the holders of such bonds or notes;
    5. by action or suit, enjoin any acts or things that may be unlawful or in violation of the rights of the holders of such bonds or notes;
    6. declare all such bonds or notes due and payable, and, if all defaults shall be made good, then with the consent of the holders of 25 percent of the principal amount of such bonds or notes then outstanding to annul the declaration and its consequences.
  3. The trustee shall in addition to the foregoing have and possess all the powers necessary or appropriate for the exercise of any functions specifically set forth herein or incident to the general representation of bondholders or noteholders in the enforcement and protection of their rights.
  4. Before declaring the principal of bonds or notes due and payable, the trustee shall first give 30 days’ notice in writing to the Governor, to the Agency and to the Attorney General of the State.
  5. The Superior Courts or courts with equity jurisdiction shall have jurisdiction of any suit, action, or proceeding by the trustee on behalf of bondholders or noteholders.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974.

History

Revision note—

Reference to “county courts” in subsec. (e) changed to “superior courts” pursuant to 1971, No. 185 (Adj. Sess.), § 236(d) and 1973, No. 193 (Adj. Sess.), § 3. See notes under §§ 71 and 219 of Title 4.

§ 636. Pledge of the State.

The State does hereby pledge to and agree with the holders of the notes and bonds issued under this chapter that the State will not limit or restrict the rights hereby vested in the Agency to perform its obligations and to fulfill the terms of any agreement made with the holders of its bonds or notes or in any way impair the rights and remedies of the holders until the notes and bonds, together with interest thereon, and interest on any unpaid installments of interest, are fully met, paid and discharged. The Agency is authorized to execute this pledge and agreement of the State in any agreement with the holders of the notes or bonds.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974.

§ 637. Sovereign immunity, credit of State not pledged.

The Agency shall have the benefit of sovereign immunity to the same extent as the State of Vermont. Commissioners, officers, employees, and the executive director of the Agency shall be deemed employees of the State for purposes of 12 V.S.A. chapter 189 (tort claims against State) and 3 V.S.A. chapter 29 (claims against State employees). Notwithstanding the foregoing, obligations issued under the provisions of this chapter shall not be deemed to constitute a debt or liability or obligation of the State or of any political subdivision thereof or a pledge of the faith and credit of the State or of any political subdivision but shall be payable solely from the revenues or assets of the Agency. Each obligation issued under this chapter shall contain on the face thereof a statement to the effect that the Agency shall not be obligated to pay the same nor the interest thereon except from the revenues or assets pledged therefor and that neither the faith and credit nor the taxing power of the State or of any political subdivision thereof is pledged to the payment of the principal of or the interest on such obligations.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974; amended 2003, No. 122 (Adj. Sess.), § 240a; 2005, No. 75 , § 20.

History

Amendments

—2005. Added the second sentence.

—2003 (Adj. Sess.). Added “sovereign immunity” preceding “credit” in the section catchline, added the first sentence and added “Notwithstanding the foregoing,” preceding “obligations” in the second sentence.

§ 638. Notes and bonds as legal investments.

Notwithstanding any other law, the State and all public officers, governmental units, and agencies thereof, all banks, trust companies, savings banks and institutions, building and loan associations, savings and loan associations, investment companies, and other persons carrying on a banking business, all insurance companies, insurance associations, and other persons carrying on an insurance business, all credit unions, and all executors, administrators, guardians, trustees, and other fiduciaries may legally invest any sinking funds, monies, or other funds belonging to them or within their control in any bonds or notes issued under this chapter, and the bonds or notes are authorized security for any and all public deposits.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974.

§ 639. Annual reports; audit.

  1. On or before the last day of January in each year, the Agency shall submit a report of its activities for the preceding fiscal year to the Governor and to the General Assembly, specifically the committees in the House and Senate with jurisdiction over housing. Each report shall set forth a complete operating and financial statement covering its operations during the year, including the Agency’s present and projected economic health, amount of indebtedness, a statement of the amounts received from funds generated by interest from real estate escrow and trust accounts established pursuant to 26 V.S.A. § 2214(c) , a list and description of the programs to which IORTA funds were provided and the amounts distributed to each county. The Agency shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants; the cost shall be considered an expense of the Agency and a copy shall be filed with the State Treasurer. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection.
  2. The Auditor of Accounts of the State and his or her duly authorized representatives may at any time examine the accounts and books of the Agency, including its receipts, disbursements, contracts, sinking funds, investments, and any other matters relating to its financial statements.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974; amended 1989, No. 145 (Adj. Sess.), § 3, eff. April 20, 1990; 1991, No. 86 , § 3, eff. Jan. 1, 1992; 2007, No. 86 (Adj. Sess.), § 2, eff. March 3, 2008; 2013, No. 142 (Adj. Sess.), § 17.

History

Amendments

—2013 (Adj. Sess.). Subsec. (a): Added the last sentence.

—2007 (Adj. Sess.). Subsec. (a): Inserted “specifically the committees in the house and senate with jurisdiction over housing” following “general assembly” in the first sentence, and “the agency’s present and projected economic health, amount of indebtedness” following “including” in the second sentence.

—1991. Subsec. (a): Added “including a statement of the amounts received from funds generated by interest from real estate escrow and trust accounts established pursuant to 26 V.S.A. § 2214(c) , a list and description of the programs to which IORTA funds were provided and the amounts distributed to each county” following “year” in the second sentence.

—1989 (Adj. Sess.). Subsec. (a): Substituted “fiscal” for “calendar” following “preceding” in the first sentence and deleted “and shall contain a full and complete statement of the agency’s anticipated budget and operations for the ensuing year”.

CROSS REFERENCES

Audits of State departments, institutions, agencies, and trustees of funds, see 32 V.S.A. § 163 .

§ 640. Authorization to accept appropriated monies.

The Agency is authorized to accept and expend such monies as may be appropriated or approved from time to time by the General Assembly for effectuating its corporate purposes including the payment of the initial expenses of administration and operation and the establishment of reserves or contingency funds to be available for the payment of the principal of and the interest on any bonds, notes, or other obligations of the Agency.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974.

History

Revision note

—2018. Deleted “, without limitation,” following “including” in accordance with 2013, No. 5 , § 4.

§ 641. Tax exemption.

  1. All property of the Agency is public property devoted to an essential public and governmental function and purpose and is exempt from all taxes, franchise fees, and special assessments of whatever nature of the State or any subdivision.  All bonds or notes issued under this chapter are issued by a body corporate and public of this State and for an essential public and governmental purpose and those bonds and notes, and the interest thereon and the income therefrom, and all activities of the Agency and fees, charges, funds, revenues, incomes, and other monies of the Agency whether or not pledged or available to pay or secure the payment of those bonds or notes, or interest thereon, are exempt from all taxation, franchise fees, or special assessments of whatever kind except for transfer, inheritance, and estate taxes.
  2. The Agency is not required to make or file any reports, statements, or informational returns required of any other bodies corporate except as provided in this chapter.
  3. Notwithstanding subsection (a) of this section, a tax lien on real property that has attached pursuant to 32 V.S.A. § 5061 shall not be extinguished as a result of the acquisition by the Agency of property subject to such lien.  No real property owned by the Agency on April 1 of any year shall be assessed for taxes by any municipality and no lien for taxes pursuant to 32 V.S.A. § 5061 shall attach to such property whether or not the Agency subsequently transfers the property to a taxable person prior to April 1 of the following year.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974; amended 1983, No. 215 (Adj. Sess.), § 2, eff. May 10, 1984.

History

Amendments

—1983 (Adj. Sess.). Subsec. (c): Added.

CROSS REFERENCES

Inheritance, transfer and estate taxes generally, see 32 V.S.A. § 7101 et seq.

Property taxes generally, see 32 V.S.A. § 3401 et seq.

§ 642. Liberal construction.

Neither this chapter nor anything herein contained is or shall be construed as a restriction or limitation upon any powers that the Agency might otherwise have under any laws of this State, and this chapter is cumulative to any such powers. This chapter does and shall be construed to provide a complete, additional, and alternative method for the doing of the things authorized thereby and shall be regarded as supplemental and additional to powers conferred by other laws.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974.

History

Revision note—

Changed references to “act” to “chapter” to conform to V.S.A. style.

§ 643. Inconsistent provisions in other laws superseded.

Insofar as the provisions of this chapter are inconsistent with the provisions of any other law, general, special, or local, the provisions of this chapter shall be controlling.

HISTORY: Added 1973, No. 260 (Adj. Sess.), § 3, eff. April 11, 1974.

History

Revision note—

Changed references to “act” to “chapter” to conform to V.S.A. style.

Chapter 26. Vermont Film Corporation

History

Sunset of expiration of chapter. 1995, No. 190 (Adj. Sess.), § 14, provided in part that this chapter, comprising sections 644-647, would expire on June 30, 1999.

1999, No. 159 (Adj. Sess.), § 26(a), eff. May 29, 2000, provided: “Section 7 (enacting 10 V.S.A. chapter 26 which establishes the Vermont Film Corporation) and Section 9 of No. 190 of the Acts of the 1995 Adjourned Session are reenacted, and shall expire June 30, 2004.” However, pursuant to 2003, No. 85 (Adj. Sess.), § 2(a), the sunset of this chapter was repealed.

1999, No. 159 (Adj. Sess.), § 26(b), eff. May 29, 2000, provided that the reenactment by section 26(a) of this chapter, shall apply retroactively so as to negate the effect of the original sunset on the Vermont Film Corporation.

Assignment of duties; Vermont film corporation. 2011, No. 52 , § 16(b) provides: “The duties of the Vermont film corporation shall be transferred to the agency of commerce and community development.”

Subchapter 1. Vermont Film Corporation

§§ 644-647. Repealed. 2011, No. 52, § 16(a), eff. May 27, 2011.

History

Former §§ 644-647. Former § 644, relating to the purpose and creation of the Vermont film corporation, was derived from 1995, No. 190 (Adj. Sess.), § 7.

Former § 645, relating to the powers and duties of the corporation, was derived from 1995, No. 190 (Adj. Sess.), § 7.

Former § 646, relating to the board of directors of the corporation, was derived from 1995, No. 190 (Adj. Sess.), § 7.

Former § 647, relating to the annual report of the corporation, was derived from 1995, No. 190 (Adj. Sess.), § 7 and amended by 2009, No. 135 (Adj. Sess.), § 3.

Subchapter 3. Vermont Film Production Incentive Program

§§ 650-650g. Repealed. 2011, No. 52, § 16(a), eff. May 27, 2011.

History

Former §§ 650-650g. Former § 650, relating to the definitions of Vermont film production incentive program, was derived from 2005, No. 184 (Adj. Sess.), § 17e.

Former § 650a, relating to the establishment of the agency, was derived from 2005, No. 184 (Adj. Sess.), § 17e.

Former § 650b, relating to the application of film production, was derived from 2005, No. 184 (Adj. Sess.), § 17e.

Former § 650c, relating to review of application, was derived from 2005, No. 184 (Adj. Sess.), § 17e.

Former § 650d, relating to approval of application, was derived from 2005, No. 184 (Adj. Sess.), § 17e.

Former § 650e, relating to penalties, was derived from 2005, No. 184 (Adj. Sess.), § 17e.

Former § 650f, relating to limitations, was derived from 2005, No. 184 (Adj. Sess.), § 17e.

Former § 650g, relating to program funding, was derived from 2005, No. 184 (Adj. Sess.), § 17e.

Chapter 27. Travel and Recreation Policy

History

Amendments

—1987. 1987, No. 83 , § 1, rewrote the chapter heading.

CROSS REFERENCES

Tourist information services, see § 481 et seq. of this title.

Subchapter 1. Travel and Recreation Council

§ 651. Findings; policy and purpose.

The General Assembly finds that the State of Vermont is endowed with extraordinary natural beauty by its mountains, waterways, and open spaces; that the State of Vermont is rich in its historic heritage, its cultural offerings, the renown of its superior workmanship, the unique designs of its crafts people, and the variety of its recreational lodgings, attractions, and services, all of which enrich the lives of Vermonters and the many travelers who visit the State each year; that the travel and recreation industry is an important sector of the Vermont economy, serving the needs of Vermonters as well as the many visitors of our State, providing significant employment opportunities and revenues, and contributing to the economic well-being of the State; and that recognition of this important industry and enhanced promotion of Vermont as a travel destination in cooperation with the private sector is in the public interest. Therefore, it is the public policy of the State of Vermont, while protecting the natural quality of the State, to support and encourage reasonable growth in the number of travelers to the State and to assist in enhancing the competitive position of travel-related businesses in the State; and further, it is of public benefit that a travel and recreation council be established to contribute to the development of the State travel and recreation policy.

HISTORY: Added 1987, No. 83 , § 2.

§ 652. Travel and Recreation Council; membership.

  1. The Travel and Recreation Council is created. It shall comprise the following members:
    1. the Secretary of Commerce and Community Development or designee;
    2. the Secretary of Natural Resources or designee;
    3. the Secretary of Transportation or designee;
    4. the Secretary of Agriculture, Food and Markets or designee;
    5. the Commissioner of Tourism and Marketing or designee; and
    6. ten members from the private sector appointed by the Governor.
    1. The ten members appointed by the Governor shall serve a term of three years, beginning July 1, or the unexpired portion thereof. For the initial appointments, the Governor shall appoint three for one year, four for two years, and three for three years. (b) (1) The ten members appointed by the Governor shall serve a term of three years, beginning July 1, or the unexpired portion thereof. For the initial appointments, the Governor shall appoint three for one year, four for two years, and three for three years.
    2. When appointing members, the Governor shall consider persons who have understanding of the travel and recreation industry and who will adequately represent the various interests in the State.
  2. The Council shall elect its chair annually from among its members.
  3. The Council shall meet at least quarterly at the call of the Chair or the agency secretary.
  4. Members of the Council shall be entitled to receive per diem compensation and reimbursement of expenses as permitted under 32 V.S.A. § 1010 , which shall be paid by the Agency of Commerce and Community Development.

HISTORY: Added 1987, No. 83 , § 2; amended 1995, No. 46 § 37; 1995, No. 190 (Adj. Sess.), § 1(a), (d); 2003, No. 42 , § 2, eff. May 27, 2003; 2019, No. 61 , § 6.

History

Revision note—

In subdiv. (a)(2), substituted “agency of natural resources” for “agency of environmental conservation” pursuant to 1987, No. 76 , § 18.

Substituted “commissioner of agriculture, food and markets” for “commissioner of agriculture” in subdiv. (a)(4) for purposes of conformity with 1989, No. 256 (Adj. Sess.), § 10(a).

Amendments

—2019. Subsec. (a): Substituted “The” for “A” at the beginning of the introductory paragraph, added “or designee” at the end of subdiv. (a)(1), inserted “, or designee” following “Community Development”.

Subdivs. (b)(1), (b)(2): Added the subdivision designations.

Subsec. (e): Inserted “be entitled to,” inserted “per diem,” substituted “of” for “for” substituted “as permitted under” for “in accordance with,” and added “which shall be paid by the Agency of Commerce and Community Development”.

—2003. Subdiv. (a)(4): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets”.

—1995 (Adj. Sess.) Subsec. (a): Substituted “agency of commerce and community development” for “agency of development and community affairs” in subdiv. (1) and “commissioner of tourism and marketing” for “director of the travel division” in subdiv. (5).

—1995. Subsec. (e): Added.

CROSS REFERENCES

Commissioner of Agriculture, Food and Markets, see 6 V.S.A. § 1 .

Commissioner of Tourism and Marketing, see 3 V.S.A. § 2476 .

Secretary of Commerce and Community Development, see 3 V.S.A. § 2421 .

Secretary of Natural Resources, see 3 V.S.A. § 2821 .

Secretary of Transportation, see 19 V.S.A. § 7 .

§ 653. Travel and Recreation Council; functions.

  1. The Council shall advise the Secretary of Commerce and Community Development, and the Secretary shall consult with the Council, on matters relating to State travel and recreation policy, State travel and recreation promotion programs, and other programs of the Department of Tourism and Marketing.
  2. In addition to any other functions the Council may perform, it shall:
    1. review and consult with the Secretary on the development of an annual marketing plan for travel and recreation.  Such a plan shall be initially developed by the Agency in consultation with the Council.  This plan shall then be submitted to the Council for its further review and comments, which shall be considered by the Agency before the Agency adopts a final plan;
    2. assist the Secretary in the Agency’s preparation of a long-term comprehensive State travel and recreation plan. Before the Agency adopts a final plan, the plan shall be reviewed at a public hearing and shall be submitted to the Council for its further review and comments;
    3. assist the Secretary in selecting proposals for awarding funds under the matching grants promotional programs under subchapter 2 of this chapter and in reviewing proposals for cooperative and partnership travel promotion efforts.

HISTORY: Added 1987, No. 83 , § 2; amended 1995, No. 190 (Adj. Sess.), § 1(a), (c).

History

Amendments

—1995 (Adj. Sess.) Subsec. (a): Substituted “agency of commerce and community development” for “agency of development and community affairs” and “department of tourism and marketing” for “travel division”.

Subchapter 2. Travel Promotion Matching Fund Program

History

Amendments

—1987. 1987, No. 83 , § 3, designated the existing provisions of this chapter, comprising sections 661-667, as subchapter 2 and added the subchapter heading.

§ 661. Travel promotion matching fund program.

There is established a travel promotion matching fund program to serve the following purposes:

  1. to allow the State of Vermont to provide part of the funds necessary for a travel promotion chamber or association to conduct promotional programs on a statewide or regional basis in order to increase the volume of nonresident visitation to the State or a particular region within the State;
  2. to strengthen and further encourage regional and statewide promotion by the private sector;
  3. to strengthen the State image by coordinating the promotional efforts of the private sector and the Vermont Department of Tourism and Marketing of the Agency of Commerce and Community Development.

HISTORY: Added 1979, No. 137 (Adj. Sess.), § 2, eff. April 22, 1980; amended 1995, No. 190 (Adj. Sess.), § 1(c).

History

Revision note—

Substituted “agency of commerce and community development” for “department of development” for purposes of conformity with 3 V.S.A. § 2402 , as amended by 1995, No. 190 (Adj. Sess.), § 1.

Amendments

—1995 (Adj. Sess.) Subdiv. (3): Substituted “department of tourism and marketing” for “travel division”.

§ 662. Allocation of funds.

  1. Within the limits of available funding, for every dollar raised by the private sector for travel promotion under the provisions of this chapter, the State will provide one dollar in matching funds to be allocated as follows:
    1. 75 percent of the State’s dollar will be awarded as grants to approved travel promotion chamber or association programs.
    2. 25 percent of the State’s dollar will go into the Vermont Department of Tourism and Marketing’s promotion budget specifically for the purpose of executing an umbrella advertising campaign under which the private sector programs will operate.
  2. The minimum grant to be matched by any single travel promotion chamber or association is $1,000.00.
  3. The maximum grant to be matched by any single travel promotion chamber or association is $25,000.00.

HISTORY: Added 1979, No. 137 (Adj. Sess.), § 2, eff. April 22, 1980.

§ 663. Administration.

  1. The Department of Economic Development, through the Vermont Department of Tourism and Marketing, shall administer the travel promotion matching funds program with such flexibility so as to bring about the most effective and economical travel promotion program possible. The Department shall adopt rules and procedures necessary and appropriate to the proper operation of the matching funds program. These rules shall also establish which travel promotion organizations are eligible to apply for matching funds.
  2. The Department shall make available complete instructions as to the applicant’s duties and responsibilities and shall establish forms necessary to carry out the purposes of this chapter.

HISTORY: Added 1979, No. 137 (Adj. Sess.), § 2, eff. April 22, 1980; amended 1995, No. 190 (Adj. Sess.), § 1(c); 2015, No. 23 , § 97.

History

Revision note—

Substituted “department of economic development” for “department of development” for purposes of conformity with 1991, No. 145 (Adj. Sess.), § 2. See 3 V.S.A. § 2471 .

Amendments

—2015. Subsec. (a): Substituted “Department shall adopt” for “department will promulgate” preceding “rules and procedures” in the second sentence.

Subsec. (b): Substituted “Department shall” for “department will” preceding “make available” and “shall” for “will” preceding “establish”.

—1995 (Adj. Sess.) Subsec. (a): Substituted “department of tourism and marketing” for “travel division” in the first sentence.

§ 664. Application procedures.

  1. Travel promotion organizations, applying for a matching fund grant, must present their proposed travel development promotion programs to the Vermont Department of Tourism and Marketing in detail, and must further describe sources of local funds available for those purposes.
  2. Annually, the Agency, in consultation with the Travel and Recreation Council, shall establish a schedule for applying for and awarding matching funds.  The Agency may establish more than one application cycle, provided that at least one competition for funds is conducted annually, and further provided that application cycles are such as to maintain a competitive matching grants program.  The Travel and Recreation Council shall evaluate the relative merits of the applications based upon criteria established under this subchapter and make recommendations to the Agency as to a priority of applications which merit funding.  The Secretary in consultation with the Commissioner of Tourism and Marketing shall review the recommendations of the Travel and Recreation Council and make final decisions regarding the funding of proposals under the matching grants programs.
  3. All applications will be reviewed and evaluated on the basis of the following:
    1. geographic area covered in application;
    2. scope of short- and long-range planning;
    3. program content; and
    4. projected impact on geographic area covered in application.
  4. Grants will be made to those organizations that best meet the purposes of this chapter and according to the availability of funds, but no grant will exceed the amount raised by the organization and applied to its proposed programs.
  5. Organizations receiving grants will be carefully evaluated, and risk elimination of their grants when a lack of effort, cooperation, and adherence to proposed programs is displayed. No travel promotion agency may act as a “feeder facility” simply to disburse State matching funds to a private sector business for the promotion of its private functions.
  6. Upon receiving and approving a given application, the Vermont Department of Tourism and Marketing will notify the organization of the grant amount in writing and execute a contract between that organization and the Department of Development.

HISTORY: Added 1979, No. 137 (Adj. Sess.), § 2, eff. April 22, 1980; amended 1987, No. 83 , § 5; 1995, No. 190 (Adj. Sess.), § 1(c), (d).

History

Amendments

—1995 (Adj. Sess.) Substituted “department of tourism and marketing” for “travel division” in subsecs. (a) and (f) and “commissioner of tourism and marketing” for “director of the travel division” in the fourth sentence of subsec. (b).

—1987. Subsec. (b): Amended generally.

§ 665. Bookkeeping systems.

All tourist promotion organizations will keep records of any applications, transactions, payment receipts, and correspondence relating to the implementation of the matching funds program.

HISTORY: Added 1979, No. 137 (Adj. Sess.), § 2, eff. April 22, 1980.

§ 666. Reimbursement procedures.

  1. Upon receipt in writing of satisfactory evidence of program progress and funds expended or committed, the Vermont Department of Tourism and Marketing shall reimburse the organization according to its matching fund contract.  Within 60 days of completion of the program, each grant recipient shall provide the Vermont Department of Tourism and Marketing with the following:
    1. a completed program evaluation report on a form supplied by the Department of Tourism and Marketing,
    2. copies of all advertisements purchased,
    3. samples of any promotional material used in the program, and
    4. any other information requested by the Department of Tourism and Marketing.
  2. The Commissioner of Tourism and Marketing, may, as he or she sees fit, request interim reports on the progress of programs.

HISTORY: Added 1979, No. 137 (Adj. Sess.), § 2, eff. April 22, 1980; amended 1995, No. 190 (Adj. Sess.), § 1(c), (d).

History

Amendments

—1995 (Adj. Sess.) Subsec. (a): Substituted “department of tourism and marketing” for “travel division” in two places in the introductory paragraph and in subdivs. (1) and (4).

Subsec. (b): Substituted “commissioner of tourism and marketing” for “travel director”.

§ 667. Legislative review.

The Commissioner of Tourism and Marketing shall annually submit a report on the travel promotion program to the Legislature.

HISTORY: Added 1979, No. 137 (Adj. Sess.), § 2, eff. April 22, 1980; amended 1995, No. 190 (Adj. Sess.), § 1(d).

History

Amendments

—1995 (Adj. Sess.) Substituted “commissioner of tourism and marketing” for “travel director”.

Subchapter 3. Regional Travel and Tourism Marketing Program

History

Revision note—

Sections 669-677 of this title, comprising this subchapter, were redesignated as sections 669-669h and internal references were revised in order to avoid conflict with 10 V.S.A. sections 671-675 as added by 1991, No. 61 .

§ 669. Regional travel and tourism marketing grants.

The General Assembly finds that:

  1. Effective marketing of travel and tourism destinations is best performed on a regional level.
  2. The tourism business is the second largest business in the State and is predicted to grow in the future.
  3. Private sector regional travel and tourism marketing associations, with the assistance of the public sector, will encourage the growth of Vermont as a travel destination.
  4. A regional travel and tourism marketing association is best suited to identify the regions’ strengths as well as the sectors that need greater marketing assistance. Small business will be better served by a more direct contact with a local, regional travel and tourism marketing association.

HISTORY: Added 1995, No. 46 , § 38.

§ 669a. Definitions.

For the purposes of this subchapter:

  1. “Agency” means the Agency of Commerce and Community Development.
  2. “Commissioner” means the Commissioner of Marketing and Tourism.
  3. “Regional travel and tourism marketing association” means a nonprofit corporation, cooperative, or other nonprofit organization formed under the laws of this State whose principal purpose is to promote, organize, or accomplish the enhancement of travel and tourism for a particular region of this State, including marketing and promotional activities, technical assistance to regional travel and tourism business to enhance their marketing and promotional efforts, arrangement of conventions, trade shows, and promotional activities in order to attract the traveling public to the region, and the provision of information to the traveling public with regard to regional attractions.

HISTORY: Added 1995, No. 46 , § 38; amended 1995, No. 190 (Adj. Sess.), § 1(a), (d).

History

Amendments

—1995 (Adj. Sess.) Subdiv. (1): Substituted “agency of commerce and community development” for “agency of development and community affairs”.

Subdiv. (2): Substituted “commissioner of tourism and marketing” for “commissioner of travel and tourism”.

§ 669b. Applications for regional travel and tourism marketing association grants.

A qualified regional travel and tourism marketing association may apply to the Secretary, on a form provided by the Secretary, for a grant under this chapter. The applicant may be required to submit with the application, or at any time during the grant period, any information that the Secretary determines is necessary or desirable to consider the application, assess the effectiveness of the grant, or to carry out the purposes of this chapter.

HISTORY: Added 1995, No. 46 , § 38.

§ 669c. Determination of eligibility for grant.

The Secretary shall determine within 60 days of filing the application whether the applicant is eligible for a grant under this chapter. An applicant may be eligible for a grant if the Secretary determines, in his or her sole discretion, that:

  1. the applicant will only serve businesses located in the applicant’s region;
  2. the applicant demonstrates an ability and willingness to provide marketing, technical assistance, promotional activity, and information services in furtherance of the purposes of this subchapter;
  3. the applicant demonstrates an ability to gather information useful in evaluating the performance of the applicant in achieving the purposes of this subchapter;
  4. the applicant has letters of support from a significant number of travel and tourism businesses located in the applicant’s region;
  5. the applicant demonstrates a capability and willingness to assist each and every travel and tourism business located within the applicant’s region;
  6. the applicant appears to be the best qualified applicant to carry out the purposes of this subchapter in the applicant’s region;
  7. the grant is needed for the reasonable and necessary expenses of the association, including the employment of professional staff, as demonstrated in the proposed operating budget of the association;
  8. the applicant has adequate federal and private funds resources, as demonstrated in the proposed operating budget of the association, which together with the grant will enable the applicant to fulfill the purposes of this subchapter;
  9. the applicant presents a memorandum of understanding signed by the applicant and any regional development corporation operating in the same region demonstrating that the association and the corporation will cooperate with each other and coordinate each other’s common or related activities.

HISTORY: Added 1995, No. 46 , § 38.

§ 669d. Marketing association expenditures; reapplication.

  1. A regional travel and tourism marketing association shall use grant funds only for such purposes described in the application and approved by the Secretary under section 669c of this title. Disbursement of grant funds shall be made at such times as are specified by the Secretary. On request of the Secretary the Commissioner of Finance and Management shall issue his or her warrant and the State Treasurer shall pay the funds requested.
  2. The grant shall be approved under such terms and conditions as the Secretary may prescribe, for a period no longer than one year. The applicant may reapply in accordance with section 669b of this title.
  3. The Secretary, in his or her sole discretion, shall allocate funds appropriated for regional travel and tourism marketing associations. The Secretary shall determine the amount allocated to each regional travel and tourism marketing association after considering an association’s budgetary needs and the strength of its program as measured against the goals established in section 669b of this title.

HISTORY: Added 1995, No. 46 , § 38.

History

Revision note—

Substituted “section 669c” for “section 672” in the first sentence of subsec. (a) and in the second sentence of subsec. (b) “section 669b” for “section 671” to conform to the redesignation of those sections.

§ 669e. Cooperative efforts.

An association approved for a grant under this subchapter shall act in a manner that is consistent with the efforts of the Vermont Department of Tourism and Marketing. A recipient association shall not deliberately and adversely affect the travel and tourism marketing efforts of another recipient association.

HISTORY: Added 1995, No. 46 , § 38; amended 1995, No. 190 (Adj. Sess.), § 1(c).

History

Amendments

—1995 (Adj. Sess.) Substituted “department of tourism and marketing” for “department of travel” in the first sentence.

§ 669f. Rules.

The Secretary may adopt such rules as are necessary to carry out the purposes of this chapter.

HISTORY: Added 1995, No. 46 , § 38.

CROSS REFERENCES

Procedure for adoption of administrative rules, see 3 V.S.A. part 1, chapter 25.

§ 669g. Applicability of State laws.

  1. A regional travel and tourism marketing association approved by the Secretary under this chapter shall not be subject to the provisions of 1 V.S.A. subchapter 2 (open meetings) and subchapter 3 (public records).
  2. The provisions of 2 V.S.A. chapter 11 (lobbyist disclosure) shall apply to a regional travel and tourism marketing association.

HISTORY: Added 1995, No. 46 , § 38.

§ 669h. Delegation of authority.

The Secretary may designate any officer or employee of the Agency to carry out his or her powers and duties under this chapter.

HISTORY: Added 1995, No. 46 , § 38.

Chapter 28. Vermont Small Business Investment

History

Repeal of chapter. This chapter which comprised §§ 671-675, relating to Vermont small business investment, was repealed by 2009, No. 135 (Adj. Sess.), § 26(3)(E), effective May 29, 2010.

§§ 671-675. Repealed. 2009, No. 135 (Adj. Sess.), § 26(3)(E).

History

Former §§ 671-675. Former § 671, relating to findings and purpose, was derived from 1991, No. 61 , § 1.

Former § 672, relating to definitions, was derived from 1991, No. 61 , § 1.

Former § 673, relating to approval of the Vermont small business investment company, was derived from 1991, No. 61 , § 1 and amended by 1991, No. 218 (Adj. Sess.), § 1; 1993, No. 89 , § 3(a); and 1995, No. 190 (Adj. Sess.), § 1(a), (b).

Former § 674, relating to state guarantee of company obligations, was derived from 1991, No. 61 , § 1 and amended by 1991, No. 218 (Adj. Sess.), § 2; and 2009, No. 33 , § 24.

Former § 675, relating to audits of a small business investment company; report, was derived from 1991, No. 61 , § 1 and amended by 1991, No. 218 (Adj. Sess.), § 3 and 2009, No. 33 , § 24.

Chapter 29. Community Development

CROSS REFERENCES

Economic development grants, see 24 V.S.A. § 2781 et seq.

Economic development, reports by recipients, see § 7 of this title.

Subchapter 1. Community Development Act

History

Revision note—

The heading and designation for subchapter 1 of this chapter were added in light of the enactment of subchapter 2 in order to conform the organization of the chapter to the general organizational scheme of V.S.A. and internal references were revised, as necessary.

CROSS REFERENCES

Administration of Community Development Block Grant Program, see 3 V.S.A. § 2472 .

§ 681. Title.

This subchapter may be cited as the “Vermont Community Development Act.”

HISTORY: Added 1983, No. 10 , § 1, eff. March 18, 1983.

§ 682. Intent and purpose.

  1. It is the intent of this subchapter to provide for the State administration of the federal community development block grant program as is authorized by Title I of the Housing and Community Development Act of 1974, as amended (42 U.S.C. § 5301 et seq.), hereinafter called the “Federal Act,” so as to meet the objectives and requirements of that title.
  2. The purpose of this subchapter is to meet the State goal and objectives so that the most effective projects in the neediest areas are funded.
    1. The goal is to improve and maintain the economic and physical environment in Vermont’s municipalities so as to enhance the quality of life for all Vermonters, particularly those of lower incomes.
    2. The objectives are to conserve, expand, and improve housing; to create and retain employment; and to improve public facilities in support of housing or economic development activities, or where there is a threat to the public health and safety.

HISTORY: Added 1983, No. 10 , § 1, eff. March 18, 1983.

§ 683. Title.

  1. As used in this subchapter:
  2. “Municipality” means a town or city.  It also means an incorporated village the charter of which enables it to function as a general purpose unit of local government.  It shall also mean a “nonentitlement area” as defined in Title I, Sec. 102(a)(7) of the Federal Act.
  3. “Grantee” means a municipality that receives a grant under the provisions of this subchapter.
  4. “Board” means the Vermont Community Development Board.
  5. “Agency” means the Vermont Agency of Commerce and Community Development.
  6. “Secretary” means the Secretary of the Agency.
  7. “Legislative body” means the aldermen of a town, the board of aldermen, or the council of a city, or the board of trustees or prudential committee of an incorporated village.
  8. “Chief executive officer” means the mayor of a city; or if no mayor, the president of the board of aldermen, the chair of the city council, the chair of the board of selectboard, the president of the board of trustees, or chair of the prudential committee.
  9. “Lower income” means less than or equal to 80 percent of median income.  The Secretary shall determine the best measure of median income based on statistics from federal and/or State sources.

HISTORY: Added 1983, No. 10 , § 1, eff. March 18, 1983; amended 1995, No. 190 (Adj. Sess.), § 1(a).

History

References in text.

Title I, Section 102(a)(7) of the federal Housing and Community Development Act of 1974, referred to in subdiv. (1), is codified as 42 U.S.C. § 5302(a) (7).

Title I, Section 106(b) of the federal Housing and Community Development Act of 1974, referred to in subdiv. (2), is codified as 42 U.S.C. § 5306(b) .

Revision note

—2018. Substituted “aldermen” for “board of selectmen” and “chair” for “chairman” in accordance with 2013, No. 161 , § 72.

Amendments

—1995 (Adj. Sess.) Subdiv. (5): Substituted “agency of commerce and community development” for “agency of development and community affairs”.

CROSS REFERENCES

Agency of Commerce and Community Development, see 3 V.S.A. § 2402 .

§ 684. Powers and duties of the municipalities.

  1. In addition to the powers and authority that the municipalities have under existing law, they are hereby granted such additional authority and power, essential and incidental, as may be necessary for the administration and implementation of this subchapter.
  2. Prior to filing an application under this subchapter a municipality shall:
    1. through action by the legislative body, adopt or pass an official act or resolution authorizing the filing of the application and directing the chief executive officer or designee to act in connection with the application and to provide such information as may be required;
    2. hold at least one public hearing, after notice of at least 15 days by publication in a newspaper of general circulation in the municipality, to obtain the views of citizens on community development, to furnish the citizens with information concerning the amount of funds available and the range of community development activities that may be undertaken under this subchapter, and to give affected citizens an opportunity to examine a proposed statement of the projected use of such funds;
    3. allow citizens an opportunity to examine the application and all supporting documentation.
  3. The chief executive officer or designee shall certify that the grantee will comply with the provisions of this subchapter and with other applicable federal and state laws and rules as may be determined by the secretary.

HISTORY: Added 1983, No. 10 , § 1, eff. March 18, 1983.

§ 685. The Vermont Community Development Board.

  1. There is created within the Agency of Commerce and Community Development the Vermont Community Development Board consisting of nine members who shall be residents of the State.
    1. The members shall be appointed by the Governor for a term of three years, or for the unexpired portion thereof. For the initial appointments, the Governor shall appoint three for one year, three for two years, and three for three years. (b) (1) The members shall be appointed by the Governor for a term of three years, or for the unexpired portion thereof. For the initial appointments, the Governor shall appoint three for one year, three for two years, and three for three years.
    2. In the appointment of the members, consideration shall be given to the selection of such persons as shall adequately represent the interests of various sections of the State and the principal beneficiaries of the program.
  2. The Chair shall be appointed annually by the Governor from among the members.
  3. Members of the Board shall be entitled to receive per diem compensation and reimbursement of expenses as permitted under 32 V.S.A. § 1010 , which shall be paid by the Agency.
  4. No person who receives a significant portion of his or her income directly or indirectly from the community development activities governed by this subchapter shall be a member of the Board.
  5. The Agency shall provide staff assistance and administrative support to the Board.
  6. Prior to January 15 of each year, the Board shall submit a report of its activities and grants for the preceding year to the Governor and General Assembly.

HISTORY: Added 1983, No. 10 , § 1, eff. March 18, 1983; amended 1995, No. 190 (Adj. Sess.), § 1(a); 2019, No. 61 , § 7.

History

Amendments

—2019. Subsec. (a): Substituted “is” for “shall be” preceding “created within”.

Added subdiv. (b)(1) and subdiv. (b)(2) designations.

Subsec. (d): Amended generally.

—1995 (Adj. Sess.) Subsec. (a): Substituted “agency of commerce and community development” for “agency of development and community affairs”.

§ 686. Eligibility, application, allocation of funds.

  1. All funds allocated to the State, except for an amount not exceeding the maximum allowable under the Federal Act available to the State for administrative costs, shall be allocated to municipalities in an equitable and efficient manner.
  2. All municipalities, except for entitlement municipalities, shall be eligible to apply for and receive funds under this subchapter.
  3. Entitlement municipalities shall not be eligible to apply for and receive funds under this subchapter.  Entitlement municipalities shall, however, have the authority to apply for and receive funds and to implement and administer a community development program as otherwise provided in the Federal Act, and this subchapter shall not be construed in any way to limit that authority.
  4. The Agency shall solicit applications from eligible municipalities. Any eligible municipality desiring to receive funds under this subchapter shall complete and submit an application in a manner as shall be prescribed by the Secretary. The Agency may require a third party credit analysis as part of the application. The applicant municipality shall pay a fee to cover the actual cost of the analysis to be deposited in a special fund that shall be managed pursuant to 32 V.S.A. subchapter 5 of chapter 7 and be available to the Agency to pay the actual cost of the analysis.
  5. The Board shall evaluate the relative merits of the applications using the allocation system established under this subchapter and make recommendations to the Secretary as to which applications merit funding.
  6. The Secretary shall review the recommendations of the board and make the final awards for grants-in-aid.

HISTORY: Added 1983, No. 10 , § 1, eff. March 18, 1983; amended 2009, No. 47 , § 7, eff. May 28, 2009.

History

Amendments

—2009. Subsec. (d): Added the third and fourth sentences.

§ 687. Allocation system.

The Secretary, with the advice and assistance of the Board, shall establish a system for the allocation of community development program funds.

  1. The allocation system shall be based on the intent, purpose, goal, and objectives of this subchapter.
  2. The allocation system shall be competitive and shall provide the opportunity for any eligible municipality or municipalities to compete for funding for community development projects.
  3. The system shall ensure that a wide range of community development activities shall be eligible for funding.  These may include:
    1. the acquisition, rehabilitation, or expansion of housing;
    2. the creation, expansion, or retention of employment through the stimulation of private investment and community revitalization;
    3. the installation, rehabilitation, or replacement of public facilities;
    4. activities that test the feasibility of innovative approaches to community development;
    5. activities that provide timely responses to unpredictable circumstances or special development opportunities.
  4. The allocation system shall include a method through which the need for, and impact of, the projects proposed by municipalities shall be measured and shall establish a process for evaluation of the applications.

HISTORY: Added 1983, No. 10 , § 1, eff. March 18, 1983.

History

Revision note

—2018. In subdiv. (4), in the second sentence, deleted “but are not limited to” following “may include” in accordance with 2013, No. 5 , § 4.

CROSS REFERENCES

Allocation and distribution of funds by Secretary of Housing and Urban Development, see 42 U.S.C. § 5306.

§ 688. Authority to make rules.

The Secretary is hereby granted the authority to issue rules in accordance with 3 V.S.A. chapter 25 for the purpose of administering the provisions of this subchapter.

HISTORY: Added 1983, No. 10 , § 1, eff. March 18, 1983.

§ 689. Multi-year commitments.

  1. Those municipalities that received commitments of multi-year funds in federal fiscal year 1981 under the provisions of the Federal Act shall be assured of funding to the extent of such commitments, provided such municipalities request the State to honor such funding commitments and the Secretary of the U.S. Department of Housing and Urban Development has provided the Secretary with a determination that any such municipality has performed adequately with respect to such previously distributed funds.
  2. Those municipalities eligible to receive funding under the provisions of this section and so requesting such funding shall make application to the Agency in a manner as shall be determined by the Secretary.
  3. The Secretary, with the advice and assistance of the Board, may allow the municipalities making application under this section to amend their programs to the extent that the program so amended meets the intent and purpose of this subchapter.
  4. Notwithstanding the provisions of sections 686 and 687 of this title, the Secretary may adopt separate rules for the expeditious consideration of applications and allocations made under this section.

HISTORY: Added 1983, No. 10 , § 1, eff. March 18, 1983.

History

Revision note—

In subsec. (c), substituted “subchapter” for “act” to conform reference to V.S.A. style.

In subsec. (d), inserted “of this title” following “sections 686 and 687” to conform reference to V.S.A. style.

§ 690. Remedies for noncompliance.

  1. If the Secretary finds, after reasonable notice and opportunity for hearing, that a grantee under this subchapter has failed to comply substantially with the provisions of this subchapter, the rules adopted under the provisions of this subchapter, or of applicable provisions of federal law, the Secretary, until he or she is satisfied that there is no longer any such failure to comply, may:
    1. terminate payments to the grantee under this subchapter; or
    2. limit the availability of payments under this subchapter under such conditions as may be established by the Secretary.
  2. In lieu of, or in addition to, any action authorized in subsection (a) of this section, the Secretary may refer the matter to the Office of the Attorney General of the State of Vermont with a recommendation that an appropriate civil action be instituted.

HISTORY: Added 1983, No. 10 , § 1, eff. March 18, 1983; amended 2019, No. 14 , § 15, eff. April 30, 2019.

History

Amendments

—2019. Subsec. (a): Substituted “adopted” for “promulgated” in the introductory paragraph.

CROSS REFERENCES

Federal requirements relating to participation in programs and wage standards, see 42 U.S.C. §§ 5309, 5310.

§ 690a. Nonprofit revolving loan funds.

  1. Any revolving loan fund lender not required to be licensed pursuant to 8 V.S.A. § 2201(d)(9) shall register and maintain its registration with the Commissioner of Economic Development, on forms and by policy and methods prescribed by the Commissioner. The Commissioner shall require such lenders to pay an annual fee of not more than $50.00 to maintain their registration.
  2. Fees collected under this section shall be credited to a special fund established and managed pursuant to 32 V.S.A chapter 7, subchapter 5, and shall be available to the Department of Economic Development to offset the costs of providing those services.

HISTORY: Added 1995, No. 162 (Adj. Sess.), § 40, eff. Jan. 1, 1997; amended 1997, No. 59 , § 32, eff. June 30, 1997.

History

Revision note

—2010. In subsec. (a), substituted “2201(d)(9)” for “2201(c)(8)” to correct an error in the reference as section 2201 does not contain a subdiv. (c)(8).

Amendments

—1997. Section amended generally.

Adoption of rules to register nonprofit revolving loan funds. 1995, No. 162 (Adj. Sess.), § 43 provided in part: “The commissioner of economic development shall adopt, on or before November 1, 1996, such rules as are required to register nonprofit revolving loan funds pursuant to 10 V.S.A. § 690a .”

Subchapter 2. Job Development Zone

§ 691. Title.

This subchapter may be cited as the “Vermont Job Development Zone Act.”

HISTORY: Added 1985, No. 172 (Adj. Sess.), § 1.

§ 692. Policy and purpose.

Recognizing that some communities in Vermont have failed to benefit from general economic progress and that innovative and intensive approaches to economic development should be tried and developed in up to three communities, this subchapter provides for the designation of up to three job development zones and for special economic development programs that will apply in these job development zones.

HISTORY: Added 1985, No. 172 (Adj. Sess.), § 1.

§ 693. Definitions.

As used in this subchapter:

  1. “Municipality” means a town or city.  It also means an incorporated village the charter of which enables it to function as a general purpose unit of local government.
  2. “Agency” means the Vermont Agency of Commerce and Community Development.
  3. “Secretary” means the Secretary of the Agency.
  4. “Population” means the most recent population of a municipality as determined by the Vermont Department of Health.
  5. “Per capita income” means the total adjusted gross incomes of residents of a municipality divided by total exemptions claimed by residents of that municipality, as reported to the Vermont Department of Taxes in the most recent year for which data is available.
  6. “Employment loss” means the absolute decline in the annual average number of insured private sector employees in the municipality during the most recent 12-month period for which data is reported by the Vermont Department of Labor compared to the same 12-month period five years earlier.
  7. “Area unemployment rate” means the average monthly unemployment rate over the most recent two-year period for which data is available, of the labor market area of which a municipality is a part, as reported by the Vermont Department of Labor.

HISTORY: Added 1985, No. 172 (Adj. Sess.), § 1; amended 1995, No. 190 (Adj. Sess.), § 1(a); 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments

—2005 (Adj. Sess.). Subdivs. (6), (7): Substituted “department of labor” for “department of employment and training”.

—1995 (Adj. Sess.) Subdiv. (2): Substituted “agency of commerce and community development” for “agency of development and community affairs”.

§ 694. Eligibility; application procedure.

  1. A municipality shall be eligible to apply for job development zone status if it has a population of at least 2,000 and meets two of the following three criteria:
    1. it has a per capita income at least ten percent lower than the statewide per capita income;
    2. it has had an employment loss;
    3. it has an area unemployment rate at least 33 percent higher than the statewide rate.
  2. The Agency shall solicit applications from eligible municipalities.  Any eligible municipality desiring to receive designation as the job development zone shall complete and submit an application in a manner as shall be prescribed by the Secretary.
  3. Applications for job development zone status will be rated by the Vermont Community Development Board established by section 685 of this title on the basis of applicants’ ability to implement and administer a successful job development zone program, the quality of applicants’ plans for conducting a job zone program, the level of support and commitment of resources demonstrated by the applicant during the application process, and the need of the applicant community for job development zone status.
  4. The job development zone may geographically include a municipality or a portion of a municipality, or a combination of contiguous municipalities or portions of municipalities if so approved by the Secretary.
  5. The Secretary shall review the recommendations of the Vermont Community Development Board and make the final designation of the job development zones.

HISTORY: Added 1985, No. 172 (Adj. Sess.), § 1.

§ 695. Authority to make rules.

The Secretary is hereby granted the authority to issue rules in accordance with 3 V.S.A. chapter 25 for the purpose of administering the provisions of this subchapter.

HISTORY: Added 1985, No. 172 (Adj. Sess.), § 1.

§ 696. Reporting and expiration.

  1. Designation as job development zone under this subchapter will apply until December 31, 1992.
  2. Prior to January 15 of each year, the Secretary of Commerce and Community Development shall submit a report on job development zone activities for the preceding year to the Governor and General Assembly.  Prior to January 15, 1992, the Secretary of Commerce and Community Development shall submit a comprehensive evaluation of the performance of the job development zone program to the Governor and General Assembly.

HISTORY: Added 1985, No. 172 (Adj. Sess.), § 1; amended 1987, No. 213 (Adj. Sess.); 1995, No. 190 (Adj. Sess.), § 1(b).

History

Amendments

—1995 (Adj. Sess.) Subsec. (b): Substituted “secretary of commerce and community development” for “secretary of development and community affairs” in the first sentence.

—1987 (Adj. Sess.). Substituted “1992” for “1991” at the end of subsec. (a) and in the second sentence of subsec. (b).

§ 697. Incentives and initiatives.

The following incentives and initiatives shall be available to new or expanding business entities located within the job development zones:

  1. [Repealed.]
  2. Preferential consideration from the Vermont Economic Development Authority as set forth in sections 233, 253, and 263 of this title.
  3. Targeted assistance under the Job Training Partnership Act, to the extent allowable by federal law.
  4. Targeted assistance under the Vermont Training Program as set forth in chapter 22 of this title.
  5. Funding for the purpose of program implementation to the regional development corporation which includes a job zone. The funding shall be through increased grants to economic development corporations provided for in 24 V.S.A. § 2784(a) .
  6. Infrastructure assistance as set forth in section 698 of this title.
  7. Technical assistance from the Agency of Commerce and Community Development to develop applications for community development block grant and urban development action grants, rural development action grants, and other community improvement and economic development grants and to assist businesses with permits and licenses.
  8. Direct, localized assistance from small business development center.

HISTORY: Added 1985, No. 172 (Adj. Sess.), § 1; amended 1993, No. 89 , § 3(a), eff. June 15, 1993; 1995, No. 190 (Adj. Sess.), § 1(a); 2015, No. 57 , § 98.

History

References in text.

The Job Training Partnership Act, referred to in subdiv. (3), is codified as 29 U.S.C. § 1501 et seq.

Amendments

—2015. Subdiv. (1): Repealed.

—1995 (Adj. Sess.) Subdiv. (7): Substituted “agency of commerce and community development” for “agency of development and community affairs”.

—1993. Subdiv. (2): Substituted “Vermont economic development authority” for “Vermont industrial development authority”.

§ 698. Infrastructure improvement program.

  1. A municipality that is within a designated job development zone shall be eligible to receive a payment each year from the Agency of Commerce and Community Development to reimburse annual interest costs on indebtedness for economic development related infrastructure projects approved after July 1, 1986. Annual reimbursement payments shall be limited to $1,000,000 of indebtedness in a designated job development zone. The Agency shall require the municipality to submit an amortization schedule and proof of payment of its annual interest payment on bonds.  The Agency shall not reimburse a municipality for infrastructure projects unless requests for payment are received within three months after the end of the fiscal year.
  2. Economic development related infrastructure projects shall include water supply, pollution abatement, and highway facilities and such other municipal facilities as may be established by rule under section 695 of this chapter.

HISTORY: Added 1985, No. 172 (Adj. Sess.), § 1; amended 1995, No. 190 (Adj. Sess.), § 1(a).

History

Amendments

—1995 (Adj. Sess.) Subsec. (a): Substituted “agency of commerce and community development” for “agency of development and community affairs” in the first sentence.

CROSS REFERENCES

State infrastructure bank program, see § 280e of this title.

Subchapter 3. Vermont Economic Progress Council

§§ 699-699b. Repealed. 1997, No. 147 (Adj. Sess.), § 214a.

History

Editor’s note

—2005. The Vermont Economic Progress Council’s powers and duties relating to long-term economic planning are now codified at 32 V.S.A. § 3325 .

Former §§ 699-699b. Former § 699, relating to establishing the Vermont economic progress council, added 1993, No. 221 (Adj. Sess.), § 1.

Former § 669a, relating to Vermont economic progress council; membership, added 1993, No. 221 (Adj. Sess.), § 1; amended 1995, No. 190 (Adj. Sess.), § 1(a).

Former § 699b, relating to the powers and duties of the economic progress council, added 1993, No. 221 (Adj. Sess.), § 1; amended 1995, No. 46 , § 28; 1995, No. 184 (Adj. Sess.), § 6b; No. 190 (Adj. Sess.), §§ 1(a), 10.

Repeal of section. 1997, No. 147 (Adj. Sess.), § 214a provided: “Notwithstanding any other provisions of law, 10 V.S..A. §§ 699, 699a and 699b (Vermont economic progress council) are repealed.”

Application of repeal by 1997, No. 71 (Adj. Sess.). 1997, No. 71 (Adj. Sess.), § 48a, effective March 11, 1998, provided: “ 10 V.S.A. § 699a (creating the Vermont Economic Progress Council) is repealed effective from date of passage of this act, and all provisions relating to findings and purposes and powers and duties of the Vermont Economic Progress Council set out at 10 V.S.A. §§ 699 and 699b shall apply to the Vermont Economic Progress Council as created in 32 V.S.A. § 5930a(a) as added by Sec. 48 of this act.”

Part 2. Soil and Water Conservation; Flood Control

CROSS REFERENCES

Federal flood control programs and projects generally, see 33 U.S.C. § 701 et seq.

Federal flood insurance program, see 42 U.S.C. § 4001 et seq.

Chapter 31. Soil Conservation Act

ANNOTATIONS

Cited.

Cited in Secretary v. Henry, 161 Vt. 556, 641 A.2d 1345, 1994 Vt. LEXIS 38 (1994).

Subchapter 1. Conservation, Development, and Use of Natural Resources

History

Revision note—

Chapter was originally enacted without subchapters. Subchapter 1 heading was added upon enactment of subchapter 2 to conform chapter to V.S.A. style.

Amendments

—2019. Made a minor stylistic change in the subchapter heading.

V.S. 1947, § 6288, derived from 1939, No. 246 , § 20, contained a severability provision applicable to this chapter.

Citation. 1967, No. 303 (Adj. Sess.), § 1, provided: “This chapter shall be known as ‘The Soil Conservation Act’.”

CROSS REFERENCES

State land use and development planning generally, see § 6001 et seq. of this title.

Supervisory unions, see § 801 et seq. of this title.

§ 701. Policy.

It is hereby declared to be the policy of the Legislature to provide for the conservation, development, and use of the natural resources of this State and that the lands, water, forests, and wildlife of the State of Vermont are among the basic assets of the State, and that the preservation of these lands, water, forests, and wildlife by conservation, development, and use is necessary to protect and promote the health, safety, and general welfare of its people.

HISTORY: Amended 1967, No. 303 (Adj. Sess.), § 1, eff. March 22, 1968.

History

Source.

V.S. 1947, § 6259. 1939, No. 246 , §§ 1, 2.

Amendments

—1967 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Cited.

Cited in In re Reclassification of Ranch Brook, 146 Vt. 602, 508 A.2d 703, 1986 Vt. LEXIS 342 (1986).

§ 702. Definitions.

Wherever used or referred to in this chapter unless a different meaning clearly appears from the context:

  1. “Council” or “State Natural Resources Conservation Council” means the Agency created in section 703 of this title;
  2. “District” or “natural resources conservation district” means a corporate body and governmental subdivision organized in accordance with the provisions of this chapter;
  3. “Union” or “supervisory union” means the agency created in accordance with section 803 of this title;
  4. “Due notice” means notice published once a week for two consecutive weeks in a newspaper of general circulation within the proposed district, stating the time and place of such meeting and questions to be voted on, the last publication being not less than two days before such meeting, or ten days’ notice by mail, postage prepaid, addressed to the owners of land within the proposed district, stating the time and place of such meeting and questions to be voted on;
  5. “Owner” means any person, firm, or corporation who shall hold title in fee to one or more acres of land lying within a district organized under the provisions of this chapter.

HISTORY: Amended 1963, No. 79 , § 1 (b), eff. May 7, 1963; 1967, No. 303 (Adj. Sess.), § 2, eff. March 22, 1968.

History

Source.

V.S. 1947, § 6260. 1941, No. 202 , § 1. 1939, No. 246 , § 3.

Amendments

—1967 (Adj. Sess.). Substituted “ ‘council’ or ‘state natural resources conservation council’ ” for “ ‘committee’ or ‘state soil conservation committee’ ” in the second paragraph, “ ‘natural resources conservation district’ ” for “ ‘soil and water conservation district’ ” in the third paragraph, and added the fourth paragraph.

—1963. Substituted “ ‘soil and water conservation district’ ” for “ ‘soil conservation district’ ”.

§ 703. State Natural Resources Conservation Council; members; duties.

A State Natural Resources Conservation Council is hereby established to serve as an Agency of the State to perform the functions conferred upon it in this chapter, which shall have as members: the Director of the State Extension Service, or a designated representative; the Secretary of Agriculture, Food and Markets, or a designated representative; the Secretary of Natural Resources, or a designated representative; and one member elected by the board of each supervisory union who is a supervisor for a district within the union or their officially elected alternate. Until such time as there are four unions, the Governor shall appoint members who shall be supervisors from districts not in a union to make a total of four whose terms of office shall be two years. In addition the Chair of the State Forests and Parks Board, or a designated representative; the Chair of the State Fish and Wildlife Board, or a designated representative; and the Director of the State Planning Office or a designee shall be advisory members. The Council may invite the secretary of agriculture of the United States to appoint one person to serve with the above mentioned members in an advisory capacity only. The Council shall keep a record of its official actions, shall adopt a seal, which seal shall be judicially noticed, and may perform such acts, hold public hearings, and adopt rules as may be necessary for the execution of the functions under this chapter.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1967, No. 303 (Adj. Sess.), § 3, eff. March 22, 1968; 1981, No. 122 (Adj. Sess.); 1981, No. 222 (Adj. Sess.), § 4; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1987, No. 76 , § 18; 1995, No. 163 (Adj. Sess.), § 1, eff. May 15, 1996; 2003, No. 42 , § 2, eff. May 27, 2003.

History

Source.

1951, No. 129 . V.S. 1947, § 6261. 1947, No. 132 , § 1. 1941, No. 202 , § 2. 1939, No. 246 , § 4.

Amendments

—2003. Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” in the first sentence.

—1995 (Adj. Sess.) Deleted “thereof” following “members” and inserted “who is a supervisor for a district within the union of their officially elected alternate” following “supervisory union” in the first sentence, substituted “state” for “central” preceding “planning office” and deleted “or a designee” thereafter in the third sentence, and made minor changes in phraseology throughout the section.

—1987. Substituted “agency of natural resources” for “agency of environmental conservation” following “secretary of the” in the first sentence.

—1983 (Adj. Sess.). Substituted “fish and wildlife” for “fish and game” preceding “board” in the third sentence.

—1981 (Adj. Sess.). Act No. 122 substituted “the secretary of the agency of environmental conservation” for “the chairman of the Vermont state water resources board” in the first sentence, “five” for “four” in two places in the second sentence, “forests, parks and recreation board” for “forest and parks board” and “state planning office” for “central planning office” in the third sentence, and deleted “shall adopt a seal which seal may be judicially noticed” following “official actions” in the fifth sentence.

Act No. 222 substituted “secretary of the agency of environmental conservation” for “the chairman of the Vermont state water resources board” in the first sentence.

—1967 (Adj. Sess.). Section amended generally.

—1959 (Adj. Sess.). Substituted “state soil conservation council” for “state soil conservation committee”.

Repeal of 1981 (Adj. Sess.) amendment. 1983, No. 4 , eff. Feb. 18, 1983, repealed 1981, No. 222 (Adj. Sess.), § 4, which amended this section.

Transfer of Council from Agency of Natural Resources. 1993, No. 210 (Adj. Sess.), § 86, provided: “The state natural resources conservation council as described in 3 V.S.A. § 2802(6) is permanently transferred from the agency of natural resources and attached to the Vermont department of agriculture, food and markets for administrative support effective July 1, 1994.”

CROSS REFERENCES

Commissioner of Agriculture, Food and Markets, see 6 V.S.A. § 2 et seq.

Director of Planning, see 3 V.S.A. § 2104 .

Fish and Wildlife Board, see § 4041 of this title.

Secretary of Natural Resources, see 3 V.S.A.§ 2821.

State Natural Resources Conservation Council within Agency of Natural Resources, see 3 V.S.A.§ 2802.

§ 704. Powers of Council.

The State Natural Resources Conservation Council may employ an administrative officer and such technical experts and such other agents and employees as it may require. The Council may call upon the Attorney General of the State for such legal services as it may require, or may employ its own counsel. It shall have authority to delegate to one or more of its members, or to one or more agents or employees, such powers and duties as it may deem proper. If designated as a clean water service provider under section 924 of this title, provide for the identification, prioritization, development, construction, inspection, verification, operation, and maintenance of clean water projects in the basin assigned to a natural resources conservation district in accordance with the requirements of chapter 37, subchapter 5 of this title.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1967, No. 303 (Adj. Sess.), § 16, eff. March 28, 1968; 1971, No. 191 (Adj. Sess.), § 11; 2019, No. 76 , § 6.

History

Source.

V.S. 1947, § 6262. 1939, No. 246 , § 5.

Amendments

—2019. Added the last sentence.

—1971 (Adj. Sess.). Deleted “and shall determine their qualifications, duties and compensation” following “as it may require” in the first sentence.

—1967 (Adj. Sess.). Substituted “natural resources conservation council” for “soil conservation council” in the first sentence.

—1959 (Adj. Sess.). Substituted “soil conservation council” for “soil conservation committee” in the first sentence.

Notes to Opinions

Delegation of powers.

Public powers conferred upon committee members cannot be surrendered or delegated by them to others. 1940 Vt. Op. Att'y Gen. 373. See also 1940 Vt. Op. Att'y Gen. 376.

Personnel status of administrative assistant.

Position of administrative assistant or clerk to the committee is not within exempt provisions of V.S. 1947, § 513 [now covered by 3 V.S.A. § 310 ] and regulations promulgated pursuant thereto. 1950 Vt. Op. Att'y Gen. 225.

§ 705. Chair, quorum, compensation, surety bonds.

The Council shall designate its chair, and may, from time to time, change the designation. A member of the Council shall hold office so long as the member retains the office by virtue of serving on the Council. A majority of the Council shall constitute a quorum, and the concurrence of the majority in any matter within their duties shall be required for its determination. The members appointed by the Governor or the members representing each of the unions or their officially elected alternates shall receive compensation for services at a rate not to exceed the per diem rate as defined by 32 V.S.A. § 1010(b) for time spent on the work of the Council in addition to expenses, including traveling expenses, necessarily incurred in the discharge of the duties of the Council. The Council shall provide for the execution of surety bonds for all employees and officers entrusted with funds or property.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1963, No. 193 , § 14, eff. June 28, 1963; 1967, No. 303 (Adj. Sess.), § 4, eff. March 22, 1968; 1995, No. 163 (Adj. Sess.), § 2, eff. May 15, 1996.

History

Source.

1957, No. 36 , § 1. V.S. 1947, § 6263. 1947, No. 202 , § 6649. 1941, No. 202 , § 3. 1939, No. 246 , § 6.

Revision note—

Substituted “compensation, surety bonds” for “salary, funds, reports” in the section catchline to make the catchline describe the text more accurately.

Amendments

—1995 (Adj. Sess.) Substituted “the member retains” for “he shall retain”, preceding “the office by virtue of” and deleted “which he is” thereafter in the second sentence, inserted “or their officially elected alternates” preceding “shall receive”, and substituted “at a rate not to exceed the per diem rate as defined by 32 V.S.A. § 1010(b) ” for “in a sum not to exceed $30.00 per diem” in the fourth sentence, and made minor changes in phraseology throughout the section.

—1967 (Adj. Sess.). Added “or the members representing each of the unions” following “by the governor” in the fourth sentence.

—1963. Substituted “$15.00” for “$10.00” preceding “per diem” in the fourth sentence.

—1959 (Adj. Sess.). Substituted “council” for “committee” wherever it appeared.

Notes to Opinions

Per diem.

The members of the committee (now council) appointed by the governor are entitled to per diems not exceeding the statutory amount. 1948 Vt. Op. Att'y Gen. 328.

Travel expenses.

Reimbursement for meals and lodging incurred by officials while away from home and engaged in discharge of their official duties is authorized, providing necessary funds for payment are available in the appropriations. 1948 Vt. Op. Att'y Gen. 329.

§ 706. Funds; allocation of by Council.

Unless otherwise provided by law, any funds appropriated by the State or any federal agency to the State Natural Resources Conservation Council for allocation to districts organized under the provisions of this chapter shall be available for the administrative and other expenses of the districts. The Council shall allocate such money among the districts already organized or likely to be organized during a biennial fiscal period in such manner and in such amounts as shall be fair, reasonable, and in the public interest; due consideration being given to the total acreage of land within each district, to the greater relative expense of carrying on operations within the particular districts because of such factors as unusual topography, unusual conservation measures needed as approved in the district work plan, special difficulty of carrying on operations, the volume of work to be done, and the special importance of instituting conservation operations immediately. The Council may also allocate funds to unions for administrative and other expenses. In making allocations of monies, the Council shall reserve an amount estimated by it to be adequate to enable it to make subsequent allocations in accordance with the provisions of this chapter, from time to time, among unions and districts that may be organized after the initial allocations are made, but within the ensuing biennial fiscal period. Subject to the requirements of 32 V.S.A. § 5 regarding approval of the acceptance of any sum of money, the Council is authorized to accept contributions in the furtherance of the work contemplated by this chapter including grants in aid from any agency of the federal government, from government or private institutions and sources and make agreements with such federal agency as to the terms and conditions of the use of such grants in aid.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1967, No. 303 (Adj. Sess.), § 5, eff. March 22, 1968; 1995, No. 163 (Adj. Sess.), § 3, eff. May 15, 1996.

History

Source.

1953, No. 211 . V.S. 1947, § 6264. 1947, No. 202 , § 6650. 1941, No. 202 , § 3. 1939, No. 246 , § 6.

Amendments

—1995 (Adj. Sess.) Rewrote the last sentence and made minor changes in phraseology throughout the section.

—1967 (Adj. Sess.). Section amended generally.

—1959 (Adj. Sess.). Substituted “council” for “committee” wherever it appeared.

§ 707. Repealed. 2013, No. 142 (Adj. Sess.), § 86.

History

Former § 707. Former § 707, relating to expenditures; statement by State Natural Resources Conservation Council, was derived from V.S. 1947, § 6265; 1947, No. 202 , § 6651; 1941, No. 202 , § 3; 1939, No. 246 , § 6 and amended by 1959, No. 329 (Adj. Sess.), § 11(c) and 1967, No. 303 (Adj. Sess.).

§ 708. Districts; unions; expenditure statement; duties of Council.

  1. The supervisors of the respective districts and directors of the respective unions, twice during each fiscal year, shall submit statements to the Council as to expenditures made and estimates as to expenditures likely to be incurred to the end of the fiscal year, such statements to be made at such times and in such manner as the Council may require.
  2. In addition to the duties and powers hereinafter conferred upon the Council, it shall:
    1. Offer appropriate assistance to the supervisors and directors of districts and unions;
    2. Keep the supervisors and directors of each district and union organized under this chapter informed of the activities and experience of all other districts and unions and facilitate an interchange of advice and experience between districts and unions;
    3. Coordinate the programs of the districts and unions so far as this may be done by advice and consultation;
    4. Secure the cooperation and assistance of the United States and any of its agencies and of agencies of this State in the work of districts or unions;
    5. Disseminate information throughout the State concerning the activities and programs of the districts and unions organized hereunder;
    6. Act upon petition by any two or more districts lying within the limits of the territory proposed to be organized into a union asking that a supervisory union be organized to function in the territory described in the petition;
    7. Supervise and oversee annual election of district supervisors.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1967, No. 303 (Adj. Sess.), § 7, eff. March 22, 1968; 1995, No. 163 (Adj. Sess.), § 4, eff. May 15, 1996.

History

Source.

V.S. 1947, § 6266. 1941, No. 202 , § 3. 1939, No. 246 , § 6.

Amendments

—1995 (Adj. Sess.) Subdiv. (b)(7): Added.

—1967 (Adj. Sess.). Subsec. (a): Added “and directors of the respective unions” following “respective districts”.

Subsec. (b): Amended generally.

—1959 (Adj. Sess.). Substituted “council” for “committee” wherever it appeared.

§ 709. Petition to organize district.

Any 25 owners of land lying within the limits of the territory proposed to be organized into a district may file a petition with the State Natural Resources Conservation Council asking that a natural resources conservation district be organized to function in the territory described in the petition.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1963, No. 79 , § 1(b), eff. May 7, 1963; 1967, No. 303 (Adj. Sess.), §§ 15(b), 16(b), eff. March 22, 1968.

History

Source.

V.S. 1947, § 6267. 1939, No. 246 , § 7.

Amendments

—1967 (Adj. Sess.). Substituted “state natural resources conservation council” for “state soil conservation council” and “natural resources conservation district” for “soil and water conservation district”.

—1963. Substituted “soil and water conservation district” for “soil conservation district”.

—1959 (Adj. Sess.). Substituted “council” for “committee”.

§ 710. Hearing on petition.

Within 30 days after such a petition has been filed with the State Natural Resources Conservation Council, it shall cause due notice to be given of a proposed hearing upon such petition as to the necessity, in the interest of the public health, safety, and welfare, for the creation of such district, and upon all questions relevant to such petition. All owners of land within the limits of the territory described in the petition and all other interested parties shall have the right to attend such hearings and to be heard. If it shall appear upon the hearing that it may be desirable to include within the proposed district territory outside of the area within which due notice of the hearing has been given, the hearing shall be adjourned and due notice of further hearing shall be given throughout the entire area considered for inclusion in the district and such further hearing held.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1967, No. 303 (Adj. Sess.), § 16(b), eff. March 22, 1968.

History

Source.

V.S. 1947, § 6268. 1947, No. 202 , § 6654. 1941, No. 202 , § 4. 1939, No. 246 , § 8.

Amendments

—1967 (Adj. Sess.). Substituted “state natural resources conservation council” for “state soil conservation council” in the first sentence.

—1959 (Adj. Sess.). Substituted “council” for “committee” in the first sentence.

§ 711. Determination of need; boundaries of proposed district.

  1. After hearing thereon, if the Council shall determine that there is need, in the interest of the public health, safety, and welfare for a district, it shall make and record such determination, and shall define the boundaries of such districts by metes and bounds.
  2. In making such determination and in defining such boundaries, the Council shall give due weight and consideration to the topography of the area considered and of the State, the composition of soils therein, the distribution of erosion, the prevailing land-use practices, the desirability and necessity of including within the boundaries the particular lands under consideration and the benefits such lands may receive from being included within such boundaries, the relation of the proposed area to existing watersheds and agricultural regions, and to other natural resources conservation districts already organized or proposed for organization under the provisions of this chapter, and such other physical, geographical, and economic factors as are relevant.  The territory to be included within such boundaries need not be contiguous.
  3. If the Council shall determine after such hearing that there is no need for a natural resources conservation district to function in the territory considered at the hearing, it shall make and record such determination and shall deny the petition.  After six months shall have expired from the date of the denial of any such petition, subsequent petitions covering the same or substantially the same territory may be filed and new hearings held and determinations made thereon.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1963, No. 79 , § 1(b), eff. May 7, 1963; 1967, No. 303 (Adj. Sess.), § 15(b), eff. March 22, 1968.

History

Source.

V.S. 1947, § 6269. 1941, No. 202 , § 4. 1939, No. 246 , § 8.

Amendments

—1967 (Adj. Sess.). Subsec. (b): Substituted “natural resources conservation districts” for “soil and water conservation districts” in the first sentence.

Subsec. (c): Substituted “natural resources conservation district” for “soil and water conservation district” in the first sentence.

—1963. Subsec. (b): Substituted “soil and water conservation districts” for “soil conservation districts” in the first sentence.

Subsec. (c): Substituted “soil and water conservation district” for “soil conservation district” in the first sentence.

—1959 (Adj. Sess.). Substituted “council” for “committee” throughout the section.

Notes to Opinions

Boundaries.

“Metes and bounds,” as used in this section, means boundary line or limit of a tract, which boundary may be pointed out and ascertained by rivers and objects, either natural or artificial, which are permanent in character and erection, and so situated with reference to tract to be described that they may be conveniently used for purpose of indicating its extent. 1940 Vt. Op. Att'y Gen. 373.

Filing of petition.

When a petition has been placed in hands of committee for purpose of having petition become a part of official records, petition has then been filed. 1940 Vt. Op. Att'y Gen. 373.

§ 712. Referendum.

  1. If after the Council has found and recorded a determination that there is need, in the interest of the public health, safety and welfare, for the organization of a district in a particular territory and has defined the boundaries thereof, it shall hold a referendum within the proposed district upon the question of the creation of the district. Due notice of the proposed district meeting shall be given for a vote upon the following question:

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Shall a natural resources conservation district of the lands below described and lying in the county (counties) of and be created? The vote shall be by ballot in the following form: Shall a natural resources conservation district of the lands below described and lying in the county (counties) of and be created? YES • NO • (b) The ballot shall set forth the boundaries of such proposed district as determined by the committee. All owners of lands lying within the boundaries of the territory, as determined by the State Natural Resources Conservation Council, shall be eligible to vote in such referendum. In writing signed by him, a landowner may designate a person to vote for him at any meeting herein authorized and such designated person shall file such written authority with the Council before voting. The Council shall pay all expenses for the issuance of such notices and the conduct of such hearings, and shall supervise the conduct of such hearings.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1963, No. 79 , § 1(b), eff. May 7, 1963; 1967, No. 303 (Adj. Sess.), §§ 15(b), 16(b), eff. March 22, 1968.

History

Source.

V.S. 1947, § 6270. 1947, No. 202 , § 6656. 1945, No. 201 , § 1. 1941, No. 202 , § 13. 1939, No. 246 , § 9.

Amendments

—1967 (Adj. Sess.). Substituted “natural resources conservation district” for “soil and water conservation district” in the second and third sentences and “state natural resources conservation council” for “state soil conservation council” in the fifth sentence.

—1963. Substituted “soil and water conservation district” for “soil conservation district” in the second and third sentences.

—1959 (Adj. Sess.). Substituted “council” for “committee” wherever it appeared.

Notes to Opinions

Voting by proxies.

Legislature intended to authorize an owner qualified to vote as defined in this chapter to designate a person to vote for him at any meeting held under the chapter, including the election of a supervisor or supervisors. 1944 Vt. Op. Att'y Gen. 266.

Voters may indicate manner in which proxies shall vote without violating law, but this practice may be regulated by the committee. 1944 Vt. Op. Att'y Gen. 269.

Drawing up of proxies in such a way that several people may sign, designating a single individual to act for them, does not violate law, but procedure may be regulated by the committee. 1944 Vt. Op. Att'y Gen. 269.

§ 713. Publication of results of referendum; determination of feasibility.

The Council shall publish the result of such referendum and, if a majority of the votes cast at the referendum is for the establishment of a district, and the Council determines that the operation of such district is administratively practicable and feasible, it shall record in its minutes such determination and shall proceed with the organization of the district. In making such determination, the Council shall give due regard to the attitudes of the owners of lands lying within the defined boundaries, and the proportion of the votes cast in such referendum in favor of the creation of the district, the probable expense of carrying on erosion-control operations within such district, and such other economic and social factors as may be relevant to such determination.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961.

History

Source.

V.S. 1947, § 6271. 1939, No. 246 , § 10.

Amendments

—1959 (Adj. Sess.). Substituted “council” for “committee” wherever it appeared.

Notes to Opinions

Canvass of votes.

Authority to canvass votes of referendum may be delegated to chairman of committee. 1940 Vt. Op. Att'y Gen. 376.

Determination of feasibility.

Committee must make determination of feasibility after referendum, and such authority cannot be delegated. 1940 Vt. Op. Att'y Gen. 376.

§ 714. Appointment and election of supervisors; application for creation of district.

  1. When a district is established, the Council shall appoint two supervisors to act, with three supervisors elected by the landowners as the governing body of the district.
  2. The two appointed supervisors shall present to the Secretary of State an application signed by them, which shall set forth that a petition for the creation of the district was filed with the State Natural Resources Conservation Council pursuant to the provisions of this chapter, and that the proceedings specified in this chapter were taken pursuant to such petition; that the application is being filed in order to complete the organization of the district as a public body, corporate and politic, under this chapter; and that the application shall be subscribed to by each of the supervisors.
  3. The application shall be accompanied by a statement by the State Natural Resources Conservation Council that a petition was filed; that due notice was given and a referendum held on the question of the creation of such district; that a majority of the votes cast in such referendum were in favor of the creation of the district; that thereafter the Council did duly determine that the operation of the proposed district is administratively practicable and feasible.  Such statement shall set forth the boundaries of the district as they have been defined by the Council.
  4. The term of office of an appointed supervisor shall end when his or her elected successor qualifies.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1967, No. 303 (Adj. Sess.), §§ 8, 16(b), eff. March 22, 1968.

History

Source.

V.S. 1947, § 6272. 1947, No. 202 , § 6658. 1939, No. 246 , § 11.

Amendments

—1967 (Adj. Sess.). Subsec. (b): Substituted “state natural resources conservation council” for “state soil conservation council”.

Subsec. (c): Substituted “state natural resources conservation council” for “state soil conservation council” in the first sentence.

Subsec. (d): Added.

—1959 (Adj. Sess.). Substituted “council” for “committee” wherever it appeared.

Notes to Opinions

Oath.

There is no provision in the statutes for administration of oath without appearance before an officer designated by statute, and merely subscribing form of oath before some person as a witness is not sufficient as an oath. 1946 Vt. Op. Att'y Gen. 269.

Good practice would call for administration of oath to supervisors of district, having records show that they were duly sworn. 1946 Vt. Op. Att'y Gen. 268.

§ 715. Establishment of district as governmental subdivision; certificate.

The Secretary of State shall file and record the application and statement in an appropriate book of record in his or her office. When the application and statement have been filed and recorded, the district shall constitute a governmental subdivision of this State and a public body corporate and politic, for the purposes set forth in this chapter. Without cost, the Secretary of State shall make and issue to the supervisors a certificate, under the seal of the State, of the due organization of the district, and shall record a copy of such certificate with the application and statement.

History

Source.

V.S. 1947, § 6273. 1941, No. 202 , § 5. 1939, No. 246 , § 12.

Notes to Opinions

Applicability of workers’ compensation act.

Workers’ compensation act does not apply to soil conservation districts or their employees, even though they number eight or more. 1944 Vt. Op. Att'y Gen. 267.

Legal status.

Soil conservation districts are municipal corporations of statutory origin, with rights, powers, and liabilities specifically limited by statutes creating them. 1950 Vt. Op. Att'y Gen. 227.

§ 716. Subsequent petition may be filed; when.

After six months shall have expired from the date of entry of a determination by the council that the operation of a proposed district is not administratively practicable and feasible, and denial of a petition pursuant to such determination, subsequent petitions may be filed and action taken thereon in accordance with the provisions of this chapter.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961.

History

Source.

V.S. 1947, § 6274. 1941, No. 202 , § 5. 1939, No. 246 , § 12.

Amendments

—1959 (Adj. Sess.). Substituted “council” for “committee”.

§ 717. Additional territory; petition to include.

Petitions for including additional territory within an existing district may be filed with the Council, and the proceedings herein provided for in the case of petitions to organize a district shall be observed in the case of petitions for such inclusion. The Council shall prescribe the form for such petition. In referendum upon petitions for such inclusion, all owners of land lying within the proposed additional area shall be eligible to vote.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961.

History

Source.

V.S. 1947, § 6275. 1941, No. 202 , § 5. 1939, No. 246 , § 12.

Amendments

—1959 (Adj. Sess.). Substituted “council” for “committee” in the first and second sentences.

§ 718. Certificate as proof of validity of district.

In any suit, action or proceeding involving the validity or enforcement of, or relating to any contract, proceeding or action of the district, the district shall be deemed to have been established in accordance with the provisions of this chapter upon proof of the issuance of the certificate by the Secretary of State.

History

Source.

V.S. 1947, § 6276. 1947, No. 202 , § 6662. 1939, No. 246 , § 13.

§ 719. Elections.

After the issuance of a certificate by the Secretary of State certifying to the organization of a natural resources conservation district, nominating petitions shall be filed with the districts and shall be submitted to the Council once the nominee is approved by the districts as defined in section 720 of this title, who shall be qualified voters as hereinafter specified. No such nominating petition shall be accepted unless it shall be subscribed to by 25 or more owners of land lying within the boundaries of the district. Landowners may sign more than one nominating petition to nominate more than one candidate for supervisor. The names of all nominees shall appear, arranged in the alphabetical order of the surnames, upon ballots with a square before each name and a direction to insert an X mark in the square before one name to indicate the voter’s choice. Only landowners shall be eligible to vote. The candidates who shall receive the largest number of the votes cast in the election shall be the elected supervisors for the districts. The Council shall pay all the expenses, supervise, prescribe rules, determine eligibility of voters, and publish the results of all elections.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1963, No. 79 , § 1(b), eff. May 7, 1963; 1967, No. 303 (Adj. Sess.), § 9, eff. March 22, 1968; 1995, No. 163 (Adj. Sess.), § 5, eff. May 15, 1996; 2019, No. 14 , § 16, eff. April 30, 2019.

History

Source.

V.S. 1947, § 6277. 1939, No. 246 , § 14.

Amendments

—2019. Substituted “rules” for “regulations” in the last sentence.

—1995 (Adj. Sess.) Rewrote the first sentence, deleted the former fourth sentence and made minor stylistic changes.

—1967 (Adj. Sess.). Section amended generally.

—1963. Substituted “soil and water conservation district” for “soil conservation district” in the first sentence.

—1959 (Adj. Sess.). Substituted “council” for “committee” wherever it appeared.

§ 720. Supervisors as governing body of district; qualifications.

The governing body of the district shall consist of five supervisors, elected or appointed under this chapter. The supervisors shall be persons residing within the district who are by training or experience, or both, as determined by the district qualified to perform the services which will be required of them, and shall not be employees of the federal government. Advisory supervisors may be appointed to a district board by a majority vote of the supervisors of that district. Term of office shall be designated at the time of appointment, and they shall serve without compensation.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1967, No. 303 (Adj. Sess.), § 10, eff. March 22, 1968; 1995, No. 163 (Adj. Sess.), § 6, eff. May 15, 1996.

History

Source.

V.S. 1947, § 6278. 1941, No. 202 , § 6. 1939, No. 246 , § 15.

Amendments

—1995 (Adj. Sess.) Substituted “or” for “and” preceding “experience” and inserted “or both, as determined by the district” thereafter in the second sentence, and substituted “a majority vote of the supervisors of that district” for “the council after recommendation by the supervisors in the district” in the third sentence.

—1967 (Adj. Sess.). Section amended generally.

—1959 (Adj. Sess.). Substituted “council” for “committee” in the third sentence.

§ 721. Terms, vacancies, compensation.

The supervisors shall designate a chair and, from time to time, may change the designation. One supervisor shall be elected each year for a term of five years. A supervisor shall continue to hold office until a successor has been elected or appointed and has qualified. Vacancies resulting from any cause shall be filled by appointment for the unexpired terms by the remaining supervisors. A majority of the supervisors shall constitute a quorum. A supervisor shall be entitled to receive compensation for services at a rate not to exceed the per diem rate as defined by 32 V.S.A. § 1010(b) . A supervisor shall also be entitled to expenses, including traveling expenses, necessarily incurred in the discharge of duties, from such district funds as are available. The supervisors, acting through the Council, may call upon the Attorney General of the State for such legal services as they may require, including rendering opinions and providing defense to suits.

HISTORY: Amended 1967, No. 303 (Adj. Sess.), § 11, eff. March 22, 1968; 1983, No. 142 (Adj. Sess.), § 2, eff. April 6, 1984; 1995, No. 163 (Adj. Sess.), § 7, eff. May 15, 1996.

History

Source.

1957, No. 36 , § 2. V.S. 1947, § 6279. 1941, No. 202 , § 6. 1939, No. 246 , § 15.

Revision note—

Substituted “compensation” for “salaries” in the section catchline to make the catchline describe the text more accurately.

Amendments

—1995 (Adj. Sess.) Substituted “the per diem rate as defined by 32 V.S.A. § 1010(b) ” for “$30.00 per diem” in the sixth sentence, “a supervisor” for “he” in the seventh sentence, and made minor stylistic changes throughout the section.

—1983 (Adj. Sess.). Substituted “$30.00” for “$15.00” preceding “per diem” at the end of the sixth sentence, inserted “acting through the council” preceding “may call” in the eighth sentence and added “including rendering opinions and providing defense to suits” following “require” in that sentence.

—1967 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Travel expenses, see 32 V.S.A. § 1261 .

Notes to Opinions

Reimbursement of expenses.

Member of state committee (now council) who is a district supervisor, as to his time and expenses incurred in discharge of duties with state committee, is not entitled to reimbursement from funds allocated to his particular district. 1948 Vt. Op. Att'y Gen. 328.

Reimbursement for meals and lodging incurred by officials while away from home and engaged in discharge of official duties is authorized, providing necessary funds are available in district funds. 1948 Vt. Op. Att'y Gen. 329.

Term of office of supervisors.

State committee (now council) may permit term of office of appointive supervisors to run over to a date to coincide with date of election of the three supervisors elected by district. 1946 Vt. Op. Att'y Gen. 268.

§ 722. Duties of supervisors; bonds; records; removal.

  1. The supervisors shall provide for the execution of surety bonds for all employees and officers who shall be entrusted with funds. They shall keep a full record of all proceedings and of all resolutions, rules, and orders issued, and shall provide for an annual audit of the receipts and disbursements.
  2. The supervisors shall conduct an annual meeting of the district after first publicizing such meeting in a manner approved by the council.
  3. Any supervisor may be removed by the State Natural Resources Conservation Council, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other reason.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1967, No. 303 (Adj. Sess.), §§ 12, 13, 16(b), eff. March 22, 1968; 2019, No. 14 , § 17, eff. April 30, 2019.

History

Source.

V.S. 1947, § 6280. 1941, No. 202 , § 6. 1939, No. 246 , § 15.

Amendments

—2019. Subsec. (a): Substituted “rules” for “regulations” in the last sentence.

—1967 (Adj. Sess.). Added present subsec. (b), redesignated former subsec. (b) as present subsec. (c), and substituted “natural resources conservation council” for “soil conservation council” in that subsec.

—1959 (Adj. Sess.). Subsec. (b): Substituted “council” for “committee”.

§ 723. Powers of supervisors.

The supervisors shall have the following powers:

  1. To conduct surveys, investigations and research relating to the character of soil erosion and its prevention and control measures and natural resources conservation;
  2. To conduct demonstration projects within the district on lands owned or controlled by this State or any of its agencies, with the cooperation of the agency administering and having jurisdiction, and on any other lands within the district upon obtaining the consent of the owners of the lands or the necessary rights or interests in the lands in order to demonstrate by example the means, methods and measures by which soil erosion, in all its forms can be prevented and controlled and the conservation of natural resources;
  3. To carry out measures for the prevention and control of soil and stream bank erosion and the protection and conservation of natural resources, within the district including, engineering operations, methods of cultivation, the growing of vegetation, and the changes in use of land, on lands owned or controlled by this State or any of its agencies, with the cooperation of the agency administering and having jurisdiction, and on any other lands within the district upon obtaining the consent of the owner of the lands;
  4. To cooperate, or enter into agreements with, and, within the limits of appropriations duly made available, to furnish financial or other aid to any agency, governmental or otherwise, or any owner of lands within the district, in the carrying on of erosion-control and prevention operations and conservation of natural resources within the district, subject to such conditions as the supervisors may deem necessary to advance the purposes of this chapter;
  5. To obtain options upon and to acquire by purchase, exchange, lease, gift, grant or bequest, any property, real or personal; to maintain, administer and improve any properties acquired; to receive income from the properties and to expend the income in carrying out the purposes and provisions of this chapter; and to borrow money, mortgage, sell, lease, or otherwise dispose of any of its property or interests in property in furtherance of the purposes and the provisions of this chapter, provided however, that real estate shall not be mortgaged, and provided however, that the sale, lease, or other disposition of real property of the district is approved by the written consent of the governor;
  6. To make available, on such terms as it shall prescribe, to landowners within the district, agricultural and engineering machinery and equipment, fertilizer, seeds, and seedlings, and such other material or equipment as will assist the land owners to carry on operations upon their lands for the conservation of soil resources, control of soil and stream bank erosion, and protection and conservation of natural resources;
  7. To construct, improve, and maintain such structures as may be necessary or convenient for the performance of any of the operations authorized in this chapter;
  8. To develop comprehensive plans for the conservation of soil resources and for the control and prevention of soil erosion and the protection and conservation of natural resources within the district, which plans shall specify in such detail as may be possible, the acts, procedures, performances, and avoidances that are necessary or desirable, and to publish such plans and information and bring them to the attention of occupiers of lands within the district;
  9. To administer by purchase, grant, or lease any soil conservation, erosion-control or natural resources conservation project located within its boundaries that are undertaken by the United States or any of its agencies; to manage as agent of the United States or any of its agencies, any soil-conservation, erosion-control, or natural resources conservation project within its boundaries; to act as agent for the United States, or any of its agencies, in connection with the acquisition, construction, operation, or administration of any soil-conservation, erosion-control, or natural resources conservation project within its boundaries; to accept donations, gifts, and contributions in money, services, materials, or otherwise, from the United States or any of its agencies, or from this state or any of its agencies or any private institution or source, and to use or expend such monies, services, materials, or other contributions in carrying on its operations;
  10. To sue and be sued in the name of the district; to have a seal which shall be judicially noticed; to have perpetual succession unless terminated as hereinafter provided; to make and to execute contracts necessary or convenient to the exercise of its powers; to make, and from time to time amend and repeal, rules not inconsistent with the provisions of this chapter, to carry into effect its purposes and powers;
  11. As a condition to the extending of any benefits under this chapter, the supervisors may require contributions to any operations conferring such benefits.

HISTORY: Amended 1964, No. 12 (Sp. Sess.), eff. March 5, 1964; 1995, No. 163 (Adj. Sess.), § 8, eff. May 15, 1996.

History

Source.

V.S. 1947, § 6281. 1941, No. 202 , § 7. 1939, No. 246 , § 16.

Revision note

—2018. ln subdiv. (3), deleted “, but not limited to,” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—1995 (Adj. Sess.) Subdiv. (1): Substituted “its prevention” for “the preventive” preceding “and control measures” and “and natural resources conservation” for “needed” thereafter.

Subdiv. (2): Amended generally.

Subdiv. (3): Inserted “and the protection and conservation of natural resources” following “erosion” and made minor stylistic changes.

Subdiv. (4): Inserted “and conservation of natural resources” following “operations”.

Subdiv. (5): Substituted “in property” for “therein” following “interests” and made other minor changes in phraseology.

Subdiv. (6): Substituted “control of soil and stream bank erosion and protection and conservation of natural resources” for “and for the prevention and control of soil and stream bank erosion and drainage” and made a minor stylistic change.

Subdiv. (8): Inserted “and the protection and conservation of natural resources” following “erosion”.

Subdiv. (9): Amended generally.

Subdiv. (10): Deleted “and regulations” following “rules”.

—1964 (Sp. Sess.). Subdiv. (5): Inserted “borrow money, mortgage” preceding “sell, lease” and inserted “provided however, that real estate shall not be mortgaged” preceding “and provided however, that the sale”.

CROSS REFERENCES

Acquisition of interests in land by public agencies, see § 6301 et seq. of this title.

Power of Department of Environmental Conservation to enter into contracts for construction under flood prevention program, see § 953 of this title.

Notes to Opinions

Projects under Watershed Protection and Flood Prevention Act.

Soil conservation districts do not have authority to initiate “works of improvement” under the provisions of P.L. 566, 83d Congress, the Watershed Protection and Flood Prevention Act (16 U.S.C. § 1001 et seq.), but they do have the authority to initiate drainage projects under the act. 1956 Vt. Op. Att'y Gen. 296.

§ 724. Land-use, erosion control, and natural resources conservation rules; approval.

The supervisors of any district shall have authority to formulate rules, as set forth in this chapter, governing the use of lands within the district in the interest of conserving soil, controlling soil and stream bank erosion, and promoting conservation of natural resources and drainage. The supervisors may conduct such public meetings and public hearings upon rules proposed to be enacted as may be necessary to assist them in this work. The supervisors shall not have authority to enact such land-use rules into ordinances unless a majority of the owners of land lying within the boundaries of the district cast their votes for the approval of the proposed ordinance. The approval of the proposed ordinance by a majority of the votes cast in the referendum shall not be deemed to require the supervisors to enact the proposed ordinance. The rules to be adopted by the supervisors under the provisions of this chapter may include provisions for conserving soil resources, soil and stream bank erosion, water quality improvement, and conservation of natural resources and drainage.

HISTORY: Amended 1995, No. 163 (Adj. Sess.), § 9, eff. May 15, 1996; 2019, No. 14 , § 18, eff. April 30, 2019.

History

Source.

V.S. 1947, § 6282. 1947, No. 202 , § 6688. 1941, No. 202 , § 8. 1939, No. 246 , § 17.

Amendments

—2019. In the section heading and in four places, substituted “rules” for “regulations”, and substituted “set forth in this chapter” for “hereinafter provided” in the first sentence.

—1995 (Adj. Sess.) Substituted “natural resources conservation regulations” for “drainage regulations” in the section catchline, “controlling soil and stream bank erosion and promoting conservation of natural resources” for “and soil resources and preventing and controlling soil erosion, stream bank erosion” in the first sentence, “the” for “such” in two places in the fourth sentence, and “conserving soil resources, soil and stream bank erosion, water quality improvement and conservation of natural resources” for “soil and stream bank erosion control” in the fifth sentence.

Notes to Opinions

Approval of regulations.

A majority of all the owners of land within the district approving the proposed regulations is required. 1946 Vt. Op. Att'y Gen. 271.

§ 725. Uniformity of rules.

The rules shall be uniform throughout the district, except that the supervisors may classify, prior to the adoption of such ordinances, the lands within the district with reference to such factors as soil type, degree of slope, degree of erosion threatened or existing, cropping and tillage practices in use, and other relevant factors, and may provide rules varying with the type or class of land affected, but uniform as to the lands within each class or type, provided however, that such classification has first been included in the notice published for such meeting. Copies of land-use rules adopted under the provisions of this chapter shall be made available to all owners and persons in possession of lands lying within the district, but such ordinances shall not apply to forestlands.

HISTORY: Amended 2019, No. 14 , § 19, eff. April 30, 2019.

History

Source.

V.S. 1947, § 6283. 1941, No. 202 , § 8. 1939, No. 246 , § 17.

Amendments

—2019. In the section heading and in three places, substituted “rules” for “regulations, and substituted “forestlands” for “forest lands” in the last sentence.

§ 726. Ordinances prescribing rules; referendum.

A referendum shall be conducted as follows:

  1. The ordinances proposed to be enacted shall be delivered by the supervisors or by agents authorized by them, or by mail to the last known address of such owners of land within the district, together with a warning of a district meeting, which warning shall contain an article for a vote upon the following question:

    Shall the proposed ordinance, No. . . ., prescribing land-use rules for conserving soil resources, soil and stream bank erosion, and conservation of natural resources, be adopted, the substance of which is as follows?

  2. The vote under such article shall be by ballot in the following form:

    Shall the proposed ordinance No. . . ., prescribing land-use rules for conserving soil resources, soil and stream bank erosion, and conservation of natural resources be adopted?

    Click to view

YES • NO •

HISTORY: Amended 1995, No. 163 (Adj. Sess.), § 10, eff. May 15, 1996; 2019, No. 14 , § 20, eff. April 30, 2019.

History

Source.

V.S. 1947, § 6284. 1941, No. 202 , § 8. 1939, No. 246 , § 17.

Amendments

—2019. Added subdiv. (1) and (2) designations and in the section heading and in two places substituted “rules” for “regulations”.

—1995 (Adj. Sess.) Substituted “conserving soil resources, soil and stream bank erosion and conservation of natural resources” for “conservation of soil and prevention of soil and stream bank erosion” in the referendum and in the ballot form.

§ 727. Conduct of referendum.

The supervisors shall prescribe appropriate rules governing the conduct of the referendum, and shall publish and record the result of the ballot. All owners of lands within the district shall be eligible to vote in such referendum.

HISTORY: Amended 2019, No. 14 , § 21, eff. April 30, 2019.

History

Source.

V.S. 1947, § 6285. 1941, No. 202 , § 8. 1939, No. 246 , § 17.

Revision note—

In the first sentence, substituted “of the referendum” for “thereof” following “conduct” for purposes of clarity.

Amendments

—2019. Substituted “rules” for “regulations” following “prescribe appropriate”.

§ 728. Amendment or repeal of rules.

Any owner or person in possession of land within a district may at any time file a petition with the supervisors asking that any or all of the land-use rules prescribed in any ordinance adopted by the supervisors under the provisions of this chapter shall be amended, supplemented, or repealed. Land-use rules prescribed in any ordinance adopted pursuant to the provisions of this chapter shall not be amended, supplemented, or repealed except in accordance with the procedure prescribed in this chapter for adoption of land-use rules. Referenda on adoption, amendment, supplementation, or repeal of land-use rules shall not be held more often than once in six months.

HISTORY: Amended 2019, No. 14 , § 22, eff. April 30, 2019.

History

Source.

V.S. 1947, § 6285. 1941, No. 202 , § 8. 1939, No. 246 , § 17.

Revision note—

In the second sentence, substituted “chapter” for “section” preceding “for adoption of land-use regulations” for purposes of conformity with terminology in remainder of section.

Amendments

—2019. In the section heading and four times substituted “rules” for “regulations”.

§ 729. Termination of district.

At any time after five years after the organization of a district under the provisions of this chapter, any 25 owners of land lying within the boundaries of the district may file a petition with the State Natural Resources Conservation Council praying that the operations of the district be terminated and the existence of the district discontinued. Proceedings to determine whether a district shall be discontinued shall follow so far as appropriate the procedure for the establishment of the district as set forth in this chapter. If a majority of the landowners of such district present and voting, vote to disband, the chair of the board of supervisors or a member of the board shall so certify to the Secretary of State. The Secretary of State shall issue to the supervisors a certificate of dissolution, and make proper record of this action.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1967, No. 303 (Adj. Sess.), § 16(b), eff. March 22, 1968; 1995, No. 163 (Adj. Sess.), § 11, eff. May 15, 1996.

History

Source.

V.S. 1947, § 6286. 1941, No. 202 , § 12. 1939, No. 246 , § 18.

Amendments

—1995 (Adj. Sess.) Substituted “25” for “twenty-five” in the first sentence, “chair” for “chairman” in the third sentence and made minor changes in phraseology throughout the section.

—1967 (Adj. Sess.). Substituted “state natural resources conservation council” for “state soil conservation council” in the first sentence.

—1959 (Adj. Sess.). Substituted “council” for “committee” in the first sentence.

§ 730. Effect of termination.

Upon issuance of a certificate of dissolution under the provisions of this chapter, all ordinances and rules previously adopted and in force within such districts shall be of no further force and effect. All contracts previously entered into, to which the district or supervisors are parties, shall remain in force and effect for the period provided in such contracts. The State Natural Resources Conservation Council shall have the right to be substituted for the district or supervisors as party to such contracts and, if it elects, the Council shall be entitled to all benefits and subject to all liabilities under such contracts and shall have the same right and liability to perform, to require performance, to sue and be sued thereon, and to modify or terminate such contracts by mutual consent or otherwise, as the supervisors of the district would have had. Such dissolution shall not affect the lien of any judgment entered under the provisions of this chapter, nor the pendency of any action instituted under the provisions of this chapter, and the Council shall succeed to all the rights and obligations of the district or supervisors as to such liens and actions.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1967, No. 303 (Adj. Sess.), § 16(b), eff. March 22, 1968; 2019, No. 14 , § 23, eff. April 30, 2019.

History

Source.

V.S. 1947, § 6287. 1939, No. 246 , § 19.

Amendments

—2019. Substituted “rules previously” for “regulations theretofore” in the first sentence, and substituted “previously” for “theretofore” in the second sentence.

—1967 (Adj. Sess.). Substituted “state natural resources conservation council” for “state soil conservation council” in the third sentence.

—1959 (Adj. Sess.). Substituted “council” for “committee” in the third and fourth sentences.

§ 731. Failure to observe land-use ordinance; conferences.

  1. In the event that the supervisors of a district find that the provisions of a land-use ordinance adopted according to the provisions of this chapter are not being observed on particular lands, and that such nonobservance tends substantially to increase erosion on such lands and substantially interferes with the prevention or control of erosion or conservation of natural resources on other lands within the district, the supervisors may summon the owner of the land to appear before them to discuss the failure of the owner to observe the rules, and to perform particular work, operations, or avoidances as required by ordinance of the district, when the nonobservance tends substantially to increase erosion on the lands and substantially interferes with the prevention or control of erosion or conservation of natural resources on other lands within the district.
  2. By conference thus summoned, the supervisors and the owner of land not observing the ordinance adopted by the district, shall together make and sign a finding as to the issues that are involved in the failure of the owner to observe the ordinance of the district.
    1. On the basis of such findings and if, after conference, it appears to the supervisors that there are great practical difficulties or unnecessary hardship involved in the full observance of the ordinance of the district, the supervisors shall endeavor to work out a program with the owner, as shall be acceptable to the owner and shall enable the owner to comply with the ordinance. (c) (1) On the basis of such findings and if, after conference, it appears to the supervisors that there are great practical difficulties or unnecessary hardship involved in the full observance of the ordinance of the district, the supervisors shall endeavor to work out a program with the owner, as shall be acceptable to the owner and shall enable the owner to comply with the ordinance.
      1. Alternatively, upon the basis of their findings, the supervisors may authorize such variance from the ordinances in their application to the lands of the owner who has not complied with the ordinance of the district, when such variance will relieve practical difficulties or unnecessary hardship to that owner and when such variance is not contrary to public interest and is in accordance with the purpose of land use regulations. (2) (A) Alternatively, upon the basis of their findings, the supervisors may authorize such variance from the ordinances in their application to the lands of the owner who has not complied with the ordinance of the district, when such variance will relieve practical difficulties or unnecessary hardship to that owner and when such variance is not contrary to public interest and is in accordance with the purpose of land use regulations.
      2. The supervisors may request the landowner not complying with an ordinance to sign a stipulation setting forth the conditions agreed upon by the landowner and supervisors so that the practical difficulties or unnecessary hardship may be overcome and the work proceed by the consent of such landowner upon the land.
  3. Nothing in this chapter shall be construed so as to make ineffective any remedies available under the laws of the State.

HISTORY: Amended 1995, No. 163 (Adj. Sess.), § 12, eff. May 15, 1996; 2019, No. 14 , § 24, eff. April 30, 2019; 2019, No. 61 , § 13.

History

Source.

V.S. 1947, § 6289. 1947, No. 202 , § 6675. 1941, No. 202 , § 9.

Editor’s note

—2019. The text of the section is based on a harmonization of two amendments. During the 2019 session, this section was amended twice by Act Nos. 14 and 61, resulting in two versions of this section. In order to reflect all of the changes enacted by the legislature during the 2019 session, the text of Act No. 14, § 24 and Act No. 61, § 13 were merged to arrive at a single version of the section. The changes that each of the amendments made are described in amendment notes set out below.

Amendments

—2019. Act No. 14 substituted “rules” for regulations”, substituted “summoned” for “convoked” and deleted “which are” following “issues” in the second sentence, and substituted “On” for “Upon” at the beginning of the third sentence.

Act No. 61 added the subsec. designations; substituted “that” for “which” in subsec. (b); “supervisors” for “supervisor” in subdiv. (c)(1); and added subdiv. (c)(2) and subsec. (d).

—1995 (Adj. Sess.) Inserted “or conservation of natural resources” following “control of erosion” in two places in the first sentence and made minor stylistic changes throughout the section.

§§ 732, 733. Repealed. 2019, No. 61, § 13.

History

Former §§ 732, 733. Former § 732, relating to noncompliance; reference to board of adjustment; composition of board; terms, compensation, and conduct, was derived from V.S. 1947, § 6290; 1947, No. 202 , § 6676; 1641, No. 202 , § 9 and amended by 1959, No. 329 (Adj. Sess.), § 11(c) and 1995, No. 163 (Adj. Sess.), § 13.

Former § 733, relating to powers of board, was derived from V.S. 1947, § 6291; 1941, No. 202 , § 9 and amended by 2019, No. 14 , §n 25.

§ 734. Supervisors may petition Superior Court.

If a landowner does not sign such stipulation, the supervisors may petition the Superior Court to require such landowner to bring his or her land into conformity with the ordinance, and the court shall order such relief as it may deem necessary in the interest of public health, safety, and welfare. However, no landowner shall by ordinance or otherwise be required to pay any money or perform any act that shall not be for the protection of his or her own land nor shall he or she be required to pay any money, perform any act, or carry out any practice that shall not be in just proportion to the benefits that he or she will receive and further provided that he or she shall not be required to pay any money, perform any act, or carry out any practice that shall not be deemed to be necessary for the public good.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2019, No. 61 , § 13.

History

Source.

V.S. 1947, § 6292. 1941, No. 202 , § 9.

Amendments

—2019. Deleted “when” from the end of the section heading.

—1973 (Adj. Sess.). Substituted “superior court” for “county court” in the catchline and the first sentence.

§ 735. Validation of defectively organized districts.

All natural resources conservation districts heretofore organized are hereby recognized and declared to be natural resources conservation districts subject to the provisions of this chapter, notwithstanding any defect in the process of their organization.

HISTORY: Amended 1963, No. 79 , § 1(b), eff. May 7, 1963; 1967, No. 303 (Adj. Sess.), § 15(b), eff. March 22, 1968.

History

Source.

V.S. 1947, § 6293. 1947, No. 202 , § 6679. 1941, No. 202 , § 10.

Amendments

—1967 (Adj. Sess.). Substituted “natural resources conservation districts” for “soil and water conservation districts”.

—1963. Substituted “soil and water conservation districts” for “soil conservation districts”.

§ 736. Division and combination of districts and unions — Generally.

Any district or union organized under the provisions of this chapter may be divided and the divided portions may become separate districts or unions or may be combined with one or more districts or unions as hereinafter provided. When the State Council deems it advisable to divide a district or union, the divided portions to become one or more separate districts or unions, or to be combined with one or more existing districts or unions, it shall first determine whether such divisions, or divisions and combinations, are administratively practicable and feasible. In making such determination, the State Council may hold hearings, conduct referenda, or use any other means that it deems adequate to assist it. However, no such determination may be made until after the district or union governing bodies of all districts or unions concerned have approved by resolution the proposed divisions, or divisions and combinations. When the State Council has determined such moves to be practicable and feasible, it shall by resolution declare the proposed divisions, or divisions and combinations, to be in effect.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961; 1967, No. 303 (Adj. Sess.), § 14, eff. March 22, 1968.

History

Source.

V.S. 1947, § 6294. 1945, No. 201 , § 3.

Amendments

—1967 (Adj. Sess.). Inserted “or union” following “district” and “or unions” following “districts” in the first, second and fourth sentences.

—1959 (Adj. Sess.). Substituted “council” for “committee” in the second, third and fifth sentences.

§ 737. Not more than three towns.

When the portion to be separated from a district and combined with another district does not comprise more than three towns, and the State Council has declared the move to be effective, that portion will come under the jurisdiction of the district to which it has been added. Where a supervisor resides in the portion of a district that has been added to another district, he or she shall resign and his or her successor shall be appointed by the remaining supervisors of the district where the vacancy occurs. When any district has had its boundaries so changed, the supervisors of the districts concerned shall apply to the Secretary of State for a new certificate of organization covering the area then within the district. If it is desirable to change the name of any district, the application shall so state. When the new certificate has been issued, the new district shall be duly organized and the old district which it replaces will cease to exist.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961.

History

Source.

V.S. 1947, § 6295. 1947, No. 202 , § 6681. 1945, No. 201 , § 4.

Amendments

—1959 (Adj. Sess.). Substituted “council” for “committee” in the first sentence.

§ 738. More than three towns.

When the portion to be separated from a district and combined with another district consists of more than three towns, and the State Council has declared the move to be effective, the Council shall appoint two supervisors for each of the new districts. Where possible, these appointments shall be made from among the existing supervisors. In each case, the two appointed supervisors will proceed to organize the new district in the same manner in which a district is organized following a referendum. When the governing body of each of the new districts has been organized, the supervisors of both the old and the new districts shall apportion the assets, rights, and properties of the divided district among the new districts. If the supervisors of the affected districts cannot agree within 60 days from the date of election of the new supervisors, the State Council will make the apportionment. In doing this, the Council shall conduct hearings with the supervisors and others who may have an interest to assist them in making a decision. Upon completion of the distribution of the assets of the old districts, the old districts shall cease to exist and the supervisors thereof will no longer serve as their governing bodies.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961.

History

Source.

V.S. 1947, § 6296. 1945, No. 201 , § 5.

Amendments

—1959 (Adj. Sess.). Substituted “council” for “committee” in the first, fifth and sixth sentences.

§ 739. Divided portion as new district.

When the portion to be divided from a district consists of more than three adjacent towns, the divided portion may either become a separate district or be combined with an existing district as provided in section 738 of this title. When the State Council has determined that it is administratively feasible and practicable for the divided portion to become a separate district and by resolution has declared such a change to be in effect, it shall appoint two supervisors for each of the new districts. The procedure outlined in section 738 shall then be followed in completing the organization of the two new districts and in apportioning the assets, rights, and properties of the divided district among the new districts.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 11(c), eff. March 1, 1961.

History

Source.

V.S. 1947, § 6297. 1947, No. 202 , § 6683. 1945, No. 201 , § 6.

Amendments

—1959 (Adj. Sess.). Substituted “council” for “committee” in the second sentence.

§ 740. Assumption of commitments.

In any case where the boundaries of districts have been changed in accordance with the provisions of this chapter, any commitments made by districts to landowners will be assumed by the districts in which their land is located after the changes in boundaries have been made.

History

Source.

V.S. 1947, § 6298. 1945, No. 201 , § 7.

Subchapter 2. On-Site Sewage Program

History

Amendments

—1981. Deleted “and single lot subdivision” preceding “program” in subchapter heading.

1975, No. 104 , § 1, provided: “It is the purpose of this act [which added this subchapter and amended section 4493 of Title 24] to help provide technical assistance to towns and individuals in the planning and installation of individual on-site sewage disposal systems, data for the approval of single lot subdivisions, and to conduct research on the capability of soils to absorb sewage effluence. This program is to encourage local initiative and maintain local control.”

Compliance with health regulations; fee. 1981, No. 108 , § 256, provided, in part:

“As a condition of this grant the VACD on-site sewage program shall:

“(1) adhere to the Vermont Health Regulations, Chapter 5, Subchapter 16, Part II in the site evaluation and design of on-site sewage disposal systems; and

“(2) establish a fee of no less than $125.00 for services provided in connection with on-site sewage disposal systems.”

CROSS REFERENCES

Consolidated sewer districts, see 4 V.S.A. § 3671 et seq.

Sewage disposal system, see 24 V.S.A. § 3601 et seq.

Sewage systems, see 24 V.S.A. § 3501 et seq.

Water mains and sewers, see 4 V.S.A. § 3401 et seq.

§§ 746, 747. Repealed. 2001, No. 133 (Adj. Sess.), § 14, eff. June 13, 2002.

History

Former §§ 746, 747. Former § 746, relating to establishing on-site sewage program, was derived from 1975, No. 104 , § 3 and amended by 1981, No. 17 , § 1.

Former § 747, relating to description of sewage program, was derived from 1975, No. 104 , § 3 and amended by 1981, No. 17 , § 1.

§ 747a. Limitation; liability.

  1. An action against the on-site sewage program provided by this subchapter, regarding the design, installation, or operation of any system, shall be brought against a conservation district only, and shall be brought within six years from certification of the system by an on-site sewage technician.
  2. An employee of a conservation district or the Vermont association of conservation districts, hired to implement the on-site sewage program provided by this subchapter, shall be immune from liability under the provisions of 24 V.S.A. § 901 regarding municipal officers.

HISTORY: Added 1995, No. 163 (Adj. Sess.), § 13a, eff. May 15, 1996.

§§ 748, 749. Repealed. 2001, No. 133 (Adj. Sess.), § 14, eff. June 13, 2002.

History

Former §§ 748, 749. Former § 748, relating to municipal program participation, was derived from 1975, No. 104 , § 3 and amended by 1981, No. 17 , § 1.

Former § 749, relating to the annual report of the sewage program accomplishments, was derived from 1975, No. 104 , § 3 and amended by 1981, No. 17 , § 1.

Chapter 32. Flood Hazard Areas

CROSS REFERENCES

Connecticut River flood control compact, see § 1151 et seq. of this title.

Dams generally, see § 1080 et seq. of this title.

Municipal regulation of flood hazard areas, see 24 V.S.A. § 4412 .

Powers and duties of Department of Environmental Conservation, see § 905b of this title.

Watershed protection and flood preventions, see § 951 et seq. of this title.

§ 751. Purpose.

The purpose of this chapter is to minimize and prevent the loss of life and property, the disruption of commerce, the impairment of the tax base, and the extraordinary public expenditures and demands on public service that result from flooding; to ensure that the development of the flood hazard areas of this State is accomplished in a manner consistent with the health, safety and welfare of the public; to coordinate federal, State, and local management activities for flood hazard areas; to encourage local government units to manage flood hazard areas and other flood-prone lands; to provide State assistance to local government units in management of flood-prone lands; to comply with National Flood Insurance Program requirements for the regulation of development; to authorize adoption of State rules for management of uses exempt from municipal regulation in a flood hazard area; to maintain the agricultural use of flood-prone lands consistent with the National Flood Insurance Program; to carry out a comprehensive statewide flood hazard area management program for the State in order to ensure eligibility for flood insurance under the requirements of the National Flood Insurance Program.

HISTORY: Added 1973, No. 263 (Adj. Sess.), § 2, eff. 30 days from April 16, 1974; amended 2011, No. 138 (Adj. Sess.), § 1, eff. May 14, 2012.

History

References in text.

Title XIII of the Housing and Urban Development Act of 1968, referred to in this section, is codified as 42 U.S.C. § 4001 et seq.

Amendments

—2011 (Adj. Sess.) Section amended generally.

§ 752. Definitions.

For the purpose of this chapter:

  1. “Agency” means the Agency of Natural Resources.
  2. “Development,” for the purposes of flood hazard area management and regulation, shall have the same meaning as “development” under 44 C.F.R. § 59.1.
  3. “Flood hazard area” shall have the same meaning as “area of special flood hazard” under 44 C.F.R. § 59.1.
  4. “Flood proofing” shall have the same meaning as “flood proofing” under 44 C.F.R. § 59.1.
  5. “Floodway” shall have the same meaning as “regulatory floodway” under 44 C.F.R. § 59.1.
  6. “Legislative body” means the selectboard, trustees, mayor, city council, and alderboard of a municipality.
  7. “Municipality” means any town, city, or incorporated village.
  8. “Uses exempt from municipal regulation” means land use or activities that are exempt from municipal land use regulation under 24 V.S.A. chapter 117.
  9. “National Flood Insurance Program” means the National Flood Insurance Program under 42 U.S.C. chapter 50 and implementing federal regulations in 44 C.F.R. parts 59 and 60.
  10. “Regional planning commission” means the regional planning commission of which a municipality is a member or would be a member based upon its location.
  11. “River corridor” means the land area adjacent to a river that is required to accommodate the dimensions, slope, planform, and buffer of the naturally stable channel and that is necessary for the natural maintenance or natural restoration of a dynamic equilibrium condition, as that term is defined in section 1422 of this title, and for minimization of fluvial erosion hazards, as delineated by the Agency of Natural Resources in accordance with river corridor protection procedures.
  12. “Secretary” means the Secretary of Natural Resources or the Secretary’s duly authorized representative.

HISTORY: Added 1973, No. 263 (Adj. Sess.), § 2, eff. May 16, 1974; amended 1987, No. 76 , § 18; 2003, No. 115 (Adj. Sess.), § 15; 2011, No. 138 (Adj. Sess.), § 1, eff. May 14, 2012.

History

Revision note—

Subsec. designation deleted at the beginning of the section to conform section to V.S.A. style.

Amendments

—2011 (Adj. Sess.). Section amended generally.

—2003 (Adj. Sess.). Subdiv. (9): Added “or the secretary’s duly authorized representative” following “resources”.

—1987. Subdiv. (1): Substituted “agency of natural resources” for “agency of environmental conservation”.

Subdiv. (9): Substituted “agency of natural resources” for “agency of environmental conservation” following “secretary of the”.

§ 753. Flood hazard areas; cooperation; mapping.

  1. Cooperation to secure flood insurance.   The Secretary and all municipalities, regional planning commissions, and departments and agencies of State government shall mutually cooperate to achieve the purposes of this chapter and to secure flood insurance for municipalities and the State of Vermont. All correspondence sent to a municipality pursuant to this chapter shall be sent to the municipal clerk, the municipal manager, if one exists, the legislative body, the planning commission, and the conservation commission, if one exists. Copies of this correspondence shall be sent to the regional planning commission and the Agency of Commerce and Community Development.
  2. Notice of designation of flood hazard areas; maps.   The Secretary shall, as the information becomes available, provide each municipality with a designation of flood hazard areas. The designation shall include a map or maps.
  3. Procedure to authorize review of municipal permit applications.   The Secretary shall establish a procedure for authorizing a representative of a municipality or a regional planning commission to conduct the review required under 24 V.S.A. § 4424(a)(2)(D) , including eligibility requirements for authorization to conduct permit application review and an approved process or list of approved certifications that the Secretary shall accept as proof of expertise in the field of floodplain management.

HISTORY: Added 1973, No. 263 (Adj. Sess.), § 2, eff. May 16, 1974; amended 1977, No. 200 (Adj. Sess.), §§ 1-3, 5, eff. April 5, 1978; 1981, No. 222 (Adj. Sess.), § 42; 1983, No. 249 (Adj. Sess.), § 3; 1995, No. 190 (Adj. Sess.), § 1(a); 2011, No. 138 (Adj. Sess.), § 1, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Added “cooperation; mapping” in the section heading and amended subsec. (a) generally.

Subsec, (b): Added the first subsec. title.

Subsec. (c): Added.

—1995 (Adj. Sess.) Subsec. (a): Substituted “agency of commerce and community development” for “agency of development and community affairs” in the fourth sentence.

—1983 (Adj. Sess.). Subsec. (c): Repealed.

—1981 (Adj. Sess.). Subsec. (b): Amended generally.

—1977 (Adj. Sess.). Subsec. (a): Substituted “4412” for “4410b” preceding “of Title 24”.

Subdiv. (b)(1): Repealed.

Subdiv. (b)(2): Deleted “prior to July 1, 1974” following “the secretary shall”, substituted “provide” for “send” preceding “each municipality” in the first sentence, and added the second sentence.

Subdiv. (b)(3): Repealed.

Subdiv. (b)(4): Repealed.

Subsec. (c): Amended generally.

ANNOTATIONS

Cited.

Cited in In re Vermont Marble Co., 162 Vt. 355, 648 A.2d 381, 1994 Vt. LEXIS 73 (1994).

§ 754. Flood hazard area rules; uses exempt from municipal regulation.

  1. Rulemaking authority.
    1. On or before November 1, 2014, the Secretary shall adopt rules pursuant to 3 V.S.A. chapter 25 that establish requirements for the issuance and enforcement of permits applicable to:

      (i) uses exempt from municipal regulation that are located within a flood hazard area or river corridor of a municipality that has adopted a flood hazard bylaw or ordinance under 24 V.S.A. chapter 117; and

      (ii) State-owned and -operated institutions and facilities that are located within a flood hazard area or river corridor.

    2. The Secretary shall not adopt rules under this subsection that regulate agricultural activities without the consent of the Secretary of Agriculture, Food and Markets, provided that the Secretary of Agriculture, Food and Markets shall not withhold consent under this subdivision when lack of such consent would result in the State’s noncompliance with the National Flood Insurance Program.
    3. The Secretary shall seek the guidance of the Federal Emergency Management Agency in developing and drafting the rules required by this section in order to ensure that the rules are sufficient to meet eligibility requirements for the National Flood Insurance Program.
  2. Required rulemaking content.   The rules shall:
    1. set forth the requirements necessary to ensure uses exempt from municipal regulation are regulated by the State in order to comply with the regulatory obligations set forth under the National Flood Insurance Program.
    2. be designed to ensure that the State and municipalities meet community eligibility requirements for the National Flood Insurance Program.
    3. [Repealed.]
  3. Discretionary rulemaking.   The rules may establish requirements that exceed the requirements of the National Flood Insurance Program for uses exempt from municipal regulation, provided that any rules adopted under this subsection that exceed the minimum requirements of the National Flood Insurance Program shall be designed to prevent or limit a risk of harm to life, property, or infrastructure from flooding.
  4. General permit.   The rules authorized by this section may establish requirements for a general permit to implement the requirements of this section, including authorization under the general permit to conduct a specified use exempt from municipal regulation without notifying or reporting to the Secretary or an agency delegated under subsection (g) of this section.
  5. Consultation with interested parties.   Prior to submitting the rules required by this section to the Secretary of State under 3 V.S.A. § 838 , the Secretary shall solicit the recommendations of and consult with affected and interested persons and entities such as: the Secretary of Commerce and Community Development; the Secretary of Agriculture, Food and Markets; the Secretary of Transportation; the Commissioner of Financial Regulation; representatives of river protection interests; representatives of fishing and recreational interests; representatives of the banking industry; representatives of the agricultural community; representatives of the forest products industry; the regional planning commissions; municipal interests; and representatives of municipal associations.
  6. Permit requirement.   A person shall not commence or conduct a use exempt from municipal regulation in a flood hazard area or river corridor in a municipality that has adopted a flood hazard area bylaw or ordinance under 24 V.S.A. chapter 117 or commence construction of a State-owned and -operated institution or facility located within a flood hazard area or river corridor, without a permit issued under the rules required under subsection (a) of this section by the Secretary or by a State agency delegated permitting authority under subsection (g) of this section. When an application is filed under this section, the Secretary or delegated State agency shall proceed in accordance with chapter 170 of this title.
  7. Delegation.
    1. The Secretary may delegate to another State agency the authority to implement the rules adopted under this section, to issue a permit under subsection (f) of this section, and to enforce the rules and a permit.
    2. A memorandum of understanding shall be entered into between the Secretary and a delegated State agency for the purpose of specifying implementation of requirements of this section and the rules adopted under this section, issuance of a permit or coverage under a general permit under this section, and enforcement of the rules and permit required by this section.
    3. Prior to entering a memorandum of understanding, the Secretary shall post the proposed memorandum of understanding on its website for 30 days for notice and comment. When the memorandum of understanding is posted, it shall include a summary of the proposed memorandum; the name, telephone number, and address of a person able to answer questions and receive comments on the proposal; and the deadline for receiving comments. A final copy of a memorandum of understanding entered into under this section shall be sent to the chairs of the House Committees on Energy and Technology and on Natural Resources, Fish, and Wildlife, the Senate Committee on Natural Resources and Energy, and any other committee that has jurisdiction over an agency that is a party to the memorandum of understanding.
  8. Municipal authority.   This section and the rules adopted under it shall not prevent a municipality from adopting substantive requirements for development in a flood hazard area bylaw or ordinance under 24 V.S.A. chapter 117 that are more stringent than the rules required by this section, provided that the bylaw or ordinance shall not apply to uses exempt from municipal regulation.

HISTORY: Added 2011, No. 138 (Adj. Sess.), § 1, eff. May 14, 2012; amended 2013, No. 107 (Adj. Sess.), § 1, eff. April 18, 2014; 2015, No. 150 (Adj. Sess.), § 8, eff. Jan. 1, 2018; 2017, No. 113 (Adj. Sess.), § 44a.

History

Amendments

—2017 (Adj. Sess.) Subdiv. (g)(3): Substituted “Committees on Energy and Technology and on Natural Resources, Fish, and Wildlife, the Senate Committee on Natural Resources and Energy,” for “and Senate Committees on Natural Resources and Energy, the House Committee on Fish, Wildlife and Water Resources,” in the last sentence.

—2015 (Adj. Sess.). Subdiv. (b)(3): Repealed.

Subsec. (f): Substituted “A person shall not” for “Beginning March 1, 2105, no person shall” in the first sentence, and added the second sentence.

—2013 (Adj. Sess.). Subdiv. (a)(1): Substituted “November 1, 2014” for “March 15, 2014” following “before” and made a minor stylistic change at the end.

Subdiv. (a)(1)(i): Inserted “or river corridor” following “area” and “; and” and at the end.

Subdiv. (a)(1)(ii): Added.

Subsec. (f): Substituted “March 1, 2015” for “July 1, 2014” following “Beginning” and inserted “or river corridor” preceding “in a municipality” and “or commence construction of a State owned and operated institution or facility located within a flood hazard area or river corridor,” following “chapter 117”.

§ 755. Municipal education; model flood hazard area bylaw or ordinance.

  1. Education and assistance.   The Secretary, in consultation with regional planning commissions, shall provide ongoing education, technical assistance, and guidance to municipalities regarding the requirements under 24 V.S.A. chapter 117 necessary for compliance with the National Flood Insurance Program.
  2. Model flood hazard area bylaw or ordinance.   The Secretary shall create and make available to municipalities a model flood hazard area bylaw or ordinance for potential adoption by municipalities pursuant to 24 V.S.A. chapter 117 or 24 V.S.A. § 2291 . The model bylaw or ordinance shall set forth the minimum provisions necessary to meet the requirements of the National Flood Insurance Program. The model bylaw may include alternatives that exceed the minimum requirements for compliance with the National Flood Insurance Program in order to allow a municipality to elect whether it wants to adopt the minimum requirement or an alternate requirement that further minimizes the risk of harm to life, property, and infrastructure from flooding.
  3. Assistance to municipalities with no flood hazard area bylaw or ordinance.   The Secretary, in consultation with municipalities, municipal organizations, and regional planning commissions, shall provide education and technical assistance to municipalities that lack a flood hazard area bylaw or ordinance in order to encourage adoption of a flood hazard area bylaw or ordinance that qualifies the municipality for the National Flood Insurance Program.

HISTORY: Added 2011, No. 138 (Adj. Sess.), § 1, eff. May 14, 2012.

Chapter 33. Supervisory Unions

CROSS REFERENCES

Soil conservation act, see § 701 et seq. of this title.

§ 801. Purpose.

The purpose of this chapter is to authorize the natural resources conservation districts in Vermont to form supervisory unions for administrative purposes while still retaining their individual identities, duties, and powers as authorized under sections 701-740 of this title. The supervisory unions will help carry out a broadened program of conservation, development, and use of the natural resources and the broadened program will aid cooperation with local and State agencies, and provide coordination through proper channels with federal agencies.

HISTORY: Added 1967, No. 303 (Adj. Sess.), § 17, eff. March 22, 1968; amended 1969, No. 16 , § 2, eff. March 11, 1969.

History

Amendments

—1969. Substituted “natural resources conservation districts” for “soil and water conservation districts” in the first sentence.

§ 802. Formation of supervisory union.

The State Natural Resources Conservation Council, on petition from two or more districts, may combine several districts into a supervisory union after having determined that such a union is feasible, and in the best interests of the people in the district. The Council may hold hearings and receive testimony from landowners with lands lying within the bounds of the proposed supervisory union. If the Council determines that a union is administratively practicable, feasible, and in the public interest it shall so indicate in its minutes and proceed with the organization.

HISTORY: Added 1967, No. 303 (Adj. Sess.), § 17, eff. March 22, 1968.

History

Revision note—

Added a comma after “two or more districts” in the first sentence to correct the punctuation.

§ 803. Application and procedure.

  1. Each district shall appoint one of its supervisors as its member of the supervisory union board. They may also appoint an alternate who must be a supervisor. The executive secretary of the Council shall be an advisory member of and clerk of the board.
    1. The board of directors shall present to the Secretary of State an application signed by them that shall set forth: (b) (1) The board of directors shall present to the Secretary of State an application signed by them that shall set forth:
      1. that a petition for the creation of the union was filed with the council pursuant to the provisions of this chapter;
      2. that the proceedings specified in this chapter were taken pursuant to such petition; and
      3. that the application is filed in order to complete the organization of the union as a corporate entity.
    2. The application shall be subscribed to by each of the directors.
  2. The application shall be accompanied by a statement by the State Council that a petition was filed and that thereafter the Council determined that the operation of the proposed union is administratively practicable and feasible and in the public interest.  The statement shall show the boundaries of the union as defined by the Council.
  3. The Secretary of State shall file and record the application and statement in an appropriate record book in his or her office. When the application and statement have been filed and recorded, the union shall constitute a governmental subdivision of this State.  Without cost, the Secretary of State shall issue a certificate under seal to the board of directors, certifying to the due organization of the union and shall file a copy of the certificate with the application and statement.

HISTORY: Added 1967, No. 303 (Adj. Sess.), § 17, eff. March 22, 1968; amended 1995, No. 163 (Adj. Sess.), § 14, eff. May 15, 1996; 2019, No. 14 , § 26, eff. April 30, 2019.

History

Amendments

—2019. Subsec. (b): Redesignated former subsec. (b) as (b)(1), redesignated former subdivs. (b)(1) through (b)(3) as (b)(1)(A) through (b)(1)(C), added the designation (b)(2) to the last sentence, and in present subdiv. (b)(1) substituted “that” for “which”.

—1995 (Adj. Sess.) Subsection (a): Rewrote the first sentence and added the present second sentence.

§ 804. Board of directors; organization; pay.

The board of directors shall elect a chair from among its members and may from time to time change the designation. A majority of the board shall constitute a quorum. A board member shall be entitled to receive compensation for services at a rate not to exceed the per diem rate as defined by 32 V.S.A. § 1010(b) . A board member shall also be entitled to expenses including traveling expenses. The per diem and expenses shall be subject to review and control of the Council. The board may call upon the Attorney General of the State for such legal services as it may require.

HISTORY: Added 1967, No. 303 (Adj. Sess.), § 17, eff. March 22, 1968; amended 1995, No. 163 (Adj. Sess.), § 15, eff. May 15, 1996.

History

Amendments

—1995 (Adj. Sess.) Substituted “the per diem rate as defined by 32 V.S.A. § 1010(b) ” for “$30.00 per diem” in the third sentence, deleted “necessarily incurred in the discharge of his duties” following “traveling expenses” in the fourth sentence, and made minor changes in phraseology throughout the section.

CROSS REFERENCES

Travel expenses, see 32 V.S.A. § 1261 .

§ 805. Powers and duties of board.

The board of directors shall have the following powers and duties:

  1. It shall keep a record of all proceedings and resolutions and provide for an annual audit of receipts and disbursements.
  2. It shall offer appropriate assistance to the member districts.
  3. It shall coordinate the programs of the member districts so far as this may be done by advice and consultation.
  4. It shall elect a Council member to represent their union for a two-year term. The Council member must be a district supervisor from a district within the union, but need not be on the union board. They may also elect an alternate Council member who must be a supervisor from a district within the union and need not be on the union board.
  5. It may employ a union conservationist and shall determine his qualifications, duties and salary, with the advice and approval of the Council, but he or she must be an employee of the State of Vermont under the classified system.
  6. It shall provide for the execution of surety bonds for all employees and officers who are entrusted with funds.
  7. It may, within appropriation limits, enter into agreements to furnish financial or other aid to any agency, governmental or otherwise, in planning for the conservation, development, and use of natural resources.

HISTORY: Added 1967, No. 303 (Adj. Sess.), § 17, eff. March 22, 1968; amended 1995, No. 163 (Adj. Sess.), § 16, eff. May 15, 1996.

History

Amendments

—1995 (Adj. Sess.) Subdiv. (4): Amended generally.

CROSS REFERENCES

Classification of State employees generally, see 3 V.S.A. § 301 et seq.

§ 806. Removal of board member.

Any board member may be removed from office by the Council upon notice and hearing for neglect of duty or malfeasance in office but for no other reason. The Council shall replace any board member so removed by a representative from the district of the removed member.

HISTORY: Added 1967, No. 303 (Adj. Sess.), § 17, eff. March 22, 1968.

§ 807. Duties of union conservationist.

The union conservationist shall:

  1. Devote his or her entire time to the duties of his or her office and apportion his or her time as prescribed by the board of directors after determining the workload in districts.  He or she shall help implement programs of the member districts and shall perform the duties as set forth by the board of directors from time to time.
  2. Endeavor to coordinate programs and plans of the member districts.
  3. Furnish the executive secretary of the Council such data and information from time to time as he or she may require.
  4. Report to the executive secretary of the Council on or before July 15 each year, the needs, conditions, and progress of the districts under his or her jurisdiction.
  5. Report to the board of directors and the member districts annually concerning his or her activities and the needs of the districts within the union, together with recommendations for their improvement.

HISTORY: Added 1967, No. 303 (Adj. Sess.), § 17, eff. March 22, 1968.

Chapter 34. Conservation and Preservation Rights and Interests

CROSS REFERENCES

Historic preservation generally, see 22 V.S.A. § 701 et seq.

Law Reviews —

Taxation of Preservation Interests as Property in Vermont, see 5 Vt. L. Rev. 161 (1980).

§ 821. Definitions.

As used in this chapter:

  1. “Conservation rights and interests” mean rights held by a qualified holder to restrict or condition the use, modification, or subdivision of a land or water area and rights to perform, or require the performance of, specified activities with respect thereto. These rights and interests shall be for the purpose of maintaining, enhancing, and conserving that land or water area, including improvements thereon, predominantly in its natural, scenic, or open condition, or in agricultural, farming, forest, wildlife, or open space use, or for public recreation, or in other use or condition consistent with the purposes set forth in section 6301 of this title.
  2. “Preservation rights and interests” mean rights held by a qualified holder to restrict or condition the use, modification, or subdivision of a structure or site, and rights to perform, or require the performance of, specified activities with respect thereto. Such rights and interests shall be for the purpose of preserving, rehabilitating, or restoring a structure or site having significant historical, architectural, cultural, or archaeological characteristics.
  3. “Qualified holder” and “holder” mean:
    1. a municipality, department, or board of the State of Vermont;
    2. an organization qualifying under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, provided one of the stated purposes of the organization is to acquire property or rights and interests in property in order to preserve historic, agricultural, forestry, or open space resources;
    3. an organization qualifying under Section 501(c)(2) of the Internal Revenue Code of 1986, as amended, provided that organization is controlled exclusively by an organization or organizations described in subdivision (B) of this subdivision (3); and
    4. the United States of America.

HISTORY: Added 1977, No. 221 (Adj. Sess.), § 1, eff. April 12, 1978; amended 1987, No. 200 (Adj. Sess.), § 48; 1993, No. 59 , § 25b, eff. June 3, 1993; 2019, No. 14 , § 27, eff. April 30, 2019.

History

References in text.

Section 501 of the Internal Revenue Code of 1986, referred to in subdivs. (c)(2) and (3), is codified as 26 U.S.C. § 501.

Revision note—

At the end of the introductory paragraph of subsec. (c), substituted “mean” for “means” to correct a grammatical error.

Amendments

—2019. Section amended generally.

—1993. Subsec. (c): Deleted “and” at the end of subdiv. (2), made a minor change in punctuation and added “and” at the end of subdiv. (3) and added subdiv. (4).

—1987 (Adj. Sess.). Section amended generally.

§ 822. Rights and interests.

Conservation and preservation rights and interests shall be stated in the form of a deed restriction, right, easement, covenant, or condition. These rights and interests shall be valid, exercisable, and enforceable by the holder thereof and by the holder’s successors and assigns, against the owner of the encumbered property and the owner’s heirs, successors, and assigns, whether or not such rights or interests are appurtenant to or benefit a specific parcel of real property, and regardless of privity of contract, or lack thereof, between the holder of such rights or interests and the owner of the encumbered property.

HISTORY: Added 1977, No. 221 (Adj. Sess.), § 1, eff. April 12, 1978; amended 1987, No. 200 (Adj. Sess.), § 49.

History

Amendments

—1987 (Adj. Sess.). Section amended generally.

§ 823. Interests in real property.

Conservation and preservation rights and interests shall be deemed to be interests in real property and shall run with the land. A document creating such a right or interest shall be deemed to be a conveyance of real property and shall be recorded under 27 V.S.A. chapter 5 but shall not be subject to the requirement of filing a notice of claim within the 40-year period as provided in 27 V.S.A. § 603 . Such a right or interest shall be enforceable in law or in equity. Any subsequent transfer, mortgage, lease, or other conveyance of the real property or an interest in the real property shall reference the grant of conservation rights and interests in the real property; provided, however, that the failure to include a reference to the grant shall not affect the validity or enforceability of the conservation rights and interests.

HISTORY: Added 1977, No. 221 (Adj. Sess.), § 1, eff. April 12, 1978; amended 1987, No. 200 (Adj. Sess.), § 50; 2011, No. 118 (Adj. Sess.), § 5; 2015, No. 84 (Adj. Sess.), § 2.

History

Amendments

—2015 (Adj. Sess.). Rewrote the former second and third sentences as the present second sentence.

—2011 (Adj. Sess.) Substituted “27 V.S.A. chapter 5” for “chapter 5 of Title 27” at the end of the second sentence, and added the fifth sentence.

—1987 (Adj. Sess.). Added “conservation and” preceding “preservation” in the first sentence and substituted “shall” for “may” preceding “be recorded” in the second sentence.

Chapter 35. Drainage of Low Lands

CROSS REFERENCES

Mosquito abatement, see 6 V.S.A. § 1082 et seq.

§ 851. Landowner’s duties.

When the public good or the necessity or convenience of individuals requires the opening of a ditch or watercourse to drain low or swamp lands, to enable owners or occupants thereof to cultivate the same, such owners or occupants shall open such ditch or watercourse in proportion to their several interests.

History

Source.

V.S. 1947, § 3990. P.L. § 3823. G.L. § 4842. P.S. § 4207. V.S. § 3637. R.L. § 3225. 1874, No. 18 , § 1. 1868, No. 26 .

§ 852. Dispute between landowners; notice to selectboard; investigation.

When there is a dispute between parties as to the opening of a ditch or watercourse or the width, depth, or extent that a person shall open, either party may notify in writing the selectboard of the town in which the lands are located of the dispute and ask for an investigation.

History

Source.

V.S. 1947, § 3991. P.L. § 3824. 1933, No. 157 , § 3577. G.L. § 4843. P.S. § 4208. V.S. § 3638. R.L. § 3226. 1874, No. 18 , § 4. 1868, No. 26 .

Revision note

—2018. Substituted “selectboard” for “selectmen” and “select-board” in accordance with 2013, No. 161 , § 72.

§ 853. Hearings; orders; charges; lien.

On receiving such notice, the selectboard shall notify all the parties interested of the time when it will examine the premises and hear the parties and their witnesses. They shall apportion the ditch or watercourse among the several parties having regard to the interest of each party in the opening thereof, and shall decide what time each party shall have to open his or her share of the ditch or watercourse, and they may order such ditch or watercourse or a part thereof to be covered, or the selectboard may, if it deems it advantageous and with the written consent of three-fourths of the landowners concerned, place one or more contracts covering all or such portions of said ditch or watercourse as it may deem advisable, and allocate costs in proportion to the benefits received by the interested parties. Such charges shall become a first lien on the property after taxes, and shall be paid to the town treasurer at such time as shall be directed by the selectboard. Funds shall be paid out by the town treasurer on order of the selectboard for costs incurred in drainage. When lands affected lie in more than one town, the selectboard of each town shall appoint one of its own number with authority to act jointly with a similarly appointed representative or representatives from the other town or towns to act in determining the necessity of drainage, allocation of costs, entering into contracts, and other powers as set forth herein.

History

Source.

1949, No. 87 . V.S. 1947, § 3992. P.L. § 3825. 1933, No. 157 , § 3578. G.L. § 4844. P.S. § 4209. V.S. § 3639. R.L. § 3227. 1874, No. 18 , §§ 5, 6, 16.

Revision note

—2018. Substituted “selectboard” for “select-board” in accordance with 2013, No. 161 , § 72.

§ 854. When only part of landowners to open drain.

When it appears to the selectboard that the owner or occupant of a piece of land is not sufficiently interested in opening the ditch or watercourse to be required to perform or pay for any part thereof, but it appears necessary for the other parties that such ditch or watercourse should be constructed across such land, they may award that the same be done at the expense of such other parties. The parties in whose favor the award is made, may open the ditch or watercourse across such land at their own expense without being trespassers.

History

Source.

V.S. 1947, § 3993. P.L. § 3826. G.L. § 4845. P.S. § 4210. V.S. § 3640. R.L. § 3228. 1874, No. 18 , § 6.

Revision note

—2018. Substituted “selectboard” for “select-board” in accordance with 2013, No. 161 , § 72.

§ 855. Land damages.

When an owner of land through which a drain is to be constructed claims damages therefor, the selectboard shall hear the parties interested therein, and may award reasonable damages to be paid by the parties benefited in such proportions as the selectboard deem just. In estimating such damages, the benefit that the person may receive thereby shall be taken into consideration.

History

Source.

V.S. 1947, § 3994. P.L. § 3827. G.L. § 4846. P.S. § 4211. V.S. § 3641. R.L. § 3229. 1874, No. 18 , § 11.

Revision note

—2018. Substituted “selectboard” for “select-board” and “selectmen” in accordance with 2013, No. 161 , § 72.

§ 856. Expenses, paid by whom.

All expenses under this chapter shall be paid by the parties interested in such proportion as the selectboard orders, and the selectboard shall receive the same compensation as for other services.

History

Source.

V.S. 1947, § 3995. P.L. § 3828. G.L. § 4847. P.S. § 4212. V.S. § 3642. R.L. § 3230. 1874, No. 18 , § 9.

Revision note

—2018. Substituted “selectboard” for “select-board” in accordance with 2013, No. 161 , § 72.

§ 857. Decision; written and filed.

The award of the selectboard shall be in writing, signed by a majority of them, and they shall lodge it, or a certified copy thereof, in the office of the town clerk. The clerk shall keep it on file, and the selectboard shall deliver a copy to each of the interested parties. Such award shall be binding on the parties.

History

Source.

V.S. 1947, § 3996. P.L. § 3829. 1933, No. 157 , § 3582. G.L. § 4848. P.S. § 4213. V.S. § 3643. R.L. § 3231. 1874, No. 18 , § 3.

Revision note

—2018. Substituted “selectboard” for “select-board” in accordance with 2013, No. 161 , § 72.

§ 858. Depth of drainage.

An owner of land shall not be required to make or assist in making a ditch or watercourse of greater depth than is necessary for draining his or her land.

History

Source.

V.S. 1947, § 4001. P.L. § 3834. G.L. § 4853. P.S. § 4218. V.S. § 3648. R.L. § 3235. 1874, No. 18 , § 8.

§ 859. Cleaning or repairing ditches.

Ditches or watercourses opened under the provisions of this chapter shall be kept free for the passage of water into and through the same. If a person fails to do his or her proportionate share of cleaning or repairing a ditch or watercourse, the same proceedings may be had as in case of opening ditches or watercourses.

History

Source.

V.S. 1947, § 4002. P.L. § 3835. 1933, No. 157 , § 3588. G.L. § 4854. P.S. § 4219. V.S. § 3649. R.L. § 3236. 1874, No. 18 , § 7.

§ 860. Opening on noncompliance with order.

When a person does not open a ditch or watercourse, or his or her proportion thereof, in accordance with the order of the selectboard, a person interested who was a party of record in the proceedings may open such ditch or watercourse and collect pay for the same of the party who was directed by the order of the selectboard to open such ditch or watercourse.

History

Source.

V.S. 1947, § 4003. P.L. § 3836. 1933, No. 157 , § 3589. G.L. § 4855. P.S. § 4220. V.S. § 3650. R.L. § 3237. 1874, No. 18 , § 10.

Revision note

—2018. Substituted “selectboard” for “select-board” in accordance with 2013, No. 161 , § 72.

ANNOTATIONS

When action accrues.

Action for damages by one landowner against adjoining landowner for his failure to comply with order to open drainage ditch is purely statutory and the exclusive remedy, but did not accrue to person interested who was a party of record until latter had opened ditch. Farr v. Leach, 100 Vt. 23, 134 A. 594, 1926 Vt. LEXIS 115 (1926).

Plaintiff in action against adjoining landowner for failure of latter to open part of drainage ditch assigned to him within specified time could not claim damages by reason of defendant’s default, where plaintiff himself had failed to open part of ditch assigned to him by same order. Farr v. Leach, 100 Vt. 23, 134 A. 594, 1926 Vt. LEXIS 115 (1926).

§ 861. Discontinuance.

Ditches and watercourses opened under the provisions of this chapter may be discontinued by the same proceedings and under the regulations provided for opening the same.

History

Source.

V.S. 1947, § 4004. P.L. § 3837. G.L. § 4856. P.S. § 4221. V.S. § 3651. R.L. § 3238. 1874, No. 18 , § 15.

§ 862. Appeal from award; recognizance.

A person owning land through which a drain or watercourse is to be laid may appeal from the award of the selectboard to the Superior Court, by entering into a recognizance with sufficient sureties, before the board, in such sum as it requires, conditioned that the appellant will prosecute his or her appeal to effect and pay intervening damages and costs in case the award is affirmed.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 3997. P.L. § 3830. 1933, No. 157 , § 3583. G.L. § 4849. P.S. § 4214. V.S. § 3644. R.L. § 3232. 1874, No. 18 , § 12.

Revision note

—2018. Substituted “selectboard” for “select-board” in accordance with 2013, No. 161 , § 72.

Amendments

—1973 (Adj. Sess.). Substituted “superior court” for “county court”.

§ 863. Procedure on appeal; commissioners.

When the appeal is entered in the Superior Court with the report of the selectboard in writing, in its discretion, upon hearing, the court may accept or reject the award, or may appoint a commission consisting of three disinterested freeholders of the vicinity, who shall make examination of the premises. After notice to the parties and hearing, such commissioners shall make report thereof to the court within 30 days thereafter, or within such further time as the court upon request may fix.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 3998. 1945, No. 29 , § 40. P.L. § 3831. 1933, No. 157 , § 3584. G.L. § 4850. P.S. § 4215. V.S. § 3645. R.L. § 3232. 1874, No. 18 , § 12.

Revision note

—2018. Substituted “selectboard” for “select-board” in accordance with 2013, No. 161 , § 72.

Amendments

—1973 (Adj. Sess.). Substituted “superior court” for “county court” in the first sentence.

§ 864. Duties of court.

The Superior Court shall make necessary orders and render judgments to carry out its decisions and tax costs as seems just.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 3999. P.L. § 3832. 1933, No. 157 , § 3585. G.L. § 4851. P.S. § 4216. V.S. § 3646. R.L. § 3233. 1874, No. 18 , § 13.

Amendments

—1973 (Adj. Sess.). Substituted “superior court” for “county court”.

§ 865. Copy of award and judgment filed.

A certified copy of the award of the selectboard or of the report of the commissioners, finally accepted by the Superior Court, with the orders and judgments of such court, shall be recorded in the office of the town clerk where the lands are situated.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 4000. P.L. § 3833. 1933, No. 157 , § 3586. G.L. § 4852. P.S. § 4217. V.S. § 3647. R.L. § 3234. 1874, No. 18 , § 14.

Revision note

—2018. Substituted “selectboard” for “selectmen” in accordance with 2013, No. 161 , § 72.

Amendments

—1973 (Adj. Sess.). Substituted “superior court” for “county court”.

Chapter 37. Wetlands Protection and Water Resources Management

History

Amendments

—2009. 2009, No. 31 , § 2, added “Wetlands Protection and” in the chapter heading.

—1981 (Adj. Sess.). 1981, No. 222 (Adj. Sess.), § 11, changed the title of this chapter from “Department of Water Resources” to “Water Resources Management”.

Legislative findings. 2009, No. 31 , § 1, provides: “The general assembly finds that:

“(1) It is the policy of the state to preserve, protect, and conserve significant wetlands and their functions and values; to prevent the degradation and destruction of wetlands; to protect and enhance the quality, character, and usefulness of surface waters; and to regulate the use and development of such wetlands in a manner consistent with beneficial and environmentally sound development, private property interests, and the economic, agricultural, and silvicultural needs of the state.

“(2) The federal government regulates wetlands that are ‘waters of the United States’ under Section 404 of the federal Clean Water Act, and the Vermont wetlands program provides protection for ‘significant‘ wetlands and their buffer zones.

“(3) The Vermont significant wetlands inventory maps provide information concerning those wetlands in Vermont which have been determined to be significant and which therefore merit protection.

“(4) The Vermont significant wetlands inventory maps have been minimally updated since their creation in 1990 and are currently inaccurate in some respects. Therefore, the agency of natural resources has proposed a comprehensive update.

“(5) Currently, only the water resources panel of the natural resources board has the authority to reclassify wetlands as significant or not, and such reclassification requires rulemaking pursuant to chapter 25 of Title 3. There is a need for a more efficient and less costly method of wetlands reclassification.”

Transition provision. 2009, No. 31 , § 11, provides: “Any wetland proposed by the secretary in a rulemaking petition to be designated as a Class I or Class II wetland shall be presumed to be a significant wetland, until the secretary or panel determines otherwise.” 2009, No. 110 , § 20(c) provides that 2009, No. 31 , § 11 shall be effective retroactively as of January 1, 2011.

CROSS REFERENCES

Aid to municipalities for water supply, pollution abatement and sewer separation, see § 1571 et seq. of this title.

Connecticut River flood control compact, see § 1151 et seq. of this title.

Dams, see § 1080 et seq. of this title.

Drainage of low lands, see § 851 et seq. of this title.

Flood hazard areas, see § 751 et seq. of this title.

General provisions relating to rivers and streams, see 25 V.S.A. § 141 et seq.

Interstate waste compact, see § 1201 et seq. of this title.

Management of lakes and ponds, see 29 V.S.A. § 401 et seq.

Administration of water resources programs by department of environmental conservation, see 3 V.S.A. § 2873 .

Protection of navigable waters and shorelands, see § 1421 et seq. of this title.

Regulation of stream flow, see § 1001 et seq. of this title.

State land use and development planning generally, see § 6001 et seq. of this title.

Water pollution control generally, see § 1251 et seq. of this title.

Watershed protection and flood prevention, see § 951 et seq. of this title.

ANNOTATIONS

Construction of statute with local zoning ordinances.

The State water pollution control statutes may be regarded as amending or repealing any local zoning ordinances in conflict with the operation of the statutes, because for the purpose of public duties, municipalities are merely convenient instrumentalities of the state. Kedroff v. Town of Springfield, 127 Vt. 624, 256 A.2d 457, 1969 Vt. LEXIS 290 (1969).

Construction of sewage disposal plant in town embraced State water pollution control policy and was, therefore, a governmental function and exempt from local zoning ordinance which, as applied to plant, must yield to the legislative policy and laws of the State. Kedroff v. Town of Springfield, 127 Vt. 624, 256 A.2d 457, 1969 Vt. LEXIS 290 (1969).

Subchapter 1. General Provisions

§ 901. Water resources management policy.

It is hereby declared to be the policy of the State that the water resources of the State shall be protected, regulated and, where necessary, controlled under authority of the State in the public interest and to promote the general welfare.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 42, eff. March 1, 1961; 1961, No. 100 , § 1; 1965, No. 116 ; 1975, No. 254 (Adj. Sess.), § 142; 1981, No. 222 (Adj. Sess.), § 11.

History

Source.

V.S. 1947, § 6299. 1947, No. 83 , § 1.

Amendments

—1981 (Adj. Sess.). Deleted the second sentence.

—1975 (Adj. Sess.). Deleted the third sentence.

—1965. Rewrote the existing provisions of the section as the first and second sentences and added the third sentence.

—1961. Substituted “classification advisory councils” for “technical advisory boards”.

—1959 (Adj. Sess.). Substituted “department of water resources” for “Vermont state water conservation board”, and added “the advisory commission appointed under New England interstate water pollution control compact (subchapter 3 of chapter 33 of this title) and the river technical advisory boards created under this title” thereafter.

ANNOTATIONS

Cited.

Cited in In re Reclassification of Ranch Brook, 146 Vt. 602, 508 A.2d 703, 1986 Vt. LEXIS 342 (1986).

Law Reviews —

For note, “Streamflow Policy in Vermont: Managing Conflicting Demands on the State’s Waters, ” see 19 Vt. L. Rev. 191 (1994).

§ 902. Definitions.

Wherever used or referred to in this chapter, unless a different meaning clearly appears from the context:

  1. “Board” means the Natural Resources Board.
  2. “Department” means Department of Environmental Conservation.
  3. “Waters” means any and all rivers, streams, brooks, creeks, lakes, ponds, or stored water, and groundwaters, excluding municipal and farm water supplies.
  4. “Water resources” means the waters and the values inherent or potential in waters and their uses.
  5. “Wetlands” means those areas of the State that are inundated by surface or groundwater with a frequency sufficient to support significant vegetation or aquatic life that depend on saturated or seasonally saturated soil conditions for growth and reproduction.  Such areas include marshes, swamps, sloughs, potholes, fens, river and lake overflows, mud flats, bogs, and ponds, but excluding such areas as grow food or crops in connection with farming activities.
  6. “Class I wetland” means:
    1. a wetland identified on the Vermont significant wetlands inventory maps as a Class I wetland;
    2. a wetland that the former Water Resources Board identified in rules of the Board as a Class I wetland; or
    3. a wetland that the Secretary, based upon an evaluation of the extent to which the wetland serves the functions and values set forth in subdivision 905b(18)(A) of this title, determines is exceptional or irreplaceable in its contribution to Vermont’s natural heritage and, therefore, merits the highest level of protection.
  7. “Class II wetland” means a wetland other than a Class I or Class III wetland that:
    1. is a wetland identified on the Vermont significant wetlands inventory maps; or
    2. the Secretary determines to merit protection, pursuant to section 914 of this title, based upon an evaluation of the extent to which it serves the functions and values set forth in subdivision 905b(18)(A) of this title and the rules of the Department.
  8. “Class III wetland” means a wetland that is neither a Class I wetland nor a Class II wetland.
  9. “Buffer zone” means an area contiguous to a significant wetland that protects the wetland’s functions and values. The buffer zone for a Class I wetland shall extend at least 100 feet from the border of the wetland, unless the Department determines otherwise under section 915 of this title. The buffer zone for a Class II wetland shall extend at least 50 feet from the border of the wetland unless the Secretary determines otherwise under section 914 of this title.
  10. “Panel” means the Water Resources Panel of the Agency of Natural Resources.
  11. “Significant wetland” means any Class I or Class II wetland.
  12. “Secretary” means the Secretary of Natural Resources or the Secretary’s authorized representative.

HISTORY: Amended 1969, No. 281 (Adj. Sess.), § 4; 1981, No. 222 (Adj. Sess.), § 11; 1985, No. 188 (Adj. Sess.), § 1; 1987, No. 76 , § 18; 2003, No. 115 (Adj. Sess.), § 16, eff. Jan. 31, 2005; 2009, No. 31 , § 3; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.

History

Source.

V.S. 1947, § 6300. 1947, No. 83 , § 2.

Amendments

—2011 (Adj. Sess.). Subdiv. (1): Substituted “natural resources board” for “water resources panel of the agency of natural resources” following “the”.

—2009. Subdiv. (6)-(12): Added.

—2003 (Adj. Sess.). Subdiv. (1): Substituted “the water resources panel of the natural resources” for “Vermont water resources”.

—1987. Subdiv. (2): Substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

—1981 (Adj. Sess.) Designated unnumbered paragraphs as subdivs. (1)-(4) and added “and environmental engineering” following “water resources” in subdiv. (2).

—1969 (Adj. Sess.). Added the second paragraph, defining “department ”, inserted “groundwaters” preceding “excluding municipal” and “and farm” thereafter in the third paragraph, defining “waters”, and inserted “the waters and” preceding “the values” in the fourth paragraph, defining “water resources”.

Statutory revision. 2011, No. 138 (Adj. Sess.), § 27 provides: “To effect the purpose of this act of transferring the rulemaking authority of the water resources panel to the secretary of natural resources, the office of legislative council is directed to revise the existing Vermont Statutes Annotated and, where applicable, replace the terms ‘natural resources board,’ ‘water resources panel of the natural resources board,’ ‘water resources panel,’ ‘water resources board,’ and similar terms with the term ‘secretary of natural resources,’ ‘secretary,’ ‘agency of natural resources,’ ‘agency,’ ‘department of environmental conservation,’ or ‘department’ as appropriate”.

ANNOTATIONS

Cited.

Cited in In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988).

Subchapter 2. Vermont Water Resources Board

§§ 903-905. Repealed. 2003, No. 115 (Adj. Sess.), § 119(b), eff. Jan. 31, 2005.

History

Former §§ 903-905. Former § 903, relating to the creation of the Vermont water resources board, was derived from V.S. 1947, § 6301; 1947, No. 83 , § 3; 1961, No. 100 , § 2; 1973, No. 103 , § 1, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 11; 1999, No. 42 , § 5.

Former § 904, relating to complete records and assistants of board, was derived from V.S. 1947, § 6302; 1947, No. 83 , § 4; 1971, No. 255 (Adj. Sess.), § 1; 1981, No. 222 (Adj. Sess.), § 11.

Former § 905, relating to duties and powers of board, was derived from 1957, No. 184 , § 1; 1957, No. 116 ; 1949, No. 147 , §§ 1, 2; V.S. 1947, § 6303; 1947, No. 83 , § 5 and amended by 1959, No. 329 (Adj. Sess.), § 27; 1961, No. 80 ; No. 100, § 2; 1964, No. 37 (Sp. Sess.), § 6; 1967, No. 303 (Adj. Sess.), § 15(b); 1969, No. 281 (Adj. Sess.), § 5; 1971, No. 185 (Adj. Sess.), § 236; 1981, No. 222 (Adj. Sess.), § 11; 1985, No. 188 (Adj. Sess.), § 2; 1989, No. 256 (Adj. Sess.), § 10(a), eff. Jan. 1, 1991; No. 278 (Adj. Sess.), § 1; 2003, No. 42 , § 2.

Subchapter 3. Department of Environmental Conservation

§ 905a. Department of Environmental Conservation.

There is created the Department of Environmental Conservation, to be administered by a Commissioner of Environmental Conservation.

HISTORY: Added 1981, No. 222 (Adj. Sess.), § 11; amended 1987, No. 76 , § 17.

History

Editor’s note

—2019. This section was erroneously placed under subchapter 2 of 10 V.S.A., chapter 37 and has been included in this supplement to correct that error.

CROSS REFERENCES

Department of Environmental Conservation within Agency of Natural Resources, see 3 V.S.A. §§ 2802 , 2873.

ANNOTATIONS

Cited.

Cited in In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988).

§ 905b. Duties; powers.

The Department shall protect and manage the water resources of the State in accordance with the provisions of this subchapter and shall:

  1. Study and investigate the streams in the State and their basins, and cooperate with federal agencies in mapping them and in collecting and compiling data relating to run off and stream flow.
  2. Cooperate with natural resources conservation districts.
  3. Have supervision over and act as the State’s agency in all matters affecting flood control, channel clearing, and river bank protection. To discharge this responsibility, the Department shall:
    1. Develop flood control policies and a flood control program that balances the need to protect the environment with the need to protect public and private property. The policy and program shall direct appropriate remedial measures following significant flooding events and shall define appropriate flood hazard mitigation measures. These measures may include:
      1. flood debris removal and streambed and stream bank maintenance and restoration practices;
      2. identification of disaster-prone areas;
      3. land use planning assistance to minimize future damage from flooding;
      4. flood proofing measures for existing vulnerable private or public structures;
      5. acquisition and relocation of structures away from hazard-prone areas;
      6. development of State standards to protect public infrastructure from disaster damage;
      7. structural hazard control, such as debris basins or floodwalls to protect critical facilities;
      8. educating the public regarding the availability of flood insurance and the advisability of obtaining flood insurance.
    2. Develop and implement steps to incorporate into other programs administered by the Department measures that decrease the likelihood and impact of future flooding incidents.
  4. Make studies and investigations or demonstrations of problems relating to water quality with respect to pollution and causes, prevention, control, and abatement thereof as it may deem advisable, and when appropriate propose remedies to the Legislature.
  5. Encourage the construction of sewage disposal plants by municipalities; and encourage the construction of septic tanks and other proper methods of waste and sewage disposal in rural and industrial areas.
  6. After the construction or major reconstruction of sewage disposal plants and attendant facilities, and at least once every three years, and once in any 12-month period upon petition by 10 or more people in interest from the municipality or an adjacent municipality, inspect the facilities so constructed, and similar facilities constructed for the purpose, to determine the efficiency of operation and maintenance, and submit a report to the appropriate municipal officials.
  7. Foster and encourage recreational uses of the waters of the State and for this and other purposes cooperate with municipalities of the State and with agencies of the State concerned.
  8. Accept and acquire in the name of the State by purchase, gift, or donation property rights in the waters of the State and facilities or improvements therein and for the purposes aforesaid improve and maintain the same.
  9. Administer loans, grants, and contracts from the federal, State, and local governments and from other sources, public and private, with the approval of the Governor, for furthering the water resources program of the State as embodied in the statutes.
  10. , (11) [Repealed.]

    (12) Make available to any municipality in the State, to the extent funds are available, assistance relating to surveys, studies, and plans for pollution abatement works.

    (13) Undertake a continuing study and investigation of the groundwater in the State and cooperate with other governmental agencies in collecting and compiling data relating to the quantity, quality and location of groundwater.

    (14) Subject to the approval of the Governor, enter into contracts and agreements with the United States as are considered necessary and advisable to provide, subject to legislative authority, assurances of State and local cooperation when those assurances are required by the United States for the purpose of providing protection against floods under federal flood protection projects.

    (15) In order to adequately protect the interests of the State in its water resources, and subject to limitations of duties otherwise provided by law, cooperate with the appropriate agencies of the federal and Canadian governments or of this or other states, or any interstate bureau, group, division, or agency with respect to the use of water from lakes and ponds, which are without or wholly or partially contained within this State, and to endeavor to harmonize any conflicting claims that might arise therefrom.

    (16) Assist municipalities in the development of water supplies and in the construction of facilities for storage, distribution, and treatment of potable water supplies and approve all plans for the construction of such facilities, provided that plans shall also be approved by the State Board of Health prior to construction. The Department may provide planning and engineering assistance as requested in matters relating to preliminary surveys, studies and plans, if such assistance is not otherwise available, except that the Department’s authority shall not infringe on the duties of the State Board of Health or local health officials with respect to quality of domestic water supplies.

    (17) Adopt in accord with the Administrative Procedure Act those rules necessary for the proper administration of its duties.

    (18) Study and investigate the wetlands of the State and cooperate with municipalities, the general public, other agencies, and the Board in collecting and compiling data relating to wetlands, propose to the Board specific wetlands to be designated as Class I wetlands, issue or deny permits pursuant to section 913 of this title and the rules authorized by this subdivision, issue wetland determinations pursuant to section 914 of this title, issue orders pursuant to section 1272 of this title, and in accordance with 3 V.S.A. chapter 25, adopt rules to address the following:

    1. The identification of wetlands that are so significant they merit protection. Any determination that a particular wetland is significant will result from an evaluation of at least the following functions and values which a wetland serves:
      1. provides temporary water storage for flood water and storm runoff;
      2. contributes to the quality of surface and groundwater through chemical action;
      3. naturally controls the effects of erosion and runoff, filtering silt, and organic matter;
      4. contributes to the viability of fisheries by providing spawning, feeding, and general habitat for freshwater fish;
      5. provides habitat for breeding, feeding, resting, and shelter to both game and nongame species of wildlife;
      6. provides stopover habitat for migratory birds;
      7. contributes to an exemplary wetland natural community, in accordance with the rules of the Secretary;
      8. provides for threatened and endangered species habitat;
      9. provides valuable resources for education and research in natural sciences;
      10. provides direct and indirect recreational value and substantial economic benefits; and
      11. contributes to the open-space character and overall beauty of the landscape.
    2. The ability to reclassify wetlands, in general, or on a case-by-case basis.
    3. The protection of wetlands that have been determined under subdivision (A) or (B) of this subdivision (18) to be significant, including rules that provide for the issuance or denial of permits and the issuance of wetland determinations by the Department under this chapter; provided, however, that the rules may only protect the values and functions sought to be preserved by the designation. The Department shall not adopt rules that restrain agricultural activities without the consent of the Secretary of Agriculture, Food and Markets and shall not adopt rules that restrain silvicultural activities without the consent of the Commissioner of Forests, Parks and Recreation.

      (19) Cooperate with the agencies of the federal government and of the province of Quebec, adjoining states, and states through which water from Vermont streams flow in all matters relating to interstate streams.

      (20) Cooperate with the State Board of Health in matters of stream pollution where public health is involved.

      (21) Act as the Vermont Secretary of Natural Resources mentioned in the act of Congress, entitled “An act authorizing the construction of certain public works on rivers and harbors for flood control and for other purposes,” approved December 22, 1944. In this connection, the Department shall carry out the policy of the State as defined by section 1100 of this title.

HISTORY: Added 1981, No. 222 (Adj. Sess.), § 11; amended 1983, No. 173 (Adj. Sess.), § 1; 1985, No. 188 (Adj. Sess.), § 3; 1987, No. 76 , § 9; 1989, No. 88 , § 1; 1997, No. 51 , § 1; 1997, No. 137 (Adj. Sess.), § 2, eff. July 1, 1999; 2001, No. 143 (Adj. Sess.), § 55; 2003, No. 115 (Adj. Sess.), § 17, eff. Jan. 31, 2005; 2009, No. 31 , §§ 4, 14(b); 2011, No. 138 (Adj. Sess.), § 20, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Subdiv. (18): In the introductory paragraph, substituted “rules authorized by this subdivision” for “rules of the panel” and “and in accordance with 3 V.S.A. chapter 25, adopt rules to address the following” for “and implement the rules adopted by the board governing significant wetlands”.

Subdivs. (18)(A)-(18)(C): Added.

—2009. Subdiv. (18): Amended generally.

—2003 (Adj. Sess.). Made a minor change in punctuation in subdiv. (18) and added subdivs. (19)-(21).

—2001 (Adj. Sess.) Subdiv. (18): inserted “including the issuance or denial of conditional use determinations pursuant to section 1272 of this title” at the end of the section.

—1997 (Adj. Sess.). Subdiv. (3): Added “To discharge this responsibility, the department shall” and subdivs. (A) and (B).

—1997. Subdiv. (6): Amended generally.

—1989. Subdiv. (10): Repealed.

—1987. Subdiv. (11): Repealed.

—1985 (Adj. Sess.). Subdiv. (17): Made minor stylistic changes.

Subdiv. (18): Added.

—1983 (Adj. Sess.). Subdiv. (10): Amended generally.

Permit fees. 1987, No. 76 , § 19, provides: “It is the intention of the general assembly that the provisions of this act [which amended this section, section 2822 of Title 3, sections 555, 1263, 1265, 1395, 1927, 1936, 6083, 6089 and 6231 of this title, and section 252 of Title 21] governing permit fees shall supersede fees established elsewhere for these permits.”

CROSS REFERENCES

Aquatic nuisance control program, see § 921 of this title.

Assistance of municipal officers with regard to water supply by board of health, see 18 V.S.A. § 108 .

Enforcement of environmental laws, see § 8001 et seq. of this title.

ANNOTATIONS

Cited.

Cited in In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988).

§ 906. Investigators.

Investigators employed by the Department of Environmental Conservation when designated in writing by the Commissioner of Environmental Conservation shall enforce the provisions of chapters 37, 39, 41, 43, 47 and 49 and subchapter 3 of chapter 48 of this title; Title 29, chapter 11; sections 1215 and 1217 of Title 18; section 2201 of Title 24 and sections 4411 and 4444 of Title 24 insofar as those chapters and sections contain enforceable provisions and may summons or arrest violators thereof. In those matters, they may serve criminal process and subpoenas. They shall have the same powers as other informing officers to make and subscribe to complaints for violation thereof.

HISTORY: 1965, No. 110 , eff. June 22, 1965; amended 1971, No. 255 (Adj. Sess.), § 2, eff. April 11, 1972; 1981, No. 222 (Adj. Sess.), § 11; 1987, No. 76 , § 18.

History

References in text.

Sections 1215 and 1217 of Title 18, cited in this section, were repealed in 1989.

Amendments

—1987. In the first sentence, substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

—1981 (Adj. Sess.). Substituted “investigators” for “inspectors”, “department of water resources and environmental engineering” for “department of water resources” and “4411” for “4410a” in the first sentence and made minor stylistic changes in the second sentence.

—1971 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Enforcement of subpoenas issued by administrative agencies generally, see 3 V.S.A. § 809a .

Inspections and investigations, see § 8005 of this title.

Modification of subpoenas or discovery orders issued by administrative agencies, see 3 V.S.A. § 809a .

ANNOTATIONS

Cited.

Cited in In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988).

§§ 907-910. [Omitted.]

History

Former §§ 907-910. Former § 907, relating to the study of ground water and the collection and compilation of data relating to the quantity, quality and location of ground water, was derived from 1965, No. 104 , § 1. The subject matter is now covered by § 905b(13) of this title.

Former § 908, relating to flood control contracts with United States, was derived from 1957, R-64; 1961, No. 100 , § 2. The subject matter is now covered by § 905b(14) of this title.

Former § 909, relating to relations with other governmental agencies, was derived from 1961, No. 165 . The subject matter is now covered by § 905b(15) of this title.

Former § 910, relating to the designation of the Vermont water resources board as agency for development of water supply, was derived from 1964, No. 36 (Sp. Sess.), § 1. The subject matter is now covered by § 905b(16) of this title.

§ 911. Entrance upon lands; records, maintenance.

The Department employee or agent may enter upon lands for the purposes of inspecting and investigating conditions relating to sources of pollution of the waters of the State or the potential pollution thereof, and to determine whether the rules and orders of the Department are being complied with. Any authorized representative of the Department may examine any records or memoranda pertaining to the operation of disposal systems or related water quality projects. The Department may require the maintenance of records relating to the operation of disposal systems. Copies of these records shall be submitted to the Department on request.

HISTORY: 1964, No. 37 (Sp. Sess.), § 7; amended 1981, No. 222 (Adj. Sess.), § 11.

History

Amendments

—1981 (Adj. Sess.). Substituted “department” for “board” wherever it appeared and made other minor stylistic changes.

Purpose of 1964, No. 37 (Sp. Sess.). See note under § 1251 of this title.

§ 912. Temporary emergency permits.

The Secretary or the Secretary’s designee shall expedite and may authorize temporary emergency permits under this title, pursuant to 3 V.S.A. § 2822(c) .

HISTORY: Added 2003, No. 82 (Adj. Sess.), § 6.

Subchapter 4. Wetlands Determinations and Protection

History

Statutory revision. 2011, No. 138 (Adj. Sess.), § 27 provides: “To effect the purpose of this act of transferring the rulemaking authority of the water resources panel to the secretary of natural resources, the office of legislative council is directed to revise the existing Vermont Statutes Annotated and, where applicable, replace the terms ‘natural resources board,’ ‘water resources panel of the natural resources board,’ ‘water resources panel,’ ‘water resources board,’ and similar terms with the term ‘secretary of natural resources,’ ‘secretary,’ ‘agency of natural resources,’ ‘agency,’ ‘department of environmental conservation,’ or ‘department’ as appropriate, including the following revisions:

“(1) in 10 V.S.A. §§ 913 and 915, by replacing ‘panel’ with ‘department’;

“(2) in 10 V.S.A. chapter 47, by replacing ‘board’ with ‘secretary’ where appropriate;

“(3) in 10 V.S.A. §§ 1422 and 1424, by replacing ‘board’ with ‘secretary’ where appropriate; and

“(4) in 29 V.S.A. §§ 401 , 402, and 403, by replacing ‘board’ with “department’ where appropriate.”

§ 913. Prohibition.

  1. Except for allowed uses adopted by the Department by rule, no person shall conduct or allow to be conducted an activity in a significant wetland or buffer zone of a significant wetland except in compliance with a permit, conditional use determination, or order issued by the Secretary.
  2. A permit shall not be required under this section for:
    1. any activity that occurred before the effective date of this section unless the activity occurred within:
      1. an area identified as a wetland on the Vermont significant wetlands inventory maps;
      2. a wetland that was contiguous to an area identified as a wetland on the Vermont significant wetlands inventory maps;
      3. the buffer zone of a wetland referred to in subdivision (A) or (B) of this subdivision (1);
    2. any construction within a wetland that is identified on the Vermont significant wetlands inventory maps or within the buffer zone of such a wetland, provided that the construction was completed prior to February 23, 1992, and no action for which a permit is required under the rules of the Department was taken or caused to be taken on or after February 23, 1992.

HISTORY: Added 2009, No. 31 , § 5; amended 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.

§ 914. Wetlands determinations.

  1. The Secretary may, upon a petition or on his or her own motion, determine whether any wetland is a Class II or Class III wetland. Such determinations shall be based on an evaluation of the functions and values set forth in subdivision 905b(18)(A) of this title and the rules of the Department.
  2. The Secretary may establish the necessary width of the buffer zone of any Class II wetland as part of any wetland determination pursuant to the rules of the Department.
  3. The provisions of chapter 170 of this title shall apply to issuance of determinations under this section.
  4. [Repealed.]
  5. The Secretary may recommend to the panel that a wetland be classified as a Class I wetland under section 915 of this title.

HISTORY: Added 2009, No. 31 , § 5; amended 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012; 2015, No. 150 (Adj. Sess.), § 9, eff. Jan. 1, 2018.

History

Amendments

—2015 (Adj. Sess.). Subsec. (c): Rewritten.

Subsec. (d): Repealed.

§ 915. Class I wetlands.

The classification of any wetland as a Class I wetland, the reclassification of a Class I wetland as a Class II or III wetland, the reclassification of any Class II or III wetland as a Class I wetland, or the modification of the buffer zone of a Class I wetland shall be made by the Department pursuant to the rulemaking provisions of 3 V.S.A. chapter 25.

HISTORY: Added 2009, No. 31 , § 5; amended 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.

§ 916. Revision of Vermont significant wetlands inventory maps.

The Secretary shall revise the Vermont significant wetlands inventory maps to reflect wetland determinations issued under section 914 of this title and rulemaking by the panel under section 915 of this title.

HISTORY: Added 2009, No. 31 , § 5.

§ 917. Appeals.

Any act or decision of the Secretary under this subchapter may be appealed in accordance with chapter 220 of this title.

HISTORY: Added 2009, No. 31 , § 5.

§§ 918-920. [Reserved.]

Subchapter 5. Water Quality Restoration and Improvement

History

Amendments

—2019. Substituted “Water Quality Restoration and Improvement” for “Aquatic Nuisance Control”.

Repeal of subchapter. This subchapter which comprised § 921-924, relating to aquatic nuisance control, were repealed by 2009, No. 46 , § 4. Former §§ 921 and 922, relating to the aquatic nuisance control program and grant-in-aid to municipalities, were recodified as present §§ 1453 and 1458 of this title.

Repeal of subchapter. This subchapter which comprised §§ 921-924 and which addressed aquatic nuisance control was previously repealed by 2009, No. 46 , § 4.

§ 921. Definitions.

As used in this subchapter:

  1. “Administrative cost” means program and project costs incurred by a clean water service provider or a grantee, including costs to conduct procurement, contract preparation, and monitoring, reporting, and invoicing.
  2. “Basin” means a watershed basin designated by the Secretary for use as a planning unit under subsection 1253(d) of this title.
  3. “Best management practice” or “BMP” means a schedule of activities, prohibitions, practices, maintenance procedures, green infrastructure, or other management practices to prevent or reduce water pollution.
  4. “Clean water project” means a best management practice or other program designed to improve water quality to achieve a target established under section 922 of this title that:
    1. is not subject to a permit under chapter 47 of this title, is not subject to the requirements of 6 V.S.A. chapter 215, exceeds the requirements of a permit issued under chapter 47 of this title, or exceeds the requirements of 6 V.S.A chapter 215; and
    2. is within the following activities:
      1. developed lands, sub-jurisdictional practices related to developed lands including municipal separate storm sewers, operational stormwater discharges, municipal roads, and other developed lands discharges;
      2. natural resource protection and restoration, including river corridor and floodplain restoration and protection, wetland protection and restoration, riparian and lakeshore corridor protection and restoration, and natural woody buffers associated with riparian, lakeshore, and wetland protection and restoration;
      3. forestry; or
      4. agriculture.
  5. “Co-benefit” means the additional benefit to local governments and the public provided by or associated with a clean water project, including flood resilience, ecosystem improvement, and local pollution prevention.
  6. “Design life” means the period of time that a clean water project is designed to operate according to its intended purpose.
  7. “Maintenance” means ensuring that a clean water project continues to achieve its designed pollution reduction value for its design life.
  8. “Standard cost” means the projected cost of achieving a pollutant load reduction per unit or per best management practice in a basin.

HISTORY: Added 2019, No. 76 , § 1.

History

Former §§ 921-924. Former § 921, relating to the aquatic nuisance control program, was derived from 1977, No. 230 (Adj. Sess.), § 1 and amended by 1981, No. 222 (Adj. Sess.), § 12; 1983, No. 173 (Adj. Sess.), § 2; 1987, No. 76 , § 18; 1989, No. 88 , § 1; 2003, No. 121 (Adj. Sess.), § 67 and 2009, No. 46 , § 4.

Former § 922, relating to grant-in-aid to municipalities and agencies of the state, was derived from 1977, No. 230 (Adj. Sess.), § 3 and amended by 1981, No. 222 (Adj. Sess.), § 13; 1983, No. 173 (Adj. Sess.), § 3; 1987, No. 76 , § 18; 1989, No. 276 (Adj. Sess.), § 30; 1993, No. 52 , § 2 and 1995, No. 153 (Adj. Sess.), § 1

Former § 923, relating to joint municipal participation, was derived from 1977, No. 230 (Adj. Sess.), § 4.

Former § 924, relating to the aquatic nuisance control sticker program and the aquatic nuisance control special fund creation, was derived from 2005, No. 72 , § 25.

Former § 921. Former § 921, relating to the aquatic nuisance control program, was derived from 1977, No. 230 (Adj. Sess.), § 1 and amended by 1981, No. 222 (Adj. Sess.), § 12; 1983, No. 173 (Adj. Sess.), § 2; 1987, No. 76 , § 18; 1989, No. 88 , § 1; 2003, No. 121 (Adj. Sess.), § 67 and repealed by 2009, No. 46 , § 4.

§ 922. Water quality implementation planning and targets.

  1. After listing a water as impaired on the list of waters required by 33 U.S.C. § 1313(d) , the Secretary shall include in the implementation plan for the water a strategy for returning the water to compliance with the Vermont Water Quality Standards. With respect to a water that is impaired due to sources outside the State or if there is insufficient data or no data available to quantify reductions required by this subchapter, the Secretary shall not be required to implement the requirements of this subchapter; however, the Secretary shall provide an alternate strategy for attaining water quality standards in the implementation plan for the water. For waters determined to be subject to this subchapter, the Secretary shall include the following in an implementation plan:
    1. An evaluation of whether implementation of existing regulatory programs will achieve water quality standards in the impaired water. If the Secretary determines that existing regulatory programs will not achieve water quality standards, the Secretary shall determine the amount of additional pollutant reduction necessary to achieve water quality standards in that water. When making this determination, the Secretary may express the pollutant reduction in a numeric reduction or through defining a clean water project that must be implemented to achieve water quality standards.
    2. An allocation of the pollutant reduction identified under subdivision (a)(1) of this section to each basin and the clean water service provider assigned to that basin pursuant to subsection 924(a) of this title. When making this allocation, the Secretary shall consider the sectors contributing to the water quality impairment in the impaired water’s boundaries and the contribution of the pollutant from regulated and nonregulated sources within the basin. Those allocations shall be expressed in annual pollution reduction goals and five-year pollution reduction targets as checkpoints to gauge progress and adapt or modify as necessary.
    3. A determination of the standard cost per unit of pollutant reduction. The Secretary shall publish a methodology for determining standard cost pollutant reductions. The standard cost shall include the costs of project identification, project design, and project construction.
    1. The Secretary shall conduct the analysis required by subsection (a) of this section for previously listed waters as follows: (b) (1) The Secretary shall conduct the analysis required by subsection (a) of this section for previously listed waters as follows:
      1. For phosphorous in the Lake Champlain watershed, not later than November 1, 2021.
      2. For phosphorous in the Lake Memphremagog watershed, not later than November 1, 2022.
    2. By not later than November 1, 2023, the Secretary shall adopt a schedule for implementing the requirements of this subchapter in all other previously listed impaired waters, including Lake Carmi, not set forth in subdivision (1) of this subsection.
  2. When implementing the requirements of this section, the Secretary shall follow the type 3 notice process established in section 7714 of this title.

HISTORY: Added 2019, No. 76 , § 1.

History

Former § 922. Former § 922, relating to grant-in-aid to municipalities and agencies of the State, was derived from 1977, No. 230 (Adj. Sess.), § 3 and amended by 1981, No. 222 (Adj. Sess.), § 13; 1983, No. 173 (Adj. Sess.), § 3; 1987, No. 76 , § 18; 1989, No. 276 (Adj. Sess.), § 30; 1993, No. 52 , § 2 and 1995, No. 153 (Adj. Sess.), § 1 and repealed by 2009, No. 46 , § 4.

§ 923. Quantification of pollution reduction; clean water projects.

  1. After listing a water as impaired on the list of waters required by 33 U.S.C. § 1313(d) , the Secretary shall publish a methodology for calculating pollution reduction values associated with a clean water project in that water. When establishing a pollutant reduction value, the Secretary shall consider pollution reduction values established in the TMDL; pollution reduction values established by other jurisdictions; pollution reduction values recommended by organizations that develop pollutant reduction values for a clean water project; applicable monitored data with respect to a clean water project, if available; modeled data, if available; or a comparison to other similar projects or programs if no other data on a pollution reduction value or design life exists. Pollution reduction values established by the Secretary shall be the exclusive method for determining the pollutant reduction value of a clean water project.
  2. After listing a water as impaired on the list of waters required by 33 U.S.C. § 1313(d) , the Secretary shall publish a methodology for establishing a design life associated with a clean water project. The design life of a clean water project shall be determined based on a review of values established in other jurisdictions, values recommended by organizations that regularly estimate the design life of clean water projects, actual data documenting the design life of a practice, or a comparison to other similar practices if no other data exists. A design life adopted by the Secretary shall be the exclusive method for determining the design life of a best management practice or other control.
    1. If a person is proposing a clean water project for which no pollution reduction value or design life exists for a listed water, the Secretary shall establish a pollution reduction value or design life for that clean water project within 60 days following a request from the person proposing the clean water project. A pollution reduction value or design life established under this subdivision shall be based on a review of pollution reduction values established in the TMDL; pollution reduction values or design lives established by other jurisdictions; pollution reduction values or design lives recommended by organizations that develop pollutant reduction values or design lives for a clean water project; applicable monitored data with respect to a clean water project, if available; modeled data, if available; actual data documenting the design life of a clean water project; or a comparison to other similar projects or programs if no other data on a pollution reduction value or design life exists. Any estimate developed under this subsection by the Secretary shall be posted on the Agency of Natural Resources’ website. (c) (1) If a person is proposing a clean water project for which no pollution reduction value or design life exists for a listed water, the Secretary shall establish a pollution reduction value or design life for that clean water project within 60 days following a request from the person proposing the clean water project. A pollution reduction value or design life established under this subdivision shall be based on a review of pollution reduction values established in the TMDL; pollution reduction values or design lives established by other jurisdictions; pollution reduction values or design lives recommended by organizations that develop pollutant reduction values or design lives for a clean water project; applicable monitored data with respect to a clean water project, if available; modeled data, if available; actual data documenting the design life of a clean water project; or a comparison to other similar projects or programs if no other data on a pollution reduction value or design life exists. Any estimate developed under this subsection by the Secretary shall be posted on the Agency of Natural Resources’ website.
    2. Upon the request of a clean water service provider, the Secretary shall evaluate a proposed clean water project and issue a determination as to whether the proposed clean water project is eligible to receive funding as a part of a Water Quality Restoration Formula Grant awarded by the State pursuant to section 925 of this title.
    1. The Secretary shall conduct the analysis required by subsections (a) and (b) of this section for clean water projects and design lives related to phosphorous not later than November 1, 2021. (d) (1) The Secretary shall conduct the analysis required by subsections (a) and (b) of this section for clean water projects and design lives related to phosphorous not later than November 1, 2021.
    2. By not later than November 1, 2023, the Secretary shall adopt a schedule for implementing the requirements of subsections (a) and (b) of this section for clean water projects and design lives related to all other impairments not listed under subdivision (1) of this subsection.
  3. The Secretary shall periodically review pollution reduction values and design lives established under this section at least every five years to determine the adequacy or accuracy of a pollution reduction value or design life.
    1. When implementing the requirements of subsections (a) and (b) of this section, the Secretary shall follow the type 3 notice process established in section 7714 of this title. (f) (1) When implementing the requirements of subsections (a) and (b) of this section, the Secretary shall follow the type 3 notice process established in section 7714 of this title.
    2. When implementing the requirements of subsection (c) of this section, the Secretary shall follow the type 4 notice process in section 7715 of this title.

HISTORY: Added 2019, No. 76 , § 1.

History

Former § 923. Former § 923, relating to joint municipal participation, was derived from 1977, No. 230 (Adj. Sess.), § 4 and repealed by 2009, No. 46 , § 4.

§ 924. Clean water service provider; responsibility for clean water projects.

  1. Clean water service providers; establishment.
    1. On or before November 1, 2020, the Secretary shall adopt rules that assign a clean water service provider to each basin in the Lake Champlain and Lake Memphremagog watersheds for the purposes of achieving pollutant reduction values established by the Secretary for the basin and for identification, design, construction, operation, and maintenance of clean water projects within the basin. For all other impaired waters, the Secretary shall assign clean water service provider no later than six months prior to the implementation of the requirements of this subchapter scheduled by the Secretary under subdivision 922(b)(2) of this title. The rulemaking shall be done in consultation with regional planning commissions, natural resource conservation districts, watershed organizations, and municipalities located within each basin.
    2. An entity designated as a clean water service provider shall be required to identify, prioritize, develop, construct, verify, inspect, operate, and maintain clean water projects in accordance with the requirements of this subchapter.
    3. The Secretary shall adopt guidance on a clean water service provider’s obligation with respect to implementation of this chapter. The Secretary shall provide notice to the public of the proposed guidance and a comment period of not less than 30 days. At a minimum, the guidance shall address the following:
      1. how the clean water service provider integrates, prioritizes, and selects projects consistent with the applicable basin plan, including how to account for the co-benefits provided by a project;
      2. minimum requirements with respect to selection and agreements with subgrantees;
      3. requirements associated with the distribution of administrative costs to the clean water service provider and subgrantees;
      4. the Secretary’s assistance to clean water service providers with respect to their maintenance obligations pursuant to subsection (c) of this section; and
      5. the Secretary’s strategy with respect to accountability pursuant to subsection (f) of this section.
    4. In carrying out its duties, a clean water service provider shall adopt guidance for subgrants consistent with the guidance from the Secretary developed pursuant to subdivision (a)(3) of this section that establishes a policy for how the clean water service provider will issue subgrants to other organizations in the basin, giving due consideration to the expertise of those organizations and other requirements for the administration of the grant program. The subgrant guidance shall include how the clean water service provider will allocate administrative costs to subgrantees for project implementation and for the administrative costs of the basin water quality council. The subgrant guidance shall be subject to the approval of the Secretary and basin water quality council.
    5. When selecting clean water projects for implementation or funding, a clean water service provider shall prioritize projects identified in the basin plan for the area where the project is located and shall consider the pollutant targets provided by the Secretary and the recommendations of the basin water quality council.
  2. Project identification, prioritization, selection.   When identifying, prioritizing, and selecting a clean water project to meet a pollutant reduction value, the clean water service provider shall consider the pollution reduction value associated with the clean water project, the co-benefits provided by the project, operation, and maintenance of the project, conformance with the tactical basin plan, and other water quality benefits beyond pollution reduction associated with that clean water project. All selected projects shall be entered into the watershed projects database.
  3. Maintenance responsibility.   A clean water service provider shall be responsible for maintaining a clean water project or ensuring the maintenance for at least the design life of that clean water project. The Secretary shall provide funding for maintenance consistent with subdivision 1389(e)(1)(A) of this title.
  4. Water quality improvement work.   If a clean water service provider achieves a greater level of pollutant reduction than a pollutant reduction goal or five-year target established by the Secretary, the clean water service provider may carry those reductions forward into a future year. If a clean water service provider achieves its pollutant reduction goal or five-year target and has excess grant funding available, a clean water service provider may:
    1. carry those funds forward into the next program year;
    2. use those funds for other eligible projects;
    3. use those funds for operation and maintenance responsibilities for existing constructed projects;
    4. use those funds for projects within the basin that are required by federal or State law; or
    5. use those funds for other work that improves water quality within the geographic area of the basin, including protecting river corridors, aquatic species passage, and other similar projects.
  5. Reporting.   A clean water service provider shall report annually to the Secretary. The report from clean water service providers shall be integrated into the annual clean water investment report, including outcomes from the work performed by clean water service providers. The report shall contain the following:
    1. a summary of all clean water projects completed that year in the basin;
    2. a summary of any inspections of previously implemented clean water projects and whether those clean water projects continue to operate in accordance with their design;
    3. all administrative costs incurred by the clean water service provider;
    4. a list of all of the subgrants awarded by the clean water service provider in the basin; and
    5. all data necessary for the Secretary to determine the pollutant reduction achieved by the clean water service provider during the prior year.
  6. Accountability for pollution reduction goals.   If a clean water service provider fails to meet its allocated pollution reduction goals or its five-year target or fails to maintain previously implemented clean water projects, the Secretary shall take appropriate steps to hold the clean water service provider accountable for the failure to meet pollution reduction goals or its five-year target. The Secretary may take the following steps:
    1. include in grant agreements with the clean water service provider requirements, benchmarks, conditions, or penalty provisions to provide for ongoing accountability;
    2. enter a plan to ensure that the clean water service provider meets current and future year pollution reduction goals and five-year targets; or
    3. initiate rulemaking to designate an alternate clean water service provider as accountable for the basin.
  7. Basin water quality council.
    1. A clean water service provider designated under this section shall establish a basin water quality council for each assigned basin. The purpose of a basin water quality council is to establish policy and make decisions for the clean water service provider regarding the most significant water quality impairments that exist in the basin and prioritizing the projects that will address those impairments based on the basin plan. A basin water quality council shall also participate in the basin planning process.
    2. A basin water quality council shall include, at a minimum, the following:
      1. two persons representing natural resource conservation districts in that basin, selected by the applicable natural resource conservation districts;
      2. two persons representing regional planning commissions in that basin, selected by the applicable regional planning commission;
      3. two persons representing local watershed protection organizations operating in that basin, selected by the applicable watershed protection organizations;
      4. one representative from an applicable local or statewide land conservation organization selected by the conservation organization in consultation with the clean water service provider; and
      5. two persons representing municipalities within the basin, selected by the clean water service provider in consultation with municipalities in the basin.
    3. The designated clean water service provider and the Agency of Natural Resources shall provide technical staff support to the basin water quality council. The clean water service provider may invite support from persons with specialized expertise to address matters before a basin water quality council, including support from the University of Vermont Extension, staff of the Agency of Natural Resources, staff of the Agency of Agriculture, Food and Markets, staff of the Agency of Transportation, staff from the Agency of Commerce and Community Development, the Natural Resource Conservation Service, U.S. Department of Fish and Wildlife, and U.S. Forest Service.

HISTORY: Added 2019, No. 76 , § 1.

History

Former § 924. Former § 924, relating to the aquatic nuisance control sticker program and the aquatic nuisance control special fund creation, was derived from 2005, No. 72 , § 25 and repealed by 2009, No. 46 , § 4.

§ 925. Clean water service provider; Water Quality Restoration Formula Grant Program.

The Secretary shall administer a Water Quality Restoration Formula Grant Program to award grants to clean water service providers to meet the pollutant reduction requirements under this subchapter. The grant amount shall be based on the annual pollutant reduction goal established for the clean water service provider multiplied by the standard cost for pollutant reduction including the costs of administration and reporting. Not more than 15 percent of the total grant amount awarded to a clean water service provider shall be used for administrative costs.

HISTORY: Added 2019, No. 76 , § 1.

§ 926. Water Quality Enhancement Grant Program.

The Secretary shall administer a Water Quality Enhancement Grant Program. This program shall be a competitive grant program to fund projects that protect high quality waters, maintain or improve water quality in all waters, restore degraded or stressed waters, create resilient watersheds and communities, and support the public’s use and enjoyment of the State’s waters. When making awards under this program, the Secretary shall consider the geographic distribution of these funds. Not more than 15 percent of the total grant amount awarded shall be used for administrative costs.

HISTORY: Added 2019, No. 76 , § 1.

§ 927. Developed Lands Implementation Grant Program.

The Secretary shall administer a Developed Lands Implementation Grant Program to provide grants or financing to persons who are required to obtain a permit to implement regulatory requirements that are necessary to achieve water quality standards. The grant or financing program shall only be available in basins where a clean water service provider has met its annual goals or is making sufficient progress, as determined by the Secretary, towards those goals. This grant program shall fund or provide financing for projects related to the permitting of impervious surface of three acres or more under subdivision 1264(g)(3) of this title. Not more than 15 percent of the total grant amount awarded shall be used for administrative costs.

HISTORY: Added 2019, No. 76 , § 1.

§ 928. Municipal Stormwater Implementation Grant Program.

The Secretary shall administer a Municipal Stormwater Implementation Grant Program to provide grants to any municipality required under section 1264 of this title to obtain or seek coverage under the municipal roads general permit, the municipal separate storm sewer systems permit, a permit for impervious surface of three acres or more, or a permit required by the Secretary to reduce the adverse impacts to water quality of a discharge or stormwater runoff. The grant program shall only be available in basins where a clean water service provider has met its annual goals or is making sufficient progress, as determined by the Secretary, towards those goals. Not more than 15 percent of the total grant amount awarded shall be used for administrative costs.

HISTORY: Added 2019, No. 76 , § 1.

§ 929. Clean water project technical assistance.

The Secretary shall provide technical assistance upon the request of any person who, under this chapter, receives a grant or is a subgrantee of funds to implement a clean water project.

HISTORY: Added 2019, No. 76 , § 1.

§ 930. Rulemaking.

The Secretary may adopt rules to implement the requirements of this subchapter.

HISTORY: Added 2019, No. 76 , § 1.

Chapter 39. Watershed Protection and Flood Prevention

CROSS REFERENCES

Connecticut River Flood Control Compact, see § 1151 et seq. of this title.

Dams, see § 1080 et seq. of this title.

Flood hazard areas, see § 751 et seq. of this title.

Water resources management, see § 901 et seq. of this title.

§ 951. Flood prevention, powers of Governor.

The Governor may employ such expert assistance as he or she deems advisable for the purpose of devising ways and means of averting and mitigating damage by floods, and may disseminate such practical information as he or she may obtain thereby.

History

Source.

V.S. 1947, § 429. P.L. § 386. 1927, S., No. 1, § 8.

§ 952. Federal flood control program; natural resources conservation districts as sponsoring agencies.

  1. The natural resources conservation districts may act as local sponsoring agencies under the provisions of Public Law 83-566, for carrying out programs for flood control, stream bank protection, and channel improvements, as well as land treatment and drainage, subject to review and approval by the Department of Environmental Conservation of all plans for projects that affect stream flow.
  2. A municipality, when authorized by a majority of the voters voting at a meeting warned and held for that purpose, may purchase, or acquire by gift, title to land within the State for the purpose of constructing, maintaining, and operating improvements for flood prevention or conserving, developing, using, and disposing of water under Public Law 83-566, and may pay 100 percent or less of the nonfederal costs thereof.

HISTORY: Amended 1961, No. 100 , § 2(b); 1963, No. 111 ; 1961, No. 79 , § 1(b), eff. May 7, 1963; 1966, No. 27 (Sp. Sess.), § 1, eff. March 12, 1966; 1967, No. 303 (Adj. Sess.), § 15(b), eff. March 22, 1968; 1981, No. 222 (Adj. Sess.), § 14; 1987, No. 76 , § 18.

History

Source.

1955, No. 234 , § 1.

References in text.

Public Law 83-566, cited in this section, is Act Aug. 4, 1954, ch. 656, 68 Stat. 666, the Watershed Protection and Flood Prevention Act, and is codified as 16 U.S.C. § 1001 et seq.

Amendments

—1987. Subsec. (a): Substituted “department of environmental conservation” for “department of water resources and environmental engineering” following “approval by the”.

—1981 (Adj. Sess.). Subsec. (a): Substituted “may act” for “are hereby empowered to act” following “conservation districts”, “Public Law 83-566” for “Public Law 566, 83rd Congress of the United States” following “provisions of”, and “department of water resources and environmental engineering” for “Vermont water resources board” and deleted “as provided in said Public Law 566” following “drainage”.

Subsec. (b): Deleted “of Vermont” following “state” and substituted “Public Law 83-566” for “Public Law 566, 83rd Congress of the United States” and “may pay 100 percent or less” for “pay up to 100 percent” preceding “of the nonfederal costs”.

—1967 (Adj. Sess.). Subsec. (a): Substituted “natural resources conservation districts” for “soil and water conservation districts”.

—1966 (Sp. Sess.). Subsec. (b): Amended generally.

—1963. Act No. 11 designated existing provisions of section as subsec. (a) and added subsec. (b).

Act No. 79 substituted “soil and water conservation districts” for “soil conservation districts” in subsec. (a).

—1961. Substituted “Vermont water resources board” for “state water conservation board”.

Notes to Opinions

Multi-purpose dams.

A town has authority to expend money for the use of water in connection with multi-purpose dams if the dam is located within the boundaries of the town but if located outside the town, such authority exists only in connection with a consolidated water district. 1964-66 Vt. Op. Att'y Gen. 280.

A town has the authority to expend money for recreational purposes in connection with multi-purpose dams, provided such expenditure is approved by the voters of such town. 1964-66 Vt. Op. Att'y Gen. 280.

§ 953. Flood prevention contracts under federal programs.

In addition to its powers and duties under chapters 37 and 43 of this title, the Department of Environmental Conservation, when requested by local agencies, and acting alone or with other State or local agencies, with the approval of the Governor, may contract in the name of the State for constructing, maintaining, and operating improvements for flood prevention or conserving, developing, using, and disposing of water under Public Law 83-566. The Department of Environmental Conservation may also give technical or other assistance to natural resources conservation districts and other local sponsoring agencies in carrying out their responsibilities under section 4 of Public Law 83-566. The Commissioner of Environmental Conservation may also acquire real and personal property, including property held for public use, by gift, purchase, lease, or eminent domain, in connection with constructing or carrying out projects under Public Law 83-566.

HISTORY: Amended 1961, No. 100 , § 2; 1966, No. 27 (Sp. Sess.), § 2, eff. March 12, 1966; 1967, No. 303 (Adj. Sess.), § 15(b), eff. March 22, 1968; 1981, No. 222 (Adj. Sess.), § 15; 1987, No. 76 , § 18.

History

Source.

1955, No. 234 , § 2.

References in text.

Public Law 83-566, referred to in this section, is Act Aug. 4, 1954, ch. 656, 68 Stat. 666 and is codified as 16 U.S.C. § 1001 et seq. Section 4 of Public Law 83-566 is codified as 16 U.S.C. § 1004.

Amendments

—1987. Substituted “department of environmental conservation” for “department of water resources and environmental engineering” throughout the section.

—1981 (Adj. Sess.). Substituted “department of water resources and environmental engineering” for “water resources board” in the first and second sentences, “commissioner of the department of water resources and environmental engineering” for “water resources board” in the third sentence, “Public Law 83-566” for “Public Law 566” in the first, second and third sentences, and deleted “the interagency committee on natural resources and” following “approval of” in the first sentence.

—1967 (Adj. Sess.). Substituted “natural resources conservation districts” for “soil and water conservation districts” in the second sentence.

—1966 (Sp. Sess.). Section amended generally.

—1961. Substituted “water resources board” for “water conservation board”.

§ 954. Operation and maintenance of flood prevention structures.

The Department of Environmental Conservation may operate and maintain structures constructed under section 953 of this title or may provide for their operation and maintenance through contracts with natural resources conservation districts or other local organizations.

HISTORY: Amended 1961, No. 100 , § 2; 1963, No. 79 , § 1(b), eff. May 7, 1963; 1967, No. 303 (Adj. Sess.), § 15(b), eff. March 22, 1968; 1981, No. 222 (Adj. Sess.), § 16; 1987, No. 76 , § 18.

History

Source.

1955, No. 234 , § 3.

Amendments

—1987. At the beginning of the section, substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

—1981 (Adj. Sess.). Substituted “department of water resources and environmental engineering may” for “Vermont water resources board is empowered to” and “under section 953 or may” for “under such program or to” following “constructed”.

—1967 (Adj. Sess.). Substituted “natural resources conservation districts” for “soil and water conservation districts.”

—1963. Substituted “soil and water conservation districts” for “soil conservation districts.”

—1961. Substituted “Vermont water resources board” for “state water conservation board”.

CROSS REFERENCES

Soil Conservation Act generally, see § 701 et seq. of this title.

§ 955. Apportionment of State funds.

The Department of Environmental Conservation may apportion among districts or agencies State funds available for maintenance and operation. Apportionment of State funds for this purpose by the Department shall be final.

HISTORY: Amended 1961, No. 100 , § 2; 1981, No. 222 (Adj. Sess.), § 17; 1987, No. 76 , § 18.

History

Source.

1955, No. 234 , § 4.

Amendments

—1987. In the first sentence, substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

—1981 (Adj. Sess.). Section amended generally.

—1961. Substituted “Vermont water resources board” for “water conservation board” in the first sentence.

§ 956. Personnel.

The Department of Environmental Conservation may, with the approval of the Governor, employ personnel necessary in the performance of its duties and the exercise of its powers under this chapter.

HISTORY: Amended 1961, No. 100 , § 2; 1981, No. 222 (Adj. Sess.), § 18; 1987, No. 76 , § 18.

History

Source.

1955, No. 234 , § 5.

Amendments

—1987. At the beginning of the section, substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

—1981 (Adj. Sess.). Substituted “department of water resources and environmental engineering” for “Vermont water resources board” and “this chapter” for “sections 952-955 of this title” and deleted “such” preceding “personnel” and “as may be” thereafter.

—1961. Substituted “Vermont water resources board” for “water conservation board”.

§ 957. State contributions authorized.

The Department of Environmental Conservation may pay 100 percent or less of the nonfederal costs of projects under Public Law 83-566 for the following purposes:

  1. Flood prevention.
  2. Public recreation or fish and wildlife development.
  3. Storage for stream flow augmentation for multiple purposes.

HISTORY: 1966, No. 27 (Sp. Sess.), § 3, eff. March 12, 1966; amended 1981, No. 222 (Adj. Sess.), § 19; 1987, No. 76 , § 18.

History

References in text.

Public Law 83-566, referred to in this section, is Act Aug. 4, 1954, ch. 656, 68 Stat. 666 and is codified as 16 U.S.C. § 1001 et seq.

Amendments

—1987. In the introductory clause, substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

—1981 (Adj. Sess.). In the introductory paragraph, substituted “department of water resources and environmental engineering” for “water resources board” and “83-566” for “566” following “Public Law”, deleted “up to” preceding “100 percent” and inserted “or less” thereafter.

§ 958. Eminent domain; determining necessity.

  1. The Commissioner of Environmental Conservation may file a complaint in the Civil Division of the Superior Court for any county in which a portion of the real estate lies to determine that necessity requires that the State acquire real estate within the State, including real estate held for public use in the name of the State or any municipality, for the purpose of flood control projects.
  2. “Necessity” means a reasonable need that considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner.  It shall not be measured merely by expense or convenience to the condemning party.  Due consideration shall be given to the following factors:
    1. The adequacy of other property and locations.
    2. The quantity, kind, and extent of cultivated and agricultural land that may be made unfit for use by the proposed taking. In this connection, the effect on long-range agricultural land use as well as the immediate effect shall be considered.
    3. The effect of the taking upon home and homestead rights and the convenience of the owner of the land.
    4. The effect of the taking upon scenic and recreational values in the areas involved.
    5. The effect upon town grand lists and revenues.
    6. The effect upon fish and wildlife, forests and forest programs, the natural flow of water and the streams both above and below any proposed structure, upon hazards to navigation, fishing, and bathing, and upon other public uses.
    7. Whether the cutting clean and removal of all timber and tree growth from all or any part of any flowage area involved is reasonably required.
  3. The complaint, the service thereof and the proceedings in relation thereto, including rights of appeal, shall conform with and be controlled by 19 V.S.A. chapter 5.

HISTORY: Added 1966, No. 27 (Sp. Sess.), § 4, eff. March 12, 1966; amended 1981, No. 222 (Adj. Sess.), § 20; 1987, No. 76 , § 18; 2009, No. 154 (Adj. Sess.), § 236; 2011, No. 126 (Adj. Sess.), § 6.

History

Revision note

—2011 (Adj. Sess.). Substituted “in the civil division of the superior court” for “in the superior court” in subsec. (a).

Amendments

—2011 (Adj. Sess.) Subsec. (a): Substituted “may file a complaint in” for “may petition” preceding “the superior court”.

Subsec. (c): Substituted “complaint” for “petition” and “19 V.S.A. chapter 5” for “chapter 5 of Title 19”.

—1987. Subsec. (a): Substituted “department of environmental conservation” for “department of water resources and environmental engineering” following “commissioner of the”.

—1981 (Adj. Sess.). Subsec. (a): Amended generally.

Statutory revision. 2009, No. 154 (Adj. Sess.), § 236 provides: “The staff of the legislative council, in its statutory revision capacity, is authorized and directed to make such amendments to the Vermont Statutes Annotated as are necessary to effect the purpose of this act, including, where applicable, substituting the words ‘superior court,’ ‘civil division,’ ‘criminal division,’ ‘family division,’ ‘environmental division,’ or ‘probate division,’ as appropriate, for the words ‘district court,’ ‘family court,’ ‘probate court,’ and ‘environmental court.’ These amendments shall be made when new legislation is proposed or where there is a republication of a volume of the Vermont Statutes Annotated.”

§ 959. Repealed. 2011, No. 126 (Adj. Sess.), § 5.

History

Former § 959. Former § 959, relating to determination of damages for taking of land for flood control project, was derived from 1966, No. 27 (Sp. Sess.), § 5 and amended by 1981, No. 222 (Adj. Sess.), § 21 and 1987, No. 76 , § 18.

§ 960. Entry authorized.

The Commissioner of Environmental Conservation or his or her authorized agents may enter upon any real estate at reasonable times and places for the purpose of making surveys or other investigations under this section, subsection 952(b) and sections 953, 957-958, and 961 of this title. The owners of damaged real estate may recover for damages sustained by reason of the preliminary entry authorized by this section in an action at law against the Commissioner.

HISTORY: Added 1966, No. 27 (Sp. Sess.), § 6, eff. March 12, 1966; amended 1981, No. 222 (Adj. Sess.), § 22; 1987, No. 76 , § 18; 2011, No. 126 (Adj. Sess.), § 6.

History

Revision note

—2010. Substituted “subsection 952(b) and sections” for “and sections 952(b), 953” to conform references to V.S.A. style.

Revision note—. Inserted “of this title” following “sections 952(b), 953, 957-959 and 961” to conform reference to V.S.A. style.

Amendments

—2011 (Adj. Sess.) Substituted “957-958” for “957-959” at the end of the first sentence.

—1987. At the beginning of the first sentence, substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

—1981 (Adj. Sess.). Section amended generally.

§ 961. Construction contracts administered.

A sponsoring organization that enters into a project under section 952 of this title may administer construction contracts pertaining to the project, except that the Commissioner of Environmental Conservation may administer those contracts if State funds are involved in the project.

HISTORY: 1966, No. 27 (Sp. Sess.), § 7, eff. March 12, 1966; amended 1981, No. 222 (Adj. Sess.), § 23; 1987, No. 76 , § 18.

History

Amendments

—1987. Substituted “department of environmental conservation” for “department of water resources and environmental engineering” following “commissioner of the”.

—1981 (Adj. Sess.). Substituted “commissioner of the department of water resources and environmental engineering may” for “water resources board shall” preceding “administer those contracts” and deleted “unless it otherwise directs” following “project”.

Chapter 41. Regulation of Stream Flow

CROSS REFERENCES

Dams, see § 1080 et seq. of this title.

Department of Environmental Conservation, see § 905a et seq. of this title.

Enforcement of environmental laws generally, see § 8001 et seq. of this title.

General provisions relating to rivers and streams, see § 141 et seq. of Title 25.

Management of lakes and ponds, see § 401 et seq. of Title 29.

Water withdrawal for snowmaking, see § 1031 et seq. of this title.

Subchapter 1. General Provisions

§ 1001. Purpose.

The Department of Environmental Conservation is created to administer the water conservation policy of this State. It is in the public interest that the waters of the State shall be protected, regulated, and where necessary controlled under the authority of the State. The proper administration of the water resources now and for the future require careful consideration of the interruption of the natural flow of water in our watercourses resulting from the construction of new, and the operation of existing dams, diversion, and other control structures. This subchapter is intended to identify this need, to provide a means for the investigation of the cause and effect of intermittent or diverted flow, and for the consideration of corrective actions required to assure as nearly continuous flow of waters in the natural watercourses as may be possible consistent with reasonable use of riparian rights.

HISTORY: 1965, No. 37 , § 1; amended 1981, No. 222 (Adj. Sess.), § 24; 1987, No. 76 , § 18.

History

Amendments

—1987. In the first sentence, substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

—1981 (Adj. Sess.). Rewrote former first sentence as present first and second sentences and substituted “department of water resources and environmental engineering” for “Vermont water resources board” in the first sentence.

Law Reviews —

For note, “Streamflow Policy in Vermont: Managing Conflicting Demands on the State’s Waters”, see 19 Vt. L. Rev. 191 (1994).

§ 1002. Definitions.

Wherever used or referred to in this chapter, unless a different meaning clearly appears from the context:

  1. “Artificial regulation of stream flow” means the intermittent or periodic manipulation of water levels and the intermittent or periodic regulation of discharge of water into the stream below the dam.
  2. “Banks” means that land area immediately adjacent to the bed of the stream, which is essential in maintaining the integrity thereof.
  3. “Bed” means the maximum area covered by waters of the stream for not less than 15 consecutive days in one year.
  4. “Board” means the Natural Resources Board.
  5. “Cross section” means the entire channel to the top of the banks.
  6. “Dam” applies to any artificial structure on a stream, or at the outlet of a pond or lake, that is utilized for holding back water by ponding or storage together with any penstock, flume, piping, or other facility for transmitting water downstream to a point of discharge, or for diverting water from the natural watercourse to another point for utilization or storage.
  7. “Department” means the Department of Environmental Conservation.
  8. “Instream material” means:
    1. all gradations of sediment from silt to boulders;
    2. ledge rock; or
    3. large woody debris in the bed of a watercourse or within the banks of a watercourse.
  9. “Person” means any individual; partnership; company; corporation; association; unincorporated association; joint venture; trust; municipality; the State of Vermont or any agency, department, or subdivision of the State; any federal agency; or any other legal or commercial entity.
  10. “Watercourse” means any perennial stream. “Watercourse” shall not include ditches or other constructed channels primarily associated with land drainage or water conveyance through or around private or public infrastructure.
  11. “Secretary” means the Secretary of Natural Resources, or the Secretary’s duly authorized representative.
  12. “Berm” means a linear fill of earthen material on or adjacent to the bank of a watercourse that constrains waters from entering a flood hazard area or river corridor, as those terms are defined in subdivisions 752(3) and (11) of this title.
  13. “Large woody debris” means any piece of wood within a watercourse with a diameter of 10 or more inches and a length of 10 or more feet that is detached from the soil where it grew.

HISTORY: Added 1965, No. 37 , § 2; amended 1975, No. 150 (Adj. Sess.), § 1; 1981, No. 222 (Adj. Sess.), § 24; 1983, No. 193 (Adj. Sess.), § 9, eff. April 27, 1984; 1987, No. 67 , § 10; 1987, No. 76 , § 18; 1997, No. 106 (Adj. Sess.), § 1, eff. April 27, 1998; 2003, No. 115 (Adj. Sess.), § 18, eff. Jan. 31, 2005; 2009, No. 110 (Adj. Sess.), § 13, eff. March 31, 2011; 2011, No. 138 (Adj. Sess.), § 2, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Rewrote subdiv. (8), which formerly read: “Repealed”.

Subdivs. (12) and (13): Added.

—2009 (Adj. Sess.) Subdiv. (10): Amended generally.

—2003 (Adj. Sess.). Subdiv. (4): Substituted “natural” for “Vermont water” preceding “resources”.

Subdiv. (9): Amended generally.

—1997 (Adj. Sess.). Added “or the secretary’s duly authorized representative” to the end of subdiv. (11).

—1987. Subdiv. (7): Act No. 76 substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

Subdiv. (11): Added by Act No. 67.

Act No. 76 substituted “agency of natural resources” for “agency of environmental conservation”.

—1983 (Adj. Sess.). Subdiv. (8): Repealed.

—1981 (Adj. Sess.). Section amended generally.

—1975 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Cited.

Cited in In re Vermont Marble Co., 162 Vt. 355, 648 A.2d 381, 1994 Vt. LEXIS 73 (1994).

§ 1003. Conference; recommendations.

Whenever, in the opinion of the Department, it appears that the artificial regulation of stream flow as maintained by any person threatens the public interest or welfare or an emergency exists or is threatened, the Department may call to conference the owner or owners of the dam causing the artificial regulation and other persons having an interest therein, for the purpose of seeking cooperation in altered regulation to minimize damage to the public interest under the policy of this chapter. As a result of the conference, the Department may require action be taken by the person owning the dam with respect to the release of water as it may consider necessary and proper in the public interest, and shall issue findings of fact developed at the conference. For dams or diversions not licensed under 16 U.S.C. § 800, existing permits may be amended where those permits do not contain conditions with respect to minimum stream flow. For federally licensed facilities, the Secretary may negotiate the modification of stream flow, and if the Secretary’s recommendations are not agreed to, the Secretary may petition the Federal Energy Regulatory Commission (FERC) for license amendments.

HISTORY: Added 1965, No. 37 , § 3; amended 1981, No. 222 (Adj. Sess.), § 24; 1987, No. 67 , § 11.

History

Amendments

—1987. Added “under the policy of this chapter” following “public interest” at the end of the first sentence, substituted “require” for “recommend” preceding “action” and deleted “to” thereafter and “and state the basis of its recommendations” following “conference” in the second sentence, and added the third and fourth sentences.

—1981 (Adj. Sess.). Substituted “department” for “board.”

§ 1004. State’s agent.

The Secretary shall be the agent to coordinate the State interest before the Federal Energy Regulatory Commission in all matters involving water quality and regulation or control of natural stream flow through the use of dams situated on streams within the boundaries of the State, and it shall advise the Federal Energy Regulatory Commission of the amount of flow considered necessary in each stream under consideration. The Agency of Natural Resources shall be the certifying agency of the State for purposes of Section 401 of the federal Clean Water Act and the Secretary’s determinations on these certifications shall be final action by the Secretary appealable to the Environmental Division. The Secretary shall be the agent of the State and shall represent the State’s interest under the provisions of the Federal Power Act, including those that protect State-designated outstanding resource waters. However, the Secretary’s authority shall not infringe upon the powers and duties of the Public Utility Commission or the relations of that Commission to the Federal Energy Regulatory Commission as set forth in the Federal Power Act respecting water used for the development of hydroelectric power or projects incident to the generation of electric energy for public use as part of a public utility system.

HISTORY: Added 1965, No. 37 , § 4; amended 1981, No. 222 (Adj. Sess.), § 24; 1983, No. 193 (Adj. Sess.), § 3, eff. April 27, 1984; 1987, No. 67 , § 12; 1987, No. 76 , § 18; 1991, No. 81 , § 1; 2003, No. 115 (Adj. Sess.), § 19, eff. Jan. 31, 2005.

History

References in text.

The Federal Power Act, referred to in this section, is codified as 16 U.S.C. § 791a et seq.

Section 401 of the federal Clean Water Act, referred to in this section, is codified as 33 U.S.C. § 1341.

Revision note

—2018. Substituted “Environmental Division” for “environmental court” in the second sentence in accordance with 2009, No. 154 (Adj. Sess.), § 236.

—2017. Substituted “Public Utility Commission” for “Public Service Board” and “Commission” for “Board” in the fourth sentence in accordance with 2017, No. 53 , § 12.

Amendments

—2003 (Adj. Sess.). Substituted “environmental court” for “water resources board” in the second sentence.

—1991. Added “and the secretary’s determinations on these certifications shall be final action by the secretary appealable to the water resources board” following “Act” in the second sentence.

—1987. Act No. 67 substituted “secretary” for “department” preceding “shall be the agent” in the first sentence and “agency of environmental conservation” for “department” preceding “shall be the certifying” in the second sentence, added the third sentence, and substituted “secretary’s” for “department’s” preceding “authority” in the fourth sentence.

Act No. 76 substituted “agency of natural resources” for “agency of environmental conservation” in the second sentence.

—1983 (Adj. Sess.). Substituted “Federal Energy Regulatory Commission” for “federal power commission” wherever it appeared, inserted “water quality and” preceding “regulation” in the first sentence and added the second sentence.

—1981 (Adj. Sess.). Substituted “department” for “board” and deleted “after due consultation and review by the interagency committee on natural resources” after “consideration” in the first sentence, substituted “department’s” for “board’s” in the second sentence and deleted the third sentence.

Legislative council statutory revision authority. 2009, No. 154 (Adj. Sess.), § 236 provides: “The staff of the legislative council, in its statutory revision capacity, is authorized and directed to make such amendments to the Vermont Statutes Annotated as are necessary to effect the purpose of this act, including, where applicable, substituting the words ‘superior court,’ ‘civil division,’ ‘criminal division,’ ‘family division,’ ‘environmental division,’ or ‘probate division,’ as appropriate, for the words ‘district court,’ ‘family court,’ ‘probate court,’ and ‘environmental court.’ These amendments shall be made when new legislation is proposed or where there is a republication of a volume of the Vermont Statutes Annotated.”

CROSS REFERENCES

Issuance of preliminary permits or licenses for hydroelectric projects, see 16 U.S.C. § 800.

License requirements generally, see 16 U.S.C. § 803.

Licensing of certain small power production facilities subject to PURPA benefits, see 16 U.S.C. § 824a -3.

ANNOTATIONS

Delegable powers.

There was a reasonable basis from which to infer authority for the Secretary of the Vermont Agency of Natural Resources (ANR) to delegate to the Commissioner of the Department of Environmental Conservation (DEC) the power to issue water quality certificates where there was a lack of consistency in the legislature’s treatment of subdelegation of authority, the delegation, in this case, was to an official who was appointed with the approval of the Governor and served at the pleasure of the Secretary, and the delegation was accomplished by administrative regulation not on an ad hoc basis. In re Vermont Marble Co., 162 Vt. 355, 648 A.2d 381, 1994 Vt. LEXIS 73 (1994).

There was no indication that a purpose of the legislative amendment to 10 V.S.A. § 1004 , adding the phrase “the secretary’s determinations on these certifications shall be final action by the secretary appealable to the water resources board,” was to modify the subdelegation powers of the Secretary of the Vermont Agency of Natural Resources (ANR); the purpose of the amendment was to make certification decisions appealable to the Water Resources Board. In re Vermont Marble Co., 162 Vt. 355, 648 A.2d 381, 1994 Vt. LEXIS 73 (1994).

Requiring the Secretary of the Vermont Agency of Natural Resources (ANR) to decide whether to issue specific permits, and what conditions to impose on those permits, risks overburdening the Secretary, making it more difficult to carry out the broad mandate assigned to the position. In re Vermont Marble Co., 162 Vt. 355, 648 A.2d 381, 1994 Vt. LEXIS 73 (1994).

Allowing the Secretary of the Vermont Agency of Natural Resources (ANR) to subdelegate to the Commissioner of the Department of Environmental Conservation (DEC) the power to issue water quality certificates (mandated by § 401 of the Clean Water Act, 33 U.S.C. § 1341(a) (1)) was logical and not inconsistent with sensitive federal/state relations where testing was an area of DEC expertise, and not an area requiring an exercise of judgment or discretion by the ANR Secretary, and DEC Commissioner was the one charged with the expertise to administer the state’s water resources programs. In re Vermont Marble Co., 162 Vt. 355, 648 A.2d 381, 1994 Vt. LEXIS 73 (1994).

Cited.

Cited in In re Clyde River Hydroelectric Project, 2006 VT 11, 179 Vt. 606, 895 A.2d 736, 2006 Vt. LEXIS 25 (2006) (mem.).

§ 1005. Repealed. 1991, No. 174 (Adj. Sess.), § 2, eff. May 15, 1997.

History

Former § 1005. Former § 1005, relating to funding of certifications and deposits in the hydroelectric escrow fund, was derived from 1991, No. 174 (Adj. Sess.), § 1. The subject matter is now covered by § 1005a of this title.

§ 1005a. Agency of Natural Resources; hydroelectric escrow fund.

  1. The Secretary of Natural Resources, with the approval of the Secretary of Administration, shall have the authority to enter into one or more written contracts with persons or entities to fund certifications under Section 401 of the federal Clean Water Act and State reviews and comments on Federal Energy Regulatory Commission (FERC) hydroelectric licensing as undertaken by or at the direction of the Agency of Natural Resources as the State’s agent under section 1004 of this title.  Funding provided under this section for such studies shall not exceed $300,000.00 in the aggregate in any fiscal year. Such contracts shall establish mutually agreed upon study budgets, provide a means for tracking costs as they are incurred by the Agency in conducting the studies, establish a procedure for rendering periodic billings to the persons or entities contracting with the Agency for the payment of such costs, and provide for an annual accounting of all such expenditures through the annual State budget process.  The term of any such contract may not exceed three years. The Agency of Natural Resources may enter into one or more contracts with more than one person or entity providing for payment of such costs through an agent, provided such agent is mutually agreed upon by the participating persons or entities and the Agency.
  2. All payments made to the Agency under such contracts shall be deposited into a special escrow fund created by the persons or entities with whom the Agency has contracted, to be known as the Hydroelectric Licensing Fund.  All unencumbered balances in the Fund at the end of any fiscal year shall revert to the persons or entities contracted with on a prorated basis. Disbursements from the Fund shall be made to the Agency of Natural Resources to support those programs of the Agency of Natural Resources incurring the costs of conducting the studies.

HISTORY: Added 1997, No. 59 , § 39a, eff. June 30, 1997.

History

References in text.

Section 401 of the Federal Clean Water Act, referred to in subsec. (a) of this section, is codified as 33 U.S.C. § 1341.

§ 1006. Certification of hydroelectric projects; application process.

  1. As used in this section:
    1. “Bypass reach” means that area in a waterway between the initial point where water has been diverted through turbines or other mechanical means for the purpose of water-powered generation of electricity and the point at which water is released into the waterway below the turbines or other mechanical means of electricity generation.
    2. “Conduit” means any tunnel, canal, pipeline, aqueduct, flume, ditch, or similar constructed water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity.
    3. “Hydroelectric project” means a facility, site, or conduit planned or operated for the generation of water-powered electricity that has a generation capacity of no more than 1 megawatt and does not create a new impoundment.
    4. “Impoundment” means “riverine impoundment” as defined in the Vermont water quality standards adopted pursuant to chapter 47 and subdivision 6025(d)(3) of this title.
  2. On or before December 15, 2009, the Agency of Natural Resources, after opportunity for public review and comment, shall adopt by procedure an application process for the certification of hydroelectric projects in Vermont under Section 401 of the federal Clean Water Act.
  3. The application process adopted by the Agency of Natural Resources under subsection (b) of this section may include an application form for a federal Clean Water Act Section 401 certification for a hydroelectric project that meets the requirements of the Vermont water pollution control permit rules. The application form may require information addressing:
    1. a description of the proposed hydroelectric project and the impact of the project on the watershed;
    2. the preliminary terms and conditions that an applicant shall be subject to if a federal Clean Water Act Section 401 certification is issued for a proposed hydroelectric project; and
    3. time frames for the Agency of Natural Resources review of and response to an application for a federal Clean Water Act Section 401 certification of a hydroelectric project.
  4. In adopting the Clean Water Act Section 401 certification application process required by subsection (b) of this section, the Agency may, consistent with its authority to waive certifications under 33 U.S.C. § 1341(a) (1), adopt an expedited certification process for:
    1. hydroelectric projects when data provided by an applicant provide reasonable assurance that the project will comply with the State water quality standards;
    2. hydroelectric projects utilizing conduits; hydroelectric projects without a bypass reach; and hydroelectric projects with a de minimis bypass reach, as defined by the Agency of Natural Resources; and
    3. previously certified hydroelectric projects operating in compliance with the terms of a Clean Water Act Section 401 certification as demonstrated by existing administrative, monitoring, reporting, or enforcement data.

HISTORY: Added 2009, No. 54 , § 39, eff. June 1, 2009.

History

References in text.

Section 6025(d) of Title 10, referred to in this section, was repealed by 2011, No. 138 (Adj. Sess.), § 24, eff. May 14, 2012.

Section 401 of the federal Clean Water Act, referred to in this section, is codified as 33 U.S.C. § 1341.

Subchapter 2. Alteration of Streams

§ 1021. Alteration prohibited; exceptions.

  1. A person shall not change, alter, or modify the course, current, or cross section of any watercourse or of designated outstanding resource waters, within or along the boundaries of this State either by movement, fill, or excavation of ten cubic yards or more of instream material in any year, unless authorized by the Secretary. A person shall not establish or construct a berm in a flood hazard area or river corridor, as those terms are defined in subdivisions 752(3) and (11) of this title, unless permitted by the Secretary or constructed as an emergency protective measure under subsection (b) of this section.
  2. The requirements of subsection (a) of this section shall not apply to emergency protective measures necessary to preserve life or to prevent severe imminent damage to public or private property, or both. The protective measures shall:
    1. be limited to the minimum amount necessary to remove imminent threats to life or property;
    2. have prior approval from a member of the municipal legislative body;
    3. be reported to the Secretary by the legislative body within 24 hours after the onset of the emergency; and
    4. be implemented in a manner consistent with the general permit adopted under section 1027 of this title regarding stream alteration during emergencies.
  3. No person shall remove gravel from any watercourse primarily for construction or for sale.
  4. Notwithstanding subsection (c) of this section, a riparian owner may remove up to 50 cubic yards of gravel per year from that portion of a watercourse running through or bordering on the owner’s property, provided:
    1. the material shall be removed only for the owner’s use on the owner’s property;
    2. the material removed shall be above the waterline;
    3. at least 72 hours prior to the removal of 10 cubic yards, or more, the landowner shall notify the Secretary;
    4. however, if the portion of the watercourse in question has been designated as outstanding resource waters, then the riparian owner may so remove no more than 10 cubic yards of gravel per year, and must notify the Secretary at least 72 hours prior to the removal of any gravel.
  5. This subchapter does not apply to dams subject to chapter 43 of this title nor to highways or bridges subject to 19 V.S.A. § 10(12) .
  6. This subchapter shall not apply to:
    1. accepted silvicultural practices, as defined by the Commissioner of Forests, Parks, and Recreation, including practices which are in compliance with the Acceptable Management Practices for Maintaining Water Quality on Logging Jobs in Vermont, as adopted by the Commissioner of Forests, Parks, and Recreation; or
    2. a farm that is implementing an approved U.S. Department of Agriculture Natural Resource Conservation Service streambank stabilization project or a streambank stabilization project approved by the Secretary of Agriculture, Food and Markets that is consistent with policies adopted by the Secretary of Natural Resources to reduce fluvial erosion hazards.
  7. Nothing in this chapter shall prohibit, in the normal use of land, the fording of or access to a watercourse by a person with the right or privilege to use the land.
    1. Notwithstanding any other provisions of this section, recreational mineral prospectors: (h) (1) Notwithstanding any other provisions of this section, recreational mineral prospectors:
      1. shall not operate suction dredges in any watercourse;
      2. may operate sluice boxes in any watercourse, provided:
        1. a request for approval to conduct mineral prospecting shall be filed with and approved by the Secretary; and
        2. mineral prospecting shall not be conducted on private land without landowner permission, or on State land without permission from the Secretary.
    2. Hand panning prospecting techniques shall be exempt from this subchapter.

HISTORY: Added 1965, No. 111 , § 1, eff. June 22, 1965; amended 1969, No. 281 (Adj. Sess.), § 6; 1975, No. 150 (Adj. Sess.), § 2; 1981, No. 222 (Adj. Sess.), § 24; 1983, No. 193 (Adj. Sess.), § 4, eff. April 27, 1984; 1987, No. 67 , § 4; 1997, No. 106 (Adj. Sess.), § 2, eff. April 27, 1998; 1999, No. 156 (Adj. Sess.), § 32, eff. May 29, 2000; 2003, No. 42 , § 2, eff. May 27, 2003; 2009, No. 110 (Adj. Sess.), § 14, eff. March 31, 2011; 2011, No. 138 (Adj. Sess.), § 3, eff. March 1, 2013; 2015, No. 64 , § 22.

History

Amendments

—2015. Subsec. (f): Amended generally.

—2011 (Adj. Sess.). Subsec. (a): Added “of instream material” in the first sentence, and added the last sentence.

Subsec. (b): Amended generally.

—2009 (Adj. Sess.) Subsec. (a): Deleted “with a drainage area greater than ten square miles at the location of the proposed change, alteration or modification” following “water course”, and made minor changes in punctuation throughout.

—2003. Subsec. (f): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets”.

—1999 (Adj. Sess.) Subsec. (e): Substituted “ 19 V.S.A. § 10(12) ” for “section 5 of Title 19”.

—1997 (Adj. Sess.). Added subsec. (h).

—1987. Section amended generally.

—1983 (Adj. Sess.). Substituted “department” for “division” in the first and third sentences and “or” for “and/or” preceding “private property” and added “or both” thereafter in the second sentence.

—1981 (Adj. Sess.). Substituted “division” for “agency” wherever it appeared.

—1975 (Adj. Sess.). Section amended generally.

—1969 (Adj. Sess.). Substituted “water resources department” for “Water Resources Board” in the first sentence.

ANNOTATIONS

Cited.

Cited in In re Vermont Marble Co., 162 Vt. 355, 648 A.2d 381, 1994 Vt. LEXIS 73 (1994).

§ 1022. Application for alteration.

A person proposing to change, alter, or modify the course, current, or cross section of a watercourse shall apply in writing to the Secretary for a permit to do so. The application shall describe the location and purpose of the proposed change and shall be accompanied by the maps and plans and other information the Secretary shall direct. When an application is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title and the requirements of this subchapter.

HISTORY: Added 1965, No. 111 , § 2, eff. June 22, 1965; amended 1969, No. 281 (Adj. Sess.), § 7; 1975, No. 150 (Adj. Sess.), § 3; 1979, No. 159 (Adj. Sess.), § 12; 1981, No. 222 (Adj. Sess.), § 24; 1983, No. 193 (Adj. Sess.), § 5, eff. April 27, 1984; 1987, No. 67 , § 5; 2015, No. 150 (Adj. Sess.), § 10, eff. Jan. 1, 2018.

History

Amendments

—2015 (Adj. Sess.). Rewrote third sentence.

—1987. Substituted “secretary” for “department” preceding “for a permit” in the first sentence and following “information the” in the second sentence and added “and mailed to each owner of property that abuts or is opposite the land where the alteration is to take place” following “located” in the third sentence.

—1983 (Adj. Sess.). Substituted “department” for “division” in the first and second sentences.

—1981 (Adj. Sess.). Substituted “division” for “agency” in the first and second sentences, deleted “described in section 1002 of this title” following “watercourse” in the first sentence, deleted the fifth sentence, and made other minor stylistic changes.

—1979 (Adj. Sess.). Substituted “division of protection” for “department of water resources” in the fifth sentence.

—1975 (Adj. Sess.). Section amended generally.

—1969 (Adj. Sess.). Substituted “department” for “board” in the first and second sentences and added the fourth sentence.

§ 1023. Investigation, permit.

  1. Upon receipt of an application, the Secretary shall cause an investigation of the proposed change to be made. Prior to making a decision, a written report shall be made by the Secretary concerning the effect of the proposed change on the watercourse. The permit shall be granted, subject to such conditions determined to be warranted, if it appears that the change:
    1. will not adversely affect the public safety by increasing flood or fluvial erosion hazards;
    2. will not significantly damage fish life or wildlife;
    3. will not significantly damage the rights of riparian owners; and
    4. in case of any waters designated by the Secretary as outstanding resource waters, will not adversely affect the values sought to be protected by designation.
  2. The reasons for the action taken under this section shall be set forth in writing to the applicant.
  3. If the local legislative body and planning commission determine in writing by majority vote of each that instream material in a watercourse is threatening life or property, due to increased potential for flooding, and that the removal of instream material is necessary to prevent the threat to life or property, and if a complete permit application has been submitted to the Secretary, requesting authority to remove instream material in the minimum amount necessary to remove threats to life or property, the local legislative body and the planning commission may request an expedited review of the complete permit application by notifying the Secretary and providing copies of their respective decisions. If the Secretary fails to approve or deny the application within 45 calendar days of receipt of notice of the decisions, the application shall be deemed approved and a permit shall be deemed to have been granted. Instream material removed shall be used only for public purposes, and cannot be sold, traded, or bartered. The fact that an application for a permit has been filed under this subsection shall not limit the ability to take emergency measures under subsection 1021(b) of this title. For the purposes of section 1024 of this title, if a permit has been deemed to have been granted under this subsection, that permit shall constitute a decision of the Secretary.
    1. The Secretary shall conduct training programs or seminars regarding how to conduct stream alteration, water quality review, stormwater discharge, fish and wildlife habitat preservation, and wastewater discharge activities necessary during: (d) (1) The Secretary shall conduct training programs or seminars regarding how to conduct stream alteration, water quality review, stormwater discharge, fish and wildlife habitat preservation, and wastewater discharge activities necessary during:
      1. a state of emergency declared under 20 V.S.A. chapter 1;
      2. flooding; or
      3. other emergency conditions that pose an imminent risk to life or a risk of damage to public or private property.
    2. The Secretary shall make the training programs or seminars available to Agency employees in an Agency division other than the watershed management division, employees of other State and federal agencies, regional planning commission members and employees, municipal officers and employees, and State, municipal, and private contractors.
  4. The Secretary is authorized to enter into reciprocal mutual aid agreements or compacts with other states to assist the Secretary and the State in addressing watershed, river management, and transportation system issues that arise when a state of emergency is declared under 20 V.S.A. chapter 1.

HISTORY: Added 1965, No. 111 , § 3, eff. June 22, 1965; amended 1969, No. 281 (Adj. Sess.), § 8; 1975, No. 150 (Adj. Sess.), § 4; 1981, No. 222 (Adj. Sess.), § 24; 1983, No. 193 (Adj. Sess.), § 6, eff. April 27, 1984; 1987, No. 67 , § 6; 1999, No. 114 (Adj. Sess.), § 1, eff. May 19, 2000; 2011, No. 138 (Adj. Sess.), § 4, eff. May 14, 2012; 2013, No. 161 (Adj. Sess.), § 72; 2015, No. 150 (Adj. Sess.), § 11, eff. Jan. 1, 2018.

History

Revision note

—2014. Subsec. (b): Substituted “selectboard” for “selectmen” in accordance with 2013, No. 161 (Adj. Sess.), § 72.

—Revision note—2012. Subsec. (f), as added by 2011, No. 138 (Adj. Sess.), § 4, was redesignated as subsec. (e) to be alphabetically correct.

Revision note—. In the catchline, deleted “appeal, hearing” following “permit” to conform catchline to subject matter of section.

Amendments

—2015 (Adj. Sess.). Subsec. (b): Deleted the former second sentence, which read, “Notice of the action of the Secretary shall also be sent to the selectboard of the town in which the proposed change is located, and to each owner of property which abuts or is opposite the land where the alteration is to take place”.

—2011 (Adj. Sess.). Subdiv. (a)(1): Added “or fluvial erosion”.

Subsec. (c): Substituted “instream material” for “gravel” throughout.

Subsecs. (d) and (f): Added.

—1999 (Adj. Sess.). Subsec. (c): Added.

—1987. Section amended generally.

—1983 (Adj. Sess.). Substituted “department” for “division” in the first, second and fifth sentences.

—1981 (Adj. Sess.). Section amended generally.

—1975 (Adj. Sess.). Section amended generally.

—1969 (Adj. Sess.). Designated existing provisions of section as subsec. (a), rewrote that subsec., and added subsec. (b).

ANNOTATIONS

Evidence.

In a hearing on town’s application for a stream alteration permit in order to repair and replace a dam, the water resources board did not err in refusing to admit evidence presented by the town regarding its use of water in the dam impoundment area for fire safety, because the plain language of this section sets out specific factors, and if any one of them is not met, the permit is to be denied. Town of Groton v. Agency of Natural Resources, 172 Vt. 578, 772 A.2d 1103, 2001 Vt. LEXIS 153 (2001).

In a hearing on town’s application for a stream alteration permit in order to repair and replace a dam, where the dam was gone and the stream was in its natural state when the town completed its application and when it filed its de novo appeal, the water resources board did not err in using the condition of the river after the dam was washed out as the baseline in its determination that granting the permit would result in a change in the watercourse that would “significantly damage fish life.” Town of Groton v. Agency of Natural Resources, 172 Vt. 578, 772 A.2d 1103, 2001 Vt. LEXIS 153 (2001).

Cited.

Cited in In re Vermont Marble Co., 162 Vt. 355, 648 A.2d 381, 1994 Vt. LEXIS 73 (1994).

§ 1024. Appeals.

Appeals of any act or decision of the Secretary under this chapter shall be made in accordance with chapter 220 of this title.

HISTORY: Added 1965, No. 111 , § 4, eff. June 22, 1965; amended 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972; 1975, No. 150 (Adj. Sess.), § 5; 1981, No. 222 (Adj. Sess.), § 24; 1983, No. 193 (Adj. Sess.), § 7, eff. April 27, 1984; 1987, No. 67 , § 7; 1991, No. 81 , § 2; 1997, No. 161 (Adj. Sess.), § 9, eff. Jan. 1, 1998; 2001, No. 94 (Adj. Sess.), § 2; 2003, No. 115 (Adj. Sess.), § 20, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Section amended generally.

—2001 (Adj. Sess.) Subsec. (b): Amended generally.

—1997 (Adj. Sess.). Subsec. (b): Substituted “board” for “superior court” in the second sentence.

—1991. Subsec. (a): Inserted “or section 1004” following “section 1023” in the first sentence.

—1987. Subsec. (a): Substituted “secretary” for “department” preceding “under” in the first sentence and at the end of the second sentence and “secretary’s” for “department’s” preceding “action” at the end of the first sentence.

—1983 (Adj. Sess.). Subsec. (a): Substituted “department” for “division” in the first and second sentences and “department’s” for “division’s” preceding “action” in the first sentence.

—1981 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Substituted “board” for “secretary” in the first sentence and “board’s” for “secretary’s” in the second sentence and deleted the third sentence.

—1975 (Adj. Sess.). Section amended generally.

—1971 (Adj. Sess.). Substituted “county court” for “court of chancery”.

CROSS REFERENCES

Appeals from decisions of governmental agencies, see Rule 74, V.R.C.P.

ANNOTATIONS

Cited.

Cited in In re Vermont Marble Co., 162 Vt. 355, 648 A.2d 381, 1994 Vt. LEXIS 73 (1994).

§ 1025. Penalty.

  1. A prosecution under this subsection may be commenced in the Superior Court of the county in which the alleged violation occurred.  A person who violates a provision of this subchapter may be fined not more than $10,000.00.  Each violation may be a separate offense upon commission.  In the case of a continuing violation, each day’s continuance thereof may be deemed a separate offense, starting from the day the violator is served with notice of the violation.  The service shall be by hand or by certified mail, return receipt requested.
  2. For a violation of this subchapter, the Secretary may order restoration, and the responsible party or parties will bear the cost of restoration.  Restoration will be under the supervision of the Secretary and will be deemed satisfactory only after receiving the approval of the Secretary.

HISTORY: Added 1965, No. 111 , § 5, eff. June 22, 1965; amended 1969, No. 281 (Adj. Sess.), § 9; 1975, No. 150 (Adj. Sess.), § 6; 1981, No. 222 (Adj. Sess.), § 24; 1987, No. 67 , § 8.

History

Amendments

—1987. Section amended generally.

—1981 (Adj. Sess.). Deleted “and distinct” preceding “offense” in the second sentence.

—1975 (Adj. Sess.). Deleted “or a municipality” following “person” and “less than $50.00 nor” preceding “more than $1,000.00” in the first sentence.

—1969 (Adj. Sess.). Added the second sentence.

§ 1026. Repealed. 1989, No. 98, § 4(b).

History

Former § 1026. Former § 1026, relating to injunctive relief, was derived from 1975, No. 150 (Adj. Sess.), § 24; and amended by 1983, No. 193 (Adj. Sess.), § 8; 1987, No. 67 , § 9.

§ 1027. Rulemaking; emergency permit.

  1. The Secretary may adopt rules to implement the requirements of this subchapter.
  2. The Secretary shall adopt rules regarding the permitting of stream alteration activities under this subchapter during a state of emergency declared under 20 V.S.A. chapter 1 or during flooding or other emergency conditions that pose an imminent risk to life or a risk of damage to public or private property. Any rule adopted under this subsection shall comply with National Flood Insurance Program requirements. A rule adopted under this subsection shall include a requirement that an activity receive an individual stream alteration emergency permit or receive coverage under a general stream alteration emergency permit.
    1. A rule adopted under this subsection shall establish:
      1. criteria for coverage under an individual permit and criteria for coverage under a general emergency permit;
      2. criteria for different categories of activities covered under a general emergency permit, including emergency protective measures under subsection 1021(b) of this title;
      3. requirements for public notification of permitted activities, including notification after initiation or completion of a permitted activity;
      4. requirements for coordination with State and municipal authorities; and
      5. requirements that the Secretary document permitted activity, including, at a minimum, requirements for documenting permit terms, documenting permit duration, and documenting the nature of an activity when the rules authorize notification of the Secretary after initiation or completion of the activity.
    2. A rule adopted under this section may:
      1. establish reporting requirements for categories of activities;
      2. authorize an activity that does not require reporting to the Secretary; or
      3. authorize an activity that requires reporting to the Secretary after initiation or completion of an activity.

HISTORY: Added 2011, No. 138 (Adj. Sess.), § 5, eff. May 14, 2012.

Subchapter 3. Water Withdrawal for Snowmaking

§ 1031. Policy on water withdrawal for snowmaking.

  1. This subchapter is intended to establish a policy for snowmaking that supports and is consistent with section 1001 of this title and with chapter 47 of this title, including the water quality standards.
  2. This policy established under this subchapter is to:
    1. assure the protection, maintenance, and restoration of the chemical, physical, and biological water quality, including water quantity, necessary to sustain aquatic communities and stream functions;
    2. help to provide for and enhance the viability of Vermont’s ski industry, which uses certain of the State’s waters for snowmaking;
    3. permit water withdrawals, diversions, impoundments, and the construction of appurtenant facilities for snowmaking, based on an analysis of the need for water and a consideration of alternatives, consistent with this policy and other applicable laws and rules;
    4. recognize that existing users of the State’s waters for snowmaking, which may have an adverse effect on water quality, should have time and opportunity to improve water quality.

HISTORY: Added 1995, No. 15 , § 1.

§ 1032. Rulemaking on snowmaking withdrawals.

The Secretary shall adopt rules to determine conservation flow standards for snowmaking, to be used in relevant Agency of Natural Resources regulatory processes governing water withdrawals, diversions, impoundments, and the construction of appurtenant facilities, and to be used in developing positions to be asserted by the Agency in other State regulatory processes governing conservation flows for snowmaking. These rules shall not supersede water quality standards adopted by the Secretary pursuant to chapter 47 of this title. These rules shall achieve the purposes of this subchapter, and shall provide for the periodic review of any decision issued under the rules. All existing water withdrawals, diversions, and impoundments for snowmaking that are permitted at instream flows below the standards shall be reviewed by July 1, 2000.

HISTORY: Added 1995, No. 15 , § 1; amended 2003, No. 115 (Adj. Sess.), § 21, eff. Jan. 31, 2005; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Substituted “secretary” for “board” in the second sentence.

—2003 (Adj. Sess.). Deleted “water resources” preceding “board” in the second sentence.

Statutory revision. 2011, No. 138 (Adj. Sess.), § 27 provides: “To effect the purpose of this act of transferring the rulemaking authority of the water resources panel to the secretary of natural resources, the office of legislative council is directed to revise the existing Vermont Statutes Annotated and, where applicable, replace the terms ‘natural resources board,’ ‘water resources panel of the natural resources board,’ ‘water resources panel,’ ‘water resources board,’ and similar terms with the term ‘secretary of natural resources,’ ‘secretary,’ ‘agency of natural resources,’ ‘agency,’ ‘department of environmental conservation,’ or ‘department’ as appropriate.”

Adoption of rules. The rules for snowmaking water withdrawals took effect on Feb. 15, 1996.

Chapter 43. Dams

History

V.S. 1947, § 9412, derived from 1947, No. 202 , § 9544; 1945, No. 138 , § 10, contained a separability provision applicable to §§ 1082, 1083, 1085-1094, 1100 of this title.

Memorandum of understanding. 2011, No. 165 (Adj. Sess.), § 2 requires the department of public service, in consultation with the agency of natural resources, to “seek to enter into a memorandum of understanding (MOU) with the Federal Energy Regulatory Commission (FERC) for a program to expedite the procedures for FERC’s granting approvals for projects in Vermont that constitute small conduit hydroelectric facilities and small hydroelectric power projects as defined in 18 C.F.R. § 4.30 (the MOU program). The commissioner also may seek to include minor water power projects, as defined by 18 C.F.R. § 4.30, in the MOU program.”

CROSS REFERENCES

Connecticut River Flood Control Compact, see § 1151 et seq. of this title.

Department of Environmental Conservation, see § 905a et seq. of this title.

Enforcement of environmental laws generally, see § 8001 et seq. of this title.

Flood hazard areas, see § 751 et seq. of this title.

Penalty for damaging or injuring dam, see 13 V.S.A. § 3733 .

Regulation of stream flow, see § 1001 et seq. of this title.

Watershed protection and flood prevention, see § 951 et seq. of this title.

§ 1079. Purpose.

It is the purpose of this chapter to protect public safety and provide for the public good through the inventory, inspection, and evaluation of dams in the State.

HISTORY: Added 2017, No. 161 (Adj. Sess.), § 1.

§ 1080. Definitions.

As used in this chapter:

  1. “Department” means the Department of Environmental Conservation.
  2. “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; any federal agency; or any other legal or commercial entity.
  3. “Interested person” means, in relation to any dam, a person: who has riparian rights affected by that dam; who has a substantial interest in economic or recreational activity affected by the dam; or whose safety would be endangered by a failure of the dam.
  4. “Engineer” means a professional engineer licensed under Title 26 who has experience in the design and investigation of dams.
  5. “Time” shall be reckoned in the manner prescribed by 1 V.S.A. § 138 .
    1. “Dam” means any artificial barrier, including its appurtenant works, that is capable of impounding water, other liquids, or accumulated sediments. (6) (A) “Dam” means any artificial barrier, including its appurtenant works, that is capable of impounding water, other liquids, or accumulated sediments.
    2. “Dam” includes an artificial barrier that meets all of the following:
      1. previously was capable of impounding water, other liquids, or accumulated sediments;
      2. was partially breached; and
      3. has not been properly removed or mitigated.
    3. “Dam” shall not mean:
      1. barriers or structures created by beaver or any other wild animal as that term is defined in section 4001 of this title;
      2. transportation infrastructure that has no normal water storage capacity and that impounds water only during storm events;
      3. an artificial barrier at a stormwater management structure that is regulated by the Agency of Natural Resources under chapter 47 of this title;
      4. an underground or elevated tank to store water otherwise regulated by the Agency of Natural Resources;
      5. an agricultural waste storage facility regulated by the Agency of Agriculture, Food and Markets under 6 V.S.A. chapter 215; or
      6. any other structure identified by the Department by rule.
  6. “Federal dam” means:
    1. a dam owned by the United States; or
    2. a dam subject to a Federal Energy Regulatory Commission license or exemption.
  7. “Intake structure” means a dam that is constructed and operated for the primary purposes of minimally impounding water for the measurement and withdrawal of streamflow to ensure use of the withdrawn water for snowmaking, potable water, irrigation, or other purposes approved by the Department.
  8. “Nonfederal dam” means a dam that is not a federal dam.

HISTORY: Added 1981, No. 242 (Adj. Sess.), § 1; amended 1987, No. 76 , § 18; 2003, No. 115 (Adj. Sess.), § 22; 2017, No. 161 (Adj. Sess.), § 1.

History

Amendments

—2017 (Adj. Sess.). Subdiv. (3): Substituted “‘Interested person”’ for “‘Person of interest”’, added “; who has” following “rights affected by that dam”, and made minor related changes.

Subdiv. (4): Substituted “licensed under” for “registered under”.

Subdivs. (6)-(9): Added.

—2003 (Adj. Sess.). Subdiv. (2): Amended generally.

—1987. Subdiv. (1): Substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

CROSS REFERENCES

Department of Environmental Conservation, see 3 V.S.A. § 2873 .

§ 1081. Jurisdiction of Department and Public Utility Commission.

  1. Powers and duties.   Unless otherwise provided, the powers and duties authorized by this chapter shall be exercised by the Department, except that the Public Utility Commission shall exercise those powers and duties over nonfederal dams and projects that relate to or are incident to the generation of electric energy for public use or as a part of a public utility system. Nonfederal dams at which the generation of electric energy is subject to licensing jurisdiction under the Federal Power Act, 16 U.S.C. chapter 12, subchapter 1, shall not be under the jurisdiction of the Public Utility Commission.
  2. Transfer of jurisdiction.   Jurisdiction over a nonfederal dam is transferred from the Department to the Public Utility Commission when the Public Utility Commission receives an application for a certificate of public good for electricity generation at that dam. Jurisdiction is transferred to the Department when the license or exemption for a federal dam expires or is otherwise lost; when a certificate of public good is revoked or otherwise lost; or when the Public Utility Commission denies an application for a certificate of public good.
  3. Transfer of records.   Upon transfer of jurisdiction as set forth in subsection (b) of this section and upon written request, the State agency having former jurisdiction over a dam shall transfer copies of all records pertaining to the dam to the agency acquiring jurisdiction.

HISTORY: Amended 1959, No. 203 ; 1959, No. 329 (Adj. Sess.), § 39, eff. March 1, 1961; 1961, No. 100 , § 2; 1981, No. 242 (Adj. Sess.), § 2; 2017, No. 161 (Adj. Sess.), § 1; 2021, No. 42 , § 1.

History

Source.

1949, No. 223 , § 1.

Revision note

—2017. In the section heading and in subsecs. (a) and (b), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

In subsec. (c), replaced “above” with “in subsection (b) of this section”.

Amendments

—2021. Subsec. (a): Added the second sentence.

—2017 (Adj. Sess.). Subsec. (a): Added the subsec. heading and inserted “nonfederal” preceding “dams and projects”.

Subsec. (b): Amended generally.

Subsec. (c): Added the subsec. heading and inserted “over a dam” preceding “shall transfer copies”.

—1981 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Amended generally.

Subsec. (c): Substituted “state agency” for “board” preceding “having former jurisdiction,” “the” for “such” preceding “dam” and “agency” for “board” preceding “acquiring jurisdiction” and deleted “upon written request so to do” following “acquiring jurisdiction”.

—1961. Subsec. (a): Substituted “Vermont water resources board” for “Vermont state water conservation board”.

Subsec. (b): Substituted “Vermont water resources board” for “Vermont state water conservation board” in the second and third sentences.

—1959 (Adj. Sess.). Subsec. (a): Substituted “public service board” for “public service commission”.

Subsec. (b): Substituted “public service board” for “public service commission” in the first, third and fourth sentences.

—1959. Designated existing provisions of section as subsec. (a) and added subsecs. (b) and (c).

CROSS REFERENCES

Public service board, see 30 V.S.A. § 3 et seq.

ANNOTATIONS

Jurisdiction generally.

Under subsec. (a) of this section the jurisdiction of the public service commission is limited to dams and projects that relate to or are incident to the generation of electric energy for public use. Citizens Utilities Co. v. Prouty, 122 Vt. 443, 176 A.2d 751, 1961 Vt. LEXIS 99 (1961), cert. denied, 369 U.S. 838, 82 S. Ct. 867, 7 L. Ed. 2d 842, 1962 U.S. LEXIS 1536 (1962).

Line of demarcation between domains of public service commission (now public service board) and water conservation board (now water resources board) was drawn a little more precisely by 1959, no. 203, which amended this section. In re Lake Sadawga Dam, 121 Vt. 367, 159 A.2d 337, 1960 Vt. LEXIS 130 (1960).

Where water conservation board (now water resources board) is given jurisdiction over certain dams and the public service commission (now public service board) as to certain others, jurisdiction must affirmatively appear in each particular case. In re Lake Sadawga Dam, 121 Vt. 367, 159 A.2d 337, 1960 Vt. LEXIS 130 (1960).

Cited.

Cited in In re Buttolph, 141 Vt. 601, 451 A.2d 1129, 1982 Vt. LEXIS 593 (1982).

Notes to Opinions

Regulation of levels of public waters.

Legislature has not transferred to Vermont state water conservation board (now water resources board) authority to regulate level of public waters to any extent inconsistent with an order or certificate of public service commission (now public service board) providing for levels at which water may be impounded by a dam or by a storage project in those instances where the dams or projects have or contemplate as an incident thereof the generation of electric energy. 1950 Vt. Op. Att'y Gen. 259.

Regulation of stream flow.

The water resources board (now department of water resources and environmental engineering) is precluded from exercising any authority over hydroelectric dams and cannot set minimum stream flow requirements which would affect the operation of hydro dams. 1970 Vt. Op. Att'y Gen. 185.

§ 1082. Authorization.

  1. No person shall construct, enlarge, raise, lower, remodel, reconstruct, or otherwise alter any nonfederal dam, pond, or impoundment or other structure that is or will be capable of impounding more than 500,000 cubic feet of water or other liquid after construction or alteration, or remove, breach, or otherwise lessen the capacity of an existing nonfederal dam that is or was capable of impounding more than 500,000 cubic feet within or along the borders of this State where land in this State is proposed to be overflowed, or at the outlet of any body of water within this State, unless authorized by the State agency having jurisdiction so to do. However, in the matter of flood control projects where cooperation with the federal government is provided for by the provisions of section 1100 of this title, that section shall control.
  2. For the purposes of this chapter, the volume a dam or other structure is capable of impounding is the volume of water or other liquid, including any accumulated sediments, controlled by the structure with the water or liquid level at the top of the lowest nonoverflow part of the structure.
  3. An intake structure in existence on July 1, 2018 that continues to operate in accordance with a valid Department permit or approval that contains requirements for inspection and maintenance subject to section 1105 of this title shall have a rebuttable presumption of compliance with the requirements of this chapter and rules adopted under this chapter, provided that no presumption of compliance shall apply if one or both of the following occur on or after July 1, 2018:
    1. the owner or operator of the intake takes an action that requires authorization under this section; or
    2. the Department issues an order under section 1095 of this title directing reconstruction, repair, removal, breaching, draining, or other action it considers necessary to improve the safety of the dam.

HISTORY: Amended 1975, No. 179 (Adj. Sess.), § 1; 1981, No. 242 (Adj. Sess.), § 3; 2017, No. 161 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 9397. 1947, No. 202 , § 9528. 1945, No. 138 , § 1. P.L. § 6122. 1929, No. 80 , § 1.

Amendments

—2017 (Adj. Sess.). Subsec. (a): Added “nonfederal” preceding “dam” twice.

Subsec. (b): Added “lowest” preceding “nonoverflow part of the structure.”

Subsec. (c): Added.

—1981 (Adj. Sess.). Designated existing provisions of section as subsec. (a), rewrote that subsec., and added subsec. (b).

—1975 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Jurisdiction.

Jurisdiction over question of erection of dam in navigable stream for purpose of developing water power facilities rests with federal courts. In re Bellows Falls Hydro-Electric Corp., 114 Vt. 443, 47 A.2d 409, 1946 Vt. LEXIS 93 (1946).

Cited.

Cited in In re Buttolph, 141 Vt. 601, 451 A.2d 1129, 1982 Vt. LEXIS 593 (1982).

Notes to Opinions

Regulation of well ponds.

Where proposed impoundment would impound more than 500,000 cubic feet of water and where such water came from wells and none of it was surface flowing water, a permit was not needed for the construction of a series of settling basins to be used to decant water and subtract from it industrial waste. 1972 Vt. Op. Att'y Gen. 457.

District environmental commission could not, as a condition to grant of permit by the commission, require that a permit be obtained under this section where impoundment of water was not one to which this section applied because water to be impounded was from wells. 1972 Vt. Op. Att'y Gen. 457.

§ 1083. Application.

  1. Any person who proposes to undertake an action subject to regulation pursuant to section 1082 of this title shall apply in writing to the State agency having jurisdiction. The application shall set forth:
    1. the location; the height, length, and other dimensions; and any proposed changes to any existing dam;
    2. the approximate area to be overflowed and the approximate number of or any change in the number of cubic feet of water to be impounded;
    3. the plans and specifications to be followed in the construction, remodeling, reconstruction, altering, lowering, raising, removal, breaching, or adding to;
    4. any change in operation and maintenance procedures; and
    5. other information that the State agency having jurisdiction considers necessary to review the application.
  2. The plans and specifications shall be prepared under the supervision of an engineer.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 23(d), eff. March 1, 1961; 1975, No. 179 (Adj. Sess.), § 2; 1981, No. 242 (Adj. Sess.), § 4; 2015, No. 150 (Adj. Sess.), § 12, eff. Jan. 1, 2018; 2017, No. 161 (Adj. Sess.), § 1.

History

Source.

1957, No. 301 , § 1. V.S. 1947, § 9398. 1947, No. 202 , § 9529. 1945, No. 138 , § 1. P.L. § 6122. 1929, No. 80 , § 1.

Amendments

—2017 (Adj. Sess.). Subsec. (a): Substituted “;” for “,” following “location” and “dimensions” in subdiv. (1), deleted “properly” following “considers necessary to” in subdiv. (5), and made a stylistic change.

—2015 (Adj. Sess.). Subsec. (a): Deleted “, and shall give notice thereof to the governing body of the municipality or municipalities in which the dam or any part of the dam is to be located” from the end of the first sentence.

—1981 (Adj. Sess.). Section amended generally.

—1975 (Adj. Sess.). Section amended generally.

—1959 (Adj. Sess.). Substituted “fish and game board” for “fish and game commission”

Notes to Opinions

Removal of dam.

Water conservation board (now water resources board) has authority to consider matters involving removal of dams under its jurisdiction. 1958 Vt. Op. Att'y Gen. 196.

§ 1083a. Repealed. 2017, No. 161 (Adj. Sess.), § 1.

History

Former § 1083a. Former § 1083a, relating to agricultural dams, was derived from 1975, No. 179 (Adj. Sess.), § 5 and amended by 1981, No. 242 (Adj. Sess.), § 5.

Annotations From Former § 1083a

Appeals from permit decisions.

The water resources board lacks jurisdiction to hear appeals from agricultural dam permit decisions of the natural resource conservation districts. In re Hinsdale Farm, 2004 VT 72, 177 Vt. 115, 858 A.2d 249, 2004 Vt. LEXIS 320 (2004).

§ 1084. Department of Fish and Wildlife; investigation.

The Commissioner of Fish and Wildlife shall investigate the potential effects on fish and wildlife habitats of any proposal subject to section 1082 of this title and shall certify the results to the State agency having jurisdiction prior to any hearing or meeting relating to the determination of public good and public safety.

HISTORY: Amended 1975, No. 179 (Adj. Sess.), § 3; 1981, No. 242 (Adj. Sess.), § 6; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 2017, No. 161 (Adj. Sess.), § 1.

History

Source.

1957, No. 301 , § 2.

Amendments

—1983 (Adj. Sess.). Substituted “fish and wildlife” for “fish and game” in the catchline and in the text.

—1981 (Adj. Sess.). Substituted “commissioner of fish and game” for “secretary of the agency of environmental conservation” and deleted “of this title” following “section 1082”.

—1975 (Adj. Sess.). Section amended generally.

—1959 (Adj. Sess.). Substituted “fish and game board” and “board” for “fish and game commission” and “commission” and “public service board” for “public service commission”.

CROSS REFERENCES

Department of Fish and Wildlife generally, see § 4041 et seq. of this title.

§ 1085. Notice of application.

Upon receipt of the application required by section 1082 of this title, the State agency having jurisdiction shall give notice to the legislative body of each municipality in which the dam is located and to all interested persons.

  1. The Department shall proceed in accordance with chapter 170 of this title.
  2. For any project subject to its jurisdiction under this chapter, the Public Utility Commission shall hold a hearing on the application. The purpose of the hearing shall be to determine whether the project serves the public good as defined in section 1086 of this title and provides adequately for the public safety. The hearing shall be held in a municipality in the vicinity of the proposed project and may be consolidated with other hearings, including hearings under 30 V.S.A. § 248 concerning the same project. Notice shall be given at least 10 days before the hearing to interested persons by posting in the municipal offices of the towns in which the project will be completed and by publishing in a local newspaper.

HISTORY: Amended 1981, No. 242 (Adj. Sess.), § 7; 2015, No. 150 (Adj. Sess.), § 13, eff. Jan. 1, 2018; 2017, No. 161 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 9399. 1947, No. 202 , § 9530. 1945, No. 138 , § 1. P.L. § 6122. 1929, No. 80 , § 1.

Revision note

—2017. In subdiv. (2), substituted “Public Utility Commission” for “public service board” in accordance with 2017, No. 53 , § 12.

Amendments

—2017 (Adj. Sess.). Introductory language: Substituted “located” for “allocated” and “interested persons.” for “persons interested.”

Subdiv. (2): Substituted “the Public Utility Commission” for “the Public Utilities Commission” in the first sentence.

—2015 (Adj. Sess.). Inserted “the legislative body of each municipality in which the dam is allocated and to” preceding “all persons” in the introductory language, and rewrote subdiv. (1).

—1981 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Cited.

Cited in In re Buttolph, 141 Vt. 601, 451 A.2d 1129, 1982 Vt. LEXIS 593 (1982).

§ 1086. Determination of public good; certificates.

  1. “Public good” means the greatest benefit of the people of the State. In determining whether the public good is served, the State agency having jurisdiction shall give due consideration to, among other things, the effect the proposed project will have on:
    1. the quantity, kind, and extent of cultivated agricultural land that may be rendered unfit for use by or enhanced by the project, including both the immediate and long-range agricultural land use impacts;
    2. scenic and recreational values;
    3. fish and wildlife;
    4. forests and forest programs;
    5. [Repealed.]
    6. the existing uses of the waters by the public for boating, fishing, swimming, and other recreational uses;
    7. the creation of any hazard to navigation, fishing, swimming, or other public uses;
    8. the need for cutting clean and removal of all timber or tree growth from all or part of the flowage area;
    9. the creation of any public benefits;
    10. attainment of the Vermont water quality standards;
    11. any applicable State, regional, or municipal plans;
    12. municipal grand lists and revenues;
    13. public safety; and
    14. in the case of the proposed removal of a dam that formerly related to or was incident to the generation of electric energy, but that was not subject to a memorandum of understanding dated prior to January 1, 2006 relating to its removal, the potential for and value of future power production.
  2. If the State agency having jurisdiction finds that the project proposed under section 1082 of this title will serve the public good, and, in case of any waters designated by the Secretary as outstanding resource waters, will preserve or enhance the values and activities sought to be protected by designation, the agency shall issue its order approving the application. The order shall include conditions for attainment of water quality standards, as determined by the Agency of Natural Resources, and such other conditions as the agency having jurisdiction considers necessary to protect any element of the public good listed in subsection (a) of this section. Otherwise it shall issue its order disapproving the application.
  3. The State agency having jurisdiction shall provide the applicant and interested persons with copies of its order.
  4. In the case of a proposed removal of a dam that is under the jurisdiction of the Department and that formerly related to or was incident to the generation of electric energy but that was not subject to a memorandum of understanding dated before January 1, 2006 relating to its removal, the Department shall consult with the Department of Public Service regarding the potential for and value of future power production at the site.

HISTORY: Amended 1969, No. 281 (Adj. Sess.), § 10; 1975, No. 179 (Adj. Sess.), § 4; 1981, No. 242 (Adj. Sess.), § 8; 1987, No. 67 , § 13; 1987, No. 76 , § 18; 2005, No. 208 (Adj. Sess.), § 4; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012; 2017, No. 161 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 9400. 1947, No. 202 , § 9531. 1945, No. 138 , § 1. P.L. § 6122. 1929, No. 80 , § 1.

Amendments

—2017 (Adj. Sess.). Subsec. (a): Added “to,” following “shall give due consideration” and deleted “to” preceding “the effect the proposed”.

Subdiv. (a)(5): Repealed.

Subdiv. (a)(10): Substituted “attainment of the Vermont water quality standards” for “the classification, if any, of the affected waters under chapter 47 of this title”.

Subdiv. (a)(14): Added “the” preceding “proposed removal” and substituted “that was not subject” for “which was not subject”.

Subsec. (b): Substituted “that the project proposed under section 1082 of this title will serve” for “that the proposed project will serve” and substituted “conditions for attainment of water quality standards,” for “conditions for minimum stream flow to protect fish and instream aquatic life,” in the second sentence.

Subsec. (c): Substituted “State agency having jurisdiction shall” for “Agency shall” and substituted “interested persons” for “interested parties”.

—2011 (Adj. Sess.). Substituted “secretary” for “board” in subsec. (b).

—2005 (Adj. Sess.) Subsec. (a): Inserted “or enhanced by” preceding “the project” in subdiv. (1), made a minor change in punctuation in subdivs. (6) and (7), made a minor stylistic change in subdivs. (12) and (13), and added subdiv. (14).

Subsec. (d): Added.

—1987. Subsec. (b): Amended generally by Act No. 67.

Act No. 76 substituted “agency of natural resources” for “agency of environmental conservation” in the second sentence.

—1981 (Adj. Sess.). Section amended generally.

—1975 (Adj. Sess.). Inserted “rate of” preceding “flow of the water” and “and the water quality” thereafter, and deleted “below the dam” following “in the stream” in the third sentence and deleted “and section 1088” following “chapter 47 of this title” in the seventh sentence and “the stream is one designated under section 1088(a)(1), (2) or (3) of this title, and” preceding “a certificate of public good” in the ninth sentence.

—1969 (Adj. Sess.). In the third sentence, inserted “upon the existing uses of the water by the public for boating, fishing, bathing and other recreational uses and” for “upon” preceding “hazards”, and added “are created” following “other public uses”, and added the seventh and ninth sentences.

Statutory revision. 2011, No. 138 (Adj. Sess.), § 27 provides: “To effect the purpose of this act of transferring the rulemaking authority of the water resources panel to the secretary of natural resources, the office of legislative council is directed to revise the existing Vermont Statutes Annotated and, where applicable, replace the terms ‘natural resources board,’ ‘water resources panel of the natural resources board,’ ‘water resources panel,’ ‘water resources board,’ and similar terms with the term ‘secretary of natural resources,’ ‘secretary,’ ‘agency of natural resources,’ ‘agency,’ ‘department of environmental conservation,’ or ‘department’ as appropriate.”

CROSS REFERENCES

Designation of outstanding resource waters, see § 1424a of this title.

ANNOTATIONS

Findings.

Where water resources board (now department of water resources and environmental engineering) authorized construction of a private stormwater impoundment on creek without making findings on all the specific factors that this section stated were to be considered in determining question of public good, the board (now department) having failed to find on at least two factors, and other purported findings were actually recitals of evidence or the lack of evidence, the order granting authority to construct the impoundment was without legal authority and would be vacated and the cause would be remanded for a new hearing. In re Buttolph, 138 Vt. 573, 420 A.2d 859, 1980 Vt. LEXIS 1366 (1980).

Cited.

Cited in In re Buttolph, 147 Vt. 641, 527 A.2d 1147, 1987 Vt. LEXIS 440 (1987).

§ 1087. Review of plans and specifications.

For any proposal subject to authorization under section 1082 of this title, the State agency having jurisdiction shall employ an engineer to investigate the property, review the plans and specifications, and make additional investigations as the State agency having jurisdiction considers necessary to ensure that the project adequately provides for the public safety. The engineer shall report his or her findings to the State agency having jurisdiction.

HISTORY: Amended 1981, No. 242 (Adj. Sess.), § 9; 2017, No. 161 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 9401. 1947, No. 202 , § 9532. 1945, No. 138 , § 1. P.L. § 6122. 1929, No. 80 , § 1.

Amendments

—2017 (Adj. Sess.). Section amended generally.

—1981 (Adj. Sess.). Section amended generally.

§ 1088. Repealed. 1975, No. 179 (Adj. Sess.), § 6.

History

Former § 1088. Former § 1088, relating to a classification plan for construction of dams, was derived from 1969, No. 281 (Adj. Sess.), § 11.

§ 1089. Employment of engineer.

With the approval of the Governor, the State agency having jurisdiction may employ an engineer to investigate the property, review the plans and specifications, and make such additional investigation as the State agency shall deem necessary, and such engineer shall report to the State agency his or her findings in respect thereto.

HISTORY: Amended 2017, No. 161 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 9402. 1945, No. 138 , § 2. P.L. § 6123. 1929, No. 80 , § 2.

Amendments

—2017 (Adj. Sess.). Deleted “hydraulic” preceding “engineer” in the section heading, and substituted “an” for “a competent hydraulic” preceding “engineer”, “the State” for “such” preceding “agency shall deem” and inserted “State“ preceding “agency” and inserted “or her” following “his”.

§ 1090. Construction supervision.

The construction, alteration, or other action authorized in section 1086 of this title shall be supervised by an engineer employed by the applicant. Upon completion of the authorized project, the engineer shall certify to the agency having jurisdiction that the project has been completed in conformance with the approved plans and specifications.

HISTORY: Amended 1981, No. 242 (Adj. Sess.), § 10; 2017, No. 161 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 9402. 1945, No. 138 , § 2. P.L. § 6133. 1929, No. 80 , § 2.

Amendments

—2017 (Adj. Sess.). Substituted “by an engineer” for “by a registered engineer” in the first sentence.

—1981 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Cited.

Cited in In re Hemco, Inc., 129 Vt. 534, 283 A.2d 246, 1971 Vt. LEXIS 301 (1971); In re Buttolph, 141 Vt. 601, 451 A.2d 1129, 1982 Vt. LEXIS 593 (1982).

§§ 1091-1094. Repealed. 1981, No. 242 (Adj. Sess.), § 18.

History

Former §§ 1091-1094. Former § 1091, relating to hearings on plans and specifications, was derived from V.S. 1947, § 9403; 1945, No. 138 , § 3; P.L. § 6124; 1929, No. 80 , § 3.

Former § 1092, relating to duties of the engineer, was derived from V.S. 1947, § 9404; 1945, No. 138 , § 4; P.L. § 6125; 1929, No. 80 , § 4.

Former § 1093, relating to payment to engineers, was derived from V.S. 1947, § 9405; 1945, No. 138 , § 5; P.L. § 6126; 1929, No. 80 , § 5.

Former § 1094, relating to penalties and injunctions, was derived from V.S. 1947, § 9406; 1945, No. 138 , § 7, and amended by 1971, No. 185 (Adj. Sess.), § 236.

§ 1095. Unsafe dam; petition; hearing; emergency.

  1. On receipt of a petition signed by no fewer than ten interested persons or the legislative body of a municipality, the State agency having jurisdiction shall, or upon its own motion it may, institute investigations by an engineer as described in section 1087 of this title regarding the safety of any existing nonfederal dam or portion of the dam of any size. The agency may fix a time and place for hearing and shall give notice in the manner it directs to all interested persons. The engineer shall present his or her findings and recommendations at the hearing. After the hearing, if the agency finds that the nonfederal dam or portion of the dam as maintained or operated is unsafe or is a menace to people or property above or below the dam, it shall issue an order directing reconstruction, repair, removal, breaching, draining, or other action it considers necessary to improve the safety of the dam sufficiently to protect life and property as required by the State agency having jurisdiction.
  2. If, upon the expiration of such date as may be ordered, the person owning legal title to such dam or the owner of the land on which the dam is located has not complied with the order directing the reconstruction, repair, breaching, removal, draining, or other action of such unsafe dam, the State agency having jurisdiction may petition the Superior Court in the county in which the dam is located to enforce its order or exercise the right of eminent domain to acquire the rights that may be necessary to effectuate a remedy as the public safety or public good may require. If the order has been appealed, the court may prohibit the exercise of eminent domain by the State agency having jurisdiction pending disposition of the appeal.
  3. If, upon completion of the investigation described in subsection (a) of this section, the State agency having jurisdiction considers the dam to present an imminent threat to human life or property, it shall take whatever action it considers necessary to protect life and property and subsequently shall conduct the hearing described in subsection (a) of this section.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 39, eff. March 1, 1961; 1961, No. 100 , § 2; 1969, No. 281 (Adj. Sess.), § 12; 1981, No. 242 (Adj. Sess.), § 11; 2017, No. 161 (Adj. Sess.), § 1.

History

Source.

1949, No. 223 , § 2. V.S. 1947, § 9407. P.L. § 6127. 1929, No. 80 , § 6.

Amendments

—2017 (Adj. Sess.). Subsec. (a): In the first sentence, substituted “no fewer than ten interested persons” for “not less than ten persons in interest” and added “State” preceding “agency”, added “nonfederal” preceding “dam” twice, substituted “interested persons” for “parties interested” in the second sentence, substituted “his or her findings” for “his findings” in the third sentence, substituted “improve the safety of the dam sufficiently to protect life and property as required by the State agency having jurisdiction” for “make the dam safe” in the last sentence, and made minor stylistic changes.

Subsec. (b): In the first sentence, substituted “the person owning legal title to such dam or the owner of the land on which the dam is located” for “the owner of such dam”, substituted “acquire the rights that may be necessary” for “acquire such rights as may be necessary”, added “of eminent domain by the State agency having jurisdiction” in the second sentence, and made minor stylistic changes.

Subsec. (c): Substituted “subsection (a) of this section,” for “subsection (a)” twice and made minor stylistic changes.

—1981 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Substituted “breaching, removal, draining or other action” for “or removal” preceding “of such unsafe dam” and inserted “petition the superior court in the county in which the dam is located to enforce its order or” preceding “exercise” in the first sentence.

Subsec. (c): Added.

—1969 (Adj. Sess.). Added the second paragraph.

—1961. Substituted “Vermont water resources board” for “Vermont state water conservation board” in the second sentence.

—1959 (Adj. Sess.). Substituted “public service board” for “public service commission” in the first sentence.

ANNOTATIONS

Orders.

Where an order of water conservation board (now water resources board) concerning the safety of dam was not based on jurisdictional findings supported by evidence, the order was invalid. In re Lake Sadawga Dam, 121 Vt. 367, 159 A.2d 337, 1960 Vt. LEXIS 130 (1960).

Notes to Opinions

Construction with other laws.

This section must be read with section 1083 of this title as parts of single system of law dealing with powers of water conservation board (now water resources board) over dams. 1956-58 Vt. Op. Att'y Gen. 196.

§ 1096. Repealed. 1981, No. 242 (Adj. Sess.), § 18.

History

Former § 1096. Former § 1096, relating to the expense of an investigation of an existing dam, was derived from V.S. 1947, § 9408; P.L. § 6128; 1929, No. 80 , § 7.

§§ 1097, 1098. Repealed. 2017, No. 161 (Adj. Sess.), § 1.

History

Source.

1957, No. 301 , § 3.

Former §§ 1097, 1098. Former § 1097, relating to survey of existing dams; orders for protection of salmon, was derived from 1957, No. 301 , § 3 and amended by 1959, No. 329 (Adj. Sess.), §§ 23(d), 39; and 1983, No. 158 (Adj. Sess.).

Former § 1098, relating to removal or obstructions; appropriation, was derived from V.S. 1947, § 9409; 1947, No. 202 , § 9540; P.L. § 6129; 1929, No. 80 , § 8 and amended by 1981, No. 242 (Adj. Sess.) § 8.

CROSS REFERENCES

Connecticut River Atlantic Salmon Compact, see § 4651 et seq. of this title.

§ 1099. Appeals.

  1. Appeals of any act or decision of the Department under this chapter shall be made in accordance with chapter 220 of this title.
  2. Appeals from actions or orders of the Public Utility Commission may be taken in the Supreme Court in accord with 30 V.S.A. § 12 .

HISTORY: Amended 1981, No. 242 (Adj. Sess.), § 15; 2001, No. 94 (Adj. Sess.), § 3; 2003, No. 115 (Adj. Sess.), § 23, eff. Jan. 31, 2005.

History

Source.

V.S. 1947, § 9410. 1947, No. 202 , § 9541. P.L. § 6130. 1929, No. 80 , § 6.

Revision note

—2017. In subsec. (b), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

Amendments

—2003 (Adj. Sess.). Substituted “appeals” for “appeal” in the catchline and rewrote subsec. (a).

—2001 (Adj. Sess.) Subsec. (a): Deleted the former last sentence and added the fifth and sixth sentences.

—1981 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Jurisdiction.

The water resources board lacks jurisdiction to hear appeals from agricultural dam permit decisions of the natural resource conservation districts. In re Hinsdale Farm, 2004 VT 72, 177 Vt. 115, 858 A.2d 249, 2004 Vt. LEXIS 320 (2004).

Cited.

Cited in In re Lake Sadawga Dam, 121 Vt. 367, 159 A.2d 337, 1960 Vt. LEXIS 130 (1960); In re Reclassification of Airport & Pond Brooks, 142 Vt. 458, 457 A.2d 635, 1983 Vt. LEXIS 409 (1983).

§ 1100. Federal cooperation.

As a basis for cooperation with the federal government and its duly established agencies in the matter of flood control, the State defines its policy with reference to flood control developments as follows:

  1. [Repealed.]
  2. Where such flood control project is strictly for flood control purposes, no village or city in this State shall be inundated, flooded, or destroyed thereby.
  3. Adequate compensation shall be made to any town whose grand list shall be substantially adversely affected by such strictly flood control project for the loss of its tax revenue.
  4. Where cultivated agricultural lands in excess of 100 acres are to be taken for the purposes of a flood control project, or the recreational development of the State or the economy of the river basin involved may be affected thereby, the Department shall provide notice, an opportunity to submit comments, and an opportunity to request a public meeting in accordance with section 7713 (Type 2 Procedures) of this title. The Department shall determine the effect the flood control project will have upon agricultural land uses or recreational values in this State, or upon the economy of the river basin involved, and report its findings and recommendations to the proper federal agency or authority having the flood control project in charge for its consideration and recognition. The Department shall post its findings and recommendations as a final decision in accordance with chapter 170 of this title.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 39, eff. March 1, 1961; 1961, No. 100 , § 2; 1981, No. 242 (Adj. Sess.), § 16; 2015, No. 150 (Adj. Sess.), § 14, eff. Jan. 1, 2018; 2021, No. 42 , § 2.

History

Source.

V.S. 1947, § 9411. 1947, No. 202 , § 9542. 1945, No. 138 , § 8.

Revision note

—2017. In subdiv. (1), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

Amendments

—2021. Subdiv. (1): Repealed.

—2015 (Adj. Sess.). Subdiv. (4): Amended generally.

—1981 (Adj. Sess.). Subdiv. (4): Substituted “department” for “Vermont water resources board” or “board” wherever they appeared and “hold a public information meeting after giving notice to interested parties as it directs” for “giving notice thereof to interested parties in such manner as it shall direct” following “flood control project” in the first sentence, and made other minor stylistic changes.

—1961. Subdiv. (4): Substituted “Vermont water resources board” for “Vermont state water conservation board” in the first sentence.

—1959 (Adj. Sess.). Subdiv. (1): Substituted “public service board” for “public service commission” in the first sentence.

§ 1101. Repealed. 1959, No. 35, § 2, eff. March 12, 1959.

History

Former § 1101. Former § 1101, relating to Union Village dam, was derived from 1953, No. 10 , §§ 1, 2.

§ 1102. Federal receipts, distribution.

All sums of money that the State receives from the United States under the provisions of section 701c-3 of Title 33 of the United States Code, as the same may be amended, being a portion of the rentals of property acquired and owned by the United States for purposes of flood control dams and reservoirs, shall be distributed to the municipality or political subdivision in which the dams and reservoirs are located. The Department shall administer payment of money so received and the Commissioner of Finance and Management shall issue his or her warrants on orders of the Department.

HISTORY: Added 1959, No. 35 , § 1, eff. March 12, 1959; amended 1959, No. 328 (Adj. Sess.), § 8; 1961, No. 100 , § 2; 1981, No. 242 (Adj. Sess.), § 17; 1983, No. 195 (Adj. Sess.), § 5(b).

History

Amendments

—1983 (Adj. Sess.). Inserted “and information support” following “commissioner of finance” in the second sentence.

—1981 (Adj. Sess.). Substituted “department” for “Vermont water resources board” or “board” and deleted “as herein provided” following “administer” in the second sentence.

—1961. Substituted “Vermont water resources board” for “Vermont state water conservation board” in the second sentence.

—1959 (Adj. Sess.). Substituted “finance director” for “auditor of accounts” in the second sentence.

§ 1103. Approval for flood control dams.

  1. No department or agency of the federal government shall construct any flood control dam that is within the State of Vermont, either in whole or in part, or cause any land within the State of Vermont to be overflowed through the operation of a flood control dam located outside the State, except with the approval of the Governor and the General Assembly.
  2. For purposes of this section “flood control dam” means any dam that has among its principal purposes the prevention or control of floods either within or without the State, or that is financed in whole or in part with funds appropriated, allocated, or made available under a federal flood control program, excepting programs under Public Law 83-566, known as the Watershed Protection and Flood Prevention Act.

HISTORY: Added 1971, No. 167 (Adj. Sess.), § 3.

History

References in text.

The Watershed Protection and Flood Prevention Act, referred to in subsec. (b), is codified as 16 U.S.C. § 1001 et seq.

§ 1104. Repealed. 1989, No. 98, § 4(b).

History

Former § 1104. Former § 1104, relating to enforcement and penalty, was derived from 1981, No. 242 , § 12.

§ 1105. Inspection of dams.

  1. Inspection; schedule.   All nonfederal dams in the State shall be inspected according to a schedule adopted by rule by the State agency having jurisdiction over the dam.
  2. Dam inspection.   A nonfederal dam in the State shall be inspected under one or both of the following methods:
    1. The State agency having jurisdiction over a dam may employ an engineer to make periodic inspections of nonfederal dams in the State to determine their condition and the extent, if any, to which they pose a possible or probable threat to life and property.
    2. The State agency having jurisdiction shall adopt rules pursuant to 3 V.S.A. chapter 25 to require an adequate level of inspection by an independent engineer.
  3. Dam safety reports.   If a dam inspection report is completed by the State agency having jurisdiction, the agency shall provide the person owning legal title to the dam or the owner of the land on which the dam is located with a copy of the inspection report.

HISTORY: Added 1981, No. 242 (Adj. Sess.), § 13; amended 1985, No. 60 ; 2015, No. 23 , § 98; 2017, No. 161 (Adj. Sess.), § 1.

History

Amendments

—2017 (Adj. Sess.). Section amended generally.

—2015. Substituted “adopt” for “promulgate” preceding “rules pursuant” in the first sentence, and made a stylistic change.

—1985. Added “or shall promulgate rules pursuant to chapter 25 of Title 3 to require an adequate level of inspection by an independent registered engineer experienced in the design and investigation of dams” following “property” at the end of the first sentence.

§ 1106. Unsafe Dam Revolving Loan Fund.

  1. There is hereby established a special fund to be known as the Vermont Unsafe Dam Revolving Loan Fund that shall be used to provide grants and loans to municipalities, nonprofit entities, and private individuals, pursuant to rules adopted by the Agency of Natural Resources, for the reconstruction, repair, removal, breaching, draining, or other action necessary to reduce the threat of a dam or portion of a dam determined to be unsafe pursuant to section 1095 of this chapter.
  2. The Fund created by this section shall be established and held separate and apart from any other funds or monies of the State and shall be used and administered exclusively for the purposes set forth in this section. The funds shall be invested in the same manner as permitted for investment of funds belonging to the State or held in the Treasury. The Fund shall consist of the following:
    1. Such sums as may be appropriated or transferred thereto from time to time by the General Assembly, the Emergency Board, or the Joint Fiscal Committee during such times as the General Assembly is not in session.
    2. Principal and interest received from the repayment of loans made from the Fund.
    3. Capitalization grants and awards made to the State by the United States of America for the purposes for which the Fund has been established.
    4. Interest earned from the investment of Fund balances.
    5. Private gifts, bequests, and donations made to the State for the purposes for which the Fund has been established.
    6. Other funds from any public or private source intended for use for any of the purposes for which the Fund has been established.
  3. The Secretary may bring an action under this subsection or other available State and federal laws against the owner of the dam to seek reimbursement to the Fund for all loans made from the Fund pursuant to this section.

HISTORY: Added 2003, No. 121 (Adj. Sess.), § 66, eff. June 8, 2004; amended 2013, No. 34 , § 6a.

History

Amendments

—2013. Subsec. (a): Substituted “adopted” for “proposed” following “pursuant to rules” and deleted “and enacted by the general assembly” following “Agency of Natural Resources”.

§ 1107. Hazard potential classifications.

  1. The State agency having jurisdiction over a nonfederal dam listed in the Vermont Dam Inventory shall assess the hazard potential classification of the dam based on the potential loss of human life, property damage, and economic loss that would occur in the event of the failure of the dam. There shall be four hazard potential classifications: high, significant, low, and minimal.
  2. The State agency having jurisdiction over a nonfederal dam on the Vermont Dam Inventory may assess or reassess the hazard potential classification of the dam at any time.

HISTORY: Added 2017, No. 161 (Adj. Sess.), § 1.

§ 1108. Dam inventory; registration.

  1. Dam inventory.   The Department of Environmental Conservation shall maintain a current inventory of all known dams in the State of Vermont. The Department of Environmental Conservation shall update and publish the Vermont Dam Inventory annually and shall include information collected in the Inventory as part of the Agency of Natural Resources’ Natural Resources Atlas.
  2. Dam registration.   If a dam is listed on the Vermont Dam Inventory and is under the jurisdiction of the Department, the person owning legal title to a dam or the person owning the land on which the dam is located shall, upon request of the Department, submit information to the Department regarding the dam, including the condition of the dam, whether and when the dam has been inspected, and any other information that the Department may require to ensure public safety. A person who fails to comply with the request of the Department under this section shall be subject to a civil penalty under chapter 201 of this title.

HISTORY: Added 2017, No. 161 (Adj. Sess.), § 1.

§ 1109. Marketability of title.

The failure of the person owning legal title to a dam or the owner of the land on which the dam is located to record a dam registration or a dam inspection report when required under this chapter or rules adopted under this chapter shall not create an encumbrance on record title or an effect on marketability of title for the real estate property or properties on which the dam is located.

HISTORY: Added 2017, No. 161 (Adj. Sess.), § 1.

§ 1110. Rulemaking.

The Commissioner of Environmental Conservation shall adopt rules to implement the requirements of this chapter for dams under the jurisdiction of the Department. The rules shall include:

  1. a standard or regulatory threshold under which a dam is exempt from the registration or inspection requirements of this chapter;
  2. standards for:
    1. the siting, design, construction, reconstruction, enlargement, modification, or alteration of a dam;
    2. operation and maintenance of a dam;
    3. inspection, monitoring, record keeping, and reporting;
    4. repair, breach, or removal of a dam;
    5. application for authorization under section 1082 of this title; and
    6. the development of an emergency action plan for a dam, including guidance on how to develop an emergency action plan, the content of a plan, and when and how an emergency action plan should be updated;
  3. criteria for the hazard potential classification of dams in the State;
  4. a process by which a person owning legal title to a dam or a person owning the land on which the dam is located shall register a dam and record the existence of the dam in the lands records; and
  5. requirements for the person owning legal title to a dam or the person owning the land on which the dam is located to conduct inspections of the dam.

HISTORY: Added 2017, No. 161 (Adj. Sess.), § 1.

§ 1111. Natural resources atlas; dam status.

Annually on or before January 1, the Public Utility Commission shall submit to the Department updated inventory information from the previous calendar year for dams under the jurisdiction of the Public Utility Commission.

HISTORY: Added 2017, No. 161 (Adj. Sess.), § 1.

Chapter 45. Connecticut River Flood Control Compact

CROSS REFERENCES

Dams, see § 1080 et seq. of this title.

Flood hazard areas, see § 751 et seq. of this title.

Regulation of stream flow, see § 1001 et seq. of this title.

Water resources management, see § 901 et seq. of this title.

Watershed protection and flood prevention, see § 951 et seq. of this title.

Subchapter 1. Connecticut River Flood Control Compact

§ 1151. Preamble.

Whereas, the federal government exercises jurisdiction over the nation’s navigable rivers and their tributaries through passage of the Flood Control Act of nineteen hundred and thirty-six and various other acts amendatory thereto; and

Whereas, these acts provide for construction by the United States of dams for flood control and, where feasible, in addition to flood control for storage of water to be used for irrigation, recreation or hydroelectric power or for any of these purposes; and

Whereas, the Connecticut is an interstate river and control of major floods on it can be obtained only by the construction of dams by the United States under authorization of the above mentioned acts; and

Whereas, the Commonwealth of Massachusetts and the States of Connecticut, New Hampshire and Vermont recognize that it is in the interest of their general welfare that the United States construct in the Connecticut River Valley a comprehensive system of local protection works and dams and reservoirs to control floods and prevent loss of life and property, the disruption of orderly processes and the impairment of commerce between the aforesaid states; and

Whereas, the United States has constructed dikes, flood walls and other local protection works at Hartford and East Hartford in the State of Connecticut and at Springfield, Riverdale, West Springfield, Chicopee, Northampton, Holyoke, and Springdale, in the Commonwealth of Massachusetts and dams and reservoirs for the storage of flood waters at Knightville, Birch Hill and Tully in the Commonwealth of Massachusetts, at Surry Mountain in the State of New Hampshire and at Union Village in the State of Vermont and has reached agreements with the state wherein located for construction of dams and reservoirs for the storage of flood waters at Barre Falls in the Commonwealth of Massachusetts and at Ball Mountain and at Townshend in the State of Vermont; and

Whereas, the Congress has at various times authorized construction by the United States of other dams and reservoirs for the storage of flood waters in the Commonwealth of Massachusetts and in the States of New Hampshire and Vermont and has more recently instructed the corps of engineers to determine what additional local protection works and dams and reservoirs are required for a comprehensive system to control floods in the Connecticut River and its tributaries; and

Whereas, it is believed that such a comprehensive flood control system should include dams and reservoirs controlling flood run-off from approximately twenty-five (25) percent of the total drainage area of the Connecticut River above Hartford, Connecticut, and strategically located in reference to characteristics of tributaries and to damage centers; and

Whereas, construction by the United States of additional dams and reservoirs in the Commonwealth of Massachusetts and in the States of New Hampshire and Vermont, to complete such a comprehensive flood control system, will remove from the tax rolls of local governments of those states such property as is acquired by the United States and may work other hardships against the people of Massachusetts, New Hampshire and Vermont; and

Whereas, it is highly desirable that any flood control dam and reservoir constructed by the United States in the Connecticut River Valley have the approval of the state wherein it is located and that states benefiting from construction of such dam and reservoir make reimbursement for such loss of taxes and for such hardships; and

Whereas, a comprehensive system for the prevention of destructive floods and for water resources utilization in the Connecticut River Valley can best be accomplished by cooperation between the several states in the valley and by and through a common and joint agency of said several states;

Now, therefore, the said Commonwealth of Massachusetts and States of Connecticut, New Hampshire and Vermont do hereby enter into the following compact, to-wit:

History

Source.

1951, No. 244 , § 1.

References in text.

The Flood Control Act of 1936, referred to in the first paragraph of this section, is Act June 22, 1936, ch. 688, §§ 1-9, 49 Stat. 1570, and is codified as 33 U.S.C. §§ 701a, 701b, 701c, 701d-701f, 701h.

§ 1152. Purposes—Article I.

The principal purposes of this compact are: (a) to promote interstate comity among and between the signatory states; (b) to assure adequate storage capacity for impounding the waters of the Connecticut River and its tributaries for the protection of life and property from flood; (c) to provide a joint or common agency through which the signatory states, while promoting, protecting and preserving to each the local interest and sovereignty of the respective signatory states, may more effectively cooperate in accomplishing the object of flood control and water resources utilization in the basin of the Connecticut River and its tributaries.

History

Source.

1951, No. 244 , § 1.

§ 1153. Creation of Commission—Article II.

There is hereby created “The Connecticut River Valley Flood Control Commission,” hereinafter referred to as the “Commission,” which shall consist of 12 members, three of whom shall be residents of the Commonwealth of Massachusetts; three of whom shall be residents of the State of Connecticut; three of whom shall be residents of the State of New Hampshire; and three of whom shall be residents of the State of Vermont.

The members of the Commission shall be chosen by their respective states in such manner and for such term as may be fixed and determined from time to time by the law of each of said states respectively by which they are appointed. A member of the Commission may be removed or suspended from office as provided by the law of the state for which he or she shall be appointed, and any vacancy occurring in the Commission shall be filled in accordance with the laws of the state wherein such vacancy exists.

A majority of the members from each state shall constitute a quorum for the transaction of business, the exercise of any of its powers or the performance of any of its duties, but no action of the Commission shall be binding unless at least two of the members from each state shall vote in favor thereof.

The compensation of members of the Commission shall be fixed, determined, and paid by the state which they respectively represent. All necessary expenses incurred in the performance of their duties shall be paid from the funds of the Commission.

The Commission shall elect from its members a Chair, Vice Chair, Clerk and Treasurer. Such treasurer shall furnish to the Commission, at its expense, a bond with corporate surety, to be approved by the Commission, in such amount as the Commission may determine, conditioned for the faithful performance of his or her duties.

The Commission shall adopt suitable bylaws and shall make such rules and regulations as it may deem advisable not inconsistent with laws of the United States, of the signatory states or with any rules or regulations lawfully promulgated thereunder.

The Commission shall make an annual report to the governor and legislature of each of the signatory states, setting forth in detail the operations and transactions conducted by it pursuant to this compact.

The Commission shall keep a record of all its meetings and proceedings, contracts and accounts, and shall maintain a suitable office, where its maps, plans, documents, records and accounts shall be kept, subject to public inspection at such times and under such regulations as the Commission shall determine.

History

Source.

1951, No. 244 , § 1.

CROSS REFERENCES

Commission attached to Governor’s office, see 3 V.S.A. § 2 .

§ 1154. Powers of Commission—Article III.

The Commission shall constitute a body, both corporate and politic, with full power and authority: (1) to sue and be sued; (2) to have a seal and alter the same at pleasure; (3) to appoint and employ such agents and employees as may be required in the proper performance of the duties hereby committed to it and to fix and determine their qualifications, duties and compensation; (4) to enter into such contracts and agreements and to do and perform any and all other acts, matters and things as may be necessary and essential to the full and complete performance of the powers and duties hereby committed to and imposed upon it and as may be incidental thereto; (5) to have such additional powers and duties as may hereafter be delegated to or imposed upon it from time to time by the action of the legislature of any of said states, concurred in by the legislatures of the other states and by the Congress of the United States.

The Commission shall make, or cause to be made, such studies as it may deem necessary, in cooperation with the corps of engineers and other federal agencies, for the development of a comprehensive plan for flood control and for utilization of the water resources of the Connecticut River Valley.

The Commission shall not pledge the credit of the signatory states or any of them.

History

Source.

1951, No. 244 , § 1.

§ 1155. Construction of dams; agreements—Article IV.

The signatory state wherein is located the site of each of the following dams and reservoirs agrees to the construction by the United States of each such dam and reservoir in accordance with authorization by the Congress:

In the Commonwealth of Massachusetts, At Barre Falls on the Ware River controlling a drainage area of approximately fifty-seven (57) square miles and providing flood storage of approximately eight (8) inches of run-off from said drainage area.

In the State of Vermont, (1) At West Townshend on the West River controlling a new drainage area of approximately one hundred six (106) square miles and providing flood control storage of approximately six (6) inches of run-off from said drainage area.

(2) At Ball Mountain on the West River controlling a net drainage area of approximately one hundred thirty-two (132) square miles and providing flood control storage of approximately six (6) inches of run-off from said drainage area.

(3) At North Hartland on the Ottauquechee River controlling a drainage area of approximately two hundred twenty-two (222) square miles and providing flood control storage for approximately six (6) inches of run-off from said drainage area.

(4) At Groton Pond on the Wells River controlling a drainage area of approximately seventeen and three tenths (17.3) square miles and providing flood control storage for approximately eight (8) inches of run-off from said drainage area.

(5) At Victory on the Moose River controlling a drainage area of approximately sixty-six (66) square miles and providing flood control storage for approximately seven (7) inches of run-off from said drainage area.

(6) In Bloomfield on the Nulhegan River controlling a drainage area of approximately seventy (70) square miles and providing flood control storage for approximately nine (9) inches of run-off from said drainage area.

In the State of New Hampshire, (1) At South Keene on the Otter Brook, tributary of the Ashuelot River, controlling a drainage area of approximately forty-seven (47) square miles and providing flood control storage for approximately seven (7) inches of run-off from said drainage area.

(2) At Walpole on the Cold River controlling a drainage area of approximately one hundred one (101) square miles and providing flood control storage for approximately eight (8) inches of run-off from said drainage area.

(3) At Bethlehem Junction on the Ammonoosuc River controlling a drainage area of approximately ninety (90) square miles and providing flood control storage for approximately six (6) inches of run-off from said drainage area.

(4) At Franconia on the Ammonoosuc River controlling a drainage area of approximately thirty (30) square miles and providing flood control storage for approximately eight (8) inches of run-off from said drainage area.

(5) At Swiftwater on the Wild Ammonoosuc River controlling a drainage area of approximately fifty-seven (57) square miles and providing flood control storage for approximately ten (10) inches of run-off from said drainage area.

History

Source.

1951, No. 244 , § 1.

§ 1156. Reimbursement for economic losses—Article V.

The Commonwealth of Massachusetts agrees to reimburse the State of New Hampshire fifty (50) percent and the State of Vermont fifty (50) percent of the amount of taxes lost to their political subdivisions by reason of ownership by the United States of lands, rights or other property therein for the flood control dams and reservoirs at Surry Mountain in New Hampshire and at Union Village in Vermont.

The State of Connecticut agrees to reimburse the Commonwealth of Massachusetts forty (40) percent, the State of New Hampshire forty (40) percent and the State of Vermont forty (40) percent of the amount of taxes lost to their political subdivisions by reason of ownership by the United States of lands, rights or other property therein for the flood control dams and reservoirs at Tully, at Knightville and at Birch Hill in Massachusetts, at Surry Mountain in New Hampshire and at Union Village in Vermont.

The Commonwealth of Massachusetts agrees to reimburse the State of New Hampshire fifty (50) percent and the State of Vermont fifty (50) percent of the amount of taxes lost to their political subdivisions by reason of acquisition and ownership by the United States of lands, rights or other property therein for construction in the future of any flood control dam and reservoir specified in Article IV (section 1155 of this title) and also for any other flood control dam and reservoir hereafter constructed by the United States in the Connecticut River Valley.

The State of Connecticut agrees to reimburse the Commonwealth of Massachusetts forty (40) percent, the State of New Hampshire forty (40) percent and the State of Vermont forty (40) percent of the amount of taxes lost to their political subdivisions by reason of acquisition and ownership by the United States of lands, rights or other property therein for construction in the future of any flood control dam and reservoir specified in Article IV and also for any other flood control dam and reservoir hereafter constructed by the United States in the Connecticut River Valley.

Annually, not later than November first of each year, the Commission shall determine the loss of taxes resulting to political subdivisions of each signatory state by reason of acquisition and ownership therein by the United States of lands, rights or other property in connection with each flood control dam and reservoir for which provision for tax reimbursement has been made in the four paragraphs next above. Such losses of taxes as determined by the Commission shall be based on the tax rate then current in each such political subdivision and on the average assessed valuation for a period of five years prior to the acquisition by the United States of such property, provided that whenever a political subdivision wherein a flood control dam and reservoir or portion thereof is located shall have made a general revaluation of property subject to the annual municipal taxes of such subdivision, the Commission may use such revaluation for the purpose of determining the amount of taxes for which reimbursement shall be made. Using the percentage of payment agreed to in said four paragraphs, the Commission shall then compute the sum, if any, due from each signatory state to each other signatory state and shall send a notice to the Treasurer of each signatory state setting forth in detail the sums, if any, each is to pay to and to receive from each other signatory state in reimbursement of tax losses.

Each signatory state on receipt of formal notification from the Commission of the sum which it is to pay in reimbursement for tax losses shall, not later than July first of the following year, make its payment for such tax losses to the signatory state wherein such loss or losses occur, except that in case of the first annual payment for tax losses at any dam or reservoir such payment shall be made by payor states not later than July first of the year in which the next regular session of its legislature is held.

Payment by a signatory state of its share of reimbursement for taxes in accordance with formal notification received from the Commission shall be a complete and final discharge of all liability by the payor state to the payee state for each flood control dam and reservoir within the payee state for the time specified in such formal notification. Each payee signatory state shall have full responsibility for distributing or expending all such sums received, and no agency or political subdivision shall have any claim against any signatory state other than the payee state, nor against the Commission relative to tax losses covered by such payments.

Whenever a state which makes reimbursement for tax losses and a state which received such reimbursement from it shall agree, through the Commission, on a lump sum payment in lieu of annual payments and such lump sum payment has been made and received, the requirement that the Commission annually shall determine the tax losses, compute sums due from each state and send notice thereof to the treasurer of each state shall no longer apply to the aforesaid states with respect to any flood control dam and reservoir for which lump sum payment has been made and received.

The Commonwealth of Massachusetts and the State of Connecticut each agrees to pay its respective share in reimbursement, as determined by the Commission under the procedure following, for economic losses and damages occurring by reason of ownership of property by the United States for construction and operation of a flood control dam and reservoir at any site specified in Article IV, and for any other flood control dam and reservoir constructed hereafter by the United States in the Connecticut River Valley, provided, however, that no reimbursement shall be made for speculative losses and damages or losses or damages for which the United States is liable.

On receipt of information from the Chief of Engineers that request is to be made for funds for the purpose of preparing detailed plans and specifications for any flood control dam and reservoir proposed to be constructed in the Connecticut River Valley, including those specified in Article IV, the Commission shall make an estimate of the amount of taxes which would be lost to and of economic losses and damages which would occur in political subdivisions of the signatory state wherein such dam and reservoir would be located, wholly or in part, by reason of acquisition and ownership by the United States of lands, rights or other property for the construction and operation of such flood control dam and reservoir and shall decide whether the flood control benefits to be derived in the signatory states from such flood control dam and reservoir, both by itself and as a unit of a comprehensive flood control plan, justifies, in the opinion of the Commission, the assumption by signatory states of the obligation to make reimbursement for loss of taxes and for economic losses and damages. Such estimate and decision shall thereafter be reviewed by the Commission at five-year intervals until such time as the United States shall have acquired title to the site of such flood control dam or plans for its construction are abandoned. The Commission shall notify the governor, the members of the United States Senate and the members of the United States House of Representatives from each signatory state and the Chief of Engineers as to the Commission’s decision and as to any change in such decision.

On receipt of information from the Chief of Engineers that any flood control dam and reservoir is to be constructed, reconstructed, altered or used for any purpose in addition to flood control, including those flood control dams and reservoirs heretofore constructed and those specified in Article IV, the Commission shall make a separate estimate of the amount of taxes which would be lost to and of economic losses and damages which would occur in political subdivisions of the signatory state wherein such dam and reservoir would be located, wholly or in part, by reason of acquisition and ownership by the United States of lands, rights or other property for the construction and operation of such dam and reservoir in excess of the estimated amount of taxes which would be lost and of the economic losses and damages which would occur if the dam were constructed and operated for flood control only and the Commission shall decide the extent to which, in its opinion, the signatory states would be justified in making reimbursement for loss of taxes and for economic losses and damages in addition to reimbursement for such dam and reservoir if constructed and used for flood control only. Such estimate and decision shall thereafter be reviewed by the Commission at five-year intervals until such time as such dam and reservoir shall be so constructed, reconstructed, altered or used or plans for such construction, reconstruction, alteration or use are abandoned. The Commission shall notify the governor, the members of the U.S. Senate and the members of the U.S. House of Representatives from each signatory state as to the Commission’s decision and as to any change in such decision.

Within thirty days after acquisition by the United States of the site of any flood control dam the Commission shall proceed to make a final determination of economic losses and damages occasioned by such dam and reservoir. The Commission shall not include in such determination either speculative losses and damages or losses and damages for which the United States is liable.

The Commission shall compute the share the Commonwealth of Massachusetts and the State of Connecticut shall each pay to the state wherein such dam and reservoir is located by multiplying the percentage of flood and damages, as previously determined, by the percentage of flood control benefits which the Commonwealth of Massachusetts and the State of Connecticut each receives, in the allocation by states, of the flood control benefits resulting from the dam and reservoir.

The Commission shall send a notice to the Treasurer of the Commonwealth of Massachusetts and to the Treasurer of the State of Connecticut setting forth in detail the sum, if any, each is to pay to the state wherein such dam and reservoir is located in reimbursement for economic losses and damages and shall also send such notice to the Treasurer of the state wherein such dam and reservoir is located.

The Commonwealth of Massachusetts and the State of Connecticut on receipt of such formal notification by the Commission shall each pay its share of such economic losses or damages to the signatory states wherein such losses or damages occur. Full payment by either state of the sum specified in such formal notification from the Commission as to the amount of economic losses and damages for which such state is to make reimbursement shall be a complete and final discharge of all liability by the payor state to the payee state for economic losses and damages for each flood control dam and reservoir within the payee state designated in such formal notification. Each payee signatory state shall have full responsibility for distributing or expending all such sums received and no agency, political subdivision, private person, partnership, firm, association or corporation shall have any claim against any signatory state other than the payee state, nor against the Commission relative to such economic losses and damages.

A signatory state may, in agreement with the Commission and the Chief of Engineers, acquire title or option to acquire title to any or all lands, rights or other property required for any flood control dam and reservoir within its boundaries and transfer such titles or options to the United States. Whenever the fair cost to said signatory state for such titles or options, as determined by the Commission, is greater than the amount received therefor from the United States, the Commonwealth of Massachusetts and the State of Connecticut shall each pay its share of such excess cost to said signatory state, such share to be determined by the Commission in accordance with procedure herein contained for determining reimbursement for economic losses and damages.

Whenever the Commission shall not agree, within a reasonable time or within sixty days after a formal request from the governor of any signatory state, concerning reimbursement for loss of taxes or for economic losses and damages at any flood control dam and reservoir heretofore or hereafter constructed by the United States in the Connecticut River Valley, or concerning the extent, if any, to which reimbursement shall be made for additional loss of taxes and for additional economic losses and damages caused by construction, reconstruction, alteration or use of any such dam for purposes other than flood control, the governor of each signatory state shall designate a person from his state as a member of a Board of Arbitration, hereinafter called the Board, and the members so designated shall choose one additional member who shall be Chair of such Board. Whenever the members appointed by the governors to such Board shall not agree within sixty days on such additional member of the Board, the governors of such signatory states shall jointly designate the additional member. The Board shall by majority vote decide the question referred to it and shall do so in accordance with the provisions of this compact concerning such reimbursement. The decision of the Board on each question referred to it concerning reimbursement for loss of taxes and for economic losses and damages shall be binding on the Commission and on each signatory state, notwithstanding any other provision of this compact.

History

Source.

1951, No. 244 , § 1.

§ 1157. Authority of United States—Article VI.

Nothing contained in this compact shall be construed as a limitation upon the authority of the United States.

History

Source.

1951, No. 244 , § 1.

§ 1158. Expenses of Commission—Article VII.

The signatory states agree to appropriate for compensation of agents and employees of the Commission and for office, administrative, travel and other expenses on recommendation of the Commission subject to limitations as follows: The Commonwealth of Massachusetts obligates itself to not more than seventy-five hundred ($7500) dollars in any one year, the State of New Hampshire obligates itself to not more than one thousand ($1000) dollars in any one year, the State of Vermont obligates itself to not more than two thousand ($2000) dollars in any one year and the State of Connecticut obligates itself to not more than sixty-five hundred ($6500) dollars in any one year.

HISTORY: Amended 1989, No. 210 (Adj. Sess.), § 196; 1991, No. 5 , § 63, eff. March 13, 1991.

History

Source.

1951, No. 244 , § 1.

Amendments

—1991. Re-enacted without change.

—1989 (Adj. Sess.) Substituted “two thousand ($2000)” for “one thousand ($1000)” near the end of the section.

§ 1159. Separability of provisions—Article VIII.

Should any part of this compact be held to be contrary to the constitution of any signatory state or of the United States, all other parts thereof shall continue to be in full force and effect.

History

Source.

1951, No. 244 , § 1.

§ 1160. Compact effective, when; notice of ratification—Article IX.

This compact shall become operative and effective when ratified by the Commonwealth of Massachusetts and the States of New Hampshire, Vermont and Connecticut and approved by the Congress of the United States. Notice of ratification shall be given by the governor of each state to the governors of other states and to the President of the United States, and the President of the United States is requested to give notice to the governors of each of the signatory states of approval by the Congress of the United States.

History

Source.

1951, No. 244 , § 1.

Effective date of act. Section 8 of 1951, No. 244 , provided: “This act shall take effect one day after the governor of Vermont shall have been notified that the Commonwealth of Massachusetts and the States of Connecticut and New Hampshire have passed legislation ratifying the foregoing compact.”

Effective date of compact. Section 2 of 1951, No. 244 , provided: “The compact, when approved by the legislatures of each of said states and by the Congress of the United States, shall thereupon become operative and effective. The governor is authorized and directed forthwith to notify the governors, respectively, of the said states and the President of the United States, that the State of Vermont on its part has approved and ratified said compact or agreement. Upon its execution in quintuplicate by the commissioners of each of said states as aforesaid, a duly executed original thereof shall be filed in the office of the Secretary of State of the State of Vermont, together with the original notice of ratification received from the governors of the remaining signatory states, and such notice, if any, as may be received from the President or the Congress of the United States, signifying the approval by such Congress thereto.”

Execution and approval of compact. The Connecticut river flood control compact was executed by Connecticut, Massachusetts, New Hampshire, and Vermont on Sept. 8, 1953.

This compact was approved by act of Congress of June 6, 1953, ch. 103, 67 Stat. 45.

The compact is codified at:

Conn.—C.G.S.A. §§ 25-99.

N.H.—N.H.R.S.A. 484:1 et seq.

Subchapter 2. Provisions Relating to Flood Control Compact

History

Amendments

—1987 (Adj. Sess.) 1987, No. 208 (Adj. Sess.), § 1, redesignated former sections 1191-1198 of this subchapter as present sections 1171-1178.

§ 1171. Connecticut River Valley Flood Control Commission; appointment; term of office.

The Connecticut River Valley Flood Control Commission shall consist of three members. Biennially, in the month of February, the Governor, by and with the advice and consent of the Senate, shall appoint one member of the Commission whose term of office shall be six years from and after March 1 of the year in which he or she is appointed.

History

Source.

1951, No. 244 , § 4.

Revision note—

Added comma after “governor” in the second sentence to correct the punctuation.

CROSS REFERENCES

Commission attached to Agency of Administration, see 3 V.S.A. § 2202 .

§ 1172. Vacancies in Commission membership; power of removal.

The provisions of 3 V.S.A. §§ 257-259 shall apply to vacancies that may occur in the membership of said Commission from this State, and to the power of removal of any such commissioner; except that if a vacancy occurs among such membership, either by death, resignation, removal, or otherwise, between sessions of the General Assembly, the Governor shall have power to fill such vacancy by appointment until March 1 of the next biennial year.

History

Source.

1951, No. 244 , § 5.

§ 1173. Expenses of members of Commission.

The members of said Commission appointed by the State of Vermont shall each receive as compensation for their services the sum of $30.00 a day for each day’s service performed in connection with the duties of such office.

History

Source.

1951, No. 244 , § 6.

Revision note—

Substituted “$30.00” for “$15.00” pursuant to 1977, No. 222 (Adj. Sess.), § 17.

§ 1174. Expenditure for support of the Connecticut Commission.

The Department of Environmental Conservation shall make an expenditure for the purpose of carrying out the provisions of Article VII of the Compact, section 1158 of this title, relating to payment by the State to the Connecticut Commission of the proportionate share of the State in the expenses of said Commission. This expenditure is conditioned upon payment by the other compacting states of their proportionate amounts.

HISTORY: Amended 2011, No. 162 (Adj. Sess.), § E.709.

History

Source.

1957, No. 89 , § 1. 1951, No. 244 , § 7.

Amendments

—2011 (Adj. Sess.). Rewrote the section catchline and substituted “The department of environmental conservation shall make an expenditure” for “The sum of $1,500.00 annually, or so much thereof as may be necessary, is hereby appropriated out of any fund not otherwise appropriated” at the beginning of the section and substituted “expenditure” for “appropriation” in the second sentence.

§ 1175. Notification of funds received; tax and economic loss.

  1. The State Treasurer shall notify the Commissioner of Finance and Management when he or she receives funds from either the State of Connecticut or the Commonwealth of Massachusetts, as provided in the Connecticut River Flood Control Compact, sections 1151-1160 of this title, in reimbursement for loss of taxes and for economic losses and damages for any tax year in a town or towns of this State occasioned by ownership therein by the United States of lands, rights or other property in a flood control dam and reservoir.
  2. At the same time the State Treasurer shall transmit to the Secretary of the Agency of Natural Resources the official notification he or she has received from the Connecticut River Valley Flood Control Commission setting forth the tax loss or the economic losses and damages, as determined by the Commission according to the terms of said Compact, or as otherwise determined by the Commission, together with the part of each such loss the State of Connecticut and the Commonwealth of Massachusetts are obligated to pay.
  3. Funds received pursuant to subsection (a) of this section shall be credited to a special fund, established and managed pursuant to 32 V.S.A. chapter 7, subchapter 5, from which payments shall be made in accordance with section 1176 of this title.

HISTORY: Amended 1959, No. 108 , § 1; 1959, No. 328 (Adj. Sess.), § 8; 1961, No. 100 , § 2; 1981, No. 222 (Adj. Sess.), § 5; 1983, No. 195 (Adj. Sess.), § 5; 1987, No. 76 , § 18; 2011, No. 162 (Adj. Sess.), § E.709.1.

History

Source.

1957, No. 68 , §§ 1, 2. 1955, No. 138 , §§ 1, 2.

Amendments

—2011 (Adj. Sess.). Subsec. (c): Added.

—1987. Subsec. (b): Substituted “agency of natural resources” for “agency of environmental conservation” following “secretary of the”.

—1983 (Adj. Sess.). Subsec. (a): Inserted “and information support” following “commissioner of finance”.

—1981 (Adj. Sess.). Subsec. (b): Substituted “secretary of the agency of environmental conservation” for “Vermont water resources board”.

—1961. Subsec. (b): Substituted “Vermont water resources board” for “state water conservation board”.

—1959 (Adj. Sess.). Subsec. (a): Substituted “finance director” for “auditor of accounts”.

—1959. Subsec. (b): Substituted “as determined by the commission according to the terms of said compact, or as otherwise determined by the commission” for “as determined by the commission by application of the formula prescribed in said compact, in each Vermont town”.

§ 1176. Certifications of sums due towns; warrants.

On receipt of information from the State Treasurer under section 1175 of this title, the Secretary of Natural Resources shall certify to the Commissioner of Finance and Management the sums due under the terms of the compact payable by the Commonwealth of Massachusetts and the State of Connecticut and the name of each person, partnership, corporation, or municipality to whom the sums are due. The Commissioner of Finance and Management shall issue his or her warrants accordingly.

HISTORY: Amended 1959, No. 108 , § 2; 1959, No. 328 (Adj. Sess.), § 8; 1961, No. 100 , § 2; 1981, No. 222 (Adj. Sess.), § 6; 1983, No. 195 (Adj. Sess.), § 5(b); 1987, No. 76 , § 18.

History

Source.

1957, No. 68 , § 3. 1955, No. 138 , § 3.

Amendments

—1987. In the first sentence, substituted “agency of natural resources” for “agency of environmental conservation”.

—1983 (Adj. Sess.). Inserted “and information support” following “commissioner of finance” in the first and second sentences.

—1981 (Adj. Sess.). In the first sentence, inserted “under section 1195” following “state treasurer”, substituted “secretary of the agency of environmental conservation” for “Vermont water resources board”, and made other minor stylistic changes.

—1961. Substituted “Vermont water resources board” for “Vermont state water conservation board” in the first sentence.

—1959 (Adj. Sess.). Substituted “finance director” for “auditor of accounts” in the first and second sentences.

—1959. Substituted “the sums due under the terms of the compact payable by the Commonwealth of Massachusetts and the State of Connecticut and the name of each person, partnership, corporation or municipality to whom the sums are due” for “the sums due the several towns” in the first sentence.

§ 1177. Maintenance of records by Secretary of Natural Resources.

It shall be the sole responsibility of the Secretary of Natural Resources to keep and maintain all records, except records of warrants issued by the Commissioner of Finance and Management, in connection with and compiled as a result of sections 1175 and 1176 of this title. All departments or agencies of the State maintaining these records shall forthwith deliver the same to the Secretary of Natural Resources.

HISTORY: Amended 1959, No. 328 Adj. Sess.), § 8; 1961, No. 100 , § 2; 1981, No. 222 (Adj. Sess.), § 7; 1983, No. 195 (Adj. Sess.), § 5(b); 1987, No. 76 , § 18.

History

Source.

1957, No. 68 , § 4.

Amendments

—1987. Substituted “agency of natural resources” for “agency of environmental conservation” in the section catchline and in the first and second sentences.

—1983 (Adj. Sess.). Inserted “and information support” following “commissioner of finance” in the first sentence.

—1981 (Adj. Sess.). Substituted “secretary of the agency of environmental conservation” for “Vermont water resources board” in the first and second sentences and made other minor stylistic changes.

—1961. Substituted “Vermont water resources board” for “water conservation board” in the first and second sentences.

—1959 (Adj. Sess.). Substituted “finance director” for “auditor of accounts” in the first sentence.

§ 1178. Reimbursement for tax losses not covered by Compact.

  1. The State of Vermont shall annually reimburse its political subdivisions for the ten percent of the amount of real property, personal property is lost to them by reason of acquisition and ownership by the United States of land, rights or other property acquired by the United States for flood control dams and reservoirs, and not reimbursed by the Commonwealth of Massachusetts and the State of Connecticut under the terms of the Connecticut River Flood Control Compact, sections 1151-1160 of this title.  Such total annual reimbursement by the State of Vermont under the terms of this section shall equal one-ninth of the aggregate amount determined by the Connecticut River Flood Control Commission as being due by the State of Connecticut and the Commonwealth of Massachusetts to the State of Vermont solely for the aforesaid tax losses under the terms of said compact.
  2. The Commissioner of Finance and Management shall annually issue his or her warrants in favor of those political subdivisions upon vouchers issued by the Secretary of Natural Resources at the same time as vouchers are issued for payments of reimbursement of the loss of that political subdivision by the State of Connecticut and Commonwealth of Massachusetts.

HISTORY: Amended 1959, No. 328 (Adj. Sess.), § 8; 1961, No. 100 , § 2; 1981, No. 222 (Adj. Sess.), § 8; 1983, No. 195 (Adj. Sess.), § 5(b); 1987, No. 76 , § 18.

History

Source.

1957, No. 215 , §§ 1, 2.

Amendments

—1987. Subsec. (b): Substituted “agency of natural resources” for “agency of environmental conservation” following “secretary of the”.

—1983 (Adj. Sess.). Subsec. (b): Inserted “and information support” following “commissioner of finance”.

—1981 (Adj. Sess.). Subsec. (b): Substituted “secretary of the agency of environmental conservation” for “Vermont water resources board” and made other minor stylistic changes.

—1961. Subsec. (b): Substituted “Vermont water resources board” for “water conservation board”.

—1959 (Adj. Sess.). Subsec. (b): Substituted “finance director” for “auditor of accounts”.

Subchapter 3. Connecticut River Watershed Advisory Commission

§ 1191. Purpose.

The purpose of this subchapter is to provide a mechanism for a cooperative effort with the State of New Hampshire to guide any development that may occur, in a way that maximizes the conservation of the visual, ecological, and agricultural integrity of the Connecticut River watershed.

HISTORY: Added 1987, No. 208 (Adj. Sess.), § 2.

§ 1192. Policy.

It is the policy of this State to join with the State of New Hampshire in a common effort to ensure that development within the Connecticut River watershed proceeds in ways that protect its outstanding ecological, scenic, recreational, historic, cultural, agricultural, fish, and wildlife values.

HISTORY: Added 1987, No. 208 (Adj. Sess.), § 2.

§ 1193. Connecticut River Watershed Advisory Commission established.

  1. A Connecticut River Watershed Advisory Commission is established to develop ways to cooperate, and to initiate and encourage interstate cooperation and coordination with and between the appropriate officers of the State of Vermont and the State of New Hampshire to achieve the purpose of this subchapter. In a manner consistent with New Hampshire law, the Advisory Commission may designate citizens from Vermont municipalities bordering the Connecticut River to serve on, or coordinate with, local river management advisory groups established pursuant to New Hampshire law.
  2. The Advisory Commission shall consist of 15 members: the Secretary of Natural Resources; one member selected by each of the five regional planning commissions bordering the Connecticut River and nine at-large members appointed by the Governor who shall be residents of the Connecticut River watershed. The at-large members may include persons who are members of the General Assembly and shall include others who represent diverse interests such as forestry, tourism, fishing, boating, and land preservation and historic preservation. One or more members shall be actively farming land they own bordering the Connecticut River or its tributaries.
  3. The Secretary of Natural Resources shall promptly convene the first meeting of the Advisory Commission at which time a chairperson will be elected by the members. The chairperson shall serve for one year or until his or her successor is elected.
  4. A majority of the members of the Commission shall constitute a quorum.
  5. Members shall be entitled to compensation in accordance with the provisions of 32 V.S.A. § 1010 .
  6. In the event of a vacancy occurring in the membership of the Commission, the vacancy shall be filled in the same manner as the original appointment.

HISTORY: Added 1987, No. 208 (Adj. Sess.), § 2; amended 1991, No. 224 (Adj. Sess.), § 2.

History

Amendments

—1991 (Adj. Sess.). Subsec. (a): Added the second sentence.

Subsec. (b): Substituted “15” for “nine” following “consist of” and “nine” for “three” preceding “at-large”, deleted “at least one of whom shall be actively farming land bordering the Connecticut River or its tributaries” following “watershed”, and made a minor stylistic change in the first sentence and added the second and third sentences.

§ 1194. Support services.

The Secretary of Natural Resources shall provide supportive services to the Advisory Commission.

HISTORY: Added 1987, No. 208 (Adj. Sess.), § 2.

§ 1195. Acceptance of grants and contributions.

The Commission may receive and accept grants, aid, or contributions of money, property, labor, or other things of value, to be expended to carry out the purposes of this subchapter.

HISTORY: Added 1987, No. 208 (Adj. Sess.), § 2.

§ 1196. Report.

Beginning in 1989 and annually thereafter, the Advisory Commission shall file a report on its activities under this subchapter. The report shall be filed with the Agency of Natural Resources, the Governor, and the General Assembly on or before July 15.

HISTORY: Added 1987, No. 208 (Adj. Sess.), § 2; amended 2017, No. 113 (Adj. Sess.), § 44b.

History

Amendments

—2017 (Adj. Sess.) Substituted “General Assembly” for “Committees on Natural Resources and Energy of the House and Senate” in the last sentence.

2015, No. 131 (Adj. Sess.), § 36 provides: “The reports set forth in this section shall not be subject to expiration under the provisions of 2 V.S.A. § 20(d) (expiration of required reports) until July 1, 2018.

§ 1197. [Reserved for future use.]

§ 1198. Recodified. 1987, No. 208 (Adj. Sess.), § 1.

History

Revision note

—2011. The 2011 supplement implements Act No. 208 of 1987 (Adj. Sess.), § 1, which redesignated 10 V.S.A § 1198 as 10 V.S.A. § 1178 .

Former § 1198. Former § 1198, relating to reimbursement for tax losses not covered by the Connecticut River Flood Control Compact, was derived from 1957, No. 215 , §§ 1, 2 and amended by 1959, No. 328 (Adj. Sess.), § 8; 1961, No. 100 , § 2; 1981, No. 222 (Adj. Sess.), § 8; and 1983, No. 195 (Adj. Sess.), § 5(b). For provisions, see now 10 V.S.A. § 1178 .

Chapter 46. Interstate Waste Compact

History

Amendments

—1981. 1981, No. 32 , § 1, substituted “Interstate Waste Compact” for “New Hampshire-Vermont Interstate Sewage and Waste Disposal Facilities Compact” in chapter heading.

CROSS REFERENCES

State land use and development planning generally, see § 6001 et seq. of this title.

Storage of radioactive material, see § 6501 et seq. of this title.

Waste management, see § 6601 et seq. of this title.

Water pollution control generally, see § 1251 et seq. of this title.

Subchapter 1. New Hampshire-Vermont Interstate Sewage and Waste Disposal Facilities Compact

History

Amendments

—1981. 1981, No. 32 , § 2, designated sections 1201-1204 as subchapter 1.

§ 1201. Compact.

The State of Vermont enters into the following compact with the State of New Hampshire subject to the terms and conditions therein stated.

HISTORY: Added 1975, No. 116 , § 1, eff. June 29, 1975.

ANNOTATIONS

Cited.

Cited in In re Sullivan County Regional Refuse Disposal District, 165 B.R. 60, 1994 Bankr. LEXIS 308 (Bankr. D.N.H. 1994).

§ 1202. General provisions—Article I.

  1. Statement of policy.   It is recognized that in certain cases municipalities in New Hampshire and Vermont may, in order to avoid duplication of cost and effort, and in order to take advantage of economies of scale, find it necessary or advisable to enter into agreements whereby joint sewage and waste disposal facilities are erected and maintained.  The states of New Hampshire and Vermont recognize the value of and need for such agreements, and adopt this compact in order to authorize their establishment.
  2. Requirement of congressional approval.   This compact shall not become effective until approved by the U.S. Congress.
  3. Definitions.
    1. “Sewage and waste disposal facilities” shall mean publicly owned sewers, interceptor sewers, sewerage facilities, sewage treatment facilities, and ancillary facilities whether qualifying for grants in aid under Title II of the Federal Water Pollution Control Act, as amended, or not.
    2. “Municipalities” shall mean cities, towns, village districts, or other incorporated units of local government possessing authority to construct, maintain, and operate sewage and waste disposal facilities and to raise revenue therefor by bonding and taxation, which may legally impose and collect user charges and impose and enforce pretreatment conditions upon users of sewage and waste disposal facilities.
    3. “Water pollution agency” shall mean the agencies within New Hampshire and Vermont possessing regulating authority over the construction, maintenance, and operation of sewage and waste disposal facilities and the administration of grants in aid from their respective state and under the Federal Water Pollution Act, as amended, for the construction of such facilities.
    4. “Governing body” shall mean the legislative body of the municipality, including in the case of a town, the town meeting, and in the case of a city, the city council, or the board of mayor and aldermen or any similar body in any community not inconsistent with the intent of this definition.

HISTORY: Added 1975, No. 116 , § 1, eff. June 29, 1975.

History

References in text.

The Federal Water Pollution Control Act, referred to in paragraphs C1 and 3, is codified as 33 U.S.C. § 1251 et seq.

§ 1203. Procedures and conditions governing intergovernmental agreements—Article II.

  1. Cooperative Agreements Authorized.   Any two or more municipalities, one or more located in New Hampshire and one or more located in Vermont, may enter into cooperative agreements for the construction, maintenance, and operation of a single sewage and waste disposal facility serving all the municipalities who are parties thereto.
  2. Approval of Agreements.   Any agreement entered into under this compact shall, prior to becoming effective, be approved by the water pollution agency of each state, and shall be in a form established jointly by said agencies of both states.
  3. Method of Adopting Agreements.   Agreements hereunder shall be adopted by the governing body of each municipality in accordance with existing statutory procedures for the adoption of intergovernmental agreements between municipalities within each state.
  4. Review and Approval of Plans.   The water pollution agency of the state in which any part of a sewage and waste disposal facility that is proposed under an agreement pursuant to this compact is proposed to be or is located is hereby authorized and required, to the extent such authority exists under its state law, to review and approve or disapprove all reports, designs, plans, and other engineering documents required to apply for federal grants in aid or grants in aid from said agency’s state, and to supervise and regulate the planning, design, construction, maintenance, and operation of said part of the facility.
  5. Federal Grants and Financing.
    1. Application for federal grants in aid for the planning, design and construction of sewage and waste disposal facilities other than sewers shall be made jointly by the agreeing municipalities, with the amount of the grant attributable to each state’s allotment to be based upon the relative total capacity reserves allocated to the municipalities in the respective states determined jointly by the respective state water pollution agencies.  Each municipality shall be responsible for applying for federal grants for sewers to be located within the municipal boundaries.
    2. Municipalities are hereby authorized to raise and appropriate revenue for the purpose of contributing pro rata to the planning, design, and construction cost of sewage and waste disposal facilities constructed and operated as joint facilities pursuant to this compact.
  6. Contents of Agreements.   Agreements entered into pursuant to this compact shall contain the following:
    1. A uniform system of charges for industrial users of the joint sewage and waste disposal facilities.
    2. A uniform set of pretreatment standards for industrial users of the joint sewage and waste disposal facilities.
    3. A provision for the pro rata sharing of operating and maintenance costs based upon the ratio of actual flows to the plant as measured by devices installed to gauge such flows with reasonable accuracy.
    4. A provision establishing a procedure for the arbitration and resolution of disputes.
    5. A provision establishing a procedure for the carriage of liability insurance, if such insurance is necessary under the laws of either state.
    6. A provision establishing a procedure for the modification of the agreement.
    7. A provision establishing a procedure for the adoption of regulations for the use, operation, and maintenance of the joint facilities.
    8. A provision setting forth the means by which the municipality that does not own the joint sewage and waste disposal facility will pay the other municipality its share of the maintenance and operating costs of said facility.

      H. Nothing in this compact shall be construed to authorize the establishment of interstate districts, authorities, or any other new governmental or quasi-governmental entity.

HISTORY: Added 1975, No. 116 , § 1, eff. June 29, 1975.

§ 1204. Effective date—Article III.

  1. This compact shall become effective when a bill of the New Hampshire General Court that incorporates the compact becomes a law in New Hampshire and when it is approved by the U.S. Congress.

HISTORY: Added 1975, No. 116 , § 1, eff. June 29, 1975; amended 2019, No. 14 , § 28, eff. April 30, 2019.

History

Amendments

—2019. Substituted “Court” for “Assembly”.

Adoption of compact. The compact has been adopted by the State of New Hampshire and is codified as N.H.R.S.A. 149-J:1 et seq.

The compact was approved by Congress by Act Sept. 9, 1976, P.L. 94-403, 90 Stat. 1221.

Subchapter 2. New Hampshire-Vermont Solid Waste Compact

History

Contingent 1993 (Adj. Sess.) amendment of subchapter. 1993, No. 205 (Adj. Sess.), § 1, provided for the amendment of 10 V.S.A. chapter 46, subchapter 2, comprising §§ 1222-1224; however, in accordance with the terms set forth in 1993, No. 205 (Adj. Sess.), § 11(a)(1), the compact shall only become effective when the compact has been adopted by the State of Vermont in two different sessions, when a bill incorporating the compact becomes law in New Hampshire and when the compact is approved by the United States Congress.

1993, No. 205 (Adj. Sess.), § 11, further provided for the amendment to this subchapter to take effect upon adoption of the charter; however, in accordance with the terms set forth in 1993, No. 205 (Adj. Sess.), § 11(a)(2), the charter shall become effective when the charter has been adopted by the State of Vermont in two different sessions and by the State of New Hampshire and when the New Hampshire-Vermont Solid Waste Project Charter has been ratified, without amendment, by a majority of the voters residing in the municipalities in the Vermont District, present and voting, and by a majority of the voters residing in the municipalities in the New Hampshire District, present and voting.

§ 1222. General provisions—Article I.

  1. Statement of policy.   It is recognized that municipalities in New Hampshire and Vermont may, in order to avoid duplication of cost and effort, and, in order to take advantage of economies of scale, find it necessary or desirable to enter into an arrangement whereby joint solid waste disposal and resource recovery facilities are constructed and maintained. The states of New Hampshire and Vermont recognize the value of and the need for such a cooperative agreement to capture the economic benefits of reduced solid waste disposal costs and to enhance the economy through a reduction in demand for imported energy and the promotion of employment. Furthermore, the states of New Hampshire and Vermont recognize the value of and the need for such a cooperative agreement to maintain a safe and healthy environment, including a clean and renewable supply of the water resources.
  2. Requirement of administrative and congressional approval.   This compact shall not become effective until approved by the administrator of the U.S. Environmental Protection Agency and the U.S. Congress.
  3. Definitions.
    1. “Resource recovery facility” shall mean any facility at which solid waste is processed for the purpose of extracting, converting to energy, or otherwise, separating and preparing solid waste for reuse.
    2. “Municipalities” shall mean in Vermont a municipality as defined in 1 V.S.A. § 126 and a union municipal district established under the authority of 24 V.S.A. chapter 121; shall mean in New Hampshire a public agency as defined in RSA 53-A:2 and a regional refuse disposal district established under the authority of RSA 53-B.
    3. “Solid waste agencies” shall mean those agencies within New Hampshire and Vermont possessing authority to regulate solid waste disposal and to administer the Resource Conservation and Recovery Act of 1976, as amended (42 USCA Chapter 82).
    4. “Sanitary landfills” shall mean a facility for the disposal of solid waste that meets the criteria published under 42 USCA § 6944 of the Resource Conservation and Recovery Act of 1976, as amended.
    5. “Solid waste” shall mean any garbage, refuse, metal goods, tires, demolition and construction waste, yard waste, and sludge from a waste water treatment plant, or other discarded materials, possessing no value to the producer in its present form where it is located, produced by normal residential, commercial, and industrial activities, but does not include hazardous waste.
    6. “Hazardous waste” shall mean any solid, semi-solid, liquid, or contained gaseous waste, or any combination of these wastes, that because of its quantity, concentration, or physical, chemical, or infectious characteristics may: (a) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness; or (b) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed, or any waste classified as hazardous at any time under applicable laws and regulations of the United States, New Hampshire, and Vermont or any subdivision thereof pursuant to a valid grant of authority.

HISTORY: Added 1981, No. 32 , § 3.

§ 1223. Procedures and conditions governing intergovernmental agreements—Article II.

  1. Cooperative Agreements Authorized.   Any two or more municipalities, one or more located in New Hampshire and one or more located in Vermont, may enter into cooperative agreements for the construction, maintenance, and operation of a resource recovery facility or sanitary landfill or both and those related services needed for the efficient operation thereof. The agreement may also include the sale of energy and other byproducts.
  2. Approval of Agreements.   Any agreement entered into under this compact shall, prior to becoming effective, be approved by the solid waste agencies of both New Hampshire and Vermont as in conformance with each state’s solid waste management plan.
  3. Method of Adopting Agreements.   Agreements hereunder shall be adopted in accordance with existing statutory procedures for the adoption of intergovernmental agreements between municipalities within each state, and further in New Hampshire, as provided in RSA Chapter 53-B.
  4. Review and Approval of Plans.   The solid waste agencies of the state in which any part of a solid waste disposal and resource recovery facility that is proposed under an agreement pursuant to this compact is proposed to be or is located is hereby authorized and required, to the extent such authority exists under its state law to assure that the proposed facility is compatible with the existing state plan.
  5. Contents of Agreements.   Agreements entered into pursuant to this compact shall contain the following:
    1. Duration of the agreement.
    2. Purpose of the agreement.
    3. Provision for a joint board and/or administrator responsible for administering the cooperative undertaking and the powers to be exercised thereby. All municipalities party to the agreement shall be represented.
    4. The manner of acquiring, holding, and disposing of real and personal property used in the cooperative undertaking.
    5. The manner of financing the cooperative undertaking and establishing a budget therefor.
    6. The manner and method of establishing and imposing fair and equitable charges for the users of the facilities.
    7. A provision establishing a procedure for the arbitration of disputes.
    8. The conditions and procedure under which a municipality may withdraw from or be added to a cooperative agreement.
    9. The manner in which the agreement may be amended.
    10. The methods to be employed in the termination of the agreement and for disposing of property upon termination.

HISTORY: Added 1981, No. 32 , § 3.

§ 1224. Effective date—Article III.

  1. This compact shall become effective when ratified by New Hampshire and Vermont and approved by the U.S. Congress.

HISTORY: Added 1981, No. 32 , § 3.

History

Adoption of compact. The compact has been adopted by the State of New Hampshire and is codified as N.H.R.S.A. 53-D:1 et seq.

The compact was approved by Congress by Act Oct. 4, 1982, P.L. 97-278, 96 Stat. 1207.

Chapter 46A. Interstate Public Water Supply Compact

History

Enactment and effective date of chapter. 1995, No. 37 , § 1, provided for the enactment of 10 V.S.A. chapter 46A, comprising §§ 1231-1235; in accordance with the terms set forth in section 1235 of the compact, the compact became effective when the compact became law in New Hampshire and when the compact was approved by the United States Congress. The compact is codified in New Hampshire as N.H.R.S.A. 485-D and consent of Congress was granted by P.L. 104-126 (110 Stat. 884), approved April 1, 1996.

Subchapter 1. New Hampshire—Vermont Interstate Public Water Supply Compact

§ 1231. Compact.

The State of Vermont enters into the following compact with the State of New Hampshire subject to the terms and conditions therein stated.

HISTORY: Added 1995, No. 37 , § 1.

§ 1232. General provisions—Article I.

  1. Statement of policy.   It is recognized that in certain cases municipalities in New Hampshire and Vermont may, in order to avoid duplication of cost and effort, and in order to take advantage of economies of scale, find it necessary or advisable to enter into agreements whereby joint public water supply facilities are erected and maintained. The states of New Hampshire and Vermont recognize the value of and need for such agreements, and adopt this compact in order to authorize their establishment.
  2. Requirement of congressional approval.   This compact shall not become effective until approved by the U.S. Congress.
  3. Definitions.
    1. “Public water supply facilities” shall mean publicly owned water supply sources, storage, treatment, transmission, and distribution facilities and ancillary facilities regardless of whether or not the same qualify for federal or state construction grants-in-aid.
    2. “Municipalities” shall mean cities, towns, village districts, or other incorporated units of local government possessing authority to construct, maintain, and operate public water supply facilities and to raise revenue therefor by bonding and taxation, that may legally impose and collect user charges and impose and enforce regulatory control upon users of public water supply facilities.
    3. “Water supply agency” shall mean the agencies within New Hampshire and Vermont possessing regulating authority over the construction, maintenance, and operation of public water supply facilities and the administration of grants-in-aid from their respective state for the construction of such facilities.
    4. “Governing body” shall mean the legislative body of the municipality.

HISTORY: Added 1995, No. 37 , § 1.

§ 1233. Procedures and conditions governing intergovernmental agreements—Article II.

  1. Cooperative Agreements Authorized.   Any two or more municipalities, one or more located in New Hampshire and one or more located in Vermont, may enter into cooperative agreements for the construction, maintenance, and operation of public water supply facilities serving all the municipalities who are parties thereto.
  2. Approval of Agreements.   Any agreement entered into under this compact shall, prior to becoming effective, be approved by the water supply agency of each state, and shall be in a form established jointly by said agencies of both states.
  3. Method of Adopting Agreements.   Agreements shall be adopted by the governing body of each municipality in accordance with statutory procedures for the adoption of interlocal agreements between municipalities within each state; provided that before a Vermont municipality may enter into such agreement, the proposed agreement shall be approved by the voters.
  4. Review and Approval of Plans.   The water supply agency of the state in which any part of a public water supply facility which is proposed under an agreement pursuant to this compact is proposed to be or is located, is hereby authorized and required, to the extent such authority exists under its state law, to review and approve or disapprove all reports, designs, plans, and other engineering documents required to apply for federal grants-in-aid or grants-in-aid from said agency’s state, and to supervise and regulate the planning, design, construction, maintenance, and operation of said part of the facility.
  5. Federal Grants and Financing.
    1. Application for federal grants-in-aid for the planning, design, and construction of public water supply facilities other than distribution facilities shall be made jointly by the agreeing municipalities, with the amount of the grant attributable to each state’s allotment to be based upon the relative total capacity reserves allocated to the municipalities in the respective states determined jointly by the respective state water supply agencies. Each municipality shall be responsible for applying for federal and state grants for distribution facilities to be located within the municipal boundaries.
    2. Municipalities are hereby authorized to raise and appropriate revenue for the purpose of contributing pro rata to the planning, design, and construction cost of public water supply facilities constructed and operated as joint facilities pursuant to this compact.
  6. Contents of Agreements.   Agreements entered into pursuant to this compact shall contain at least the following:
    1. A system of charges for users of the joint public water supply facilities.
    2. A uniform set of standards for users of the joint public water supply facilities.
    3. A provision for the pro rata sharing of operating and maintenance costs based upon the ration of actual usage as measured by devices installed to gauge such usage with reasonable accuracy.
    4. A provision establishing a procedure for the arbitration and resolution of disputes.
    5. A provision establishing a procedure for the carriage of liability insurance, if such insurance is necessary under the laws of either state.
    6. A provision establishing a procedure for the modification of the agreement.
    7. A provision establishing a procedure for the adoption of regulations for the use, operation, and maintenance of the public water supply facilities.
    8. A provision setting forth the means by which the municipality that does not own the joint public water supply facility will pay the other municipality its share of the maintenance and operating costs of said facility.
  7. Applicability of State Laws.   Cooperative agreements entered into by municipalities under this compact shall be consistent with, and shall not supersede, the laws of the state in which each municipality is located. Notwithstanding any provision of this compact, actions taken by a municipality pursuant to this compact, or pursuant to an agreement entered into under this compact, including the incurring of obligations or the raising and appropriating of revenue, shall be valid only if taken in accordance with the laws of the state in which such municipality is located.

HISTORY: Added 1995, No. 37 , § 1.

§ 1234. Construction.

Nothing in this compact shall be construed to authorize the establishment of interstate districts, authorities, or any other new governmental or quasi-governmental entity.

HISTORY: Added 1995, No. 37 , § 1.

§ 1235. Effective date—Article III.

This compact shall become effective when a bill of the New Hampshire General Court that incorporates the compact becomes a law in New Hampshire and when it is approved by the U.S. Congress.

HISTORY: Added 1995, No. 37 , § 1; amended 2019, No. 14 , § 29, eff. April 30, 2019.

History

Amendments

—2019. Substituted “Court” for “Assembly”.

See enactment and effective date of chapter note set out preceding § 1231 of this title.

Chapter 47. Water Pollution Control

CROSS REFERENCES

Agricultural non-point sources pollution reduction program, see 6 V.S.A. § 4810 et seq.

Aid to municipalities for water supply, pollution abatement, and sewer separation, see § 1571 et seq. of this title.

Powers of Department of Environmental Conservation relating to enforcement of provisions of this chapter, see 3 V.S.A. § 2822 .

Protection of navigable waters and shorelands, see § 1421 et seq. of this title.

State land use and development planning generally, see § 6001 et seq. of this title.

ANNOTATIONS

Cited.

Cited in Secretary v. Henry, 161 Vt. 556, 641 A.2d 1345, 1994 Vt. LEXIS 38 (1994).

Subchapter 1. Water Pollution Control

CROSS REFERENCES

Agricultural non-point sources pollution reduction program, see 6 V.S.A. § 4810 et seq.

Notes to Opinions

Validity and effectiveness of particular provisions.

Validity and effectiveness of sections 4-6, 10, 11, 13, 16 of 1949, No. 148 [sections 1252, 1253, 1254, 1258, 1259, 1271, 1275 of this title] were not dependent on execution of New England Interstate Water Pollution Control Compact, section 1331 et seq. of this title. 1950 Vt. Op. Att'y Gen. 262.

§ 1250. State water quality policy.

It is the policy of the State of Vermont to:

  1. protect and enhance the quality, character and usefulness of its surface waters and to assure the public health;
  2. maintain the purity of drinking water;
  3. control the discharge of wastes to the waters of the State, prevent degradation of high quality waters and prevent, abate or control all activities harmful to water quality;
  4. assure the maintenance of water quality necessary to sustain existing aquatic communities;
  5. provide clear, consistent, and enforceable standards for the permitting and management of discharges;
  6. protect from risk and preserve in their natural state certain high quality waters, including fragile high-altitude waters, and the ecosystems they sustain;
  7. manage the waters of the State to promote a healthy and prosperous agricultural community; to increase the opportunities for use of the State’s forest, park, and recreational facilities; and to allow beneficial and environmentally sound development; and
  8. seek over the long term to upgrade the quality of waters and to reduce existing risks to water quality.

HISTORY: Added 1985, No. 199 (Adj. Sess.), § 1, eff. May 17, 1986; amended 2019, No. 14 , § 30, eff. April 30, 2019.

History

Amendments

—2019. Subdiv. (7): Added “and” to the end of subdiv.

Subdiv. (8): Added the designation (8), and deleted “it is further the policy of the State to” at the beginning of the sentence.

Coordinated water quality grants. 2017, No. 168 (Adj. Sess.), § 3 provides: “The Secretary of Natural Resources, the Secretary of Agriculture, Food and Markets, and the Secretary of Transportation shall coordinate prior to awarding water quality grants or funding in order to maximize the water quality benefit or impact of funded projects in a watershed planning basin. When grants are issued, the Secretary of Natural Resources, the Secretary of Agriculture, Food and Markets, and the Secretary of Transportation shall, when allowed by law, authorize funds or identify other funding opportunities that may be used to support capacity to implement projects in the watershed basin.”

Surface Water Diversions and Transfers Study Group; report. 2019, No. 173 (Adj. Sess.), § 1 provides: “(a) Creation. The Secretary of Natural Resources (Secretary) shall convene a Surface Water Diversions and Transfers Study Group to investigate and make recommendations to the General Assembly regarding the environmental, economic, and recreational impacts of surface water diversions, including the transfer of surface water between watersheds.

“(b) Membership. The Surface Water Diversions and Transfers Study Group shall be composed of the following members:

“(1) the Secretary of Natural Resources or designee;

“(2) the Secretary of Agriculture, Food and Markets or designee;

“(3) one member of the Senate Committee on Natural Resources and Energy, appointed by the Committee on Committees;

“(4) one member of the House Committee on Natural Resources, Fish, and Wildlife, appointed by the Speaker of the House;

“(5) two persons representing businesses or industries reliant on large quantities of surface water, appointed by the Committee on Committees;

“(6) two persons representing nonprofit environmental advocacy groups, appointed by the Speaker of the House;

“(7) one hydrologist, appointed by the Secretary; and

“(8) one person representing an agriculture or forest products business conducted on working lands, appointed by the Secretary of Agriculture, Food and Markets.

“(c) Duties. The Surface Water Diversions and Transfers Study Group shall:

“(1) develop a baseline inventory of the current and projected quantity, location, and usage of diversions and transfers of surface water in Vermont;

“(2) recommend whether or not surface water transfers between watersheds should occur;

“(3) identify whether the State of Vermont should develop and implement a statewide permitting or other regulatory regime for diversions or other transfers of surface water, including:

“(A) the scale or size of a watershed subject to regulation;

“(B) how a permitting program would comply with the Vermont water quality standards;

“(C) how or if the permitting program should address the impact of a diversion on groundwater; and

“(D) how to address reducing the demands for water through water recycling, reuse, and efficiency measures;

“(4) analyze potentially viable regimes to address the use of surface water in Vermont;

“(5) if necessary, propose legislative changes to implement the recommendations of the Study Group; and

“(6) if necessary, identify any water quality rules, policies, or procedures that may require updating to implement the recommendations of the Study Group.

“(d) Assistance. The Surface Water Diversions and Transfers Study Group shall have the administrative, technical, and legal assistance of the Agency of Natural Resources and shall have the legal and drafting assistance of the Office of Legislative Council.

“(e) Report. On or before December 15, 2021, the Surface Water Diversions and Transfers Study Group shall submit a written report to the House Committee on Natural Resources, Fish, and Wildlife and the Senate Committee on Natural Resources and Energy providing its findings and recommendations under subsection (c) of this section.

“(f) Meetings.

“(1) The Secretary of Natural Resources shall call the first meeting of the Surface Water Diversions and Transfers Study Group.

“(2) The Secretary of Natural Resources or designee shall be the chair of the Surface Water Diversions and Transfers Study Group.

“(3) A majority of the membership of the Surface Water Diversions and Transfers Study Group shall constitute a quorum.

“(4) The Surface Water Diversions and Transfers Study Group shall cease to exist on February 1, 2022.

“(g) Compensation and reimbursement.

“(1) For attendance at meetings during adjournment of the General Assembly, a legislative member of the Surface Water Diversions and Transfers Study Group serving in his or her capacity as a legislator shall be entitled to per diem compensation and reimbursement of expenses pursuant to 2 V.S.A. § 406 for not more than six meetings. These payments shall be made from monies appropriated to the General Assembly.

“(2) Other members of the Surface Water Diversions and Transfers Study Group shall be entitled to per diem compensation and reimbursement of expenses as permitted under 32 V.S.A. § 1010 for not more than six meetings. These payments shall be made from monies appropriated to the Agency of Natural Resources.”

ANNOTATIONS

Cited.

Cited in In re Stratton Corp., 157 Vt. 436, 600 A.2d 297, 1991 Vt. LEXIS 201 (1991).

§ 1251. Definitions.

Whenever used or referred to in this chapter, unless a different meaning clearly appears from the context:

  1. “Board” means the Secretary of Natural Resources.
  2. “Department” means the Department of Environmental Conservation.
  3. “Discharge” means the placing, depositing, or emission of any wastes, directly or indirectly, into an injection well or into the waters of the State.
  4. “Effluent limitation” means any restrictions or prohibitions established in accordance with the provisions of this chapter or under federal law including effluent limitations, standards of performance for new sources, and toxic effluent standards, on quantities, rates, and concentrations of chemical, physical, biological, and other constituents that are discharged to waters of the State, including schedules of compliance.
  5. “Hazardous materials” means any material determined by the Secretary to have an unusually harmful effect on water quality if discharged to the waters of the State.
  6. “Mixing zone” means a length or area within the waters of the State required for the dispersion and dilution of waste discharges adequately treated to meet federal and State treatment requirements and within which it is recognized that specific water uses or water quality criteria associated with the assigned classification for such waters may not be realized.  The mixing zone shall not extend more than 200 feet from the point of discharge.
  7. “Oil” means oil of any kind, including petroleum, fuel oils, oily sludge, waste oil, gasoline, kerosene, jet fuel, tar, asphalt, crude oils, lube oil, insoluble or partially soluble derivatives of mineral, animal, or vegetable oils, or any product or mixture thereof.
  8. “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; any federal agency; or any other legal or commercial entity.
  9. “Public interest” means that which is for the greatest benefit to the people of the State as determined by the standards set forth in subsection 1253(e) of this title.
  10. “Schedule of compliance” means a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with an effluent limitation or any other limitation, prohibition, or standard, including any water quality standard.
  11. “Secretary” means the Secretary of Natural Resources or his or her authorized representative.
  12. “Waste” means effluent, sewage, or any substance or material, liquid, gaseous, solid, or radioactive, including heated liquids, whether or not harmful or deleterious to waters; provided, however, the term “sewage” as used in this chapter shall not include the rinse or process water from a cheese manufacturing process.
  13. “Waters” includes all rivers, streams, creeks, brooks, reservoirs, ponds, lakes, springs, and all bodies of surface waters, artificial or natural, that are contained within, flow through, or border upon the State or any portion of it.
  14. “Injection well” means any opening in the ground used as a means of discharging waste except for a dry hole not exceeding seven feet in depth that is constructed as, and used solely for the disposal of domestic wastes.
  15. “Indirect discharge” means any discharge to groundwater, whether subsurface, land-based, or otherwise.
  16. “Waste management zone” means a specific reach of Class B waters designated by a permit to accept the discharge of properly treated wastes that prior to treatment contained organisms pathogenic to human beings. Throughout the receiving waters, water quality criteria must be achieved but increased health risks exist due to the authorized discharge.
  17. “Basin plan” means a plan prepared by the Secretary for each of Vermont’s 17 basins in conjunction with the basin planning process required by section 303(e) of the federal Clean Water Act and 40 C.F.R. part 131.
  18. [Repealed.]
  19. “Stormwater utility” means a system adopted by a municipality or group of municipalities under 24 V.S.A. chapter 97, 101, or 105 for the management of stormwater runoff.

HISTORY: Amended 1961, No. 100 , § 2; 1964, No. 37 (Sp. Sess.), § 2; 1969, No. 252 (Adj. Sess.), § 1, eff. April 4, 1970; 1973, No. 103 , § 2, eff. April 24, 1973; 1973, No. 112 , § 3, eff. April 25, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 2, eff. May 17, 1986; 1987, No. 76 , § 18; 1991, No. 157 (Adj. Sess.), § 4, eff. May 5, 1992; 1991, No. 211 (Adj. Sess.), § 1; 2003, No. 115 (Adj. Sess.), § 24, eff. Jan. 31, 2005; 2015, No. 103 (Adj. Sess.), § 2, eff. May 12, 2016; 2015, No. 158 (Adj. Sess.), § 32, eff. June 2, 2016; 2017, No. 185 (Adj. Sess.), § 15, eff. May 28, 2018.

History

Source.

V.S. 1947, § 6304. 1943, No. 109 , § 2.

References in text.

Section 303 of the federal Clean Water Act, cited in subdiv. (17), is codified as 33 U.S.C. § 1313.

Revision note

—2017. In subdivs. (4) and (7), deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

—Revision note—2016. Subdiv. (18), as added by 2015, No. 158 (Adj. Sess.), § 32, was redesignated as subdiv. (19) to avoid conflict with subdiv. (18) as added by 2015, No. 103 (Adj. Sess.), § 2.

Amendments

—2017 (Adj. Sess.). Subdiv. (18): Repealed.

—2015 (Adj. Sess.). Subdiv. (18): Added by Act Nos. 103 and 158.

—2003 (Adj. Sess.). Subdiv. (1): Substituted “natural” for “Vermont water”.

Subdiv. (8): Amended generally.

—1991 (Adj. Sess.). Subdiv. (12): Act No. 157 added “provided however, the term ‘sewage’ as used in this chapter shall not include the rinse or process water from a cheese manufacturing process” following “waters”.

Subdiv. (16): Added by Act No. 211.

Subdiv. (17): Added by Act No. 211.

—1987. Subdiv. (2): Substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

Subdiv. (11): Substituted “agency of natural resources” for “agency of environmental conservation”.

—1985 (Adj. Sess.). Subdiv. (15): Added.

—1981 (Adj. Sess.). Section amended generally.

—1973. Subdiv. (8): Added by Act No. 103.

Subdiv. (9): Added by Act No. 103.

Subdiv. (10): Added by Act No. 103.

Subdiv. (11): Added by Act No. 112.

Subdiv. (12): Added by Act No. 112.

—1969 (Adj. Sess.). Section amended generally.

—1964. Inserted “public or private” preceding “corporation”, deleted “or” preceding “municipality” and added “institution, or agency of the state” thereafter in the second paragraph, defining “person”, inserted “is likely to create a nuisance, or” following “deleterious substance which” and “domestic, commercial or” preceding “industrial purposes” in the third paragraph, defining “pollution”, and inserted “the boundaries of” preceding “the state” in the fourth paragraph, defining “waters”.

—1961. Substituted “Vermont water resources board” for “Vermont state water conservation board” in the first paragraph, defining “board”.

CROSS REFERENCES

Enforcement powers of department, entrance upon lands, records, see § 911 of this title.

ANNOTATIONS

Cited.

Cited in In re Reclassification of Ranch Brook, 146 Vt. 602, 508 A.2d 703, 1986 Vt. LEXIS 342 (1986); In re Stratton Corp., 157 Vt. 436, 600 A.2d 297, 1991 Vt. LEXIS 201 (1991); In re Unified Buddhist Church, Inc., 2006 VT 50, 180 Vt. 515, 904 A.2d 1139, 2006 Vt. LEXIS 141 (2006) (mem.).

§ 1251a. Water pollution administration.

  1. The Secretary may adopt rules, in accordance with the procedures in the Administrative Procedure Act, that are necessary for the proper administration of the Secretary’s duties under this subchapter, including a planning process approvable under Public Law 92-500, as amended.
  2. The Secretary shall establish by rule requirements for the issuance of permits under subsection 1259(e) of this title, including in-stream water quality parameters necessary to establish permit conditions and performance monitoring; however, these in-stream water quality parameters shall not supersede water quality standards adopted by the Secretary.
  3. On or before July 1, 2016, the Secretary of Natural Resources shall adopt by rule an implementation process for the antidegradation policy in the water quality standards of the State. The implementation process for the antidegradation policy shall be consistent with the State water quality policy established in section 1250 of this title, the Vermont Water Quality Standards, and any applicable requirements of the federal Clean Water Act. The Secretary of Natural Resources shall apply the antidegradation implementation policy to all new discharges that require a permit under this chapter.

HISTORY: Added 1981, No. 222 (Adj. Sess.), § 25; amended 1985, No. 199 (Adj. Sess.), § 4, eff. May 17, 1986; 1989, No. 64 , § 2, eff. May 24, 1989; 1997, No. 155 (Adj. Sess.), § 34; 2003, No. 115 (Adj. Sess.), § 25, eff. Jan. 31, 2005; 2007, No. 43 , § 6a, eff. May 23, 2007; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012; 2015, No. 64 , § 30.

History

References in text.

The Administrative Procedure Act, referred to in this section, is codified as § 801 et seq. of Title 3.

Public Law 92-500, referred to in this section, is the Federal Water Pollution Control Act Amendments of 1972 and is codified as 33 U.S.C. § 1251 et seq.

Revision note

—2007. In subsec. (c) substituted “ 3 V.S.A. § 841 ” for “ 1 V.S.A. § 841 ” to correct a statutory cross reference.

Amendments

—2015. Subsec. (c): Amended generally.

—2011 (Adj. Sess.). Subsec. (b): Substituted “secretary” for “board” at the end of the subsec.

—2007. Subsec. (c): Added.

—2003 (Adj. Sess.). Subsec. (b): Deleted “water resources” preceding “board”.

—1997 (Adj. Sess.). Subsec. (a): Deleted “and permit application fees to defray expenses” from the end.

—1989. Designated the existing provisions of the section as subsec. (a) and added subsec. (b).

—1985 (Adj. Sess.). Section amended generally.

Statutory revision. 2011, No. 138 (Adj. Sess.), § 27 provides: “To effect the purpose of this act of transferring the rulemaking authority of the water resources panel to the secretary of natural resources, the office of legislative council is directed to revise the existing Vermont Statutes Annotated and, where applicable, replace the terms ‘natural resources board,’ ‘water resources panel of the natural resources board,’ ‘water resources panel,’ ‘water resources board,’ and similar terms with the term ‘secretary of natural resources,’ ‘secretary,’ ‘agency of natural resources,’ ‘agency,’ ‘department of environmental conservation,’ or ‘department’ as appropriate, including the following revisions:

“(1) in 10 V.S.A. §§ 913 and 915, by replacing ‘panel’ with ‘department’;

“(2) in 10 V.S.A. chapter 47, by replacing ‘board’ with ‘secretary’ where appropriate;

“(3) in 10 V.S.A. §§ 1422 and 1424, by replacing ‘board’ with ‘secretary’ where appropriate; and

“(4) in 29 V.S.A. §§ 401 , 402, and 403, by replacing ‘board’ with “department’ where appropriate.”

ANNOTATIONS

Cited.

Cited in In re Stratton Corp., 157 Vt. 436, 600 A.2d 297, 1991 Vt. LEXIS 201 (1991).

§ 1252. Classification of high quality waters; mixing zones.

  1. The State adopts, for the purposes of individually classifying the uses of its high quality waters, the following classes and definitions:

    Class A(1): Waters in a natural condition that have significant ecological value;

    Class A(2): Waters that are suitable for a public water source with filtration and disinfection or other required treatment; character uniformly excellent.

    Class B(1): Waters in which one or more uses are of demonstrably and consistently higher quality than Class B(2) waters; or

    Class B(2): Waters that are suitable for swimming and other primary contact recreation; irrigation and agricultural uses; aquatic biota and aquatic habitat; good aesthetic value; boating, fishing, and other recreational uses and suitable for public water source with filtration and disinfection or other required treatment.

  2. The Secretary may establish mixing zones or waste management zones as necessary in the issuance of a permit in accordance with this section and criteria established by rule. Those waters authorized under this chapter, as of July 1, 1992, to receive the direct discharge of wastes that prior to treatment contained organisms pathogenic to human beings are designated waste management zones for those discharges. Those waters that as of July 1, 1992 are Class C waters into which no direct discharge of wastes that prior to treatment contained organisms pathogenic to human beings is authorized, shall become waste management zones for any municipality in which the waters are located that qualifies for a discharge permit under this chapter for those wastes prior to July 1, 1997.
  3. Upon issuance or renewal of any discharge permit, subsequent to July 1, 1992, involving a discharge into a waste management zone created pursuant to subsection (b) of this section, the Secretary shall adjust the size of the waste management zone to the extent necessary to accommodate the authorized discharge.
  4. Prior to the initial authorization of a new waste management zone, except those created pursuant to subsection (b) of this section, or prior to the expansion of the size of an existing zone created under this section, in order to accommodate an increased discharge, the Secretary shall:
    1. Prepare a draft permit which includes a description of the proposed waste management zone and proceed in accordance with subsections 7713(c), (d), and (e) of this title.
    2. Give due consideration to the cumulative impact of overlapping waste management zones.
    3. Determine that the creation or expansion of such a waste management zone is in the public interest after giving due consideration to the factors specified in subdivisions 1253(e)(1) through (10) of this title.
    4. Determine that the creation or expansion of such a zone will not:
      1. create a public health hazard; or
      2. constitute a barrier to the passage or migration of fish or result in an undue adverse effect on fish, aquatic biota, or wildlife; or
      3. interfere with those uses that have actually occurred on or after November 28, 1975, in or on a water body, whether or not the uses are included in the standard for classification of the particular water body; or
      4. be inconsistent with the anti-degradation policy in the water quality standards.
    5. Provide a written explanation with respect to subdivisions (2) through (4) of this subsection.
  5. The Secretary shall adopt standards of water quality to achieve the purposes of the water classifications. Such standards shall be expressed in detailed water quality criteria, taking into account the available data and the effect of these criteria on existing activities, using as appropriate: (1) numerical values, (2) biological parameters; and (3) narrative descriptions. These standards shall establish limits for at least the following: alkalinity, ammonia, chlorine, fecal coliform, color, nitrates, oil and grease, dissolved oxygen, pH, phosphorus, temperature, all toxic substances for which the U.S. Environmental Protection Agency has established criteria values, and any other water quality parameters deemed necessary by the Board.
  6. The Secretary may issue declaratory rulings regarding these standards.
  7. Notwithstanding the provisions of subsection 1259(c) of this title and rules implementing that subsection, the Secretary may issue a discharge permit pursuant to section 1263 of this title, for a municipal discharge of treated municipal waste into Class B waters, if that municipal discharge was established prior to January 1, 1974 and was, as of January 1, 1990, occurring pursuant to authorization contained in an assurance of discontinuance.
  8. A discharge permit issued pursuant to subsection (g) of this section may not authorize an increase in mass pollutant loading beyond that contained in the assurance of discontinuance.

HISTORY: Amended 1961, No. 101 ; 1964, No. 37 (Sp. Sess.), § 3; 1967, No. 181 , § 1, eff. April 17, 1967; 1973, No. 103 , § 3, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 5, eff. May 17, 1986; 1989, No. 278 (Adj. Sess.), § 5; 1991, No. 211 (Adj. Sess.), § 2; 2011, No. 138 (Adj. Sess.), § 21, eff. May 14, 2012; 2015, No. 79 (Adj. Sess.), § 1, eff. April 28, 2016; 2015, No. 150 (Adj. Sess.), § 15, eff. Jan. 1, 2018.

History

Source.

1949, No. 148 , § 4.

Editor’s note—

Subsecs. (d) and (e) as added to this section by 1989, No. 278 (Adj. Sess.), § 5 had been inadvertently omitted from 1991, No. 211 (Adj. Sess.), § 2, which amended this section, and were retained and redesignated as subsecs. (g) and (h), respectively, to correct a technical drafting error and reflect legislative intent. The internal reference in subsec. (h) has been corrected accordingly.

Amendments

—2015 (Adj. Sess.). Subsec. (a): Act No. 79 amended subsec. generally.

Subsec. (d): Act No. 150 amended subsec. generally.

—2011 (Adj. Sess.). Subsec. (b): Deleted “board” preceding “rule” in the first sentence and deleted the former second sentence, which read: “The board shall adopt these rules by July 1, 1994.”.

Subsecs. (e) and (f): Substituted “secretary” for “board” at the beginning.

—1991 (Adj. Sess.). Section amended generally.

—1989 (Adj. Sess.). Subsec. (d): Added.

Subsec. (e): Added.

—1985 (Adj. Sess.). Subsec. (a): Rewrote the paragraph relating to Class A classification.

Subsec. (c): Added the second sentence.

—1981 (Adj. Sess.). Designated existing provisions of section as subsec. (a), deleted “of Vermont hereby” following “the state” in the introductory clause of that subsec., and added subsecs. (b) and (c).

—1973. Deleted the fourth paragraph relating to Class D classification.

—1967. Rewrote the fourth paragraph relating to Class D classification.

—1964 (Sp. Sess.). Inserted “with disinfection when necessary” following “supply” in the first paragraph, relating to Class A classification and added the second sentence in the fourth paragraph, relating to Class D classification.

—1961. Added “and such industrial uses as are consistent with other class ‘C’ uses” following “region” in the third paragraph, relating to Class C classification.

CROSS REFERENCES

Procedure for adoption of administrative rules, see 3 V.S.A. part 1, chapter 25.

ANNOTATIONS

Cited.

Cited in In re Reclassification of Airport & Pond Brooks, 142 Vt. 458, 457 A.2d 635, 1983 Vt. LEXIS 409 (1983); In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988); In re Town of Sherburne, 154 Vt. 596, 581 A.2d 274, 1990 Vt. LEXIS 162 (1990); In re Stratton Corp., 157 Vt. 436, 600 A.2d 297, 1991 Vt. LEXIS 201 (1991).

§ 1253. Classification of waters designated, reclassification.

  1. The waters of all lakes, ponds, and reservoirs, natural or artificial, used exclusively as a public water source prior to July 1, 1971, and all waters flowing into such lakes, ponds, and reservoirs, and all waters located above 2,500 feet altitude, National Geodetic Vertical Datum, are designated Class A waters and shall be maintained as such unless reclassified.
  2. The remaining waters are designated Class B(2) waters and shall be maintained as such unless reclassified.
  3. On its own motion, or on receipt of a written request that the Secretary adopt, amend, or repeal a reclassification rule, the Secretary shall comply with 3 V.S.A. § 806 and may initiate a rulemaking proceeding to reclassify one or more uses of all or any portion of the affected waters in the public interest. In the course of this proceeding, the Secretary shall comply with the provisions of 3 V.S.A. chapter 25, and may hold a public hearing convenient to the waters in question. If the Secretary finds that the established classification is contrary to the public interest and that reclassification is in the public interest, he or she shall file a final proposal of reclassification in accordance with 3 V.S.A. § 841 . If the Secretary finds that it is in the public interest to change the classification of any pond, lake, or reservoir designated as Class A for a public water source, the Secretary shall so advise and consult with the Department of Health and shall provide in its reclassification rule a reasonable period of time before the rule becomes effective. During that time, any municipalities or persons whose water source is affected shall construct filtration and disinfection facilities or convert to a new water source.
    1. Through the process of basin planning, the Secretary shall determine what degree of water quality and classification should be obtained and maintained for those waters not classified by the Board before 1981 following the procedures in sections 1254 and 1258 of this title. Those waters shall be classified in the public interest. The Secretary shall prepare and maintain an overall surface water management plan to assure that the State water quality standards are met in all State waters. The surface water management plan shall include a schedule for updating the basin plans. The Secretary, in consultation with regional planning commissions and the Natural Resources Conservation Council, shall revise all 15 basin plans and update the basin plans on a five-year rotating basis. On or before January 15 of each year, the Secretary shall report to the House Committees on Agriculture and Forestry and on Natural Resources, Fish, and Wildlife and to the Senate Committees on Agriculture and on Natural Resources and Energy regarding the progress made and difficulties encountered in revising basin plans. The report shall include a summary of basin planning activities in the previous calendar year, a schedule for the production of basin plans in the subsequent calendar year, and a summary of actions to be taken over the subsequent three years. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection. (d) (1) Through the process of basin planning, the Secretary shall determine what degree of water quality and classification should be obtained and maintained for those waters not classified by the Board before 1981 following the procedures in sections 1254 and 1258 of this title. Those waters shall be classified in the public interest. The Secretary shall prepare and maintain an overall surface water management plan to assure that the State water quality standards are met in all State waters. The surface water management plan shall include a schedule for updating the basin plans. The Secretary, in consultation with regional planning commissions and the Natural Resources Conservation Council, shall revise all 15 basin plans and update the basin plans on a five-year rotating basis. On or before January 15 of each year, the Secretary shall report to the House Committees on Agriculture and Forestry and on Natural Resources, Fish, and Wildlife and to the Senate Committees on Agriculture and on Natural Resources and Energy regarding the progress made and difficulties encountered in revising basin plans. The report shall include a summary of basin planning activities in the previous calendar year, a schedule for the production of basin plans in the subsequent calendar year, and a summary of actions to be taken over the subsequent three years. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection.
    2. In developing a basin plan under this subsection, the Secretary shall:
      1. identify waters that should be reclassified outstanding resource waters or that should have one or more uses reclassified under section 1252 of this title;
      2. identify wetlands that should be reclassified as Class I wetlands;
      3. identify projects or activities within a basin that will result in the protection and enhancement of water quality;
      4. review the evaluations performed by the Secretary under subdivisions 922(a)(1) and (2) of this title and update those findings based on any new data collected as part of a basin plan;
      5. for projects in the basin that will result in enhancement of resources, including those that protect high quality waters of significant natural resources, the Secretary shall identify the funding needs beyond those currently funded by the Clean Water Fund;
      6. ensure that municipal officials, citizens, natural resources conservation districts, regional planning commissions, watershed groups, and other interested groups and individuals are involved in the basin planning process;
      7. ensure regional and local input in State water quality policy development and planning processes;
      8. provide education to municipal officials and citizens regarding the basin planning process;
      9. develop, in consultation with the regional planning commission, an analysis and formal recommendation on conformance with the goals and objectives of applicable regional plans;
      10. provide for public notice of a draft basin plan; and
      11. provide for the opportunity of public comment on a draft basin plan.
    3. The Secretary shall, contingent upon the availability of funding, negotiate and issue performance grants to the Vermont Association of Planning and Development Agencies or its designee, the Natural Resources Conservation Council or its designee, and to Watersheds United Vermont or its designee to assist in or to produce a basin plan under the schedule set forth in subdivision (1) of this subsection in a manner consistent with the authority of regional planning commissions under 24 V.S.A. chapter 117 and the authority of the natural resources conservation districts under chapter 31 of this title. When negotiating a scope of work with the Vermont Association of Planning and Development Agencies or its designee, the Natural Resources Conservation Council or its designee, and Watersheds United Vermont or its designee to assist in or produce a basin plan, the Secretary may require the Vermont Association of Planning and Development Agencies, the Natural Resources Conservation Council, or Watersheds United Vermont to:
      1. conduct any of the activities required under subdivision (2) of this subsection (d);
      2. provide technical assistance and data collection activities to inform municipal officials and the State in making water quality investment decisions;
      3. coordinate municipal planning and adoption or implementation of municipal development regulations better to meet State water quality policies and investment priorities; or
      4. assist the Secretary in implementing a project evaluation process to prioritize water quality improvement projects within the region to ensure cost-effective use of State and federal funds.
  4. In determining the question of public interest, the Secretary shall give due consideration to, and explain his or her decision with respect to, the following:
    1. existing and obtainable water qualities;
    2. existing and potential use of waters as a public water source, recreational, agricultural, industrial, and other legitimate purposes;
    3. natural sources of pollution;
    4. public and private pollution sources and the alternative means of abating the same;
    5. consistency with the State water quality policy established in section 1250 of this title;
    6. suitability of waters as habitat for fish, aquatic life, and wildlife;
    7. need for and use of minimum streamflow requirements;
    8. federal requirements for classification and management of waters;
    9. consistency with applicable municipal, regional, and State plans; and
    10. any other factors relevant to determine the maximum beneficial use and enjoyment of waters.
  5. Notwithstanding the provisions of subsection (c) of this section, when reclassifying waters to Class A, the Secretary need find only that the reclassification is in the public interest.
  6. The Secretary under the reclassification rule may grant permits for only a portion of the assimilative capacity of the receiving waters, or may permit only indirect discharges from on-site disposal systems, or both.
    1. Subsection (h) effective upon amendment of Vermont Water Quality Standards.The Secretary shall administer a Clean Water Act Section 401 certification program to review activities that require a federal license or permit to ensure that a proposed activity complies with the Vermont Water Quality Standards, as well as with any other appropriate requirement of State law, including: (h) (1) Subsection (h) effective upon amendment of Vermont Water Quality Standards.The Secretary shall administer a Clean Water Act Section 401 certification program to review activities that require a federal license or permit to ensure that a proposed activity complies with the Vermont Water Quality Standards, as well as with any other appropriate requirement of State law, including:
      1. 10 V.S.A. chapter 37 (wetlands protection and water resources management);
      2. 10 V.S.A. chapter 41 (regulation of stream flow);
      3. 10 V.S.A. § 1264 (stormwater management);
      4. 29 V.S.A. chapter 11 (management of lakes and ponds); and
      5. the Agency of Natural Resources Rules for Water Withdrawals for Snowmaking.
    2. The Secretary of Natural Resources shall not grant an application for certification under Section 401 of the Clean Water Act unless the applicant demonstrates all of the following:
      1. there is no practicable alternative to the proposed activity that would have a less adverse impact on waters and wetlands of the State and provided that any proposed alternative shall not have other significant adverse human health, safety, or environmental consequences;
      2. the proposed activity will not result in the violation of any applicable water quality criteria established in the Vermont Water Quality Standards; and
      3. the proposed activity will not result in a violation of the State’s antidegradation policy.
      1. An alternative is considered practicable under subdivision (2)(A) of this subsection (h) if it is available and capable of being completed after taking into consideration cost, existing technology, and logistics in light of overall purposes of the proposed activity. (3) (A) An alternative is considered practicable under subdivision (2)(A) of this subsection (h) if it is available and capable of being completed after taking into consideration cost, existing technology, and logistics in light of overall purposes of the proposed activity.
      2. Failure to comply with the requirements of subdivision (2)(A) of this subsection (h) shall not be the basis for denial of an application for a certification under Section 401 of the Clean Water Act if the proposed activity is exempt from those requirements under a rule adopted by the Secretary.
    3. The Secretary may issue a certification required by this subsection to any general permit or authorization issued by a federal agency. An applicant’s compliance with that federal permit or authorization shall be presumed to be in compliance with the certification unless the Secretary determines that an individual review of the applicant’s activity is necessary to assure compliance with the Vermont Water Quality Standards and other appropriate State laws.

HISTORY: Amended 1961, No. 100 , § 2; 1964, No. 37 (Sp. Sess.), § 4; 1969, No. 252 (Adj. Sess.), § 2, eff. July 1, 1971; 1973, No. 3 , eff. Feb. 8, 1973; 1973, No. 103 , § 16, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 6, eff. May 17, 1986; 1987, No. 154 (Adj. Sess.), §§ 1, 2, eff. April 20, 1988; 1991, No. 211 (Adj. Sess.), § 3; 1999, No. 114 (Adj. Sess.), § 2, eff. May 19, 2000; 2003, No. 115 (Adj. Sess.), § 26, eff. Jan. 31, 2005; 2009, No. 33 , § 25; 2011, No. 138 (Adj. Sess.), § 22, eff. May 14, 2012; 2013, No. 142 (Adj. Sess.), § 18; 2015, No. 64 , § 26; 2015, No. 79 (Adj. Sess.), § 2, eff. April 28, 2016; 2015, No. 154 (Adj. Sess.), § 12, eff. June 1, 2016; 2017, No. 113 (Adj. Sess.), § 44c; 2017, No. 168 (Adj. Sess.), § 4, eff. May 22, 2018; 2019, No. 76 , § 2; 2021, No. 32 , § 1.

History

Source.

1949, No. 148 , § 5.

Amendments

—2021. Subsec. (h): Added.

—2019. Subdiv. (d)(2): Amended generally.

Subdiv. (d)(3): In the introductory paragraph, deleted “and” preceding “the Natural Resources Conservation Council” in the first and second sentences, inserted “and to Watersheds United Vermont or its designee” preceding “to assist in” in the first sentence, inserted “and Watersheds United Vermont or its designee” in the second sentence, and inserted “or Watersheds United Vermont” after “the Natural Resources Conservation Council”.

—2017 (Adj. Sess.). Subdiv. (d)(1): Act No. 113 substituted “Agriculture and Forestry and on Natural Resources, Fish, and Wildlife” for “Agriculture and Forestry, on Natural Resources and Energy, and on Fish, Wildlife and Water Resources” in the sixth sentence.

Subdiv. (d)(1): Act No. 168 substituted “Agriculture and Forestry and on Natural Resources, Fish, and Wildlife” for “Agriculture and Forestry, on Natural Resources and Energy, and on Fish, Wildlife and Water Resources” in the sixth sentence.

Subdiv. (d)(3): Act No. 168 amended generally.

—2015 (Adj. Sess.). Subsec. (a): Act No. 79 substituted “as a” for “for” preceding “public water” and “source” for “supply” following “public water”.

Subsec. (b): Act No. 79 deleted “, except as otherwise classified by the Board prior to July 1, 1971,” following “waters”; inserted “(2)” following “B”; and deleted the former second sentence.

Subsec. (c): Act No. 79 inserted “one or more uses of” following “reclassify”; substituted “for a public water source” for “waters by subsection (a) of this section” following “Class A” and “source” for “supply” following “water”; inserted “water” following “new”; and deleted “of water supply” following “source”.

Subdiv. (d)(1): Act No. 154 substituted “the Natural Resources Conservation Council” for “natural resource conservation districts”.

Subdiv. (d)(2)(A): Act No. 79 deleted “as Class A waters or” following “reclassified” and inserted “or that should have one or more uses reclassified under section 1252 of this title” following “waters”.

Subdiv. (d)(2)(G): Act No. 154 deleted “applicable” following “consultation with the”.

Subdiv. (d)(3): Act No. 154 inserted “or the Natural Resources Conservation Council” following “commission” three times.

Subdiv. (e)(5): Act No. 79 substituted “section” for “10 V.S.A. § ” preceding “1250” and inserted “of this title” following “1250”.

—2015. Subsec. (d): Amended generally.

—2013 (Adj. Sess.). Subsec. (d): Substituted “Products” for “Product” following “House Committees on Agriculture and Forest”, and added the last sentence.

—2011 (Adj. Sess.). Subsecs. (c)-(f): Substituted references to “the secretary” for references to “the board”.

Subsec. (g): Substituted “The secretary under the reclassification rule may grant permits” for “The board in its reclassification rule may direct the secretary to grant permits” and “or may permit only indirect discharges” for “or to permit only indirect discharges”.

—2009. Subsec. (d): Deleted “and” following “committees on agriculture”, inserted “and on fish, wildlife and water resources” following “energy” and “on” preceding “natural resources” in the fourth sentence.

—2003 (Adj. Sess.). Subsec. (c): Rewrote the first sentence and inserted “may” preceding “hold a public” in the second sentence.

—1999 (Adj. Sess.). Subsec. (d): Substituted “January 1, 2006, and update them every five years thereafter” for “January 1, 2000” in the third sentence and rewrote the fourth sentence.

—1991 (Adj. Sess.). Subsec. (b): Added the second sentence.

Subsec. (d): Added the third through fifth sentences.

Subsec. (e): Rewrote subdiv. (5), added “federal” preceding “requirements” in subdiv. (8), and added “consistency with applicable” preceding “municipal” and made a minor change in punctuation in subdiv. (9).

—1987 (Adj. Sess.). Subsec. (c): Rewrote the first sentence, added the second sentence, rewrote the third sentence, and deleted “pursuant to the above procedure” preceding “the board finds” in the fourth sentence.

Subsec. (e): Added “and explain its decision with respect to, the following” following “consideration to” in the introductory paragraph, substituted “alternative” for “technological” preceding “means” in subdiv. (4), deleted “federal” preceding “requirements” in subdiv. (8), and made minor changes in punctuation in subdiv. (9).

—1985 (Adj. Sess.). Subsec. (a): Inserted “and all waters located above 2500 feet altitude, National Geodetic Vertical Datum” following “reservoirs”.

Subsec. (f): Added.

Subsec. (g): Added.

—1981 (Adj. Sess.). Subsec. (a): Deleted “hereby” preceding “designated Class A waters”.

Subsec. (b): Deleted “hereby” preceding “designated Class B waters”.

Subsec. (c): Amended generally.

Subsec. (d): Inserted “before 1981” preceding “following the procedures” and substituted “1254 and 1258” for “sections 1254-1258” in the first sentence and “those” for “such” preceding “waters” in the second sentence.

Subsec. (e): Amended generally.

Subsec. (f): Deleted.

—1973. Subsec. (a): Act No. 3 inserted “exclusively” following “used” and “prior to July 1, 1971” following “public water supply”.

Subsec. (f): Added by Act No. 103.

—1969 (Adj. Sess.). Section amended generally.

—1964. Inserted “and to effectuate a comprehensive continuing drainage basin program for the prevention, control and abatement of pollution” following “this title”, in the introductory clause, added subdiv. (3), and redesignated former subdiv. (3) as present subdiv. (4).

—1961. Substituted “Vermont water resources board” for “Vermont state water conservation board” in subdivs. (2) and (3).

Agency of Natural Resources; Vermont Water Quality Standards; rulemaking. 2021, No. 32 , § 2 provides: “The Secretary of Natural Resources shall amend the Vermont Water Quality Standards (VWQS) to include the following:

“(1) An amendment to the Classification of State Waters to clarify that with regard to all Class I and II wetlands, as defined in 10 V.S.A. § 902 , the uses to be protected include the functions and values of the wetland as described in Section 5 of the Vermont Wetland Rules.

“(2) An amendment to the antidegradation policy to clarify that wetlands and their functions and values shall be protected as described by the Vermont Wetland Rules.

“(3) Any additional provisions that the Secretary of Natural Resources determines are necessary to implement the requirements of 10 V.S.A. § 1253(h) , including any exemptions to the requirements of 10 V.S.A. § 1253(h) (2)(A) for projects that are not likely to have significant impacts on water quality or wetland functions or values. Railroad projects or State or municipal road or highway projects shall be exempt from the requirements of 10 V.S.A. § 1253(h)(2)(A) .”

Rulemaking implementation; timing. 2021, No. 32 , § 3 provides: “(a) The Secretary of Natural Resources shall file with the Secretary of State under 3 V.S.A. § 838 a copy of the proposed rules required by Sec. 2 of this act within 90 days following the effective date of this act.

“(b) On or before January 15, 2022, the Secretary of Natural Resources shall submit to the House Committee on Natural Resources, Fish, and Wildlife and the Senate Committee on Natural Resources and Energy a report regarding the status of the rulemaking required by Sec. 2 of this act. The report shall include a draft of the rules.

“(c) On or before March 1, 2022, the Secretary of Natural Resources shall file with the Secretary of State under 3 V.S.A. § 841 a final proposal of the rules required by Sec. 2 of this act.”

Effective date of subsec. (h). 2021, No. 32 , § 4(b) provides: “Sec. 1 [which added subsec. 1253(h)], certification program, shall take effect on the effective date of the rules required to be adopted under Sec. 2.”

ANNOTATIONS

Classification generally.

For discussion of notice requirements, procedure, and effect of order under former § 1257 of this title, relating to notice of proposed classifications and objections by residents, see Vermont Woolen Corp. v. Wackerman, 122 Vt. 219, 167 A.2d 533, 1961 Vt. LEXIS 60 (1961).

Existing uses.

In hearing to reclassify portion of river, record supported findings of water resources board that none of Class B designated recreational uses were “existing uses” of the subject waters where such Class B uses were minimal or infrequent. In re Town of Sherburne, 154 Vt. 596, 581 A.2d 274, 1990 Vt. LEXIS 162 (1990).

Findings.

In determining that classification of portion of river was contrary to the public interest, water resources board did not act arbitrarily, unreasonably or contrary to law; board’s findings supported conclusion that reclassification was necessary to accommodate important economic or social development despite board’s failure to expressly so find. In re Town of Sherburne, 154 Vt. 596, 581 A.2d 274, 1990 Vt. LEXIS 162 (1990).

Future pollution.

Water resources board acted within its discretion in considering effects of future pollution in hearing to reclassify portion of river to allow construction of on-site sewage treatment plant where record reflected substantial evidence that discharges from malfunctioning sewage treatment facilities were likely to increase in the future. In re Town of Sherburne, 154 Vt. 596, 581 A.2d 274, 1990 Vt. LEXIS 162 (1990).

Hearings.

Water resources board failed to meet its statutory obligation in conducting reclassification hearings, where designated parties in interest were treated as mere participants rather than real parties in interest, and their participation in the hearing was limited. In re Reclassification of Ranch Brook, 146 Vt. 602, 508 A.2d 703, 1986 Vt. LEXIS 342 (1986).

Nature of proceedings.

Reclassification determination under this section is a policy-based rule of general applicability, not an adjudication of particular parties’ rights. In re Stratton Corp., 157 Vt. 436, 600 A.2d 297, 1991 Vt. LEXIS 201 (1991).

Trial court did not err in dismissing appellant’s challenge to proposed rule of water resources board reclassifying portion of upland stream based on pleadings alone, since appellant’s due process argument failed to state claim upon which relief could be granted. In re Stratton Corp., 157 Vt. 436, 600 A.2d 297, 1991 Vt. LEXIS 201 (1991).

Orders.

Orders of the water resources board acting in its adjudicative role are so primary and so basic to the implementation of this section as to be non-delegable and thus must be signed by the board members themselves. In re Reclassification of Airport & Pond Brooks, 142 Vt. 458, 457 A.2d 635, 1983 Vt. LEXIS 409 (1983).

Where order of the water resources board lowering the water purity classification of two brooks flowing into the city of Montpelier’s water supply was signed only by the chairman of the board, the superior court, on appeal of that order, was required to remand for an order demonstrating the participation and consent of a sufficiency of the board. In re Reclassification of Airport & Pond Brooks, 142 Vt. 458, 457 A.2d 635, 1983 Vt. LEXIS 409 (1983).

Standards for reclassification.

Under this section, listing criteria for reclassification of waters, although water resources board must consider and make findings as to each factor, it need not show that each factor militates against the public interest in order to conclude the existing classification is, overall, contrary to the public interest. In re Town of Sherburne, 154 Vt. 596, 581 A.2d 274, 1990 Vt. LEXIS 162 (1990).

In a reclassification decision downgrading classification of brook, water resources board used improper standard by determining that reclassification was in the public interest, rather than that existing classification was contrary to public interest. In re Reclassification of Ranch Brook, 146 Vt. 602, 508 A.2d 703, 1986 Vt. LEXIS 342 (1986).

Cited.

Cited in In re New England Telephone & Telegraph Co., 159 Vt. 459, 621 A.2d 232, 1993 Vt. LEXIS 7 (1993).

Notes to Opinions

Classification generally.

In view of section 908 (now section 1258) of this title, any matter involving a change of class of waters mentioned in subdiv. (2) (now subsec. (c)) of this section must result from a petition initiated as provided therein. 1950 Vt. Op. Att'y Gen. 262.

§ 1254. Classification of waters by Secretary; aid.

In classifying or reclassifying the waters of the State, the Secretary is authorized to call upon any State department or agency for any pertinent information, other than information of a confidential nature, that the department or agency has or could obtain easily in the course of its work.

HISTORY: Amended 1961, No. 100 , § 2; 1969, No. 252 (Adj. Sess.), § 3, eff. April 4, 1970; 1981, No. 222 (Adj. Sess.), § 25; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.

History

Source.

1949, No. 148 , § 6.

Amendments

—1981 (Adj. Sess.). Inserted “or reclassifying” preceding “the waters of the state”.

—1969 (Adj. Sess.). Deleted “remaining” preceding “waters of the state” and substituted “board” for “Vermont water resources board”.

—1961. Substituted “Vermont water resources board” for “Vermont state water conservation board”.

Statutory revision. 2011, No. 138 (Adj. Sess.), § 27 provides: “To effect the purpose of this act of transferring the rulemaking authority of the water resources panel to the secretary of natural resources, the office of legislative council is directed to revise the existing Vermont Statutes Annotated and, where applicable, replace the terms ‘natural resources board,’ ‘water resources panel of the natural resources board,’ ‘water resources panel,’ ‘water resources board,’ and similar terms with the term ‘secretary of natural resources,’ ‘secretary,’ ‘agency of natural resources,’ ‘agency,’ ‘department of environmental conservation,’ or ‘department’ as appropriate, including the following revisions:

“(1) in 10 V.S.A. §§ 913 and 915, by replacing ‘panel’ with ‘department’;

“(2) in 10 V.S.A. chapter 47, by replacing ‘board’ with ‘secretary’ where appropriate;

“(3) in 10 V.S.A. §§ 1422 and 1424, by replacing ‘board’ with ‘secretary’ where appropriate; and

“(4) in 29 V.S.A. §§ 401 , 402, and 403, by replacing ‘board’ with “department’ where appropriate.”

ANNOTATIONS

Cited.

Cited in In re Stratton Corp., 157 Vt. 436, 600 A.2d 297, 1991 Vt. LEXIS 201 (1991).

§§ 1255-1257. [Omitted.]

History

Former §§ 1255-1257. Former § 1255, relating to classification hearings, was derived from 1949, No. 148 , § 7.

Former § 1256, relating to the classification advisory council, was derived from 1949, No. 148 , § 8; 1959, No. 329 (Adj. Sess.), §§ 18(a), 23(a), (b), 39(a), (b); 1961, No. 100 , §§ 3, 4; 1964, No. 37 (Sp. Sess.), § 5; 1969, No. 252 (Adj. Sess.), § 4.

Former § 1257, relating to notice of proposed classifications and objections by residents, was derived from 1949, No. 148 , § 9; 1969, No. 252 (Adj. Sess.), § 5.

§ 1258. Management of waters after classification, enforcement.

  1. After the classification of any waters has been determined by the Secretary, those waters shall be managed under the supervision of the Secretary in order to obtain and maintain the classification established.  The Secretary may enforce a classification against any person affected thereby who, with notice of the classification, has failed to comply.  An action to enforce a classification shall be brought in the Superior Court of the county wherein the affected waters are located.
  2. The Secretary shall manage discharges to the waters of the State by administering a permit program consistent with the National Pollutant Discharge Elimination System established by section 402 of Public Law 92-500 and with the guidelines promulgated in accordance with section 304(h)(2) of Public Law 92-500.  The Secretary shall use the full range of possibilities and variables allowable under these sections of Public Law 92-500, including general permits, as are consistent with meeting the objectives of the Vermont Water Pollution Control Program.  The Secretary shall adopt a continuing planning process approvable under section 303(e) of Public Law 92-500.  Neither the Secretary nor his or her duly authorized representative may receive or during the previous two years have received a significant portion of his or her income directly or indirectly from permit holders or applicants for a permit under this chapter.

HISTORY: Amended 1969, No. 252 (Adj. Sess.), § 6, eff. April 4, 1970; 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972; 1973, No. 103 , § 4, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1987, No. 282 (Adj. Sess.), § 12; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.

History

Source.

1949, No. 148 , § 10.

References in text.

Sections 303, 304 and 402 of Public Law 92-500, referred to in subsec. (b), are codified as 33 U.S.C. §§ 1313, 1314 and 1342, respectively.

Amendments

—1987 (Adj. Sess.). In the second sentence, inserted “including general permits” following “Public Law 92-500”.

—1981 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Amended generally.

—1973. Designated existing provisions of section as subsec. (a), substituted “secretary” for “board” and deleted “county” preceding “court” in that subsec., and added subsec. (b).

—1971 (Adj. Sess.). Substituted “county court” for “chancery court”.

—1969 (Adj. Sess.). Section amended generally.

Statutory revision. 2011, No. 138 (Adj. Sess.), § 27 provides: “To effect the purpose of this act of transferring the rulemaking authority of the water resources panel to the secretary of natural resources, the office of legislative council is directed to revise the existing Vermont Statutes Annotated and, where applicable, replace the terms ‘natural resources board,’ ‘water resources panel of the natural resources board,’ ‘water resources panel,’ ‘water resources board,’ and similar terms with the term ‘secretary of natural resources,’ ‘secretary,’ ‘agency of natural resources,’ ‘agency,’ ‘department of environmental conservation,’ or ‘department’ as appropriate, including the following revisions:

“(1) in 10 V.S.A. §§ 913 and 915, by replacing ‘panel’ with ‘department’;

“(2) in 10 V.S.A. chapter 47, by replacing ‘board’ with ‘secretary’ where appropriate;

“(3) in 10 V.S.A. §§ 1422 and 1424, by replacing ‘board’ with ‘secretary’ where appropriate; and

“(4) in 29 V.S.A. §§ 401 , 402, and 403, by replacing ‘board’ with “department’ where appropriate.”

ANNOTATIONS

Cited.

Cited in In re Stratton Corp., 157 Vt. 436, 600 A.2d 297, 1991 Vt. LEXIS 201 (1991).

§ 1259. Prohibitions.

  1. No person shall discharge any waste, substance, or material into waters of the State, nor shall any person discharge any waste, substance, or material into an injection well or discharge into a publicly owned treatment works any waste that interferes with, passes through without treatment, or is otherwise incompatible with those works or would have a substantial adverse effect on those works or on water quality, without first obtaining a permit for that discharge from the Secretary. This subsection shall not prohibit the proper application of fertilizer to fields and crops, nor reduce or affect the authority or policy declared in Joint House Resolution 7 of the 1971 Session of the General Assembly.
  2. Any records or information obtained under this permit program that constitutes trade secrets under 1 V.S.A. § 317(c)(9) shall be kept confidential, except that such records or information may be disclosed to authorized representatives of the State and the United States when relevant to any proceedings under this chapter.
  3. No person shall cause a direct discharge into Class A waters of any wastes that, prior to treatment, contained organisms pathogenic to human beings. Except within a waste management zone, no person shall cause a direct discharge into Class B waters of any wastes that prior to treatment contained organisms pathogenic to human beings.
  4. No person shall cause a discharge of wastes into Class A waters, except for on-site disposal of sewage from systems with a capacity of 1,000 gallons per day (gpd), or less, that are either exempt from or comply with the environmental protection rules, or existing systems, which shall require a permit according to the provisions of subsection 1263(f) of this title.
  5. Except for on-site disposal of sewage from systems of less than 6,500 gpd capacity that are either exempt from or comply with the environmental protection rules, no person shall cause any new or increased indirect discharge of wastes into Class B waters without a permit under section 1263 of this title. The Secretary shall not issue a permit for on-site disposal of sewage that discharges into Class B waters, unless the applicant demonstrates by clear and convincing evidence, and the Secretary finds, that the discharge:
    1. will not significantly alter the aquatic biota in the receiving waters;
    2. will not pose more than a negligible risk to public health;
    3. will be consistent with existing and potential beneficial uses of the waters; and
    4. will not cause a violation of water quality standards.
  6. The provisions of subsections (c), (d), and (e) of this section shall not regulate required agricultural practices, as adopted by rule by the Secretary of Agriculture, Food and Markets, or accepted silvicultural practices, as defined by the Commissioner of Forests, Parks and Recreation, including practices which are in compliance with the Acceptable Management Practices for Maintaining Water Quality on Logging Jobs in Vermont, as adopted by the Commissioner of Forests, Parks and Recreation; nor shall these provisions regulate discharges from concentrated animal feeding operations that require a permit under section 1263 of this title; nor shall those provisions prohibit stormwater runoff or the discharge of nonpolluting wastes, as defined by the Secretary.
  7. Nothing in this chapter shall prohibit the Secretary from approving nondischarging sewage treatment systems that the Secretary finds are safe, reliable, and effective.
  8. The Secretary shall adopt rules to ensure that the installation of two or more systems discharging sewage will not result in the circumvention of the purposes of this chapter or the requirements of this section.
  9. The Secretary of Natural Resources, to the extent compatible with federal requirements, shall delegate to the Secretary of Agriculture, Food and Markets the State agricultural non-point source pollution control program planning, implementation, and regulation. A memorandum of understanding shall be adopted for this purpose, which shall address implementation grants, the distribution of federal program assistance, and the development of land use performance standards. Prior to executing the memorandum, the Secretary of State shall arrange for two formal publications of information relating to the proposed memorandum. The information shall consist of a summary of the proposal; the name, telephone number, and address of a person able to answer questions and receive comments on the proposal; and the deadline for receiving comments. Publication shall be subject to the provisions of 3 V.S.A. § 839(d) , (e), and (g), relating to the publication of administrative rules. The proposed memorandum of understanding shall be available for 30 days after the final date of publication for public review and comment prior to being executed by the Secretary of Natural Resources and the Secretary of Agriculture, Food and Markets. The Secretary of Natural Resources and the Secretary of Agriculture, Food and Markets annually shall review the memorandum of understanding to ensure compliance with the requirements of the Clean Water Act and the provisions of section 1258 of this title. If the memorandum is substantially revised, it first shall be noticed in the same manner that applies to the initial memorandum. Actions by the Secretary of Agriculture, Food and Markets under this section shall be consistent with the water quality standards and water pollution control requirements of chapter 47 of this title and the federal Clean Water Act as amended.
  10. No person shall discharge waste from hydraulic fracturing, as that term is defined in 29 V.S.A. § 503 , into or from a pollution abatement facility, as that term is defined in section 1278 of this title.

HISTORY: Amended 1967, No. 181 , § 2, eff. April 17, 1967; 1969, No. 252 (Adj. Sess.), § 7, eff. April 4, 1970; 1971, No. 255 (Adj. Sess.), § 3, eff. April 11, 1972; 1973, No. 103 , § 5, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 3, eff. May 17, 1986; 1991, No. 211 (Adj. Sess.), § 4; 1991, No. 261 (Adj. Sess.), § 3; 2003, No. 42 , § 2, eff. May 27, 2003; 2005, No. 78 , § 12, eff. June 24, 2005; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012; 2011, No. 152 (Adj. Sess.), § 4, eff. May 16, 2012; 2015, No. 29 , § 16; 2015, No. 64 , § 51; 2015, No. 103 (Adj. Sess.), § 3, eff. May 12, 2016; 2017, No. 185 (Adj. Sess.), § 16, eff. May 28, 2018.

History

Source.

1951, No. 131 , § 1. 1949, No. 148 , § 11. V.S. 1947, § 6305. 1947, No. 202 , § 6686. 1943, No. 109 , § 3; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012..

References in text.

Subsecs. 839(d), (e), and (g) referred to in subsec. (i) were repealed in 2010, No. 145 (Adj. Sess.), § F2, eff. July 1, 2010. 2017 No. 156 (Adj. Sess.), § 21 added a subsec. 839(d) that is unrelated to publication of rules.

The federal Clean Water Act, referred to at the end of subsec. (i), is the Federal Water Pollution Control Act, which is codified as 33 U.S.C. § 1251 et seq.

Revision note—

At the end of subsec. (d), substituted “section 1263(f) of this title” for “section 1263(f)” to conform reference to V.S.A. style.

Substituted “agriculture, food and markets” for “agriculture” in subsec. (f) for conformity with 1989, No. 256 (Adj. Sess.), § 10(a).

—2003. Redesignated “commissioner” as “secretary” pursuant to Sec. 2 of No. 42 of 2003 and added the phrase “of agriculture, food and markets” to differentiate the “secretary of agriculture, food and markets” from the “secretary of natural resources”.

Amendments

—2017 (Adj. Sess.). Subsec. (j): Substituted “1278” for “1251”.

—2015 (Adj. Sess.). Subsec. (j): Substituted “section 1251” for “section 1571”.

—2015. Subsec. (b): Amended generally by Act 29.

Subsec. (f): Amended generally by Act 64.

—2011 (Adj. Sess.) Subsec. (f): Substituted “secretary” for “board” at the end of the subsec.

Subsec. (j): Added.

—2005. Subsec. (f): Made a minor change in punctuation and inserted “nor shall these provisions regulate discharges from concentrated animal feeding operations that require a permit under section 1263 of this title”.

—2003. Subsec. (f): Substituted “secretary of agriculture, food and markets and commissioner of forests, parks and recreation” for “commissioners of agriculture, food and markets and forests, parks and recreation”.

Subsec. (i): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” and “secretary” for “commissioner” throughout.

—1991 (Adj. Sess.). Subsec. (c): Act No. 211 deleted “or Class B” following “Class A” in the first sentence and added the second sentence.

Subsec. (e): Act No. 211 deleted “or C” following “Class B” in the first sentence of the introductory paragraph.

Subsec. (i): Added by Act No. 261.

—1985 (Adj. Sess.). Added subsecs. (c)-(h).

—1981 (Adj. Sess.). Subsec. (a): Deleted “on and after July 1, 1971” preceding “no person shall discharge” and “after July 1, 1973” preceding “discharge any waste, substance or material into an injection well” in the first sentence and made other minor stylistic changes.

Subsec. (b): Deleted. Former subsec. (c) redesignated as present subsec. (b).

Subsec. (c): Redesignated as subsec. (b).

—1973. Section amended generally.

—1971 (Adj. Sess.). Subsec. (b): Added “nor reduce or affect the authority or policy declared in joint house resolution 7 of the 1971 session of the general assembly” following “fields and crops” in the second sentence.

—1969 (Adj. Sess.). Section amended generally.

—1967. Rewrote the second sentence.

Statutory revision. 2011, No. 138 (Adj. Sess.), § 27 provides: “To effect the purpose of this act of transferring the rulemaking authority of the water resources panel to the secretary of natural resources, the office of legislative council is directed to revise the existing Vermont Statutes Annotated and, where applicable, replace the terms ‘natural resources board,’ ‘water resources panel of the natural resources board,’ ‘water resources panel,’ ‘water resources board,’ and similar terms with the term ‘secretary of natural resources,’ ‘secretary,’ ‘agency of natural resources,’ ‘agency,’ ‘department of environmental conservation,’ or ‘department’ as appropriate.”

ANNOTATIONS

Application of section.

Court at trial for water pollution violations did not impermissibly impose civil penalties against loggers based solely on violation of “acceptable management practices” (AMPs) contained in administrative rule, but imposed penalties only because it found both statutory violation and failure to comply with AMPs. State Agency of Natural Resources v. Riendeau, 157 Vt. 615, 603 A.2d 360, 1991 Vt. LEXIS 232 (1991).

This section allows water conservation board (now water resources board) to proceed against any person, without exception, who pollutes waters after their classification. Vermont Woolen Corp. v. Wackerman, 122 Vt. 219, 167 A.2d 533, 1961 Vt. LEXIS 60 (1961).

Exemption as to existing pollution set out in this section (prior to 1969 (Adj. Sess.) amendment) did not apply to waters once water conservation board (now water resources board) had carried out classification procedures as to them. Vermont Woolen Corp. v. Wackerman, 122 Vt. 219, 167 A.2d 533, 1961 Vt. LEXIS 60 (1961).

Construction with local zoning ordinances.

The state water pollution control statutes may be regarded as amending or repealing any local zoning ordinances in conflict with the operation of the statutes, because for the purpose of public duties, municipalities are merely convenient instrumentalities of the state. Kedroff v. Town of Springfield, 127 Vt. 624, 256 A.2d 457, 1969 Vt. LEXIS 290 (1969).

Construction of sewage disposal plant in town embraced state water pollution control policy and was, therefore, a governmental function and exempt from local zoning ordinance which, as applied to plant, must yield to the legislative policy and laws of the State. Kedroff v. Town of Springfield, 127 Vt. 624, 256 A.2d 457, 1969 Vt. LEXIS 290 (1969).

Duty as to disposal of sewage.

It is the duty of individuals, partnerships, corporations, institutions, municipalities and State agencies to see that sewage is properly disposed of. Kedroff v. Town of Springfield, 127 Vt. 624, 256 A.2d 457, 1969 Vt. LEXIS 290 (1969).

Review.

Trial court did not err in finding violation of statute prohibiting discharge into waters of state without a permit, since statute did not require State to prove intent and, contrary to defendant’s claims, State wetlands coordinator observed erosion of silt and sediments into brook one month before State issued stop-work order to defendant. Secretary v. Irish, 169 Vt. 407, 738 A.2d 571, 1999 Vt. LEXIS 207 (1999).

Notes to Opinions

Application of section.

The application, by the department of highways, of materials such as snow and ice removal chemicals and bituminous retreatment matter to highways in the conduct of maintenance operations is a discharge under this section and a permit is required. 1972 Vt. Op. Att'y Gen. 245.

§ 1260. Repealed. 1969, No. 252 (Adj. Sess.), § 18, eff. April 4, 1970.

History

Former § 1260. Former § 1260, relating to petitions for change in source of pollution, was derived from 1949, No. 148 , § 14.

§ 1261. [Omitted.]

History

Former § 1261. Former § 1261, relating to the requirement of discharge reports, was derived from 1969, No. 252 (Adj. Sess.), § 10.

§ 1262. Repealed. 1969, No. 252 (Adj. Sess.), § 18, eff. April 4, 1970.

History

Former § 1262. Former § 1262, relating to hearings to show cause, was derived from V.S. 1947, § 6306; 1943, No. 109 , § 4; 1959, No. 125 , § 1.

§ 1263. Discharge permits.

  1. Any person who intends to discharge waste into the waters of the State or who intends to discharge into an injection well or who intends to discharge into any publicly owned treatment works any waste that interferes with, passes through without treatment, or is otherwise incompatible with that works or would have a substantial adverse effect on that works or on water quality shall make application to the Secretary for a discharge permit.  Application shall be made on a form prescribed by the Secretary.  An applicant shall pay an application fee in accordance with 3 V.S.A. § 2822 .
  2. When an application is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title. The Secretary may require any applicant to submit any additional information that the Secretary considers necessary and may refuse to grant a permit, or permission to discharge under the terms of a general permit, until the information is furnished and evaluated.
  3. If the Secretary determines that the proposed discharge will not reduce the quality of the receiving waters below the classification established for them and will not violate any applicable provisions of State or federal laws or regulations, he or she shall issue a permit containing terms and conditions as may be necessary to carry out the purposes of this chapter and of applicable federal law.  Those terms and conditions may include providing for specific effluent limitations and levels of treatment technology; monitoring, recording, reporting standards; entry and inspection authority for State and federal officials; reporting of new pollutants and substantial changes in volume or character of discharges to waste treatment systems or waters of the State; pretreatment standards before discharge to waste treatment facilities or waters of the State; and toxic effluent standards or prohibitions.
  4. A discharge permit shall:
    1. Specify the manner, nature, volume, and frequency of the discharge permitted and contain terms and conditions consistent with subsection (c) of this section.
    2. Require proper operation and maintenance of any pollution abatement facility necessary in the treatment or processing of the waste by qualified personnel in accordance with standards established by the Secretary and the Director of the Office of Professional Regulation. The Secretary may require that a pollution abatement facility be operated by persons licensed under 26 V.S.A. chapter 99 and may prescribe the class of license required. The Secretary may require a laboratory quality assurance sample program to ensure qualifications of laboratory analysts.
    3. Contain an operation, management, and emergency response plan when required under section 1278 of this title and additional conditions, requirements, and restrictions as the Secretary deems necessary to preserve and protect the quality of the receiving waters, including requirements concerning recording, reporting, monitoring, and inspection of the operation and maintenance of waste treatment facilities and waste collection systems.
    4. Be valid for the period of time specified therein, not to exceed five years.
  5. A discharge permit may be renewed from time to time upon application to the Secretary.  A renewal permit filing requirement for reissuance shall be determined by the Secretary and may range from a simple written request for reissuance to the submission of all information required by the initial application. A renewal permit shall be issued following all determinations and procedures required for initial permit application.
  6. Existing indirect discharges to the waters of the State from on-site disposal of sewage shall comply with and be subject to the provisions of this chapter, and shall obtain the required permit, no later than July 1, 1991. Notwithstanding the requirements of subsections 1259(d) and (e) of this title, the Secretary shall grant a permit for an existing indirect discharge to the waters of the State for on-site disposal of sewage unless he or she finds that the discharge violates the water quality standards. Existing indirect discharges from on-site sewage disposal systems of less than 6,500 gpd capacity shall not require a permit.
  7. Notwithstanding any other provision of law, any person who owns or operates a concentrated animal feeding operation that requires a permit under the federal National Pollutant Discharge Elimination System permit regulations shall submit an application to the Secretary for a discharge permit and pay the required fees specified in 3 V.S.A. § 2822 . On or before July 1, 2007, the Secretary of Natural Resources shall adopt rules implementing the federal National Pollutant Discharge Elimination System permit regulations for discharges from concentrated animal feeding operations. Until such regulations are adopted, the substantive permitting standards and criteria used by the Secretary to evaluate applications and issue or deny discharge permits for concentrated animal feeding operations shall be those specified by federal regulations. The Secretary may issue an individual or general permit for these types of discharges in accordance with the procedural requirements of subsection (b) of this section and other State law. For the purposes of this subsection, “concentrated animal feeding operation” means a farm that meets the definition contained in the federal regulations.

HISTORY: Added 1969, No. 252 (Adj. Sess.), § 11, eff. April 4, 1970; amended 1973, No. 103 , § 6, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 7, eff. May 17, 1986; 1987, No. 76 , § 4; 1987, No. 173 (Adj. Sess.), eff. May 6, 1988; 1987, No. 282 (Adj. Sess.), § 13; 1989, No. 116 , § 2; 1993, No. 48 , §§ 5, 6, eff. June 1, 1993; 2003, No. 115 (Adj. Sess.), § 27, eff. Jan. 31, 2005; 2005, No. 78 , § 13, eff. June 24, 2005; 2005, No. 154 (Adj. Sess.), § 5b, eff. July 1, 2007; 2015, No. 150 (Adj. Sess.), § 16, eff. Jan. 1, 2018; 2015, No. 156 (Adj. Sess.), § 8, eff. Jan. 1, 2017; 2017, No. 144 (Adj. Sess.), § 11.

History

Amendments

—2017 (Adj. Sess.) Subdiv. (d)(2): Substituted “chapter 99” for “chapter 97” following “26 V.S.A.” in the second sentence.

—2015 (Adj. Sess.). Subsec. (b): Rewritten by Act 150.

Subdiv. (d)(2): Act No. 156 amended generally.

Subdiv. (d)(3): Act No. 156 deleted “but not limited to” following “including”.

—2005 (Adj. Sess.). Subdiv. (d)(1): Made a minor change in punctuation.

Subdiv. (d)(3): Inserted “an operation, management, and emergency response plan when required under section 1278 of this title and” preceding “additional”, “and maintenance” following “inspection of the operation” and “and waste collection systems” and made a minor change in punctuation.

—2005. Subsec. (g): Added.

—2003 (Adj. Sess.). Subsec. (b): Deleted the fifth sentence.

—1993. Subsec. (b): Added “except for applications for permission to discharge under the terms of a previously issued general permit” preceding “the secretary shall”, substituted “provide for” for “give” thereafter and inserted “making a final” preceding “ruling” in the first sentence, added the second and third sentences, substituted “any” for “the” preceding “applicant”, “the secretary” for “he” preceding “considers” and inserted “or permission to discharge under the terms of a general permit” preceding “until” in the fourth sentence, and added the fifth sentence.

Subsec. (f): Inserted “capacity” following “6,500 gpd” in the third sentence.

—1989. Subsec. (g): Repealed.

—1987 (Adj. Sess.). Subdiv. (d)(2): Act No. 282 added the second and third sentences.

Subsec. (g): Added by Act No. 173.

—1987. Subsec. (a): Substituted “in accordance with 3 V.S.A. § 2822 ” for “as the secretary determines by rule to be reasonable to defray the expenses of reviewing and evaluating an application” following “fee” at the end of the last sentence.

—1985 (Adj. Sess.). Subsec. (f): Added.

—1981 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Made minor changes in phraseology.

Subsec. (c): Amended generally.

Subdiv. (d)(3): Deleted “such” preceding “additional conditions”.

—1973. Section amended generally.

CROSS REFERENCES

Jurisdiction of Department of Public Service over companies with direct or indirect discharge permits, see 30 V.S.A. § 203 .

Environmental Contingency Fund, see § 1283 of this title.

Notes to Opinions

Effect of transfer of property.

A discharge permit does not run with the land and is not automatically transferable to a successor in title, but when the conditions of operation under a successor are identical to those of the predecessor, the continuation of the permit up until its normal expiration date would generally be in order, if there is adequate assurance that the successor will honor the conditions of the permit. 1974 Vt. Op. Att'y Gen. 88.

ANNOTATIONS

Cited.

Cited in In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988); In re Town of Sherburne, 154 Vt. 596, 581 A.2d 274, 1990 Vt. LEXIS 162 (1990); Secretary v. Irish, 169 Vt. 407, 738 A.2d 571, 1999 Vt. LEXIS 207 (1999); In re Unified Buddhist Church, Inc., 2006 VT 50, 180 Vt. 515, 904 A.2d 1139, 2006 Vt. LEXIS 141 (2006) (mem.).

Law Reviews —

For note, “Extending Public Trust Duties to Vermont’s Agencies: A Logical Interpretation of the Common Law Public Trust Doctrine”, see 19 Vt. L. Rev. 509 (1995).

§ 1263a. Repealed. 2009, No. 46, § 4.

History

Former § 1263a. Former § 1263a, relating to aquatic nuisance control permits, was derived from 1989, No. 88 , § 2 and amended by 2001, No. 61 , § 51; 2003, No. 42 , § 2; and 2009, No. 46 , § 4.

§ 1264. Stormwater management.

  1. Findings and intent.
    1. Findings.   The General Assembly finds that the management of stormwater runoff is necessary to reduce stream channel instability, pollution, siltation, sedimentation, and flooding, all of which have adverse impacts on the water and land resources of the State.
    2. Intent.   The General Assembly intends, by enactment of this section to:
      1. Reduce the adverse effects of stormwater runoff.
      2. Direct the Agency of Natural Resources to develop a process that ensures broad participation; focuses upon the prevention of pollution; relies on structural treatment only when necessary; establishes and maintains accountability; tailors strategies to the region and the locale; builds broad-based programs; provides for the evaluation and appropriate evolution of programs; is consistent with the federal Clean Water Act and the State water quality standards; and accords appropriate recognition to the importance of community benefits that accompany an effective stormwater runoff management program. In furtherance of these purposes, the Secretary shall implement a stormwater permitting program. The stormwater permitting program developed by the Secretary shall recognize that stormwater runoff is different from the discharge of sanitary and industrial wastes because of the influence of natural events of stormwater runoff, the variations in characteristics of those runoffs, and the increased stream flows causing degradation of the quality of the receiving water at the time of discharge.
  2. Definitions.   As used in this section:
    1. “Best management practice” (BMP) means a schedule of activities, prohibitions or practices, maintenance procedures, green infrastructure, and other management practices to prevent or reduce water pollution.
    2. “Development” means the construction of impervious surface on a tract or tracts of land where no impervious surface previously existed.
    3. “Expansion” and “the expanded portion of an existing discharge” mean an increase or addition of impervious surface, such that the total resulting impervious area is greater than the minimum regulatory threshold.
    4. “Green infrastructure” means a wide range of multi-functional, natural and semi-natural landscape elements that are located within, around, and between developed areas, that are applicable at all spatial scales, and that are designed to control or collect stormwater runoff.
    5. “Healthy soil” means soil that has a well-developed, porous structure, is chemically balanced, supports diverse microbial communities, and has abundant organic matter.
    6. “Impervious surface” means those manmade surfaces, including paved and unpaved roads, parking areas, roofs, driveways, and walkways, from which precipitation runs off rather than infiltrates.
    7. “New stormwater discharge” means a new or expanded discharge of regulated stormwater runoff, subject to the permitting requirements of this chapter that has not been previously authorized pursuant to this chapter.
    8. “Offset” means a State-permitted or State-approved action or project that mitigates the impacts that a discharge of regulated stormwater runoff has on receiving waters.
    9. “Redevelopment” or “redevelop” means the construction or reconstruction of an impervious surface where an impervious surface already exists when such new construction involves substantial site grading, substantial subsurface excavation, or substantial modification of an existing stormwater conveyance, such that the total of impervious surface to be constructed or reconstructed is greater than the minimum regulatory threshold. Redevelopment does not mean public road management activities, including any crack sealing, patching, cold planing, resurfacing, reclaiming, or grading treatments used to maintain pavement, bridges, and unpaved roads.
    10. “Regulated stormwater runoff” means precipitation, snowmelt, and the material dissolved or suspended in precipitation and snowmelt that runs off impervious surfaces and discharges into surface waters or into groundwater via infiltration.
    11. “Stormwater impact fee” means the monetary charge assessed to a permit applicant for the discharge of regulated stormwater runoff in order to mitigate impacts that the discharger is unable to control through on-site treatment or completion of an offset on a site owned or controlled by the permit applicant.
    12. “Stormwater-impaired water” means a State water that the Secretary determines is significantly impaired by discharges of regulated stormwater runoff.
    13. “Stormwater Management Manual” means the Agency of Natural Resources’ Stormwater Management Manual, as adopted and amended by rule.
    14. “Stormwater runoff” means precipitation and snowmelt that does not infiltrate into the soil, including material dissolved or suspended in it, but does not include discharges from undisturbed natural terrain or wastes from combined sewer overflows.
    15. “Stormwater system” includes the storm sewers; outfall sewers; surface drains; manmade wetlands; channels; ditches; wet and dry bottom basins; rain gardens; and other control equipment necessary and appurtenant to the collection, transportation, conveyance, pumping, treatment, disposal, and discharge of regulated stormwater runoff.
    16. “Total maximum daily load” (TMDL) means the calculations and plan for meeting water quality standards approved by the U.S. Environmental Protection Agency (EPA) and prepared pursuant to 33 U.S.C. § 1313(d) and federal regulations adopted under that law.
    17. “Water quality remediation plan” means a plan, other than a TMDL, designed to bring an impaired water body into compliance with applicable water quality standards in accordance with 40 C.F.R. § 130.7(b)(1)(ii) and (iii).
    18. “Watershed improvement permit” means a general permit specific to a stormwater-impaired water that is designed to apply management strategies to existing and new discharges and that includes a schedule of compliance no longer than five years reasonably designed to assure attainment of the Vermont water quality standards in the receiving waters.
  3. Prohibitions.  Subsection (c) effective until July 1, 2022; see also subsection (c) effective July 1, 2022 set out below.
    1. A person shall not commence the construction or redevelopment of one acre or more of impervious surface without first obtaining a permit from the Secretary.
    2. A person shall not discharge from a facility that has a standard industrial classification identified in 40 C.F.R. § 122.26 without first obtaining a permit from the Secretary.
    3. A person that has been designated by the Secretary as requiring coverage for its municipal separate storm sewer system may not discharge without first obtaining a permit from the Secretary.
    4. A person shall not commence a project that will result in an earth disturbance of one acre or greater, or less than one acre if part of a common plan of development, without first obtaining a permit from the Secretary.
    5. A person shall not expand existing impervious surface by more than 5,000 square feet, such that the total resulting impervious area is greater than one acre, without first obtaining a permit from the Secretary.
      1. In accordance with the schedule established under subdivision (g)(2) of this section, a municipality shall not discharge stormwater from a municipal road without first obtaining: (6) (A) In accordance with the schedule established under subdivision (g)(2) of this section, a municipality shall not discharge stormwater from a municipal road without first obtaining:
        1. an individual permit;
        2. coverage under a municipal road general permit; or
        3. coverage under a municipal separate storm sewer system permit that implements the technical standards and criteria established by the Secretary for stormwater improvements of municipal roads.
      2. As used in this subdivision (6), “municipality” means a city, town, or village.
    6. In accordance with the schedule established under subdivision (g)(3) of this section, a person shall not discharge stormwater from impervious surface of three or more acres in size without first obtaining an individual permit or coverage under a general permit issued under this section if the discharge was never previously permitted or was permitted under an individual permit or general permit that did not incorporate the requirements of the 2002 Stormwater Management Manual or any subsequently adopted Stormwater Management Manual.

      (c) Prohibitions. Subsection (c) effective July 1, 2022; see also subsection (c) effective until July 1, 2022 set out above.

      (1) A person shall not commence the construction or redevelopment of one-half of an acre or more of impervious surface without first obtaining a permit from the Secretary.

      (2) A person shall not discharge from a facility that has a standard industrial classification identified in 40 C.F.R. § 122.26 without first obtaining a permit from the Secretary.

      (3) A person that has been designated by the Secretary as requiring coverage for its municipal separate storm sewer system shall not discharge without first obtaining a permit from the Secretary.

      (4) A person shall not commence a project that will result in an earth disturbance of one acre or greater, or of less than one acre if part of a common plan of development, without first obtaining a permit from the Secretary.

      (5) A person shall not expand existing impervious surface by more than 5,000 square feet, such that the total resulting impervious area is greater than one acre, without first obtaining a permit from the Secretary.

      (6) (A) In accordance with the schedule established under subdivision (g)(2) of this section, a municipality shall not discharge stormwater from a municipal road without first obtaining:

      1. an individual permit;
      2. coverage under a municipal road general permit; or
      3. coverage under a municipal separate storm sewer system permit that implements the technical standards and criteria established by the Secretary for stormwater improvements of municipal roads.

        (B) As used in this subdivision (6), “municipality” means a city, town, or village.

        (7) In accordance with the schedule established under subdivision (g)(3) of this section, a person shall not discharge stormwater from impervious surface of three or more acres in size without first obtaining an individual permit or coverage under a general permit issued under this section if the discharge was never previously permitted or was permitted under an individual permit or general permit that did not incorporate the requirements of the 2002 Stormwater Management Manual or any subsequently adopted Stormwater Management Manual.

  4. Exemptions.
    1. No permit is required under this section for:
      1. Stormwater runoff from farms in compliance with agricultural practices adopted by the Secretary of Agriculture, Food and Markets, provided that this exemption shall not apply to construction stormwater permits required by subdivision (c)(4) of this section.
      2. Stormwater runoff from concentrated animal feeding operations permitted under subsection 1263(g) of this chapter.
      3. Stormwater runoff from accepted silvicultural practices, as defined by the Commissioner of Forests, Parks and Recreation, including practices which are in compliance with the Acceptable Management Practices for Maintaining Water Quality on Logging Jobs in Vermont, as adopted by the Commissioner of Forests, Parks and Recreation.
      4. Stormwater runoff permitted under section 1263 of this title.
    2. No permit is required under subdivision (c)(1), (5), or (7) of this section and for which a municipality has assumed full legal responsibility as part of a permit issued to the municipality by the Secretary. As used in this subdivision, “full legal responsibility” means legal control of the stormwater system, including a legal right to access the stormwater system, a legal duty to properly maintain the stormwater system, and a legal duty to repair and replace the stormwater system when it no longer adequately protects waters of the State.
  5. State designation.   The Secretary shall require a permit under this section for a discharge or stormwater runoff from any size of impervious surfaces upon a determination by the Secretary that the treatment of the discharge or stormwater runoff is necessary to reduce the adverse impacts to water quality of the discharge or stormwater runoff taking into consideration any of the following factors: the size of the impervious surface, drainage patterns, hydraulic connectivity, existing stormwater treatment, stormwater controls necessary to implement the wasteload allocation of a TMDL, or other factors. The Secretary may make this determination on a case-by-case basis or according to classes of activities, classes of runoff, or classes of discharge. The Secretary may make a determination under this subsection based on activities, runoff, discharges, or other information identified during the basin planning process.
  6. Rulemaking.   On or before December 31, 2017, the Secretary shall adopt rules to manage stormwater runoff. At a minimum, the rules shall:
    1. Establish as the primary goals of the rules:
      1. assuring compliance with the Vermont Water Quality Standards; and
      2. maintenance after development, as nearly as possible, of the predevelopment runoff characteristics.
    2. Establish criteria for the use of the basin planning process to establish watershed-specific priorities for the management of stormwater runoff.
    3. Assure consistency with applicable requirements of the federal Clean Water Act.
    4. Include technical standards and best management practices that address stormwater discharges from existing development, new development, and redevelopment.
    5. Specify minimum requirements for inspection and maintenance of stormwater management practices.
    6. Include standards for the management of stormwater runoff from construction sites and other land disturbing activities.
    7. Allow municipal governments to assume the full legal responsibility for a stormwater system permitted under these rules as a part of a permit issued by the Secretary.
    8. Include standards with respect to the use of offsets and stormwater impact fees.
    9. Include minimum standards for the issuance of stormwater permits during emergencies for the repair or maintenance of stormwater infrastructure during a state of emergency declared under 20 V.S.A. chapter 1 or during flooding or other emergency conditions that pose an imminent risk to life or a risk of damage to public or private property. Minimum standards adopted under this subdivision shall comply with National Flood Insurance Program requirements.
    10. To the extent appropriate, authorize in the permitting process use of certifications of compliance by licensed professional engineers practicing within the scope of their engineering specialty.
    11. Include standards for alternative best management practices for stormwater permitting of renewable energy projects and telecommunication facilities located in high-elevation settings, provided that the alternative best management practices shall be designed to:
      1. minimize the extent and footprint of stormwater-treatment practices in order to preserve vegetation and trees;
      2. adapt to and minimize impact to ecosystems, shallow soils, and sensitive streams found in high-elevation settings;
      3. account for the temporary nature and infrequent use of construction and access roads for high-elevation projects; and
      4. maintain the predevelopment runoff characteristics, as nearly as possible, after development.
    12. Establish best management practices for improving healthy soils in order to improve the capacity of soil to retain water, improve flood resiliency, reduce sedimentation, and prevent stormwater runoff.
  7. General permits.
    1. The Secretary may issue general permits for classes of stormwater runoff that shall be adopted and administered in accordance with the provisions of subsection 1263(b) of this title.
      1. The Secretary shall issue on or before December 31, 2017, a general permit for discharges of regulated stormwater from municipal roads. Under the municipal roads stormwater general permit, the Secretary shall: (2) (A) The Secretary shall issue on or before December 31, 2017, a general permit for discharges of regulated stormwater from municipal roads. Under the municipal roads stormwater general permit, the Secretary shall:
        1. Establish a schedule for implementation of the general permit by each municipality in the State. Under the schedule, the Secretary shall establish:
          1. the date by which each municipality shall apply for coverage under the municipal roads general permit;
          2. the date by which each municipality shall inventory necessary stormwater management projects on municipal roads;
          3. the date by which each municipality shall establish a plan for implementation of stormwater improvements that prioritizes stormwater improvements according to criteria established by the Secretary under the general permit; and
          4. the date by which each municipality shall implement stormwater improvements of municipal roads according to a municipal implementation plan.
        2. Establish criteria and technical standards, such as best management practices, for implementation of stormwater improvements of municipal roads.
        3. Establish criteria for municipal prioritization of stormwater improvements of municipal roads. The Secretary shall base the criteria on the water quality impacts of a stormwater discharge, the current state of a municipal road, the priority of a municipal road or stormwater project in any existing transportation capital plan developed by a municipality, and the benefits of the stormwater improvement to the life of the municipal road.
        4. Require each municipality to submit to the Secretary and periodically update its implementation plan for stormwater improvements.
      2. The Secretary may require an individual permit for a stormwater improvement at any time under subsection (e) of this section. An individual permit shall include site-specific standards for the stormwater improvement.
      3. All municipalities shall apply for coverage under the municipal road general permit on or before July 1, 2021.
      4. As used in this subdivision (g)(2), “municipality” means a city, town, or village.
    2. Within 120 days after the adoption by the Secretary of the rules required under subsection (f) of this section, the Secretary shall issue a general permit under this section for discharges of stormwater from impervious surface of three or more acres in size, when the stormwater discharge previously was not permitted or was permitted under an individual permit or general permit that did not incorporate the requirements of the 2002 Stormwater Management Manual or any subsequently adopted Stormwater Management Manual. Under the general permit, the Secretary shall:
      1. Establish a schedule for implementation of the general permit by geographic area of the State. The schedule shall establish the date by which an owner of impervious surface shall apply for coverage under this subdivision (3). The schedule established by the Secretary shall require an owner of impervious surface subject to permitting under this subdivision to obtain coverage by the following dates:
        1. for impervious surface located within the Lake Champlain watershed, the Lake Memphremagog watershed, or the watershed of a stormwater-impaired water on or before October 1, 2023;
        2. for impervious surface located within all other watersheds of the State, no later than October 1, 2033.
      2. Establish criteria and technical standards, such as best management practices, for implementation of stormwater improvements for the retrofitting of impervious surface subject to permitting under this subdivision (3).
      3. Require that a discharge of stormwater from impervious surface subject to the requirements of this section comply with the standards of subsection (h) of this section for redevelopment of or renewal of a permit for existing impervious surface.
      4. Allow the use of stormwater impact fees, offsets, and phosphorus credit trading within the watershed of the water to which the stormwater discharges or runs off.
  8. Permit requirements.   An individual or general stormwater permit shall:
    1. Be valid for a period of time not to exceed five years.
    2. For discharges of regulated stormwater to a stormwater-impaired water, for discharges of phosphorus to Lake Champlain or Lake Memphremagog, or for discharges of phosphorus to a water that contributes to the impairment of Lake Champlain or Lake Memphremagog:
      1. In which no TMDL, watershed improvement permit, or water quality remediation plan has been approved, require that the discharge shall comply with the following discharge standards:
        1. A new discharge or the expanded portion of an existing discharge shall satisfy the requirements of the Stormwater Management Manual and shall not increase the pollutant load in the receiving water for stormwater.
        2. For redevelopment of or renewal of a permit for existing impervious surface, the discharge shall satisfy on-site the water quality, recharge, and channel protection criteria set forth in the Stormwater Management Manual that are determined to be technically feasible by an engineering feasibility analysis conducted by the Agency, and the discharge shall not increase the pollutant load in the receiving water for stormwater.
      2. In which a TMDL or water quality remediation plan has been adopted, require that the discharge shall comply with the following discharge standards:
        1. For a new discharge or the expanded portion of an existing discharge, the discharge shall satisfy the requirements of the Stormwater Management Manual, and the Secretary shall determine that there are sufficient pollutant load allocations for the discharge.
        2. For redevelopment of or renewal of a permit for existing impervious surface, the Secretary shall determine that there are sufficient pollutant load allocations for the discharge and the Secretary shall include any requirements that the Secretary deems necessary to implement the TMDL or water quality remediation plan.
    3. Contain requirements necessary to comply with the minimum requirements of the rules adopted under this section, the Vermont water quality standards, and any applicable provision of the Clean Water Act.
  9. Disclosure of violations.   The Secretary may, at his or her discretion and as necessary to assure achievement of the goals of the program and compliance with State law and the federal Clean Water Act, deny an application for the discharge of regulated stormwater under this section if review of the applicant’s compliance history indicates that the applicant is discharging regulated stormwater in violation of this chapter or is the holder of an expired permit for an existing discharge of regulated stormwater.
  10. Presumption.   In any appeal under this chapter, an individual permit issued under subdivisions (c)(1) and (c)(5) of this section shall have a rebuttable presumption in favor of the permittee that the discharge does not cause or contribute to a violation of the Vermont water quality standards for the receiving waters with respect to the discharge of regulated stormwater runoff, provided that the discharge is to a water that is not principally impaired due to stormwater.
  11. Report on treatment practices.   As part of the report required under section 1389a of this title, the Secretary annually shall report the following:
    1. whether the phosphorus load from new development permitted under this section by the Secretary in the Lake Champlain watershed in the previous calendar year is achieving at least a 70 percent average phosphorus load reduction;
    2. the estimated total phosphorus load reduction from new development, redevelopment, and retrofit of impervious surface permitted under this section in the previous calendar year; and
    3. the number of projects and the percentage of projects as a whole that implemented Tier 1 stormwater treatment practices, Tier 2 stormwater treatment practices, or Tier 3 stormwater treatment practices in the previous calendar year.

HISTORY: Added 1981, No. 222 (Adj. Sess.), § 25; amended 1987, No. 282 (Adj. Sess.), § 14; 1999, No. 114 (Adj. Sess.), § 3, eff. May 19, 2000; 2001, No. 61 , § 43, eff. June 16, 2001; 2001, No. 109 (Adj. Sess.), §§ 2-4, eff. May 16, 2002; 2003, No. 42 , § 2, eff. May 27, 2003; 2003, No. 115 (Adj. Sess.), § 28, eff. Jan. 31, 2005; 2003, No. 140 (Adj. Sess.), § 1; 2005, No. 78 , § 14, eff. June 24, 2005; 2005, No. 154 (Adj. Sess.), §§ 2, 3, eff. May 17, 2006; 2007, No. 43 , § 1, eff. May 23, 2007; 2007, No. 130 (Adj. Sess.), § 5, eff. May 12, 2008; 2011, No. 53 , § 3, eff. May 27, 2011; 2011, No. 91 (Adj. Sess.), § 1, eff. Jan. 15, 2012; 2011, No. 138 (Adj. Sess.), § 6, eff. May 14, 2012; 2013, No. 142 (Adj. Sess.), § 87; 2013, No. 190 (Adj. Sess.), § 20, eff. June 16, 2014; 2013, No. 199 (Adj. Sess.), § 30; 2015, No. 64 , § 31; 2017, No. 181 (Adj. Sess.), § 2, eff. May 28, 2018; 2017, No. 181 (Adj. Sess.), § 4, eff. July 1, 2022.

History

Revision note

—2010. In subsec. (h), substituted “subdivision (g)(1)” for “subdivision (g)(1)(A)” for purposes of clarity and to correct the reference.

Former section 1264. Former § 1264, relating to orders, was repealed by 1969, No. 252 (Adj. Sess.), § 18, and was derived from 1949, No. 148 , § 15; V.S. 1947, § 6307; 1943, No. 109 , § 5; 1959, No. 125 , § 2.

Editor’s note—

During the 2003 (Adj. Sess.), subsecs. (b) and (g) were amended twice, by Act Nos. 115 and 140, The text of Act No. 140 incorporated the changes required by Act No. 115 and reflects the intent of the legislature. Because the changes required by Act No. 115 were included in Act No. 140, the effective date of these changes is July 1, 2004, as set forth in Act No. 140 and not Jan. 1, 2005, as set forth in Act No. 115. The changes by each act are described in amendment notes set out below.

Amendments

—2017 (Adj. Sess.). Subdiv. (b)(8): Amended generally by Act No. 181, § 2.

Subdiv. (b)(11): Act No. 181, § 2 deleted “to a stormwater impaired water or for the discharge of phosphorus to Lake Champlain, or a water that contributes to the impairment of Lake Champlain” following “regulated stormwater runoff”, deleted “a sediment load level, hydrologic impact, or other impact” following “order to mitigate”, and inserted “impacts” preceding “that the discharger is unable to control”.

Subdiv. (c)(1): Act No. 181, § 4 substituted “one-half of an acre or more” for “one acre or more”.

Subdiv. (c)(3): Act No. 181, § 4 substituted “sewer system shall” for “sewer system may”.

Subdiv. (c)(4): Act No. 181, § 4 inserted “of” preceding “less than one acre”.

Subdiv. (g)(3): Act No. 181, § 2 substituted “Within 120 days after the adoption by the Secretary of the rules required under subsection (f) of this section” for “On or before January 1, 2018”.

Subdiv. (g)(3)(A): Act No. 181, § 2 substituted “under this subdivision (3)” for “Under subdivision (3) of this section” at the end of the second sentence.

Subdiv. (g)(3)(A)(i): Act No. 181, § 2 substituted “Lake Champlain watershed, the Lake Memphremagog watershed, or the watershed of a stormwater impaired water on or before October 1, 2023” for “Lake Champlain watershed, no later than October 1, 2023” and deleted “and” from the end of the sentence.

Subdiv. (g)(3)(A)(ii): Act No. 181, § 2 substituted “2033” for “2028”.

Subdiv. (g)(3)(B): Act No. 181, § 2 inserted “(3)” at the end of the sentence.

Subdiv. (h)(2): Act No. 181, § 2 substituted “stormwater-impaired” for “stormwater impaired” and inserted “or Lake Memphremagog” twice.

Subsec. (k): Added by Act No. 181, § 2.

—2015. Amended generally.

—2013 (Adj. Sess.). Subdiv. (f)(3): Deleted the third sentence.

Subsec. (j): Act Nos. 190 and 199 substituted “July 1, 2017” for “July 1, 2014” following “is filed before”.

—2011 (Adj. Sess.) Subdiv. (a)(19): Added by Act No 91.

Subdiv. (f)(1): Act No. 91 amended generally.

Subsec. (k): Added by Act No. 138.

—2011. Subsec. (j): Added.

—2007 (Adj. Sess.) Subdiv. (i): Added.

—2007. Subsec. (f): Added “provided that the watershed improvement permit provides reasonable assurance of compliance with the Vermont water quality standards in five years” at the end of subdiv. (1)(B); in subdiv. (3), substituted “January 15, 2010” for “September 30, 2007” preceding “the secretary”, substituted “issue a general or individual permit implementing a TMDL approved by the EPA, or issue a general or individual permit implementing” for “submit a TMDL to the EPA for approval or establish” preceding “a water quality” in the first sentence, added “a general or individual permit implementing” preceding “a TMDL” and “a general or individual permit implementing” preceding “a water quality” in the third sentence.

—2005 (Adj. Sess.). Subdiv. (a)(18): Added.

Subdiv. (e)(1): Made minor changes in punctuation in the second and third sentences.

Subdiv. (e)(3): Added.

—2005. Subdiv. (e)(2): Amended generally.

—2003 (Adj. Sess.) Subsec. (a): Act No. 140 added the fourth through sixth sentences in the introductory paragraph; rewrote subdivs. (1)-(3), and added subdivs. (4)-(17).

Subsec. (b): Act No. 115 substituted “secretary” for “department” in the first sentence and deleted “water resources” preceding “board” in the fifth sentence of the introductory paragraph.

Act No. 140 deleted “collected” preceding “stormwater runoff” and substituted “secretary” for “department” in the first sentence and deleted “water resources” preceding “board” in the fifth sentence of the introductory paragraph.

Subsec. (d): Amended generally by Act No. 140.

Subdiv. (e)(1): Act No. 140 substituted “regulated” for “collected” preceding “stormwater runoff” and “2002 Stormwater Management Manual” for “agency of natural resources’ Stormwater Management Manual dated April 2002, as amended from time to time, by rule” in the first sentence; “regulated” for “collected” preceding “stormwater runoff” in the second sentence; added the third sentence; and substituted “an annual” for “a semiannual” in the fourth sentence.

Subdiv. (e)(2): Inserted “regulated” preceding “stormwater runoff” in the third sentence.

Subsec. (f): Amended generally by Act No. 140.

Subsec. (g): Amended generally by Act Nos. 115 and 140.

Subsec. (h): Act No. 140 substituted “that meet the water quality standards of the state” for “not on the Section 303(d) list of impaired waters”.

—2003. Subdiv. (e)(2): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” in the fourth sentence.

—2001 (Adj. Sess.) Subsecs. (a), (d), (e), (f): Amended generally.

Subsecs. (g), (h): Added.

—2001. Subsec. (d): Deleted “no sooner than the end of the 2001 legislative session and no later than July 1, 2001” following “secretary of state” in the first sentence and added the present second sentence.

—1999 (Adj. Sess.). Section amended generally.

—1987 (Adj. Sess.). Subsec. (e): Added the second sentence.

Effective date and permit requirements of subdiv. (h)(2). 2015, No. 64 , § 54(b)(2) provides: “In Sec. 31 [which amended 10 V.S.A. § 1264 ], the permit requirements under 10 V.S.A. § 1264 (h)(2) for discharges of regulated stormwater to Lake Champlain or to a water that contributes to the impairment of Lake Champlain shall take effect on October 1, 2015.”

Applicability of Agency rules. 2017, No. 181 (Adj. Sess.), § 5, effective July 1, 2022, provides: “All Agency of Natural Resources rules applicable to the construction of one acre or more of impervious surface shall be applicable to the construction or redevelopment of one-half of an acre or more of impervious surface.”

Transition. 2017, No. 181 (Adj. Sess.), § 6, effective July 1, 2022, provides: “The construction or redevelopment of less than one acre of impervious surface shall not require a permit under 10 V.S.A. § 1264(c)(1) provided that:

“(1) except for applications for permits issued pursuant to 10 V.S.A. § 1264(c)(4) , complete applications for all local, State, and federal permits related to the regulation of land use or a discharge to waters of the State have been submitted as of July 1, 2022, the applicant does not subsequently file an application for a permit amendment that would have an adverse impact on water quality, and substantial construction of the project commences within two years from July 1, 2022;

“(2) except for permits issued pursuant to 10 V.S.A. § 1264(c)(4) , all local, State, and federal permits related to the regulation of land use or a discharge to waters of the State have been obtained as of July 1, 2022, and substantial construction of the project commences within two years from July 1, 2022;

“(3) except for permits issued pursuant to 10 V.S.A. § 1264(c)(4) , no local, State, or federal permits related to the regulation of land use or a discharge to waters of the State are required, and substantial construction of the project commences within two years from July 1, 2022; or

“(4) the construction, redevelopment, or expansion is a public transportation project, and as of July 1, 2022, the Agency of Transportation or the municipality principally responsible for the project has initiated right-of-way valuation activities or determined that right-of-way acquisition is not necessary, and substantial construction of the project commences within five years from July 1, 2022.”

ANNOTATIONS

Residual designation authority under CWA.

The Water Resources Board properly rejected the claim that State law essentially requiring the Agency of Natural Resources to formulate cleanup plans within three years for stormwater-impaired waters evinced a legislative intent to subject existing stormwater discharges to State regulation, rather than to the National Pollutant Discharge Elimination System (NPDES) permitting regime under the residual designation authority of the Clean Water Act. Nothing in the State stormwater law evinces an intent to supersede the Agency’s residual designation authority to require a federal permit when it determines that an existing discharge contributes to a water quality violation. In re Stormwater NPDES Petition, 2006 VT 91, 180 Vt. 261, 910 A.2d 824, 2006 Vt. LEXIS 177 (2006).

In a determination by the Agency of Natural Resources of whether stormwater discharges “contribute to a water quality violation” under the Clean Water Act, there is nothing in the federal scheme or regulations that would exclude from the category of “relevant considerations” any stormwater evaluation and control standards, state permits, remediation efforts, or other conditions established under State law within the relevant watersheds, to the extent that they affect the level of stormwater discharges. In re Stormwater NPDES Petition, 2006 VT 91, 180 Vt. 261, 910 A.2d 824, 2006 Vt. LEXIS 177 (2006).

The Water Resources Board erred in relying on its earlier decisions to reverse a ruling of the Agency of Natural Resources that stormwater discharges into five brooks required federal discharge permits under the Clean Water Act. Further, the Agency erred in summarily denying the petition rather than undertaking the requisite fact-specific analysis under its residual designation authority to determine whether National Pollutant Discharge Elimination System permits were necessary for the discharges in question. In re Stormwater NPDES Petition, 2006 VT 91, 180 Vt. 261, 910 A.2d 824, 2006 Vt. LEXIS 177 (2006).

§ 1264a. Repealed. 2003, No. 140 (Adj. Sess.), § 10(a), eff. January 15, 2012, repealed subsecs. (a) through (d) and (f) through (h); 2017 No. 67, § 13 repealed subsec. (e), eff. July 1, 2017.

History

Former § 1264a. Former § 1264a, relating to interim stormwater permitting authority, was derived from 2003, No. 140 (Adj. Sess.), § 2 and amended by 2005, No. 154 (Adj. Sess.), § 4.

§ 1264b. Stormwater Fund.

  1. A fund to be known as the Stormwater Fund is created in the State Treasury to be expended by the Secretary of Natural Resources. The Fund shall be administered by the Secretary of Natural Resources. The Fund shall consist of:
    1. stormwater impact fees paid by permittees to meet applicable permitting standards for the discharges of regulated stormwater runoff to the stormwater-impaired waters of the State and Lake Champlain and waters that contribute to the impairment of Lake Champlain;
    2. such sums as may be appropriated or transferred to the Fund by the General Assembly, the State Emergency Board, or the Joint Fiscal Committee during such times when the General Assembly is not in session;
    3. principal and interest received from the repayment of loans made from the Fund;
    4. private gifts, bequests, and donations made to the State for any of the purposes for which the Fund was established; and
    5. other funds from any public or private source intended for use for any of the purposes for which the Fund has been established.
  2. The Fund shall maintain separate accounts for each stormwater-impaired water and each phosphorus-impaired lake segment of Lake Champlain and the monies in each account may only be used to fund offsets in the designated water. Offsets shall be designed to reduce the sediment load, phosphorus load, or hydrologic impact of regulated stormwater runoff in the receiving water. All balances in the Fund at the end of any fiscal year shall be carried forward and remain a part of the Fund. Interest earned by the Fund shall be deposited into the Fund.
  3. The Secretary may authorize disbursements from the Fund to offsets that meet the requirements of the rule adopted pursuant to subsection 1264(f) of this title. The public funds used to capitalize the Fund shall:
    1. be disbursed only to an offset that is owned or operated by a municipality or a governmental subdivision, agency, or instrumentality; and
    2. be disbursed only to reimburse a municipality or a governmental subdivision, agency, or instrumentality for those funds provided by the municipality or governmental subdivision, agency, or instrumentality to complete or construct an offset.
  4. A municipality or governmental subdivision, agency, or instrumentality may, on an annual basis, reserve capacity in an offset that the municipality or governmental subdivision, agency, or instrumentality operates or owns and that meets the requirements of the rule adopted pursuant to subsection 1264(f) of this title. A municipality or governmental subdivision, agency, or instrumentality reserving offset capacity shall inform the Secretary of the offset capacity for which the offset will not receive disbursements from the Fund for nonmunicipal discharges.
  5. Eligible persons may apply for a grant from the Fund to design and implement an offset. The Fund may be used to match other public and private sources of funding for such projects.
  6. A discharger that pays a stormwater impact fee to the Fund in order to receive a permit for the discharge of regulated stormwater runoff may receive reimbursement of that fee if the discharger fails to discharge under the stormwater discharge permit, if the discharger notifies the Secretary of the abandonment of the discharge permit, and if the Secretary determines that unobligated monies for reimbursement remain in the Fund.

HISTORY: Added 2003, No. 140 (Adj. Sess.), § 3; amended 2017, No. 67 , § 12.

History

Amendments

—2017. Section amended generally.

§ 1264c. Repealed. 2005, No. 154 (Adj. Sess.), § 8, eff. September 30, 2012.

History

Former § 1264c. Former § 1264c, relating to the local community implementation fund, was derived from 2003, No. 140 (Adj. Sess.), § 4 and amended by 2005, No. 154 (Adj. Sess.), § 5.

§ 1264d. Ecosystem Restoration and Water Quality Improvement Special Fund.

  1. Purpose.   The federal and State requirements for the permitting of Municipal Separate Storm Sewer Systems (MS4) require certain communities to collect water flow and precipitation data at monitoring stations on stormwater-impaired waters in order to demonstrate compliance with stormwater Total Maximum Daily Load allocations. The costs, equipment, and expertise to conduct monitoring can be prohibitive to individual communities. The establishment of the Ecosystem Restoration and Water Quality Improvement Special Fund is intended to ensure municipal compliance with the monitoring requirements for MS4 communities while reducing the fiscal and other pressures on these communities.
  2. Creation of Fund; purpose.   There is created an Ecosystem Restoration and Water Quality Improvement Special Fund, to be managed in accordance with the requirements of 32 V.S.A. chapter 7, subchapter 5, and to be administered by the Secretary of Natural Resources. The Ecosystem Restoration and Water Quality Improvement Special Fund shall be used to provide assistance to municipalities in fulfilling the monitoring, education, and other requirements of the MS4 permitting program. The Secretary is authorized to collect monies for the Fund and to make disbursements from the Fund directly related to the Secretary’s oversight of monitoring required under the MS4 program.
  3. Participation by municipalities.
    1. A municipality may through a memorandum of understanding (MOU) with the Secretary of Natural Resources agree to contribute to the Ecosystem Restoration and Water Quality Improvement Special Fund to perform the monitoring and other data collection that a municipality is required to conduct under the MS4 permitting program. Under the MOU, a municipality shall commit to contribute to the Fund the municipality’s share of funding required by the Agency of Natural Resources to perform MS4 monitoring and provide oversight and administration. Memoranda of understanding shall serve to coordinate funding and work among municipalities, the State, and any entity contracted with or by a municipality or the State for the purposes of improving water quality.
    2. At a minimum, each memorandum of understanding developed under this section shall contain the following:
      1. the purpose of the memorandum of understanding;
      2. a description of the work to be performed under the memorandum of understanding;
      3. a description of how the coordinated work proposed under the memorandum of understanding will improve water quality;
      4. the entities eligible to participate under the memorandum of understanding; and
      5. the amount of required contribution by the entity, based on a funding formula developed in consultation with entities eligible to participate in the program.
    3. A memorandum of understanding developed under this section shall be posted on the Agency website and subject to a comment period of not less than 30 days.
    4. All participating entities, and the Agency, shall sign any final memoranda of understanding.
  4. Fund proceeds.
    1. The Ecosystem Restoration and Water Quality Improvement Special Fund deposits shall consist of:
      1. payment of costs by participating MS4 communities;
      2. monies appropriated by the General Assembly; and
      3. any other source, public or private.
    2. Unexpended balances and interest earned on the Fund shall be retained in the Fund for use in accordance with the purposes of the Fund.
  5. Fund accounts; expenditures.
    1. The Secretary shall maintain separate accounts within the Ecosystem Restoration and Water Quality Improvement Special Fund for each memorandum of understanding. The Secretary may establish within the Fund an account for the purpose of conducting education and outreach related to improvements to water quality.
    2. Expenditures from an account shall be limited to the purposes established by the memorandum of understanding associated with that account. The Secretary is prohibited from disbursing funds on behalf of an entity that failed to contribute its assigned allocation pursuant to the funding formula established by the Secretary or for any purpose not associated with that account.

HISTORY: Added 2013, No. 171 (Adj. Sess.), § 1.

§ 1265. Temporary pollution permits.

  1. A person who does not qualify for or has been denied a waste discharge permit under section 1263 of this title may apply to the Secretary for a temporary pollution permit.  Application shall be made on a form prescribed by the Secretary and shall contain information as the Secretary may require.  The person shall pay to the Secretary at the time of submitting the application a fee in accordance with 3 V.S.A. § 2822 .  The Secretary may require the person to submit any additional information he or she considers necessary for proper evaluation.
  2. When an application is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title. The Secretary may require the applicant to submit any additional information that the Secretary considers necessary, and may refuse to grant a permit until the information is furnished and evaluated.
  3. After consideration of the application, any additional information furnished and all written comments submitted, and the record of any public hearings the Secretary shall grant or deny a temporary pollution permit.  No such permit shall be granted by the Secretary unless he or she affirmatively finds:
    1. the proposed discharge does not qualify for a discharge permit;
    2. the applicant is constructing, installing, or placing into operation or has submitted plans and reasonable schedules for the construction, installation, or operation of an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but he or she is making a bona fide effort through research and other means to discover and implement such a method;
    3. the applicant needs permission to pollute the waters of the State for a period of time necessary to complete research, planning, construction, installation, or the operation of an approved and acceptable pollution abatement facility or alternate waste disposal system;
    4. there is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the State;
    5. the denial of a temporary pollution permit would work an extreme hardship upon the applicant;
    6. the granting of a temporary pollution permit will result in some public benefit;
    7. the discharge will not be unreasonably destructive to the quality of the receiving waters;
    8. the proposed discharge will not violate any applicable provisions of State or federal laws or regulations.
  4. Any temporary pollution permit issued shall:
    1. Specify the manner, nature, volume, and frequency of the discharge permitted.
    2. Require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the Secretary as a condition of the permit, to include but not to be limited to all terms and conditions authorized under subsection 1263(c) of this title.
    3. Require the permit holder to maintain monitoring equipment and make and file such records and reports as the Secretary deems necessary to ensure compliance with the terms of the permit and evaluate the effect of the discharge upon the receiving waters.
    4. Be valid only for the period of time, not exceeding five years, necessary for the permit holder to place into operation the facility, system, or method required to obtain a permit under section 1263 of this title. However, the terms of the permit may be amended upon application of the permit holder and a finding by the Secretary that the amendment meets all of the requirements of subsection (c) of this section. Upon application of the permit holder and a finding by the Secretary that the amendment meets all of the requirements of subsection (c) of this section and that there is a substantial change in circumstances not under the control of the permit holder, the terms of the permit may be amended following all determinations and procedures for initial permit application.
    5. [Repealed.]
    6. Contain other requirements, restrictions, and conditions that the Secretary deems necessary and desirable to protect the quality of the receiving waters and promote the public interest.
  5. , (f)[Repealed.]

HISTORY: Added 1969, No. 252 (Adj. Sess.), § 12, eff. April 4, 1970; amended 1971, No. 93 , § 1, eff. April 22, 1971; 1971, No. 255 (Adj. Sess.), §§ 4, 5, 10, 11, eff. April 11, 1972; 1973, No. 103 , § 7, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1987, No. 76 , § 5; 1989, No. 278 (Adj. Sess.), § 2; 2013, No. 34 , § 6; 2015, No. 150 (Adj. Sess.), § 17, eff. Jan. 1, 2018.

History

Revision note—

Inserted “of this title” following “section 1263(c)” in subdiv. (d)(2) to conform the reference to V.S.A. style.

Amendments

—2015 (Adj. Sess.). Subsec. (b): Rewritten.

—2013. Subdiv. (d)(4): Inserted “of this section” following “subsection (c)” in two places and deleted former third sentence.

Subdiv. (d)(5): Deleted.

—1989 (Adj. Sess.). Subsec. (e): Repealed.

Subsec. (f): Repealed.

—1987. Subsec. (a): Substituted “in accordance with 3 V.S.A. § 2822 ” for “which the secretary determines to be reasonable to defray the expense of reviewing and evaluating each application” following “fee” in the third sentence.

—1981 (Adj. Sess.). Subsec. (a): Substituted “a fee which the secretary determines to be” for “such amount as the board shall by rule determine” preceding “reasonable” in the third sentence and made other minor stylistic changes.

Subsec. (b): Made minor stylistic changes.

Subdiv. (c)(3): Deleted “after July 1, 1971” following “period of time”.

Subdiv. (d)(2): Inserted “to” between “not” and “be limited to all terms” and made other minor stylistic changes.

Subdiv. (d)(3): Deleted “such” preceding “monitoring equipment”.

Subdiv. (d)(4): Amended generally.

Subdiv. (d)(5): Deleted “of this section” following “subsection (e)”.

Subdiv. (d)(6): Deleted “shall” preceding “contain” and “such” thereafter.

Subsec. (e): Amended generally.

Subsec. (f): Deleted. Former subsec. (g) redesignated as present subsec. (f).

Subsec. (g): Redesignated as subsec. (f).

—1973. Substituted “secretary” for “department” throughout section.

Subsec. (b): Amended generally.

Subsec. (c): Substituted “comments” for “objections” following “written” and inserted “and the record of any public hearings” following “submitted” in the introductory clause and added subdiv. (8).

Subdiv. (d)(2): Added “to include but not to be limited to all terms and conditions authorized under section 911a(c)” following “permit”.

Subdiv. (d)(4): Inserted “not exceeding five years” following “period of time” and substituted “required to obtain a permit under section 911a” for “contemplated in his application as determined by the department” in the first sentence and rewrote the second sentence.

—1971 (Adj. Sess.). Subdiv. (d)(4): Amended generally.

Subsec. (e): Substituted “before July 1, 1972” for “by January 1, 1971” in the introductory clause, rewrote subdiv. (3)(A), and deleted subdiv. (3)(C).

Subsec. (f): Added.

Subsec. (g): Added.

—1971. Subdiv. (e)(3): Added.

“(1) in 10 V.S.A. §§ 913 and 915, by replacing ‘panel’ with ‘department’;

“(2) in 10 V.S.A. chapter 47, by replacing ‘board’ with ‘secretary’ where appropriate;

“(3) in 10 V.S.A. §§ 1422 and 1424, by replacing ‘board’ with ‘secretary’ where appropriate; and

“(4) in 29 V.S.A. §§ 401 , 402, and 403, by replacing ‘board’ with “department’ where appropriate.”

CROSS REFERENCES

Environmental Contingency Fund, see § 1283 of this title.

§ 1265a. Repealed. 2001, No. 133 (Adj. Sess.), § 14, eff. June 13, 2002.

History

Former § 1265a. Former § 1265a, relating to stormwater holding tanks, was derived from 1995, No. 62 , § 46, eff. April 26, 1995.

§ 1266. Repealed. 2009, No. 46, § 4.

History

Former § 1266. Former § 1266, relating to Zebra mussel; Eurasian watermilfoil; water chestnut; quagga mussel, was derived from 1987, No. 219 (Adj. Sess.), § 8 and amended by 1993, No. 233 (Adj. Sess.), § 53; 1999, No. 42 , § 1; and 2009, No. 46 , § 4.

§ 1266a. Discharges of phosphorus.

  1. No person directly discharging into the drainage basins of Lake Champlain or Lake Memphremagog shall discharge any waste that contains a phosphorus concentration in excess of 0.80 milligrams per liter on a monthly average basis. Discharges of less than 200,000 gallons per day, permitted on or before July 1, 1991, shall not be subject to the requirements of this subsection. Discharges from a municipally owned aerated lagoon type secondary sewage treatment plant in the Lake Memphremagog drainage basin, permitted on or before July 1, 1991 shall not be subject to the requirements of this subsection unless the plant is modified to use a technology other than aerated lagoons.
  2. Notwithstanding any provision of subsection (a) of this section to the contrary, the Secretary shall establish effluent phosphorus wasteload allocations or concentration limits within any drainage basin in Vermont, as needed to achieve wasteload allocations in a total maximum daily load document approved by the U.S. Environmental Protection Agency, or as needed to attain compliance with water quality standards adopted by the Secretary pursuant to chapter 47 of this title.
  3. [Repealed.]

HISTORY: Added 1977, No. 39 , § 6, eff. April 19, 1977; amended 1981, No. 222 (Adj. Sess.), § 25; 1991, No. 261 (Adj. Sess.), § 2; 1997, No. 51 , § 2; 2001, No. 61 , § 47, eff. June 16, 2001; 2003, No. 63 , § 53, eff. June 11, 2003; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012; 2015, No. 64 , § 47.

History

Amendments

—2015. Subsec. (c): Repealed.

—2003. Designated former undesignated paragraph as present subsec. (a) and amended generally.

Subsecs. (b) and (c): Added.

—2011 (Adj. Sess.). Subsec. (b): Substituted “secretary” for “Vermont water resources board” preceding “pursuant”.

—2001. Substituted “subsection 1625(e) of this title” for “ 10 V.S.A. § 1625(e) ” at the end of the second sentence and “municipalities eligible under that subsection” for “municipalities under that section” in the third sentence.

—1997. Section amended generally.

—1991 (Adj. Sess.). Section amended generally.

—1981 (Adj. Sess.). Substituted “as soon as possible, but no later than July 1, 1985” for “after June 30, 1981” preceding “no person discharging” and made other minor stylistic changes.

Statutory revision. 2011, No. 138 (Adj. Sess.), § 27 provides: “To effect the purpose of this act of transferring the rulemaking authority of the water resources panel to the secretary of natural resources, the office of legislative council is directed to revise the existing Vermont Statutes Annotated and, where applicable, replace the terms ‘natural resources board,’ ‘water resources panel of the natural resources board,’ ‘water resources panel,’ ‘water resources board,’ and similar terms with the term ‘secretary of natural resources,’ ‘secretary,’ ‘agency of natural resources,’ ‘agency,’ ‘department of environmental conservation,’ or ‘department’ as appropriate”.

CROSS REFERENCES

Detergents and household cleansing products, see § 1381 et seq. of this title.

Jurisdiction of Department of Public Service over companies with direct or indirect discharge permits, see 30 V.S.A. § 203 .

§ 1266b. Application of phosphorus fertilizer.

  1. Definitions.   As used in this section:
    1. “Compost” means a stable humus-like material produced by the controlled biological decomposition of organic matter through active management, but shall not mean sewage, septage, or materials derived from sewage or septage.
    2. “Fertilizer” shall have the same meaning as in 6 V.S.A. § 363(5) .
    3. “Impervious surface” means those manmade surfaces, including paved and unpaved roads, parking areas, roofs, driveways, and walkways, from which precipitation runs off rather than infiltrates.
    4. “Manipulated animal or vegetable manure” means manure that is ground, pelletized, mechanically dried, supplemented with plant nutrients or substances other than phosphorus or phosphate, or otherwise treated to assist with the use of manure as fertilizer.
    5. “Nitrogen fertilizer” means fertilizer labeled for use on turf in which the nitrogen content consists of less than 15 percent slow-release nitrogen.
    6. “Phosphorus fertilizer” means fertilizer labeled for use on turf in which the available phosphate content is greater than 0.67 percent by weight, except that “phosphorus fertilizer” shall not include compost or manipulated animal or vegetable manure.
    7. “Slow-release nitrogen” means nitrogen in a form that is released over time and that is not water-soluble nitrogen.
      1. “Turf” means land planted in closely mowed, managed grasses, including residential and commercial property and publicly owned land, parks, and recreation areas. (8) (A) “Turf” means land planted in closely mowed, managed grasses, including residential and commercial property and publicly owned land, parks, and recreation areas.
      2. “Turf” shall not include:
        1. pasture, cropland, land used to grow sod, or any other land used for agricultural production; or
        2. private and public golf courses.
    8. “Water” or “water of the State” means all rivers, streams, creeks, brooks, reservoirs, ponds, lakes, springs, and all bodies of surface waters, artificial or natural, that are contained within, flow through, or border upon the State or any portion of it.
    9. “Water-soluble nitrogen” means nitrogen in a water-soluble form that does not have slow-release properties.
  2. Application of phosphorus fertilizer.
    1. No person shall apply phosphorus fertilizer to turf except for:
      1. phosphorus fertilizer necessary for application to turf that is deficient in phosphorus as shown by a soil test performed no more than 18 months before the application of the fertilizer; or
      2. phosphorus fertilizer that is labeled as starter fertilizer and that is intended for application to turf when a property owner or an agent of a property owner is first establishing grass in turf via seed or sod procedures and the application of starter fertilizer is limited to the first growing season.
    2. On or before October 1, 2011, the Secretary of Agriculture, Food and Markets, after consultation with the University of Vermont, shall approve a standard, that may authorize multiple testing methods, for the soil test required under subdivision (1)(A) of this subsection.
  3. Application of nitrogen fertilizer.   No person shall apply nitrogen fertilizer to turf.
  4. Application of fertilizer to impervious surface; in proximity to water; and seasonal restriction.   No person shall apply any fertilizer:
    1. to an impervious surface. Fertilizer applied or released to an impervious surface shall be immediately collected and returned to a container for legal application. This subdivision shall not apply to activities regulated under the required agricultural practices as those practices are defined by the Secretary of Agriculture, Food and Markets under 6 V.S.A. § 4810 ;
    2. to turf before April 1 or after October 15 in any calendar year or at any time when the ground is frozen; or
    3. to turf within 25 feet of a water of the State.
  5. Retail display of phosphorus fertilizer.   If a retailer sells or offers for sale phosphorus fertilizer to consumers and consumers have direct access to the phosphorus fertilizer, the retailer shall:
    1. In the retail area where phosphorus fertilizer is accessible by a consumer, display nonphosphorus fertilizer separately from phosphorus fertilizer.
    2. Post in the retail location, if any, where phosphorus fertilizer is accessible by the consumer a clearly visible sign that is at least eight and one-half inches by 11 inches in size and that states “Phosphorus runoff poses a threat to water quality. Most Vermont lawns do not benefit from fertilizer containing phosphorus. Under Vermont law, fertilizer containing phosphorus shall not be applied to lawn unless applied to new lawn or lawn that is deficient for phosphorus as indicated by a soil test.”
  6. Violations.   A person who knowingly and intentionally violates this section shall be subject to a civil penalty of not more than $500.00 per violation. A violation of this section shall be enforceable in the Judicial Bureau pursuant to the provisions of 4 V.S.A. chapter 29 in an action that may be brought by the Agency of Agriculture, Food and Markets or the Agency of Natural Resources.

HISTORY: Added 2011, No. 37 , § 1, eff. Jan. 1, 2012; amended 2015, No. 64 , § 13.

History

Revision note

—2015. In subdiv. (d)(1), substituted “required agricultural practices” for “accepted agricultural practices” in accordance with 2015, No. 64 , § 13.

Effective date of subsec. (b). 2011, No. 37 , § 5(b) provides: “Secs. 1 (application of fertilizer) [which enacted this section], 2 (golf course management plans) [which enacted 6 V.S.A. § 381 ], and 3 (judicial bureau offense) [which amended 4 V.S.A. § 1102 ] of this act shall take effect on January 1, 2012, except that 10 V.S.A. § 1266b(b)(2) (agency of agriculture, food and markets soil test authorization) shall take effect on passage.”

§ 1267. Revocation of permits.

The Secretary may, after notice and opportunity for public hearing, under 3 V.S.A. § 814(c) , revoke, modify, or suspend any permit issued by the Secretary pursuant to this subchapter upon finding that the permit holder submitted false or inaccurate information in the application or has violated any requirement, restrictions, or condition of the permit or that there is a change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge. The Secretary shall impose conditions as the Secretary deems reasonable for regulating the discharges of a person whose permit has been revoked, modified, or suspended. Revocation shall be effective upon actual notice thereof to the permit holder. When the Secretary determines, after consultation with the Commissioner of Health, that a violation threatens the public health, the Secretary shall suspend the permit until the permit holder removes the risk.

HISTORY: Added 1969, No. 252 (Adj. Sess.), § 13, eff. April 4, 1970; amended 1973, No. 103 , § 8, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 8, eff. May 17, 1986.

History

Amendments

—1985 (Adj. Sess.). Substituted “the secretary” for “him” following “issued by”, “upon finding” for “if he finds” following “subchapter” and “the” for “his” following “information in” in the first sentence, substituted “the secretary” for “he” preceding “deems” in the second sentence, and added the fourth sentence.

—1981 (Adj. Sess.). Inserted “under 3 V.S.A. § 814(c) ” following “public hearing” in the first sentence and “revoked, modified or” preceding “suspended” in the second sentence.

—1973. Section amended generally.

§ 1268. Emergency permits.

When a discharge permit holder finds that pollution abatement facilities require repairs, replacement, or other corrective action in order for them to continue to meet standards specified in the permit, the holder may apply in the manner specified by the Secretary for an emergency pollution permit for a term sufficient to effect repairs, replacements, or other corrective action. The Secretary shall proceed in accordance with chapter 170 of this title. No emergency pollution permit shall be issued unless the applicant certifies and the Secretary finds that:

  1. there is no present, reasonable alternative means of disposing of the waste other than by discharging it into the waters of the State during the limited period of time of the emergency;
  2. the denial of an emergency pollution permit would work an extreme hardship upon the applicant;
  3. the granting of an emergency pollution permit will result in some public benefit;
  4. the discharge will not be unreasonably harmful to the quality of the receiving waters; and
  5. the cause or reason for the emergency is not due to willful or intended acts or omissions of the applicant.

HISTORY: Added 1981, No. 222 (Adj. Sess.), § 25; amended 2015, No. 150 (Adj. Sess.), § 18, eff. Jan. 1, 2018; 2019, No. 14 , § 31, eff. April 30, 2019.

History

Amendments

—2019. Subdiv. (4): Added “and” following “receiving waters”.

—2015 (Adj. Sess.). Substituted “the holder” for “he or she” in the first sentence and rewrote the second sentence of the introductory paragraph.

Prior law.

Former § 1268, relating to enforcement of orders, was repealed by 1969, No. 252 (Adj. Sess.), § 18, and was derived from V.S. 1947, § 6309; 1947, No. 202 , § 6690; 1943, No. 109 , § 5.

§ 1269. Appeals.

Appeals of any act or decision of the Secretary under this chapter shall be made in accordance with chapter 220 of this title.

HISTORY: Added 1969, No. 252 (Adj. Sess.), § 14, eff. April 4, 1970; 1981, No. 222 (Adj. Sess.), § 25; 2003, No. 115 (Adj. Sess.), § 29, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Rewrote the section.

—1981 (Adj. Sess.). Substituted “secretary” for “department” in the first and second sentences, inserted “de novo” preceding “hearing” and “as determined by board rule” following “interest” in the second sentence, and substituted “the” for “such” at the beginning of the third sentence.

ANNOTATIONS

Jurisdiction of board.

The Agency of Natural Resources failed in its claim that even if the petition of citizens requesting a determination that stormwater discharges into five brooks required federal discharge permits was properly before it, the Water Resources Board lacked authority to issue a decision without first conducting a de novo evidentiary hearing, as required by statute. Because the Board’s ultimate decision in favor of the petitioners turned almost exclusively on its reading of federal regulatory requirements, rather than contested evidentiary issues, accordingly, any technical failure to comply with the de-novo-hearing requirement was immaterial to the decision, and resulted in no actual prejudice to appellants or denial of due process. In re Stormwater NPDES Petition, 2006 VT 91, 180 Vt. 261, 910 A.2d 824, 2006 Vt. LEXIS 177 (2006).

The petition of citizens requesting a determination that stormwater discharges into five brooks required federal discharge permits did not request or require the Agency of Natural Resources to prescribe a new rule or policy that was not otherwise expressly provided by or clearly . . . inferable from the enabling statutory authorization. The Agency’s authority and responsibility to designate stormwater discharges that contribute to water quality violations was well-established and enforceable prior to the petition. Nor did the potential breadth of the petition, standing alone, transform it into a request for rulemaking. The Agency is expressly authorized to consider discharges on a categorical basis within broad geographic areas, and the authority of the Water Resources Board to review the granting or denial of discharge permits is necessarily coextensive with that authority. Accordingly, there was no merit to the claim that the Board lacked jurisdiction. In re Stormwater NPDES Petition, 2006 VT 91, 180 Vt. 261, 910 A.2d 824, 2006 Vt. LEXIS 177 (2006).

Notes to Opinions

Generally.

The water resources board may hear appeals from the acts and decisions of the secretary of the agency of environmental conservation. 1974 Vt. Op. Att'y Gen. 259.

§ 1270. Repealed. 2005, No. 115 (Adj. Sess.), § 119(b).

History

Former § 1270. Former § 1270, relating to appeals, was derived from V.S. 1947, § 6310; 1947, No. 202 , § 6691; 1943, No. 109 , § 6 and amended by 1969, No. 252 (Adj. Sess.), § 8, eff. April 4, 1970; 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972; 1981, No. 222 (Adj. Sess.), § 25 and 2001, No. 94 (Adj. Sess.), § 4.

Annotations From Former § 1270

Scope of review.

Supreme Court review.

Annotations From Former § 1270

Scope of review.

On appeal of a decision of the water resources board, the superior court is limited to a review of the findings of the board, based entirely on the record below, to determine whether the board acted arbitrarily, unreasonably or contrary to law. In re Reclassification of Airport & Pond Brooks, 142 Vt. 458, 457 A.2d 635, 1983 Vt. LEXIS 409 (1983).

Supreme Court review.

Standard of review for supreme court review of superior court’s appellate review of decision of water resources board is the same as for the superior court, to determine whether board acted arbitrarily, unreasonably or contrary to law. In re Town of Sherburne, 154 Vt. 596, 581 A.2d 274, 1990 Vt. LEXIS 162 (1990).

Cited.

Cited in In re Reclassification of Ranch Brook, 146 Vt. 602, 508 A.2d 703, 1986 Vt. LEXIS 342 (1986); In re Stratton Corp., 157 Vt. 436, 600 A.2d 297, 1991 Vt. LEXIS 201 (1991).

§ 1271. Extension of municipal sewer system; filing map; approval.

No municipality shall extend its sewer system until it has filed a copy of its plan for the extension with the Secretary and has received the Secretary’s approval.

HISTORY: Amended 1961, No. 100 , § 2; 1973, No. 103 , § 9, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25.

History

Source.

1949, No. 148 , § 13.

Amendments

—1981 (Adj. Sess.). Deleted “after June 1, 1949” preceding “no municipality shall extend”.

—1973. Section amended generally.

—1961. Substituted “Vermont water resources board” for “Vermont state water conservation board”.

§ 1272. Regulation of activities causing discharge or affecting significant wetlands.

If the Secretary finds that any person’s action, or an activity, results in the construction, installation, operation, or maintenance of any facility or condition that reasonably can be expected to create or cause a discharge to waters in violation of this subchapter, or to violate the Secretary’s rules under section 905b of this title relating to significant wetlands, the Secretary may issue an order establishing reasonable and proper methods and procedures for the control of that activity and the management of substances used therein that cause discharges or violations of the Secretary’s rules with respect to significant wetlands in order to reduce or eliminate those discharges and rule violations with respect to significant wetlands.

HISTORY: Added 1969, No. 252 (Adj. Sess.), § 15, eff. April 4, 1970; amended 1971, No. 255 (Adj. Sess.), § 6, eff. April 11, 1972; 1973, No. 103 , § 10, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 188 (Adj. Sess.), § 4; 2003, No. 115 (Adj. Sess.), § 30, eff. Jan. 31, 2005; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.

History

Revision note

—2011 (Adj. Sess.). Cross reference to “the board’s rules under section 6025 of this title” was revised to read “the secretary’s rules under section 905b of this title” to correctly reference the authority for the adoption of wetlands rules pursuant to 2011, No. 138 (Adj. Sess.), § 20, eff. May 14, 2012.

Amendments

—2011 (Adj. Sess.). Substituted “secretary” for “board” and made conforming changes.

—2003 (Adj. Sess.). Substituted “6025” for “905(9)” following “section” and deleted the former second sentence.

—1985 (Adj. Sess.). Added “or affecting significant wetlands” following “discharge” in the section catchline and rewrote the first sentence.

—1981 (Adj. Sess.). Made minor stylistic changes in the first sentence.

—1973. Substituted “secretary” for “department” in the first sentence.

—1971 (Adj. Sess.). Section amended generally.

Statutory revision. 2011, No. 138 (Adj. Sess.), § 27 provides: “To effect the purpose of this act of transferring the rulemaking authority of the water resources panel to the secretary of natural resources, the office of legislative council is directed to revise the existing Vermont Statutes Annotated and, where applicable, replace the terms ‘natural resources board,’ ‘water resources panel of the natural resources board,’ ‘water resources panel,’ ‘water resources board,’ and similar terms with the term ‘secretary of natural resources,’ ‘secretary,’ ‘agency of natural resources,’ ‘agency,’ ‘department of environmental conservation,’ or ‘department’ as appropriate”.

ANNOTATIONS

Particular cases.

In determining whether a condition to granting a certificate of public good had been satisfied, the Public Service Board did not err in finding that remediation and mitigation were sufficient to counter the otherwise undue adverse impacts to the natural environment posed by the project. The Board concluded that a utility remediated the tree cutting activities on the original easement parcels to the fullest extent possible, and further that the additional conservation easements obtained as supplemental mitigation—when combined with the original easements subject to additional restrictions—would provide a greater degree of wildlife protection than the original easements alone. In re Joint Petition of Green Mountain Power Corp., 2012 VT 89, 192 Vt. 429, 60 A.3d 654, 2012 Vt. LEXIS 83 (2012).

§ 1273. Repealed. 1969, No. 252 (Adj. Sess.), § 18, eff. April 4, 1970.

History

Former § 1273. Former § 1273, relating to construction, was derived from V.S. 1947, § 6311; 1943, No. 109 , § 7.

§ 1274. Enforcement.

  1. Notwithstanding any other provision or procedure set forth in this chapter, if the Secretary finds that any person has discharged or is discharging any waste in violation of this chapter or that any person has failed to comply with any provisions of any order or permit issued in accordance with this chapter, the Secretary may bring suit in the Superior Court in any county where the discharge or noncompliance has occurred to enjoin the discharge and to obtain compliance. The suit shall be brought by the Attorney General in the name of the State.  The court may issue a temporary injunction or order in any such proceedings and may exercise all the plenary powers available to it in addition to the power to:
    1. Enjoin future discharges.
    2. Order the design, construction, installation, or operation of pollution abatement facilities or alternate waste disposal systems.
    3. Order the removal of all wastes discharged and the restoration of water quality.
    4. Fix and order compensation for any public property destroyed, damaged, or injured.  Compensation for fish taken or destroyed shall be deposited into the Fish and Wildlife Fund.
    5. Assess and award punitive damages.
    6. Levy civil penalties not to exceed $10,000.00 a day for each day of violation.
    7. Order reimbursement to any agency of federal, State, or local government from any person whose discharge caused governmental expenditures.
  2. The Secretary, by rule, shall define those violations that are significant, based upon the magnitude, duration, consequences, and causes of the violation.  When a significant violation occurs, the Secretary may initiate proceedings to compel compliance by and seek penalties from the violator.  A court, upon finding that such a violation has occurred, shall order compliance and retain jurisdiction to assure that compliance schedules are met.  The court also shall impose penalties. Action under this section shall not restrict the Secretary’s authority to proceed under section 1267 of this title.

HISTORY: Added 1969, No. 252 (Adj. Sess.), § 16, eff. April 4, 1970; amended 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972; 1973, No. 103 , § 11, eff. April 24, 1973; 1973, No. 112 , § 4, eff. April 25, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.),§§ 9, 10, eff. May 17, 1986; 1989, No. 205 (Adj. Sess.), § 3.

History

Amendments

—1989 (Adj. Sess.). Subsec. (a): Substituted “the secretary” for “he” preceding “may bring suit” in the first sentence of the introductory paragraph, added the second sentence of subdiv. (4), deleted “and” following “violation” in subdiv. (6), and made other minor stylistic changes.

—1985 (Adj. Sess.). Designated existing provisions of section as subsec. (a) and deleted “for pollution abatement under section 1282 of this title” following “expenditures” at the end of subdiv. (7) of that subsec. and added subsec. (b).

—1981 (Adj. Sess.). Rewrote the first sentence and substituted “the” for “such” preceding “suit” at the beginning of the second sentence.

—1973. Act No. 103 substituted “secretary” for “board” and made minor stylistic changes in the first sentence and added subdiv. (6) in the third sentence.

Act No. 112 added subdiv. (7) in the third sentence.

—1971 (Adj. Sess.). Deleted “of chancery” following “Washington county court” in the first sentence.

CROSS REFERENCES

Authority of deputy game wardens to enforce provisions of this chapter, see § 4192 of this title.

Deputy game wardens to enforce the provisions of this chapter, see § 4192 of this title.

Enforcement of environmental laws generally, see § 8001 et seq. of this title.

Limitation of liability of volunteers assisting in prevention, mitigation or remediation of hazardous materials accidents, see 12 V.S.A. § 5783 .

ANNOTATIONS

Civil penalties.

Court at trial for water pollution violations did not err in imposing civil penalties on loggers without considering harm to environment, where statute requiring such consideration did not apply, and court was free to impose civil penalty even if it found little or no environmental damage. State Agency of Natural Resources v. Riendeau, 157 Vt. 615, 603 A.2d 360, 1991 Vt. LEXIS 232 (1991).

Construction.

Failure of agency to promulgate rules defining which water pollution violations were serious, as required by this section, did not eliminate discretionary power of trial court to impose civil penalties under enforcement provisions of this section, where two relevant subsections could be harmonized, contrary construction would prevent all water pollution enforcement, and legislative history supported reconciliation of subsections. State Agency of Natural Resources v. Riendeau, 157 Vt. 615, 603 A.2d 360, 1991 Vt. LEXIS 232 (1991).

Punitive damages.

Punitive damages under water pollution control statute can be awarded only where malice, ill will or wanton conduct is shown. State Agency of Natural Resources v. Riendeau, 157 Vt. 615, 603 A.2d 360, 1991 Vt. LEXIS 232 (1991).

Where court at trial for water pollution violations assessed punitive damages against loggers without a finding that they acted with malice, order imposing punitive damages was reversed and the case remanded for additional findings on the issue of malice. State Agency of Natural Resources v. Riendeau, 157 Vt. 615, 603 A.2d 360, 1991 Vt. LEXIS 232 (1991).

§ 1275. Penalty.

  1. Any person who violates any provision of this subchapter or who fails, neglects, or refuses to obey or comply with any order or the terms of any permit issued in accordance with this subchapter, shall be fined not more than $25,000.00 or be imprisoned not more than six months, or both. Each violation may be a separate offense and, in the case of a continuing violation, each day’s continuance may be deemed a separate offense.
  2. Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this subchapter, or by any permit, rule, regulation, or order issued under this subchapter, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this subchapter or by any permit, rule, regulation, or order issued under this subchapter, shall upon conviction, be punished by a fine of not more than $10,000.00 or by imprisonment for not more than six months, or by both.

HISTORY: Amended 1969, No. 252 (Adj. Sess.), § 9, eff. April 4, 1970; 1973, No. 103 , § 12, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25.

History

Source.

1949, No. 148 , § 16.

Amendments

—1981 (Adj. Sess.). Subsec. (a): Substituted “may” for “shall” in two places and deleted “and distinct” following “separate” in two places in the second sentence.

—1973. Designated existing provisions of section as subsec. (a), substituted “$25,000.00” for “$10,000.00” and “six months” for “five years” in that subsec., and added subsec. (b).

—1969 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Limitation of liability of volunteers assisting in prevention, mitigation or remediation of hazardous materials accidents, see 12 V.S.A. § 5783 .

§ 1276. Construction.

Nothing contained in this subchapter shall be construed to prohibit or require a permit for the proper use of waters for customary sport and recreational purposes such as fishing, swimming, and boating if the classification of the water permits that usage. In the event of an irreconcilable conflict between the provisions of this subchapter and 3 V.S.A. chapter 25, the provisions of this subchapter shall prevail. Nothing in this subchapter shall be construed to affect, impair, or abridge the right of riparian or littoral owners or others to sue for damages or injunctions or exercise any other common law or statutory remedy to abate and recover damages for water pollution. If a permit holder is required to pay such damages by judgment or order of a court, the amount of damages shall be a credit against any pollution charges due under this subchapter. Any permit granted under this subchapter shall not be construed as a vested right and shall be subject to continuing regulations and control by the State.

HISTORY: Added 1969, No. 252 (Adj. Sess.), § 17, eff. April 4, 1970; amended 1981, No. 222 (Adj. Sess.), § 25.

History

Amendments

—1981 (Adj. Sess.). Deleted “supersede and” preceding “prevail” in the second sentence and “such” following “the amount of” in the fourth sentence.

§ 1277. Municipal sewage treatment plants.

If, after public hearing, the Secretary finds that:

  1. any municipality is discharging untreated or improperly treated sewage or stormwater into waters of the State or that conditions exist in any municipality or combination of municipalities that cause or threaten to cause a reduction in the quality of ground or surface waters; and
  2. the discharge or condition can most effectively be corrected or abated by the construction and installation of a sewage collection and treatment system or a stormwater collection and treatment system or by other management practices, and after giving due regard to regional development factors, he or she may order the municipality or combination of municipalities to provide the facilities or undertake the practices necessary to correct or abate the discharge or condition. In the case of correcting or abating a discharge of stormwater runoff not created by a municipality, the Secretary may order the municipality or combination of municipalities to provide the facilities or undertake the practices necessary to correct or abate the discharge or condition if the municipality or combination of municipalities has in place a mechanism to recover the costs from users. The order shall include a reasonable time schedule for action by the municipality or municipalities to place the facilities into operation. This section does not abridge any duty or remedy created by this subchapter.

HISTORY: Added 1969, No. 252 (Adj. Sess.), § 22, eff. April 4, 1970; amended 1981, No. 222 (Adj. Sess.), § 25; 2001, No. 109 (Adj. Sess.), § 14, eff. May 16, 2002.

History

Amendments

—2001 (Adj. Sess.) Subdiv. (1): Inserted “or stormwater” preceding “into waters of the state”.

Subdiv. (2): In the first sentence, inserted “or a stormwater collection and treatment system or by other management practices” following “a sewage collection and treatment system”, “or she” following “he”, and “or undertake the practices” preceding “necessary to correct or abate the discharge or condition”. Added the second sentence.

—1981 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Construction of chapter with local zoning ordinances.

Construction of sewage disposal plant in town embraced State water pollution control policy and was, therefore, a governmental function and exempt from local zoning ordinance which, as applied to plant, must yield to the legislative policy and laws of the state. Kedroff v. Town of Springfield, 127 Vt. 624, 256 A.2d 457, 1969 Vt. LEXIS 290 (1969).

§ 1278. Operation, management, and emergency response plans for pollution abatement center.

  1. Findings.   The General Assembly finds that the State shall protect Vermont’s lakes, rivers, and streams from pollution by implementing programs to prevent sewage spills to Vermont waters and by requiring emergency planning to limit the damage from spills which do occur. In addition, the General Assembly finds it to be cost effective and generally beneficial to the environment to continue State efforts to ensure energy efficiency in the operation of treatment facilities.
  2. Planning requirement.   Effective July 1, 2007, the Secretary of Natural Resources shall, as part of a permit issued under section 1263 of this title, require a pollution abatement facility, as that term is defined in this section, to prepare and implement an operation, management, and emergency response plan for those portions of each pollution abatement facility that include the treatment facility, the sewage pumping stations, and the sewer line stream crossing. As used in this section, “pollution abatement facility” means municipal sewage treatment plants, pumping stations, interceptor and outfall sewers, and attendant facilities as prescribed by the Department to abate pollution of the waters of the State.
  3. Collection system planning.   As of July 1, 2010, the Secretary of Natural Resources, as part of a permit issued under section 1263 of this title, shall require a pollution abatement facility, as that term is defined in subsection (b) of this section, to prepare and implement an operation, management, and emergency response plan for that portion of each pollution abatement facility that includes the sewage collection systems. The requirement to develop a plan under this subsection shall be included in a permit issued under section 1263 of this title, and a plan developed under this subsection shall be subject to public review and inspection.
  4. Plan components.   An operation, management, and emergency response plan shall include the following:
    1. Identification of those elements of the facility, including collection systems that are determined to be prone to failure based on installation, age, design, or other relevant factors.
    2. Identification of those elements of the facility identified under subdivision (1) of this subsection that, if one or more failed, would result in a significant release of untreated or partially treated sewage to surface waters of the state.
    3. A requirement that the elements identified in subdivision (2) of this subsection shall be inspected in accordance with a schedule approved by the Secretary of Natural Resources.
    4. An emergency contingency plan to reduce the volume of a detected spill and to mitigate the effect of such a spill on public health and the environment.
  5. [Repealed.]

HISTORY: Added 2005, No. 154 (Adj. Sess.), § 5a, eff. July 1, 2006; amended 2007, No. 130 (Adj. Sess.), § 8, eff. May 12, 2008; 2007, No. 209 (Adj. Sess.), § 5; 2015, No. 86 (Adj. Sess.), § 2, eff. May 4, 2016; 2015, No. 103 (Adj. Sess.), § 4, eff. May 12, 2016; 2017, No. 185 (Adj. Sess.), § 17, eff. May 28, 2018.

History

Amendments

—2017 (Adj. Sess.). Subsec. (b): Substituted “term is defined in this section” for “term is defined in section 1251 of this title” and added the last sentence.

Subsec. (c): Substituted “subsection (b) of this section” for “section 1251 of this title”.

—2015 (Adj. Sess.). Subsecs. (b), (c): Act No. 103 substituted “section 1251” for “section 1571”.

Subsec. (e): Repealed by Act No. 86.

—2007 (Adj. Sess.) Act No. 130 rewrote former subsecs. (b) and (c) as present subsecs. (b)-(e).

Act No. 209 added the second sentence in subsec. (a).

§ 1279. Repealed. 1985, No. 53, § 3.

History

Former § 1279. Former § 1279, relating to groundwater planning, was derived from 1973, No. 103 , § 14 and amended by 1981, No. 222 (Adj. Sess.) § 25.

For present provisions relating to groundwater resources policy and planning generally, see § 1390 et seq. of this title.

§ 1280. Emergency actions.

Notwithstanding any other provision of this chapter, upon receipt of evidence that a pollution source or combination of sources, including industrial users of publicly owned treatment works, is presenting an imminent and substantial endangerment to water or groundwaters or to the health of persons or to the welfare of persons by endangering their livelihood, the Secretary may bring suit on behalf of the State in Superior Court in the county where the source is located to immediately restrain any person causing or contributing to the alleged pollution to stop the discharge or introduction of the waste causing or contributing to that pollution or to take other action as may be necessary.

HISTORY: Added 1973, No. 103 , § 15, eff. April 24, 1973; amended 1981, No. 222 (Adj. Sess.), § 25.

History

Amendments

—1981 (Adj. Sess.). Deleted “the secretary” preceding “upon receipt of evidence” and “such” preceding “other action as may be necessary”, inserted “to water or groundwaters or” following “endangerment”, and substituted “by endangering their livelihood, the secretary” for “where the endangerment is to the livelihood of such persons” preceding “may bring suit”, and “superior court in the county where the source is located” for “the Washington superior court” preceding “to immediately restrain”.

§ 1281. Oil and other hazardous materials.

  1. The Secretary shall adopt rules relating to the handling, storage, and transport of oil and other hazardous materials within the State of Vermont for the purpose of preventing the discharge of any oil and other hazardous materials directly or indirectly into the waters of the State.  The Secretary shall coordinate any proposed rule relating to oil or other hazardous materials with the Secretary of Human Services and the Commissioner of Labor to ensure the absence of conflict.
  2. Any rule adopted under this section or section 1282 of this title shall be presented immediately to the Clerk of the House of Representatives and the Secretary of the Senate who shall immediately publish it in their respective calendars.  If the General Assembly is not in session at the time a rule or regulation is adopted, publication in the calendars shall occur within 10 days after the General Assembly next convenes.  The General Assembly may repeal a rule or regulation.

HISTORY: Added 1973, No. 112 , § 5, eff. April 25, 1973; amended 1981, No. 222 (Adj. Sess.), § 25; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments

—2005 (Adj. Sess.). Subsec. (a): Substituted “commissioner of labor” for “commissioner of labor and industry”.

—1981 (Adj. Sess.). Subsec. (a): Substituted “rules” for “regulations” in the first sentence and deleted “as defined in this chapter” following “secretary”, “or regulation” following “rule”, and “prior to promulgation” following “conflict” in the second sentence.

Subsec. (b): Deleted “or regulation” preceding “adopted” in the first sentence and “by joint resolution” following “rule or regulation” in the third sentence, substituted “or” for “and” between “this section” and “section 1282” in the first sentence, and deleted the fourth sentence.

CROSS REFERENCES

Regulation of underground liquid storage tanks generally, see § 1921 et seq. of this title.

Transportation of hazardous wastes, see § 6607 of this title.

§ 1282. Contingency plans; adoption.

  1. The Secretary shall develop and implement a statewide contingency plan that shall provide for the coordination of the activities of State agencies and municipalities for the purpose of controlling, undertaking cleanup operations, or otherwise mitigating the effects of a spillage of oil or other hazardous materials that is likely to reach the waters of the State either directly or indirectly.
  2. The plan developed in accordance with this section shall be submitted to and approved by the Governor prior to becoming effective.

HISTORY: Added 1973, No. 112 , § 6, eff. April 25, 1973; amended 1981, No. 222 (Adj. Sess.), § 25.

History

Amendments

—1981 (Adj. Sess.). Reenacted section without change.

§ 1283. Contingency fund.

  1. The Environmental Contingency Fund is established within the control of the Secretary.  Subject to the limitations contained in subsection (b) of this section, disbursements from the Fund may be made by the Secretary to undertake actions that the Secretary considers necessary to investigate or mitigate, or both, the effects of hazardous material releases to the environment.
  2. Disbursements under this subsection may be made for emergency purposes or to respond to other than emergency situations; provided, however, that disbursements in response to an individual situation that is not an emergency situation shall not exceed $350,000.00 for a response to a release of a hazardous material, unless the Secretary has received the approval of the General Assembly, or the Joint Fiscal Committee, in case the General Assembly is not in session. Furthermore, the balance in the Fund shall not be drawn below the amount of $100,000.00, except in emergency situations. If the balance of the Fund becomes insufficient to allow a proper response to one or more emergencies that have occurred, the Secretary shall appear before the Emergency Board, as soon as possible, and shall request that necessary funds be provided. Within these limitations, disbursements from the Fund may be made:
    1. to initiate spill control procedures, removal actions, and remedial actions to clean up spills of hazardous materials where the discharging party is unknown, cannot be contacted, is unwilling to take action, or does not take timely action that the Secretary considers necessary to mitigate the effects of the spill;
    2. to investigate an actual or threatened release to the environment of any pollutant or contaminant that may present an imminent and substantial danger to the public health and welfare or to the environment.  The Secretary may use this Fund for those investigations necessary to:
      1. determine the magnitude and extent of the existing and potential public exposure and risk and environmental damage;
      2. determine appropriate remedial action to prevent or minimize the impact of such releases; or
      3. to prescribe other environmentally sound measures to protect the long-range public health and welfare or to ensure environmental protection, or to prescribe additional investigations to determine same;
    3. to take appropriate removal action to prevent or minimize the immediate impact of such releases to the public health and the environment;
    4. to take appropriate remedial action;
    5. to reimburse private persons or municipalities for expenditures made to provide alternative water supplies or to take other emergency measures deemed necessary by the Secretary, in consultation with the Commissioner of Health, to protect the public health from hazardous material. Reimbursement under this subdivision shall be pursuant to criteria adopted by rule of the Secretary and by rule of the Commissioner establishing, among other provisions, requirements that alternative sources of reimbursement are pursued in a diligent manner;
    6. to pay administrative and field supervision costs incurred by the Secretary or by a municipality at the direction of the Secretary in carrying out the provisions of this subchapter. Annual disbursements, for these costs, to the Department of Environmental Conservation under this subdivision shall not exceed 2.5 percent of annual revenues;
    7. to pay costs of management oversight provided by the State for investigation and cleanup efforts conducted by voluntary responsible parties;
    8. to pay costs of emergency response operations and equipment in the spill response program;
    9. to pay costs of required capital contributions and operation and maintenance when the remedial or response action was taken pursuant to 42 U.S.C. § 9601 et seq.;
    10. to pay the costs of oversight or conducting assessment of a natural resource damaged by the release of a hazardous material and being assessed for damages pursuant to section 6615d of this title; or
    11. to pay the costs of oversight or conducting restoration or rehabilitation to a natural resource damaged by the release of a hazardous material and being restored or rehabilitated pursuant to section 6615d of this title.
  3. The Secretary may bring an action under this section or other available State and federal laws to enforce the obligation to repay the Fund.  To the extent compatible with the urgency of the situation, the Secretary shall provide an opportunity for the responsible party or parties to undertake the investigations, removal, and remedial actions under the direction of the Secretary.
  4. , (e)[Repealed.]

    (f) Except as provided in subsection 6618(a) of this title, revenues under the hazardous waste tax established under 32 V.S.A. chapter 237 shall be deposited in the Environmental Contingency Fund. The Secretary may reimburse the Fund with funds received from the U.S. Pollution Prevention Revolving Fund authorized by subsection (k) of section 311 of Public Law 92-500, as amended, codified in 1979 as 33 U.S.C. § 1321(k) . Monies may be accepted by the Secretary under written agreements with responsible parties for release site cleanup to provide administrative, technical, and management oversight.

    (g) For purposes of this section:

    1. “Emergency” means any release or threatened release of hazardous materials that causes or may cause an immediate and significant risk of harm to human life, health, or to the environment.
      1. “Hazardous material” means all petroleum and toxic, corrosive, or other chemicals and related sludge included in any of the following: (2) (A) “Hazardous material” means all petroleum and toxic, corrosive, or other chemicals and related sludge included in any of the following:
        1. any substance defined in section 101(14) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980;
        2. petroleum, including crude oil or any fraction thereof; or
        3. hazardous waste, as determined under subdivision 6602(4) of this title.
      2. “Hazardous material” does not include herbicides and pesticides when applied in a manner consistent with good practice conducted in conformity with federal, State, and local laws and regulations and according to manufacturers’ instructions.  Nothing in this subdivision shall affect the authority granted and the limitations imposed by section 6608a of this title.
    2. “Release” means any intentional or unintentional action or omission resulting in the spilling, leaking, pumping, pouring, emitting, emptying, dumping, or disposing of hazardous materials into the surface or groundwaters, or onto the lands in the State, or into waters outside the jurisdiction of the State when damage may result to the public health, lands, waters, or natural resources within the jurisdiction of the State. “Release” also means the intentional or unintentional action or omission resulting in the spilling, leaking, emission, or disposal of polychlorinated biphenyls (PCBs) from building materials in a building or structure.
    3. “Remedial action” means those actions consistent with a permanent remedy taken instead of or in addition to removal actions in the event of the improper release or threat of release of a hazardous material into the environment, to prevent or minimize the release of hazardous materials so that they do not migrate or cause substantial danger to present or future public health or welfare or the environment.
    4. “Removal action” means the cleanup or removal of released hazardous materials from the environment and such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment which may result from the improper release or threat of release of hazardous materials.

      (h) Receipts from the Redevelopment of Contaminated Properties Program, established under section 6615a of this title, shall be deposited into a separate account of the Fund, named the redevelopment of contaminated properties account.

HISTORY: Added 1979, No. 195 (Adj. Sess.), § 5, eff. May 6, 1980; amended 1981, No. 222 (Adj. Sess.), § 25; 1983, No. 205 (Adj. Sess.); 1985, No. 70 , §§ 1, 2, eff. May 20, 1985; 1987, No. 282 (Adj. Sess.), § 17, eff. Oct. 1, 1988; 1991, No. 78 , § 3; 1991, No. 225 (Adj. Sess.), § 1; 1995, No. 44 , § 4, eff. April 20, 1995; 1997, No. 155 (Adj. Sess.), § 35; 2005, No. 135 (Adj. Sess.), §§ 1, 4; 2013, No. 142 (Adj. Sess.), § 88; 2015, No. 154 (Adj. Sess.), § 5, eff. June 1, 2016; 2019, No. 72 , § E.711.2; 2021, No. 74 , §§ E.709, E.709.2.

History

References in text.

Section 6615a of this title, referred to in subsec. (h), was repealed by 2007, No. 147 (Adj. Sess.), § 9.

Subsec. (k) of 33 U.S.C. § 1321, cited in subsec. (f) of this section, was repealed in 1990.

Section 101(14) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, referred to in subdiv. (g)(2)(A)(i), is codified as 42 U.S.C. § 9601(14).

Editor’s note—

The disposition of the receipts from permit applications under sections 1263 and 1265 of this title which is provided for in subsec. (f) of this section is inconsistent with the statutory scheme provided for in 1987, No. 76 . Sections 4 and 5 of the 1987 act amend sections 1263 and 1265 of this title, respectively, so as to provide for payment of an application fee in accordance with section 2822 of Title 3. The fees collected in accordance with section 2822 of Title 3 are to be paid into a special fund, to be known as the environmental and public building permit fund, which was established by section 19a of Act No. 76 for the purpose of implementing that act. Section 19 of Act No. 76 provides that it is the “intention of the general assembly that the provisions of this act governing permit fees shall supersede fees established elsewhere for these permits.”

Amendments

—2021. Subsec. (b): Act No. 74, § E.709, substituted “$350,000.00 for a response to a release of a hazardous material” for “$100,000.00 for costs attributable to each of the subdivisions of this subsection” in the first sentence.

Subdiv. (g)(3): Act No. 74, § E.709.2, added the last sentence.

—2019. Subdiv. (b)(6): Substituted “2.5” for “2.0” in the last sentence.

—2015 (Adj. Sess.). Subdiv. (b)(7): Deleted “where those responsible parties have contributed monies to the Fund pursuant to a written agreement under subsection (f) of this section” following “responsible parties”.

Subdivs. (b)(10) and (b)(11): Added.

—2013 (Adj. Sess.). Subsec. (e): Repealed.

—2005 (Adj. Sess.). Subdiv. (b)(9): Added.

—1997 (Adj. Sess.). Deleted the first sentence in subsec. (f), providing for deposit of certain application fees, substituted “Except as provided in subsection 6618(a) of this title,” for “Likewise, all” to start the paragraph, and inserted “environmental contingency” before “fund”.

—1995. Subsec. (h): Added.

—1991 (Adj. Sess.) Subsec. (b): Substituted “$100,000.00” for “$50,000.00” following “exceed” in the first sentence and added the second and third sentences of the introductory paragraph, deleted “and” at the end of subdiv. (4), made a minor change in punctuation at the end of subdiv. (5), and added subdivs. (6)-(8).

Subsec. (f): Added the fourth sentence.

—1991. Subsec. (h): Added.

—1987 (Adj. Sess.) Deleted “oil or other” preceding “hazardous” in the second sentence of subsec. (a) and in subdiv. (b)(1).

—1985. Subsec. (b): Amended generally.

Subdiv. (b)(1): Substituted “removal actions and remedial actions” for “or” following “procedures”.

Subdiv. (b)(2): Substituted “may use” for “is limited in the use of” preceding “this fund” in the second sentence and “for” for “to” thereafter.

Subdiv. (b)(2)(C): Deleted “and” following “same”.

Subdiv. (b)(3): Substituted “removal” for “interim” following “appropriate” and made other minor stylistic changes.

Subdiv. (b)(4): Added.

Subdiv. (b)(5): Added.

Subsec. (c): Inserted “removal and remedial actions” following “investigations” in the second sentence.

Subsec. (d): Repealed.

Subsec. (f): Rewrote the first sentence.

Subsec. (g): Added.

—1983 (Adj. Sess.) Section amended generally.

—1981 (Adj. Sess.) Reenacted section without change.

Termination of subsec. A former subsec. (h) of this section, added by 1991, No. 78 , § 3, terminated July 1, 1992, pursuant to 1991, No. 78 , § 4.

Repeal of sunset. 2005, No. 135 (Adj. Sess.), § 4, which had provided for the repeal of subdiv. (b)(9) on January 16, 2011, was repealed by 2009, No. 134 (Adj. Sess.), § 32(a), effective July 1, 2010.

ANNOTATIONS

Action to enforce repayment of costs.

For purposes of the statute of limitations, an action for the repayment of investigation, remediation, and removal costs accrues when the State first expends funds for these distinct purposes. State v. Carroll, 2003 VT 57, 175 Vt. 571, 830 A.2d 89, 2003 Vt. LEXIS 139 (2003) (mem.).

Obligation to repay fund.

The obligation to reimburse the fund for clean-up costs associated with petroleum spill from insured’s property were “damages” within meaning of insured’s general liability policy. Gerrish Corp. v. Universal Underwriter Insurance Co., 754 F. Supp. 358, 1990 U.S. Dist. LEXIS 17991 (D. Vt. 1990), aff'd, 947 F.2d 1023, 1991 U.S. App. LEXIS 26437 (2d Cir. 1991).

Cited.

Cited in Gerrish Corp. v. Aetna Casualty & Surety Co., 949 F. Supp. 236, 1996 U.S. Dist. LEXIS 19070 (D. Vt. 1996).

Law Reviews —

For note relating to successor landowner liability for damages and cleanup costs for hazardous wastes deposited on property, see 10 Vt. L. Rev. 487 (1985).

§ 1283a. Contaminants of Emerging Concern Special Fund.

  1. The Contaminants of Emerging Concern Special Fund is established pursuant to 32 V.S.A. chapter 7, subchapter 5 to provide grants to public water systems responding to or remediating emerging contaminants in a public water supply. The Secretary of Natural Resources shall administer the Fund and may make disbursements from the Fund for the following costs:
    1. investigation of an actual or threatened impact to or contamination of natural resources or public assets presented by an emerging contaminant;
    2. reimbursement to any person for:
      1. expenditures made to provide alternative water supplies or to take other emergency measures deemed necessary by the Secretary to protect human health from emerging contaminants; or
      2. expenditures by a public asset to pay for the treatment or disposal of an emerging contaminant;
    3. payment of the costs of oversight or conducting assessment of a natural resource where injury has resulted or is likely to result from of an emerging contaminant; or
    4. payment of the costs of oversight or conducting restoration, replacement, or rehabilitation of a natural resource injured by an emerging contaminant.
  2. The Secretary may bring an action under this section or other available State and federal laws to enforce the obligation to repay the Fund.
  3. As used in this section:
    1. “Emerging contaminant” means:
      1. a hazardous material as defined in subdivision 6602(16) of this title;
      2. any constituent for which the Department of Health has established a health advisory; or
      3. any constituent that the Secretary determines is an imminent and substantial endangerment to human health, natural resources, or public assets.
    2. “Natural resources” means fish, wildlife, biota, air, surface water, groundwater, wetlands, drinking water supplies, or State-held public lands.
    3. “Public asset” means:
      1. any wastewater treatment facility permitted under chapter 47 of this title;
      2. any public water system or noncommunity system permitted under chapter 56 of this title;
      3. any potable water supply permitted under chapter 64 of this title; or
      4. any facility for the disposal of solid waste permitted under chapter 159, provided that the facility did not know that the waste was an emerging contaminant at the time of disposal.
    4. “Secretary” shall mean Secretary of Natural Resources.
  4. Nothing in this section shall be construed to preclude, supplant, or limit any other statutory or common-law rights or remedies.

HISTORY: Added 2019, No. 139 (Adj. Sess.), § 29, eff. July 6, 2020.

§ 1284. Water quality data coordination.

  1. To facilitate attainment or accomplishment of the purposes of this chapter, the Secretary shall coordinate and assess all available data and science regarding the quality of the waters of the State, including:
    1. light detection and ranging information data (LIDAR);
    2. stream gauge data;
    3. stream mapping, including fluvial erosion hazard maps;
    4. water quality monitoring or sampling data;
    5. cumulative stressors on a watershed, such as the frequency an activity is conducted within a watershed or the number of stormwater or other permits issued in a watershed; and
    6. any other data available to the Secretary.
  2. After coordination of the data required under subsection (a) of this section, the Secretary shall:
    1. assess where additional data are needed and the best methods for collection of such data;
    2. identify and map on a watershed basis areas of the State that are significant contributors to water quality problems or are in critical need of water quality remediation or response.
  3. The Secretary shall post all data compiled under this section on the website of the Agency of Natural Resources.

HISTORY: Added 2015, No. 64 , § 35.

History

Former § 1284. Former § 1284, relating to the water quality report submitted to the governor, was derived from 1985, No. 199 (Adj. Sess.), § 11. This section was previously repealed by 1995, No. 189 (Adj. Sess.), § 2.

Subchapter 1A. Notification of Sewage and Wastewater Discharges

§ 1295. Notification of sewage and wastewater discharges.

  1. Definitions.   Notwithstanding the application of the definitions in section 1251 to the chapter as a whole, as used in this subchapter:
    1. “Collection system” means pipelines or conduits, pumping stations, force mains, and all other facilities used to collect or conduct sewage or stormwater, or both sewage and stormwater.
    2. “Combined sewer overflow” means an untreated or partially treated discharge to waters of the State from a combined sewer system outfall that results from a wet weather storm event.
    3. “Combined sewer system” means a collection system that was designed to convey sewage and stormwater through the same network of pipes to a treatment plant.
    4. “Dry weather flow” means flow in a sanitary sewer or combined sewer system during periods of dry weather.
    5. “Sanitary sewer system” means a collection system that conveys sewage and groundwater entering the collection system through inflow and infiltration to a wastewater treatment facility.
    6. “Separate storm sewer system” means a collection system that is designed to discharge stormwater and groundwater entering the collection system through inflow and infiltration to surface waters.
    7. “Sewage” means domestic, commercial, and industrial wastewater conveyed by a collection system.
    8. “Stormwater” means precipitation and snowmelt that does not infiltrate into soil, including material dissolved or suspended in it.
    9. “Untreated discharge” means:
      1. combined sewer overflows from a wastewater treatment facility;
      2. overflows from sanitary sewers and combined sewer systems that are part of a wastewater treatment facility during dry weather flows, which result in a discharge to waters of the State;
      3. upsets or bypasses around or within a wastewater treatment facility during dry or wet weather conditions that are due to factors unrelated to a wet weather storm event and that result in a discharge of sewage that has not been fully treated to waters of the State; and
      4. discharges from a wastewater treatment facility to separate storm sewer systems.
    10. “Wastewater treatment facility” means a treatment plant, collection system, pump station, and attendant facilities permitted by the Secretary for the purpose of treating sewage.
  2. Public alert.   An operator of a wastewater treatment facility or the operator’s delegate shall as soon as possible, but no longer than one hour from discovery of an untreated discharge from the wastewater treatment facility, post on a publicly accessible electronic network, mobile application, or other electronic media designated by the Secretary an alert informing the public of the untreated discharge and its location, except that if the operator or his or her delegate does not have telephone or Internet service at the location where he or she is working to control or stop the untreated discharge, the operator or his or her delegate may delay posting the alert until the time that the untreated discharge is controlled or stopped, provided that the alert shall be posted no later than four hours from discovery of the untreated discharge.
  3. Agency notification.
    1. An operator of a wastewater treatment facility shall within 12 hours from discovery of an untreated discharge from the wastewater treatment facility notify the Secretary and the local health officer of the municipality where the facility is located of the untreated discharge. The operator shall notify the Secretary through use of the Department of Environmental Conservation’s online event reporting system. If, for any reason, the online event reporting system is not operable, the operator shall notify the Secretary via telephone or e-mail.
    2. A notification required by this subsection shall include:
      1. The specific location of each untreated discharge, including the body of water affected. For combined sewer overflows, the specific location of each untreated discharge means each outfall that has discharged during a wet weather storm event.
      2. Except for untreated discharges under subdivision (a)(9)(D) of this section, the date and approximate time the untreated discharge began.
      3. The date and approximate time the untreated discharge ended. If the untreated discharge is still ongoing at the time of reporting, the entity reporting the untreated discharge shall amend the report with the date and approximate time the untreated discharge ended within three business days of the untreated discharge ending.
      4. Except for untreated discharges under subdivision (a)(9)(D) of this section, the approximate total volume of sewage and, if applicable, stormwater that was released. If the approximate total volume is unknown at the time of reporting, the entity reporting the untreated discharge shall amend the report with the approximate total volume within three business days.
      5. The cause of the untreated discharge.
      6. The person reporting the untreated discharge.
      7. Any other information deemed necessary by the Secretary.
  4. Notification of additional discharges.   In addition to untreated discharges posted pursuant to subsection (c) of this section, the Secretary shall post a notification of other unpermitted discharges to waters of the State that may pose a threat to human health or the environment and that are identified by the Secretary. The Secretary’s notification shall include the information required under subdivision (c)(2) of this section and shall be posted on the Secretary’s online event reporting system no later than four hours from the discovery of an unpermitted discharge, except that if the unpermitted discharge is discovered between the hours of 9:00 p.m. and 5:00 a.m., the Secretary shall post the notification no later than 10:00 a.m. of that morning. The Secretary’s notification shall identify the potential threat to the public health that may be posed by recreating in the waters where the unpermitted discharge occurred.
  5. Signage.
    1. Each combined sewer overflow outfall shall be marked with a permanent sign that identifies the outfall and warns of the potential threat to public health that may be posed by recreating in the waters at the outfall or downstream of the outfall during or after a wet weather storm event. The Secretary shall provide each municipality with a combined sewer overflow two signs for each outfall within the municipality. A municipality shall periodically inspect and maintain each sign marking a combined sewer overflow outfall and shall replace a sign if it is destroyed, removed, or no longer legible.
      1. A municipality shall, within its jurisdiction or other geographic area specified by the Secretary, post temporary signs at public access areas downstream of: (2) (A) A municipality shall, within its jurisdiction or other geographic area specified by the Secretary, post temporary signs at public access areas downstream of:
        1. untreated discharges under subdivisions (a)(9)(B)-(D) of this section; and
        2. other unpermitted discharges posted by the Secretary under subsection (d) of this section.
      2. The signs shall warn of the potential threat to public health that may be posed by recreating in the waters due to the untreated or unpermitted discharge. The signs shall remain in place for 48 hours after the untreated or unpermitted discharge has stopped.

HISTORY: Added 2015, No. 86 (Adj. Sess.), § 1, eff. May 4, 2016.

Subchapter 2. Mill Refuse

§ 1301. Deposit of sawmill waste in waters.

  1. It shall be unlawful for a person to deposit edgings, slabs, sawdust, shavings, or any other sawmill refuse in the waters of any stream, pond, reservoir, or lake in this State or on the shores or banks thereof in such a manner as to be subject to being washed in the main stream or body of water under normal high water conditions.
  2. A person who violates the provisions of subsection (a) of this section shall be fined no more than $100.00 for each offense.

HISTORY: Amended 1963, No. 224 ; 1967, No. 112 .

History

Source.

V.S. 1947, § 8437. P.L. § 8572. 1933, No. 157 , § 8217. G.L. § 6984. 1917, No. 254 , § 6797. 1912, No. 266 . 1908, No. 211 .

Amendments

—1967. Subsec. (a): Added “or on the shores or banks thereof in such a manner as to be subject to being washed in the main stream or body of water under normal high water conditions” following “lake in this state”.

Subsec. (c): Deleted.

—1963. Section amended generally.

ANNOTATIONS

Cited.

Cited in State v. Haskell, 84 Vt. 429, 79 A. 852, 1911 Vt. LEXIS 286 (1911).

§§ 1302-1305. Repealed. 1963, No. 224, § 2.

History

Former §§ 1302-1305. Former § 1302, relating to deposit of mill refuse in certain waters, was derived from V.S. 1947, § 8438; P.L. § 8573; 1933, No. 157 , § 8218; G.L. § 6985; 1917, No. 254 , § 6798; 1912, Nos. 267, 269, 270; 1910, Nos. 254, 255, 256; 1890, No. 180 .

Former § 1303, relating to deposit in streams, was derived from V.S. 1947, § 8439; P.L. § 8574; G.L. § 6986; 1917, No. 254 , § 6799; 1912, No. 232 .

Former § 1304, relating to mills constructed after 1913, was derived from V.S. 1947, § 8440; P.L. § 8575; G.L. § 6986; 1917, No. 254 , § 6799; 1912, No. 232 .

Former § 1305, relating to preservation of civil rights, was derived from V.S. 1947, § 8441; P.L. § 8576; G.L. § 6986; 1917, No. 254 , § 6799; 1912, No. 232 .

Subchapter 2A. Lake in Crisis

History

Lake Carmi; lake in crisis. 2017, No. 168 (Adj. Sess.), § 6 provides: “The General Assembly declares Lake Carmi as a lake in crisis under 10 V.S.A. chapter 47, subchapter 2A. The crisis response plan for Lake Carmi shall include implementation of runoff controls.”

§ 1310. Designation of lake in crisis.

  1. The Secretary of Natural Resources (Secretary) shall review whether a lake in the State should be designated as a lake in crisis upon the Secretary’s own motion or upon petition of 15 or more persons or a selectboard of a municipality in which the lake or a portion of the lake is located.
  2. The Secretary shall designate a lake as a lake in crisis if, after review under subsection (a) of this section, the Secretary determines that:
    1. the lake or segments of the lake have been listed as impaired;
    2. the condition of the lake will cause:
      1. a potential harm to the public health; and
      2. a risk of damage to the environment or natural resources; and
    3. a municipality in which the lake or a portion of the lake is located has reduced the valuation of real property due to the condition of the lake.

HISTORY: Added 2017, No. 168 (Adj. Sess.), § 5, eff. May 22, 2018.

§ 1311. State response to a lake in crisis.

  1. Adoption of crisis response plan.   When a lake is declared in crisis, the Secretary shall within 90 days after the designation of the lake in crisis issue a comprehensive crisis response plan for the management of the lake in crisis in order to improve water quality in the lake or to mitigate or eliminate the potential harm to public health or the risk of damages to the environment or natural resources. The Secretary shall coordinate with the Secretary of Agriculture, Food and Markets and the Secretary of Transportation in the development of the crisis response plan. The crisis response plan may require implementation of one or both of the following in the watershed of the lake in crisis:
    1. water quality requirements necessary to address specific harms to public health or risks to the environment or natural resources; or
    2. implementation of or compliance with existing water quality requirements under one or more of the following:
      1. water quality requirements under chapter 47 of this title, including requiring a property owner to obtain a permit or implement best management practices for the discharge of stormwater runoff from any size of impervious surfaces if the Secretary determines that the treatment of the discharge of stormwater runoff is necessary to reduce the adverse impacts to water quality of the discharge or stormwater on the lake in crisis;
      2. agricultural water quality requirements under 6 V.S.A. chapter 215, including best management practices under 6 V.S.A. § 4810 to reduce runoff from the farm; or
      3. water quality requirements adopted under section 1264 of this section for stormwater runoff from municipal or State roads.
  2. Public hearing.   The Secretary shall hold at least one public hearing in the watershed of the lake in crisis and shall provide an opportunity for public notice and comment for a proposed lake in crisis response plan.
  3. Term of designation.   A lake shall remain designated as in crisis under this section until the Secretary determines that the lake no longer satisfies the criteria for designation under subsection (b) of this section.
  4. Agency cooperation and services.   All other State agencies shall cooperate with the Secretary in responding to the lake in crisis, and the Secretary shall be entitled to seek technical and scientific input or services from the Agency of Agriculture, Food and Markets, the Agency of Transportation, or other necessary State agencies.

HISTORY: Added 2017, No. 168 (Adj. Sess.), § 5, eff. May 22, 2018.

§ 1312. Lake in crisis order.

The Secretary of Natural Resources, pursuant to chapter 201 of this title, or the Secretary of Agriculture, Food and Markets, pursuant to 6 V.S.A. chapter 215, may issue an order to require a person to:

  1. take an action identified in the lake in crisis response plan;
  2. cease or remediate any acts, discharges, site conditions, or processes contributing to the impairment of the lake in crisis;
  3. mitigate a significant contributor of a pollutant to the lake in crisis; or
  4. conduct testing, sampling, monitoring, surveying, or other analytical operations required to determine the nature, extent, duration, or severity of the potential harm to the public health or a risk of damage to the environment or natural resources.

HISTORY: Added 2017, No. 168 (Adj. Sess.), § 5, eff. May 22, 2018.

§ 1313. Assistance.

  1. A person subject to a lake in crisis order shall be eligible for technical and financial assistance from the Secretary to be paid from the Lake in Crisis Response Program Fund. The Secretary shall adopt by procedure the process for application for assistance under this section.
  2. State financial assistance awarded under this section shall be in the form of a grant. An applicant for a State grant shall pay at least 35 percent of the total eligible project cost or shall pay the specific cost share authorized by statute for the program from which the grant is awarded. The dollar amount of a State grant shall be equal to the total eligible project cost, less the percent of the total required to be paid by the applicant, and less the amount of any federal assistance awarded.
  3. A grant awarded under this section shall comply with all terms and conditions for the issuance of State grants.

HISTORY: Added 2017, No. 168 (Adj. Sess.), § 5, eff. May 22, 2018.

§ 1314. Funding of State response to a lake in crisis.

  1. Initial response.   Upon designation of a lake in crisis, the Secretary may, for the purposes of the initial response to the lake in crisis, expend up to $50,000.00 appropriated to the Agency of Natural Resources from the Clean Water Fund for authorized contingency spending.
  2. Long-term funding.   Annually, the Secretary of Natural Resources shall present to the House and Senate Committees on Appropriations a multiyear plan for the funding of all lakes designated in crisis under this subchapter. Based on the multiyear plan, the Secretary of Administration annually shall recommend to the House and Senate Committees on Appropriations recommended appropriations to the Lake in Crisis Response Program Fund for the subsequent fiscal year.

HISTORY: Added 2017, No. 168 (Adj. Sess.), § 5, eff. May 22, 2018.

§ 1315. Lake in Crisis Response Program Fund.

  1. There is created a special fund known as the Lake in Crisis Response Program Fund to be administered by the Secretary of Natural Resources. The Fund shall consist of:
    1. funds that may be appropriated by the General Assembly; and
    2. other gifts, donations, or funds received from any source, public or private, dedicated for deposit into the Fund.
  2. The Secretary shall use monies deposited in the Fund for the Secretary’s implementation of a crisis response plan for a lake in crisis and for financial assistance under section 1313 of this title to persons subject to a lake in crisis order.
  3. Notwithstanding the requirements of 32 V.S.A. § 588(3) and (4), interest earned by the Fund and the balance of the Fund at the end of the fiscal year shall be carried forward in the Fund and shall not revert to the General Fund.

HISTORY: Added 2017, No. 168 (Adj. Sess.), § 5, eff. May 22, 2018.

Subchapter 3. New England Interstate Water Pollution Control Compact

§ 1331. Preamble.

Whereas, the growth of population and the development of the territory of the New England states has resulted in serious pollution of certain interstate streams, ponds and lakes, and of tidal waters ebbing and flowing past the boundaries of two or more states; and

Whereas, such pollution constitutes a menace to the health, welfare and economic prosperity of the people living in such area; and

Whereas, the abatement of existing pollution and the control of future pollution in the interstate waters of the New England area are of prime importance to the people and can best be accomplished through the cooperation of the New England states in the establishment of an interstate agency to work with the states in the field of pollution abatement;

Now, therefore, The states of Connecticut and Rhode Island and the Commonwealth of Massachusetts (the states of Maine, New Hampshire and Vermont when authorized and do join herein) are now bound and do agree as follows:

History

Source.

1951, No. 132 , § 2. 1949, No. 148 , § 3.

§ 1332. Waters subject to compact—Article I.

It is agreed between the signatory states that the provisions of this compact shall apply to streams, ponds and lakes which are contiguous to two or more signatory states or which flow through two or more signatory states or which have a tributary contiguous to two or more signatory states or flowing through two or more signatory states, and also shall apply to tidal waters ebbing and flowing past the boundaries of two states.

History

Source.

1949, No. 148 , § 3.

§ 1333. Creation of Commission—Article II.

There is hereby created the New England Interstate Water Pollution Control Commission (hereinafter referred to as the Commission) which shall be a body corporate and politic, having the powers, duties and jurisdiction herein enumerated and such other and additional powers as shall be conferred upon it by the act or acts of a signatory state concurred in by the others.

History

Source.

1949, No. 148 , § 3.

CROSS REFERENCES

Commission attached to Agency of natural resources to provide representation on commission, see 3 V.S.A. § 2802 .

§ 1334. Composition of Commission—Article III.

The Commission shall consist of five commissioners from each signatory state, each of whom shall be a resident voter of the state from which he or she is appointed. The commissioners shall be chosen in the manner and for the terms provided by law of the state from which they shall be appointed. For each state there shall be on the Commission a member representing the state health department, a member representing the state water pollution control board (if such exists), and, except where a state in its enabling legislation decides that the best interests of the state will be otherwise served, a member representing municipal interests, a member representing industrial interests, and a member representing an agency acting for fisheries or conservation.

History

Source.

1949, No. 148 , § 3.

§ 1335. General powers of Commission—Article IV.

The Commission shall annually elect from its members a chair and vice chair and shall appoint and at its pleasure remove or discharge such officers. It may appoint and employ a secretary who shall be a professional engineer versed in water pollution and may employ such stenographic or clerical employees as shall be necessary, and at its pleasure remove or discharge such employees. It shall adopt a seal and suitable bylaws and shall promulgate rules and regulations for its management and control. It may maintain an office for the transaction of its business and may meet at any time or place within the signatory states. Meetings shall be held at least twice each year. A majority of the members shall constitute a quorum for the transaction of business, but no action of the Commission imposing any obligation on any signatory state or on any municipal agency or subdivision thereof or on any person, firm or corporation therein shall be binding unless a majority of the members from such signatory state shall have voted in favor thereof. Where meetings are planned to discuss matters relevant to problems of water pollution control affecting only certain of the signatory states, the Commission may vote to authorize special meetings of the commissioners of the states especially concerned. The Commission shall keep accurate accounts of all receipts and disbursements and shall make an annual report to the governor and the legislature of each signatory state setting forth in detail the operations and transactions conducted by it pursuant to this compact, and shall make recommendations for any legislative action deemed by it advisable, including amendments to the statutes of the signatory states which may be necessary to carry out the intent and purpose of this compact. The Commission shall not incur any obligations for salaries, office, administrative, traveling or other expenses prior to the allotment of funds by the signatory states adequate to meet the same; nor shall the Commission pledge the credit of any of the signatory states. Each signatory state reserves the right to provide hereafter by law for the examination and audit of the accounts of the Commission. The Commission shall appoint a treasurer who may be a member of the Commission, and disbursements by the Commission shall be valid only when authorized by the Commission and when vouchers therefor have been signed by the secretary and countersigned by the treasurer. The secretary shall be custodian of the records of the Commission with authority to attest to and certify such records or copies thereof.

History

Source.

1949, No. 148 , § 3.

§ 1336. Water standards; classification—Article V.

It is recognized, owing to such variable factors as location, size, character and flow and the many varied uses of the waters subject to the terms of this compact, that no single standard of sewage and waste treatment and no single standard of quality of receiving waters is practical and that the degree of treatment of sewage and industrial wastes should take into account the classification of the receiving waters according to present and proposed highest use, such as for drinking water supply, industrial and agricultural uses, bathing and other recreational purposes, maintenance and propagation of fish life, shellfish culture, navigation and disposal of wastes.

The Commission shall establish reasonable physical, chemical and bacteriological standards of water quality satisfactory for various classifications of use. It is agreed that each of the signatory states through appropriate agencies will prepare a classification of its interstate waters in entirety or by portions according to present and proposed highest use and for this purpose technical experts employed by state departments of health and state water pollution control agencies are authorized to confer on questions relating to classification of interstate waters affecting two or more states. Each signatory state agrees to submit its classification of its interstate waters to the Commission for approval. It is agreed that after such approval all signatory states through their appropriate state health departments and water pollution control agencies will work to establish programs of treatment of sewage and industrial wastes which will meet standards established by the Commission for classified waters. The Commission may from time to time make such changes in definitions of, classifications and in standards as may be required by changed conditions or as may be necessary for uniformity.

History

Source.

1949, No. 148 , § 3.

CROSS REFERENCES

Commission attached to governor’s office for administrative purposes, see 3 V.S.A. § 2 .

§ 1337. Interstate inland and tidal waters—Article VI.

Each of the signatory states pledges to provide for the abatement of existing pollution and for the control of future pollution of interstate inland and tidal waters as described in Article I, and to put and maintain the waters thereof in a satisfactory condition consistent with the highest classified use of each body of water.

History

Source.

1951, No. 132 , § 2. 1949, No. 148 , § 3.

Notes to Opinions

Abatement of existing pollution.

Governor did not have authority to pledge state to abatement of existing pollution where the form of the compact which Governor was authorized to sign by section 1051 (now section 1371) of this title did not contain provision as to abatement and where other provisions of law exempted sources of existing pollution from pollution control. 1950 Vt. Op. Att'y Gen. 114.

§ 1338. Effect on local legislation; pending causes—Article VII.

Nothing in this compact shall be construed to repeal or prevent the enactment of any legislation or prevent the enforcement of any requirement by any signatory state imposing any additional condition or restriction to further lessen the pollution of waters within its jurisdiction. Nothing herein contained shall affect or abate any action now pending brought by any governmental board or body created by or existing under any of the signatory states.

History

Source.

1949, No. 148 , § 3.

§ 1339. Expenses; obligation of signatories—Article VIII.

The signatory states agree to appropriate for the salaries, office, administrative, travel and other expenses such sum or sums as shall be recommended by the Commission. The commonwealth of Massachusetts obligates itself only to the extent of $6,500.00 in any one year, the state of Connecticut only to the extent of $3,000.00 in any one year, the state of Rhode Island only to the extent of $1,500.00 in any one year, and the states of New Hampshire, Maine and Vermont each only to the extent of $1,000.00 in any one year.

History

Source.

1949, No. 148 , § 3.

§ 1340. Separability of provisions—Article IX.

Should any part of this compact be held to be contrary to the constitution of any signatory state or of the United States, all other parts thereof shall continue to be in full force and effect.

History

Source.

1949, No. 148 , § 3.

§ 1341. New York State; cooperation—Article X.

The Commission is authorized to discuss with appropriate state agencies in New York State questions of pollution of waters which flow into the New England area from New York State or vice versa and to further the establishment of agreements on pollution abatement to promote the interests of the New York and New England areas.

Whenever the Commission by majority vote of the members of each signatory state shall have given its approval and the State of New York shall have taken the necessary action to do so, the State of New York shall be a party to this compact for the purpose of controlling and abating the pollution of waterways common to New York and the New England states signatory to this compact but excluding the waters under the jurisdiction of the Interstate Sanitation Commission (New York, New Jersey and Connecticut).

History

Source.

1951, No. 132 , § 2. 1949, No. 148 , § 3.

§ 1342. Effective, when—Article XI.

This compact shall become effective immediately upon the adoption of the compact by any two contiguous states of New England but only insofar as applies to those states and upon approval by federal law. Thereafter upon ratification by other contiguous states, it shall also become effective as to those states.

History

Source.

1949, No. 148 , § 3.

Adoption of compact. The New England interstate water pollution control compact was executed by Vermont on June 29, 1951.

The compact has been enacted into law by each of the following states and is codified at:

Conn.—C.G.S.A. § 22a-308 et seq.

Mass.—Mass. Ann. Spec. Laws ch. 19 § 1 et seq.

Me.—38 M.R.S.A. § 491 et seq.

N.H.—N.H.R.S.A. 484:17.

N.Y.—NY CLS Environmental Conservation Law § 21-0101 et seq.

R.I.—Gen. Laws 1956, § 46-16-1 et seq.

This compact was approved by act of Congress of July 31, 1947, ch. 407, 61 Stat. 407.

§ 1343. Commission membership.

The State shall be represented on the Commission by five commissioners, one of whom shall be the Commissioner of Environmental Conservation, and four of whom shall be appointed by the Governor. Of those appointed by the Governor, one shall be an officer of municipal government, and the remaining members may be members of the public or officers or employees of State government.

HISTORY: Added 1981, No. 222 (Adj. Sess.), § 26; amended 2019, No. 14 , § 32, eff. April 30, 2019.

History

Amendments

—2019. Substituted “Environmental Conservation” for “Water Resources”.

CROSS REFERENCES

Appointment, terms, compensation, powers and duties of members of Commission generally, see § 1372 of this title.

Subchapter 4. Provisions Relating to Water Pollution Compact

§ 1371. Authority for compact.

On behalf of the State of Vermont, the Governor thereof is hereby authorized and directed to execute a compact, as set forth in sections 1331-1342 of this title, with any of the New England states or the State of New York legally joined therein.

History

Source.

1949, No. 148 , § 1.

§ 1372. Members; appointment; term.

  1. Within 30 days after he or she has executed the Compact with any or all of the states legally joined therein, the Governor shall appoint three persons to serve as commissioners to the New England Interstate Water Pollution Control Commission. The Commissioner of Environmental Conservation and the Commissioner of Health shall serve as ex officio commissioners on the Commission.
  2. The commissioners so appointed shall hold office for six years. A vacancy occurring in the office of a commissioner shall be filled by the Governor for the unexpired portion of the term.
  3. The commissioners shall be entitled to per diem compensation and reimbursement of expenses as permitted under 32 V.S.A. § 1010 .
  4. The commissioners shall have the powers and duties and be subject to limitations as set forth in the Compact.

HISTORY: Amended 2018, No. 2 (Sp. Sess.), § 8.

History

Source.

1955, No. 107 . 1951, No. 132 , § 1. 1949, No. 148 , § 2.

Amendments

—2018 (Sp. Sess.). Section amended generally.

CROSS REFERENCES

Commission membership, see § 1343 of this title.

Notes to Opinions

Construction with other laws.

Validity and effectiveness of sections 4-6, 10, 11, 13, 16 of 1949, No. 148 [sections 1252, 1253, 1254, 1258, 1259, 1271, 1275 of this title] was not dependent upon execution of interstate compact authorized by this section. 1950 Vt. Op. Att'y Gen. 262.

§ 1373. Appropriation.

The sum of $1,150.00 annually, or so much thereof as may be necessary, is hereby appropriated for the purpose of carrying out the provisions of the New England Interstate Water Pollution Control Compact relating to the payment by the State to the New England Interstate Water Pollution Control Commission of the proportionate share of the State in the expenses of such Commission.

History

Source.

1955, No. 169 . 1951, No. 132 , § 3.

CROSS REFERENCES

Expenses of signatory states to New England Interstate Water Pollution Control Compact, see § 1339 of this title.

Subchapter 5. Detergents and Household Cleansing Products

§ 1381. Definitions.

As used in this subchapter:

  1. “Commercial establishment” means any premises used for the purpose of carrying on or exercising any trade, business, profession, vocation, or commercial or charitable activity, including laundries, hospitals, and food or restaurant establishments.
  2. “Household cleansing product” means any product, including soaps and detergents used for domestic or commercial cleaning purposes, including the cleansing of fabric, dishes, food utensils, and household and commercial premises.  Household cleansing product shall not mean:
    1. Food, drugs and cosmetics, including personal care items such as toothpaste, shampoo, and hand soap;
    2. Products labeled, advertised, marketed, and distributed for use primarily as economic poisons as defined in 6 V.S.A. § 911(5) .
  3. “Phosphorus” means elemental phosphorus.
  4. “Trace quantity” means an incidental amount of phosphorus that is not part of the household cleansing product formulation, is present only as a consequence of manufacturing and does not exceed 0.5 percent of the content of the product by weight, expressed as elemental phosphorus.
  5. “Secretary” means the Secretary of Natural Resources or the Secretary’s duly authorized representative.
  6. “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; any federal agency; or any other legal or commercial entity.

HISTORY: Added 1977, No. 39 , § 1, eff. April 19, 1977; amended 1987, No. 76 , § 18; 2003, No. 115 (Adj. Sess.), § 31.

History

Revision note

—2018. In subdivs. (1) and (2), deleted “but not limited to” and “but not limited to,” respectively, following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2003 (Adj. Sess.). Subdiv. (5): Inserted “or the secretary’s duly authorized representative” following “natural resources”.

Subdiv. (6): Rewrote the subdiv.

—1987. Subdiv. (5): Substituted “agency of natural resources” for “agency of environmental conservation”.

§ 1382. Prohibitions.

  1. No household cleansing products containing a phosphorus compound in concentrations in excess of a trace quantity may be distributed, sold, offered for sale at retail or wholesale, exposed for sale at retail or wholesale, or used in a commercial establishment in this State, except as set forth in subsections (b) and (c) of this section.
  2. No household cleansing product used in a dishwasher in a commercial establishment, used to cleanse food and beverage processing equipment, including dishes, pots, pans, and utensils, used to cleanse medical or surgical equipment, or used to cleanse dairy equipment may be distributed, sold, offered for sale at retail or wholesale, exposed for sale at retail or wholesale, or used in a commercial establishment if it contains a phosphorus compound in concentrations in excess of 8.7 percent by weight expressed as elemental phosphorus.
  3. As of July 1, 2010, no household cleansing product used in a residential dishwasher may be distributed, sold, offered for sale at retail or wholesale, or exposed for sale at retail or wholesale if it contains a phosphorus compound in concentrations in excess of a trace quantity, except for product inventory purchased by retailers prior to July 1, 2010.
  4. The provisions of this section shall not be construed to limit the phosphorus content of household cleansing products used in agricultural production and for cleansing equipment used in processing of agricultural products.
  5. The provisions of this section shall not be construed to limit the phosphorus content of household cleaning products approved by the Commissioner of Health for use in lead hazard management projects.

HISTORY: Added 1977, No. 39 , § 1, eff. April 19, 1977; amended 1993, No. 229 (Adj. Sess.), § 1; 2007, No. 28 , § 1.

History

Amendments

—2007. Section amended generally.

—1993 (Adj. Sess.). Subsec. (d): Added.

CROSS REFERENCES

Lake Champlain discharges of phosphorus, see § 1266a of this title.

§ 1383. Exclusions.

The manufacturer of a cleansing product used primarily in industrial manufacturing, production, and assembling processes or any user of the product may apply to the Secretary to have the product excluded from regulation under this subchapter. The application shall contain sufficient evidence to show that the cleansing product is used primarily in industrial manufacturing, production, and assembling processes and that there is no reasonably available alternative to the user. The exclusion shall only extend to the use of the product in industrial manufacturing, production, and assembling processes. The exclusion, if granted, shall be for a specified period of time and may be extended by the Secretary upon further application by the industrial manufacturer or user.

HISTORY: Added 1977, No. 39 , § 1, eff. April 19, 1977.

§ 1384. Penalty.

A person who violates a provision of this subchapter shall be fined not more than $2,500.00 for a single violation. In the case of a continuing violation, each day’s continuance after notification by a law enforcement officer shall be considered an additional offense for which a person shall be fined not more than $100.00 for each day’s offense, in addition to the penalty imposed for a single violation.

HISTORY: Added 1977, No. 39 , § 1, eff. April 19, 1977.

Subchapter 6. Lake Champlain Water Quality

§ 1385. Repealed. 2011, No. 138 (Adj. Sess.), § 33, eff. May 14, 2012.

History

Former § 1385. Former § 1385, relating to the Lake Champlain total maximum daily load plan, was derived from 2007, No. 43 , § 5 and amended by 2007, No. 130 (Adj. Sess.), § 2.

§ 1386. Implementation plan for the Lake Champlain total maximum daily load.

  1. Within three months after the issuance of a phosphorus total maximum daily load plan (TMDL) for Lake Champlain by the U.S. Environmental Protection Agency, the Secretary of Natural Resources shall update the State of Vermont’s phase I TMDL implementation plan to reflect the elements that the State determines are necessary to meet the allocations established in the final TMDL for Lake Champlain. The update of the phase I TMDL implementation plan for Lake Champlain shall explain how basin plans will be used to implement the updated phase I TMDL implementation plan, and shall include a schedule for the adoption of basin plans within the Lake Champlain basin. In addition to the requirements of subsection 1253(d) of this title, a basin plan for a basin within the Lake Champlain basin shall include the following:
    1. phosphorus reduction strategies within the basin that will achieve the State’s obligations under the phase I TMDL implementation plan for Lake Champlain;
    2. a schedule for the issuance of permits to control phosphorus discharges from wastewater treatment facilities as necessary to implement the State’s obligations under the phase I TMDL implementation plan for Lake Champlain;
    3. a schedule for the issuance of permits to control stormwater discharges as necessary to implement the State’s obligations under the phase I TMDL implementation plan for Lake Champlain;
    4. wetland and river corridor restoration and protection projects that will achieve the State’s obligations under the phase I TMDL implementation plan for Lake Champlain;
    5. a table of non-point source activities that will achieve the State’s obligations under the phase I TMDL implementation plan for Lake Champlain; and
    6. other strategies and activities that the Secretary determines to be necessary to achieve the State’s obligations under the phase I TMDL implementation plan for Lake Champlain.
  2. The Secretary shall develop and implement a method of tracking and accounting for actions implemented to achieve the Lake Champlain TMDL.
  3. Prior to finalizing the update to the phase I TMDL implementation plan for Lake Champlain, the Secretary shall provide notice to the public of the proposed revisions and a comment period of no less than 30 days.
  4. On or before January 15 in the year following issuance of the updated phase I TMDL implementation plan for Lake Champlain under subsection (a) of this section and every four years thereafter, the Secretary shall report to the House Committee on Natural Resources, Fish and Wildlife, the Senate Committee on Natural Resources and Energy, the House Committee on Agriculture and Forestry, and the Senate Committee on Agriculture regarding the execution of the updated phase I TMDL implementation plan for Lake Champlain. The report shall include:
    1. A summary of the efforts undertaken to implement the phase I TMDL implementation plan for Lake Champlain.
    2. An assessment of the implementation plan for the Lake Champlain TMDL based on available data, including an evaluation of the efficacy of the phase I TMDL implementation plan for Lake Champlain.
  5. Beginning on February 1, 2016, and annually thereafter, the Secretary, after consultation with the Secretary of Agriculture, Food and Markets and the Secretary of Transportation, shall submit to the House Committee on Natural Resources, Fish, and Wildlife a summary of activities and measures of progress of water quality ecosystem restoration programs. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection.

HISTORY: Added 2007, No. 130 (Adj. Sess.), § 2, eff. May 12, 2008; amended 2011, No. 138 (Adj. Sess.), § 32, eff. May 14, 2012; 2015, No. 64 , § 36; 2017, No. 154 (Adj. Sess.), § 20, eff. May 21, 2018.

History

Amendments

—2017 (Adj. Sess.). Subsec. (e): Deleted “, the Senate Committee on Natural Resources and Energy, the House Committee on Agriculture and Forestry, and the Senate Committee on Agriculture” following “Fish and Wildlife”, added the last sentence, and made a related change.

—2015. Subsecs. (a)-(e): Amended generally.

—2011 (Adj. Sess.). Amended the section generally.

Subchapter 7. Vermont Clean Water Fund

§ 1387. Findings; purpose; Clean Water Initiative.

    1. The State has committed to implementing a long-term Clean Water Initiative to provide mechanisms, staffing, and financing necessary to achieve and maintain compliance with the Vermont Water Quality Standards for all State waters. (a) (1) The State has committed to implementing a long-term Clean Water Initiative to provide mechanisms, staffing, and financing necessary to achieve and maintain compliance with the Vermont Water Quality Standards for all State waters.
    2. Success in implementing the Clean Water Initiative will depend largely on providing sustained and adequate funding to support the implementation of all of the following:
      1. the requirements of 2015 Acts and Resolves No. 64;
      2. federal or State required cleanup plans for individual waters or water segments, such as total maximum daily load plans;
      3. the Agency of Natural Resources’ Combined Sewer Overflow Rule;
      4. the operations of clean water service providers under chapter 37, subchapter 5 of this title; and
      5. the permanent protection of land and waters from future development and impairment through conservation and water quality projects funded by the Vermont Housing and Conservation Trust Fund authorized by chapter 15 of this title.
    3. To ensure success in implementing the Clean Water Initiative, the State should commit to funding the Clean Water Initiative in a manner that ensures the maintenance of effort and that provides an annual appropriation for clean water programs in a range of $50 million to $60 million as adjusted for inflation over the duration of the Initiative.
    4. To avoid the future impairment and degradation of the State’s waters, the State should commit to continued funding for the protection of land and waters through agricultural and natural resource conservation, including through permanent easements and fee acquisition.
  1. The General Assembly establishes in this subchapter a Vermont Clean Water Fund as a mechanism for financing the improvement of water quality in the State. The Clean Water Fund shall be used to:
    1. assist the State in the implementation of the Clean Water Initiative;
    2. fund staff positions at the Agency of Natural Resources, Agency of Agriculture, Food and Markets, or Agency of Transportation when the positions are necessary to achieve or maintain compliance with water quality requirements and existing revenue sources are inadequate to fund the necessary positions; and
    3. provide funding to clean water service providers to meet the obligations of chapter 37, subchapter 5 of this title.

HISTORY: Added 2015, No. 64 , § 37, eff. June 16, 2015; amended 2019, No. 76 , § 3.

History

Amendments

—2019. Section amended generally.

§ 1388. Clean Water Fund.

  1. There is created a special fund to be known as the Clean Water Fund to be administered by the Secretary of Administration. The Fund shall consist of:
    1. revenues from the Property Transfer Tax surcharge established under 32 V.S.A. § 9602a ;
    2. other gifts, donations, and impact fees received from any source, public or private, dedicated for deposit into the Fund and approved by the Secretary of Administration;
    3. the unclaimed beverage container deposits (escheats) remitted to the State under chapter 53 of this title;
    4. six percent of the revenues from the meals and rooms taxes imposed under 32 V.S.A. chapter 225; and
    5. other revenues dedicated for deposit into the Fund by the General Assembly.
  2. Notwithstanding any contrary provisions of 32 V.S.A. chapter 7, subchapter 5, unexpended balances and any earnings shall remain in the Fund from year to year.

HISTORY: Added 2015, No. 64 , § 37, eff. June 16, 2015; amended 2017, No. 208 (Adj. Sess.), § 4b, eff. May 30, 2018; 2019, No. 76 , § 3a, eff. Oct. 1, 2019.

History

Amendments

—2019. Subsec. (a): Added subdiv. (a)(4), and redesignated former subdiv. (a)(4) as subdiv. (a)(5).

—2017 (Adj. Sess.). Subdiv. (a)(1): Substituted “from” for “dedicated for deposit into the fund by the General Assembly, including” following “revenues”.

Subdivs. (a)(3), (a)(4): Added.

§ 1389. Clean Water Board.

  1. Creation.
    1. There is created the Clean Water Board that shall:
      1. be responsible and accountable for planning, coordinating, and financing of the remediation, improvement, and protection of the quality of State waters;
      2. recommend to the Secretary of Administration expenditures:
        1. appropriations from the Clean Water Fund according to the priorities established under subsection (e) of this section; and
        2. water quality programs or projects that provide water quality benefits, reduce pollution, protect natural areas, enhance water quality protections on agricultural land, enhance flood and climate resilience, provide wildlife habitat, or promote and enhance outdoor recreation in support of rural community vitality to be funded by capital appropriations.
    2. The Clean Water Board shall be attached to the Agency of Administration for administrative purposes.
  2. Organization of the Board.   The Clean Water Board shall be composed of:
    1. the Secretary of Administration or designee;
    2. the Secretary of Natural Resources or designee;
    3. the Secretary of Agriculture, Food and Markets or designee;
    4. the Secretary of Commerce and Community Development or designee;
    5. the Secretary of Transportation or designee; and
    6. four members of the public, who are not legislators, with expertise in one or more of the following subject matters: public management, civil engineering, agriculture, ecology, wetlands, stormwater system management, forestry, transportation, law, banking, finance, and investment, to be appointed by the Governor.
  3. Officers; committees; rules; compensation; term.
    1. The Secretary of Administration shall serve as the Chair of the Board. The Clean Water Board may elect additional officers from its members, establish committees or subcommittees, and adopt procedural rules as necessary and appropriate to perform its work.
    2. Members of the Board who are not employees of the State of Vermont and who are not otherwise compensated or reimbursed for their attendance shall be entitled to per diem compensation and reimbursement of expenses pursuant to 32 V.S.A. § 1010 paid from the budget of the Agency of Administration for attendance of meetings of the Board.
    3. Members who are appointed to the Clean Water Board shall be appointed for terms of four years, except initial appointments shall be made such that two members appointed by the Governor shall be appointed for a term of two years. Vacancies on the Board shall be filled for the remaining period of the term in the same manner as initial appointments.
  4. Powers and duties of the Clean Water Board.   The Clean Water Board shall have the following powers and authority:
    1. The Clean Water Board shall recommend to the Secretary of Administration the appropriate allocation of funds from the Clean Water Fund for the purposes of developing the State budget required to be submitted to the General Assembly under 32 V.S.A. § 306 . All recommendations from the Board should be intended to achieve the greatest water quality gain for the investment. The recommendations of the Clean Water Board shall be open to inspection and copying under the Public Records Act, and the Clean Water Board shall submit to the Senate Committees on Appropriations, on Finance, on Agriculture, and on Natural Resources and Energy and the House Committees on Appropriations, on Ways and Means, on Agriculture and Forestry, and on Natural Resources, Fish, and Wildlife a copy of any recommendations provided to the Governor.
    2. The Clean Water Board may pursue and accept grants, gifts, donations, or other funding from any public or private source and may administer such grants, gifts, donations, or funding consistent with the terms of the grant, gift, or donation.
    3. The Clean Water Board shall:
      1. develop an annual revenue estimate and proposed budget for the Clean Water Fund;
      2. establish measures for determining progress and effectiveness of expenditures for clean water restoration efforts;
      3. if the Board determines that there are insufficient funds in the Clean Water Fund to issue all grants or financing required by sections 925-928 of this title, conduct all of the following:
        1. Direct the Secretary of Natural Resources to prioritize the work needed in every basin, adjust pollution allocations assigned to clean water service providers, and issue grants based on available funding.
        2. Make recommendations to the Governor and General Assembly on additional revenue to address unmet needs.
        3. Notify the Secretary of Natural Resources that there are insufficient funds in the Fund. The Secretary of Natural Resources shall consider additional regulatory controls to address water quality improvements that could not be funded.
      4. issue the annual Clean Water Investment Report required under section 1389a of this title;
      5. solicit, consult with, and accept public comment from organizations interested in improving water quality in Vermont regarding recommendations under this subsection (d) for the allocation of funds from the Clean Water Fund; and
      6. recommend capital appropriations for the permanent protection of land and waters from future development through conservation and water quality projects.
  5. Priorities.   In making recommendations under subsection (d) of this section regarding the appropriate allocation of funds from the Clean Water Fund, the Board shall prioritize as follows:
    1. As a first priority, make recommendations regarding funding for the following grants and programs, which shall each be given equal priority:
      1. grants to clean water service providers to fund the reasonable costs associated with the inspection, verification, operation, and maintenance of clean water projects in a basin;
      2. the Water Quality Restoration Formula Grant under section 925 of this title;
      3. the Agency of Agriculture, Food and Markets’ agricultural water quality programs; and
      4. the Water Quality Enhancement Grants under section 926 of this title at a funding level of at least 20 percent of the annual balance of the Clean Water Fund, provided that the maximum amount recommended under this subdivision (D) in any year shall not exceed $ 5,000,000.00; and
      5. funding to partners for basin planning, basin water quality council participation, education, and outreach as provided in subdivision 1253(d)(3) of this title, provided funding shall be at least $500,000.00.
    2. As the next priority after reviewing funding requests for programs identified under subdivision (1) of this subsection:
      1. funding to programs or projects that address or repair riparian conditions that increase the risk of flooding or pose a threat to life or property;
      2. funding for education and outreach regarding the implementation of water quality requirements, including funding for education, outreach, demonstration, and access to tools for the implementation of the Acceptable Management Practices for Maintaining Water Quality on Logging Jobs in Vermont, as adopted by the Commissioner of Forests, Parks and Recreation;
      3. funding for the Municipal Stormwater Implementation Grant as provided in section 928 of this title;
      4. funding for innovative or alternative technologies or practices designed to improve water quality or reduce sources of pollution to surface waters, including funding for innovative nutrient removal technologies and community-based methane digesters that utilize manure, wastewater, and food residuals to produce energy; and
      5. funding to purchase agricultural land in order to take that land out of practice when the State water quality requirements cannot be remediated through agricultural Best Management Practices
    3. As the next priority after reviewing funding requests under subdivisions (1) and (2) of this subsection, funding for the Developed Lands Implementation Grant Program as provided in section 927 of this title.
  6. Assistance.   The Clean Water Board shall have the administrative, technical, and legal assistance of the Agency of Administration, the Agency of Natural Resources, the Agency of Agriculture, Food and Markets, the Agency of Transportation, and the Agency of Commerce and Community Development for those issues or services within the jurisdiction of the respective agency. The cost of the services provided by agency staff shall be paid from the budget of the agency providing the staff services.

HISTORY: Added 2015, No. 64 , § 37, eff. June 16, 2015; amended 2015, No. 158 (Adj. Sess.), § 33, eff. June 2, 2016; 2017, No. 74 , § 16a; 2017, No. 168 (Adj. Sess.), § 1, eff. May 22, 2018; 2019, No. 76 , § 4.

History

Amendments

—2019. Subsec. (a): Inserted “according to the priorities established under subsection (e) of this section” in subdiv. (a)(1)(B)(i), and in subdiv. (a)(1)(B)(ii), substituted “water quality programs or” for “clean water,” and inserted “that provide water quality benefits, reduce pollution, protect natural areas, enhance water quality protections on agricultural land, enhance flood and climate resilience, provide wildlife habitat, or promote and enhance outdoor recreation in support of rural community vitality”.

Subdiv. (d)(3): Amended generally.

Subsec. (e): Amended generally.

—2017 (Adj. Sess.). Section amended generally.

—2017. Subdiv. (e)(1)(F): Deleted “and” following “energy”.

Subdiv. (e)(1)(G): Substituted “; and” at the end for a period.

—2015 (Adj. Sess.). Subdiv. (e)(1)(H): Added.

Subdiv. (e)(2): Inserted “, and to municipalities for the establishment and operation of stormwater utilities” following “quality requirements”.

§ 1389a. Clean Water Investment Report.

  1. Beginning on January 15, 2017, and annually thereafter, the Secretary of Administration shall publish the Clean Water Investment Report. The Report shall summarize all investments, including their cost-effectiveness, made by the Clean Water Board and other State agencies for clean water restoration over the prior fiscal year. The Report shall include expenditures from the Clean Water Fund, the General Fund, the Transportation Fund, and any other State expenditures for clean water restoration, regardless of funding source.
  2. The Report shall include:
    1. Documentation of progress or shortcomings in meeting established indicators for clean water restoration.
    2. A summary of additional funding sources pursued by the Board, including whether those funding sources were attained; if it was not attained, why it was not attained; and where the money was allocated from the Fund.
    3. A summary of water quality problems or concerns in each watershed basin of the State, a list of water quality projects identified as necessary in each basin of the State, and how identified projects have been prioritized for implementation. The water quality problems and projects identified under this subdivision shall include programs or projects identified across State government and shall not be limited to projects listed by the Agency of Natural Resources in its watershed projects database.
    4. A summary of any changes to applicable federal law or policy related to the State’s water quality improvement efforts, including any changes to requirements to implement total maximum daily load plans in the State.
    5. A summary of available federal funding related to or for water quality improvement efforts in the State.
    6. Beginning January 2023, a summary of the administration of the grant programs established under sections 925-928 of this title, including whether these grant programs are adequately funding implementation of the Clean Water Initiative and whether the funding limits for the Water Quality Enhancement Grants under subdivision 1389(e)(1)(D) of this title should be amended to improve State implementation of the Clean Water Initiative.
  3. The Report may also provide an overview of additional funding necessary to meet objectives established for clean water restoration and recommendations for additional revenue to meet those restoration objectives. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report required by this section.
    1. The Secretary of Administration shall develop and use a results-based accountability process in publishing the annual report required by subsection (a) of this section. (d) (1) The Secretary of Administration shall develop and use a results-based accountability process in publishing the annual report required by subsection (a) of this section.
    2. The Secretary of Administration shall develop user-friendly issue briefs, tables, or executive summaries that make the information required under subdivision (b)(3) available to the public separately from the report required by this section.
    3. On or before September 1 of each year, the Secretary of Administration shall submit to the Joint Fiscal Committee an interim report regarding the information required under subdivision (b)(5) of this section relating to available federal funding.

HISTORY: Added 2015, No. 64 , § 37, eff. June 16, 2015; amended 2017, No. 85 , § E.700.1; 2017, No. 168 (Adj. Sess.), § 2, eff. May 22, 2018; 2019, No. 76 , § 10.

History

Amendments

—2019. Subdiv. (b)(6): Added.

—2017 (Adj. Sess.). Subsec. (a): Deleted “Fund” preceding “Board” and substituted “fiscal year” for “calendar year” in the second sentence.

—2017. Section amended generally.

§ 1389b. Clean Water Fund audit.

  1. On or before January 15, 2023, the Secretary of Administration shall submit to the House and Senate Committees on Appropriations, the Senate Committee on Finance, the House Committee on Ways and Means, the Senate Committee on Agriculture, the House Committee on Agriculture and Forestry, the Senate Committee on Natural Resources and Energy, and the House Committee on Natural Resources, Fish, and Wildlife a program audit of the Clean Water Fund. The audit shall include:
    1. a summary of the expenditures from the Clean Water Fund, including the water quality projects and programs that received funding;
    2. an analysis and summary of the efficacy of the water quality projects and programs funded from the Clean Water Fund or implemented by the State;
    3. an evaluation of whether water quality projects and programs funded or implemented by the State are achieving the intended water quality benefits;
    4. an assessment of the capacity of the Agency of Agriculture, Food and Markets to effectively administer and enforce agricultural water quality requirements on farms in the State;
    5. an assessment of the capacity of the Department of Environmental Conservation to effectively administer and enforce agricultural water quality requirements on farms in the State; and
    6. a recommendation of whether the General Assembly should authorize the continuation of the Clean Water Fund and, if so, at what funding level.
  2. The audit required by this section shall be conducted by a qualified, independent environmental consultant or organization with knowledge of the federal Clean Water Act, State water quality requirements and programs, the Lake Champlain Total Maximum Daily Load plan, and the program elements of the State clean water initiative.
  3. Notwithstanding provisions of section 1389 of this title to the contrary, the Secretary of Administration shall pay for the costs of the audit required under this section from the Clean Water Fund, established under section 1388 of this title.

HISTORY: Added 2015, No. 64 , § 37, eff. June 16, 2015; amended 2015, No. 97 (Adj. Sess.), § 20; 2019, No. 64 , § 19; 2019, No. 154 (Adj. Sess.), § E.100.1, eff. Oct. 2, 2020.

History

Amendments

—2019 (Adj. Sess.). Subsec. (a): Substituted “January 15, 2023” for “January 15, 2021”.

—2019. Added subdiv. (a)(5) and redesignated former subdiv. (a)(5) as subdiv. (a)(6).

—2015 (Adj. Sess.). Subsec. (a): Substituted “audit” for “report” preceding “shall”.

Chapter 48. Groundwater Protection

CROSS REFERENCES

Management of underground liquid storage tanks for the protection of ground and surface waters generally, see § 1921 et seq. of this title.

ANNOTATIONS

Cited.

Cited in Secretary v. Henry, 161 Vt. 556, 641 A.2d 1345, 1994 Vt. LEXIS 38 (1994).

Law Reviews —

For note regarding reforms in groundwater law, see 10 Vt. L. Rev. 479 (1985).

Subchapter 1. Policy; Definitions

ANNOTATIONS

Cited.

Cited in Gerrish Corp. v. Universal Underwriter Insurance Co., 754 F. Supp. 358, 1990 U.S. Dist. LEXIS 17991 (D. Vt. 1990), Stead v. F.E. Myers Co., 785 F. Supp. 56, 1990 U.S. Dist. LEXIS 19984 (D. Vt. 1990).

§ 1390. Policy.

The General Assembly hereby finds and declares that:

  1. The State should adhere to the policy for management of groundwater of the State as set forth in section 1410 of this title.
  2. In recognition that the groundwater of Vermont is a precious, finite, and invaluable resource upon which there is an ever-increasing demand for present, new, and competing uses; and in further recognition that an adequate supply of groundwater for domestic, farming, dairy processing, and industrial uses is essential to the health, safety, and welfare of the people of Vermont, the withdrawal of groundwater of the State should be regulated in a manner that benefits the people of the State; is compatible with long-range water resource planning, proper management, and use of the water resources of Vermont; and is consistent with Vermont’s policy of managing groundwater as a public resource for the benefit of all Vermonters.
  3. It is the policy of the State that the State shall protect its groundwater resources to maintain high-quality drinking water.
  4. It is the policy of the State that the groundwater resources of the State shall be managed to minimize the risks of groundwater quality deterioration by regulating human activities that present risks to the use of groundwater in the vicinities of such activities while balancing the State’s groundwater policy with the need to maintain and promote a healthy and prosperous agricultural community.
  5. It is the policy of the State that the groundwater resources of the State are held in trust for the public. The State shall manage its groundwater resources in accordance with the policy of this section, the requirements of subchapter 6 of this chapter, and section 1392 of this title for the benefit of citizens who hold and share rights in such waters. The designation of the groundwater resources of the State as a public trust resource shall not be construed to allow a new right of legal action by a person other than the State of Vermont, except to remedy injury to a particularized interest related to water quantity protected under this subchapter.

HISTORY: Added 1985, No. 53 , § 1; amended 2007, No. 199 (Adj. Sess.), § 1, eff. June 9, 2008; 2019, No. 14 , § 33, eff. April 30, 2019.

History

Amendments

—2019. Section amended generally.

—2007 (Adj. Sess.). Rewrote the section.

ANNOTATIONS

Statute of limitations.

Even if the groundwater protection statute did create a new cause of action for the State that was retroactively enforceable, that would not empower the State to apply the statute to injuries discovered more than six years prior to its complaint. State v. Atlantic Richfield Co., 2016 VT 61, 202 Vt. 212, 148 A.3d 559, 2016 Vt. LEXIS 59 (2016).

§ 1391. Definitions.

As used in this chapter:

  1. “Abandoned well” means any well or hole whose original purpose and use has been permanently discontinued or that is in such a state of disrepair that the well or hole has the potential for transmitting contaminants into an aquifer or otherwise threatens the public health or safety.
  2. “Agency” means the Agency of Natural Resources.
  3. “Aquifer” means a water bearing stratum of permeable rock, sand, gravel, or other alluvial soils.
  4. “Beneficial uses” means those uses included in each groundwater class.
  5. “Commissioner” means the Commissioner of Environmental Conservation or the Commissioner’s designated representative.
  6. “Department” means the Department of Environmental Conservation.
  7. “Groundwater” means water below the land surface, but does not include surface waters within the meaning of subdivision 1251(13) of this title.
  8. “Hole” means any excavation, deeper than 20 feet with at least one horizontal dimension less than five feet.
  9. “Public water supply” means a water supply system with 15 or more connections.
  10. “Secretary” means the Secretary of Natural Resources or the Secretary’s designated representative.
  11. “Servicing” means developing of well yields, placing liners or seals, grouting, restricting the flow of flowing wells, repairing or closing wells, and installing or maintaining well pump systems.  “Servicing” does not include work performed on monitoring wells.
  12. “Technical criteria” means the numerical parameters or scientific parameters that, when followed, will result in groundwater suitable for the uses defined in its class.
  13. “Well” means any hole deeper than 20 feet drilled, driven, or bored into the earth to locate, monitor, extract, or recharge groundwater or any hole deeper than 20 feet drilled, driven, or bored for the primary purpose of transferring heat to or from the earth’s subsurface.
  14. “Well contractor” means any person who constructs or services wells.

HISTORY: Added 1985, No. 53 , § 1; amended 1987, No. 76 , § 18; 1989, No. 201 (Adj. Sess.), § 1; 2015, No. 97 (Adj. Sess.), § 21.

History

Amendments

—2015 (Adj. Sess.). Subdiv. (9): Substituted “15” for “ten”.

—1989 (Adj. Sess.). Added the introductory clause and subdiv. (1), redesignated former subsecs. (a)-(c) as subdivs. (2)-(4), added subdiv. (5) and (6), redesignated former subsec. (d) as subdiv. (7), added subdiv. (8), redesignated former subsecs. (e) and (f) as subdivs. (9) and (10), added subdiv. (11), redesignated former subsec. (g) as subdiv. (12), and added subdiv. (13) and (14).

—1987. Substituted “agency of natural resources” for “agency of environmental conservation” in subsecs. (a) and (f).

CROSS REFERENCES

Agency of Natural Resources, see 3 V.S.A. § 2802 .

Department of Environmental Conservation, see 3 V.S.A. § 2873 .

Subchapter 2. General

§ 1392. Duties; powers of Secretary.

  1. The Secretary shall develop a comprehensive groundwater management program to protect the quality of groundwater resources by:
    1. developing a strategy for the management and protection of the State’s groundwater resources;
    2. continuing studies and investigations of groundwater in the State;
    3. cooperating with other government agencies in collecting and compiling data on the quantity and quality of groundwater and location of aquifers;
    4. identifying and mapping groundwater currently used as public water supply sources and groundwater determined by the Secretary as potential future public water supply sources;
    5. providing technical assistance to municipal officials and other public bodies in the development of regional or municipal plans or bylaws, the purpose of which is the protection of groundwater resources;
    6. classifying groundwater resources according to the provisions of this chapter and adopting technical criteria and standards for the management of activities that may pose a risk to their beneficial uses;
    7. integrating the groundwater management strategy with other regulatory programs administered by the Secretary;
    8. developing public information and education materials; and
    9. cooperating with federal agencies in the development of programs for protecting the quality and quantity of the groundwater resources.
  2. The Secretary is authorized to accept and administer grants for groundwater management purposes in accord with the administrative procedures of the State.
    1. The Secretary shall establish a groundwater coordinating committee, with representation from the Division of Drinking Water and Groundwater Protection within the Department, the Division of Geology and Mineral Resources within the Department, the Agency of Agriculture, Food and Markets, and the Departments of Forests, Parks and Recreation and of Health to provide advice in the development of the program and its implementation, on issues concerning groundwater quality and quantity, and on groundwater issues relevant to well-drilling activities. (c) (1) The Secretary shall establish a groundwater coordinating committee, with representation from the Division of Drinking Water and Groundwater Protection within the Department, the Division of Geology and Mineral Resources within the Department, the Agency of Agriculture, Food and Markets, and the Departments of Forests, Parks and Recreation and of Health to provide advice in the development of the program and its implementation, on issues concerning groundwater quality and quantity, and on groundwater issues relevant to well-drilling activities.
    2. In carrying out his or her duties under this subchapter, the Secretary shall give due consideration to the recommendations of the Groundwater Coordinating Committee.
    3. The Secretary may request representatives of other agencies and the private sector, including licensed well drillers, to serve on the Groundwater Coordinating Committee.
  3. The groundwater management strategy, including groundwater classification and associated technical criteria and standards, shall be adopted as a rule in accordance with the provisions of 3 V.S.A. chapter 25.
  4. [Repealed.]

HISTORY: Added 1985, No. 53 , § 1; amended 1989, No. 256 (Adj. Sess.), § 10(a), eff. Jan. 1, 1991; 1995, No. 189 (Adj. Sess.), § 3; 2003, No. 115 (Adj. Sess.), § 32, eff. Jan. 31, 2005; 2017, No. 55 , § 7, eff. June 2, 2017; 2018, No. 2 (Sp. Sess.), § 1; 2021, No. 69 , § 9, eff. June 8, 2021.

History

Amendments

—2021. Subdiv. (c)(1): Deleted “and the licensure of well drillers” at the end of the last sentence.

—2018 (Sp. Sess.). Subsec. (c): Amended generally.

—2017. Subsec. (d): Deleted the second through fourth sentences.

—2003 (Adj. Sess.). Subsec. (d): Substituted “natural” for “water” preceding “resources” in the second and third sentences.

—1995 (Adj. Sess.). Subsec. (e): Repealed.

—1989 (Adj. Sess.). Subsec. (c): In the first sentence, substituted “departments of agriculture, food and markets” for “departments of agriculture”.

§ 1393. Coordination.

Nothing in this subchapter is intended to interfere with authority granted other agencies of State government by statute. The Secretary will coordinate the development of the program with other State agencies as necessary.

HISTORY: Added 1985, No. 53 , § 1.

§ 1394. Classification of groundwater.

  1. The State adopts, for purposes of classifying its groundwater, the following classes and definitions thereof:
    1. Class I.  Suitable for public water supply.  Character uniformly excellent.  No exposure to activities that pose a risk to its current or potential use as a public water supply.
    2. Class II.  Suitable for public water supply.  Character uniformly excellent but exposed to activities that may pose a risk to its current or potential use as a public water supply.
    3. Class III.  Suitable as a source of water for individual domestic water supply, irrigation, agricultural use, and general industrial and commercial use.
    4. Class IV. Not suitable as a source of potable water but suitable for some agricultural, industrial, and commercial use, provided that the Secretary may authorize, subject to conditions, use as a source of potable water supply or other use under a reclassification order issued for the aquifer.
  2. All groundwater of the State is hereby classified as Class III water unless reclassified by the Secretary.
  3. Any hearing on a classification or reclassification shall be held in a location convenient to the users or potential users of the groundwater which is the subject of the hearing.
  4. Class I or II classification shall apply to aquifers in use as a public water supply source or that in the opinion of the Secretary have a high probability for such use.
  5. In determining the appropriate classification of groundwater, the Secretary shall consider:
    1. its use or potential future use as a public water supply source;
    2. the extent of activity which poses a risk to the groundwater;
    3. its current water quality;
    4. its availability in quantities needed for beneficial use;
    5. the consequences of its potential contamination and the availability of alternate sources of water;
    6. the classification of adjacent surface waters; and
    7. other factors relevant to determine the maximum beneficial use of the aquifer.
  6. It is the policy of the State to protect permanently Class I aquifers.  The Secretary pursuant to subsection (h) of this section shall establish by rule activities that pose risks to Class I aquifers and which activities shall be prohibited in Class I aquifers.  Any classification of Class I waters involving privately owned lands or reclassification of Class I waters by the Secretary shall become effective only when approved by act of the General Assembly.
  7. The Secretary’s classifications shall be presumed correct if, in establishing the geographical limits of each class of groundwater, he or she uses generally accepted methods of determining aquifers based on existing knowledge of surficial and bedrock geology and available hydrological data.
  8. The Secretary by rule may establish technical criteria and standards to define the classes of groundwater and manage activities that may pose risks to groundwater classes.  The criteria and standards shall include the identification of activities which constitute risks to the groundwater and which may be precluded.  In adopting criteria and standards, the Secretary shall consider:
    1. drinking water standards adopted by the Department of Health and U.S. Environmental Protection Agency;
    2. the nature and quantity of groundwater at risk;
    3. the availability, cost, and effectiveness of measures to mitigate risks;
    4. the nature and quantity of risks that activities may generate;
    5. the expense and effectiveness of correcting the damage the risks may cause;
    6. the consequences to the public interest should damage occur and be irremediable;
    7. the economic, social, and environmental value of existing activities;
    8. the surface water quality standards, including the classification of surface waters; and
    9. other factors relevant to designating appropriate groundwater classes or managing risks to groundwater quality.
  9. The Secretary shall not adopt criteria and standards to manage activities that restrict agricultural activities or those activities under the jurisdiction of the Secretary of Agriculture, Food and Markets without the Secretary of Agriculture, Food and Markets’ consent.  Nor shall the Secretary adopt criteria and standards that restrict forestry management activities without consultation with the Commissioner of Forests, Parks and Recreation.

HISTORY: Added 1985, No. 53 , § 1; amended 2003, No. 42 , § 2, eff. May 27, 2003; 2017, No. 55 , § 8, eff. June 2, 2017; 2019, No. 14 , § 34, eff. April 30, 2019.

History

Revision note

—2003. Redesignated “commissioner” as “secretary” pursuant to Sec. 2 of No. 42 of 2003 and added the phrase “of agriculture, food and markets” to differentiate the secretary of agriculture, food and markets from the secretary of natural resources.

Revision note—. Substituted “commissioner of agriculture, food and markets” for “commissioner of agriculture” in the first sentence of subsec. (i) for purposes of conformity with 1989, No. 256 (Adj. Sess.), § 10(a).

Amendments

—2019. Subdiv. (e)(5): Deleted “and” at the end.

Subdiv. (e)(7): Added the subdiv. designation.

—2017. Subdiv. (a)(4): Amended generally.

—2003. Subsec. (i): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” and “secretary of agriculture, food and markets’ ” for “commissioner’s”.

Subchapter 3. Licensing of Well Contractors and Standards for Well Construction

History

Former chapter 51. Former chapter 51 of this title, consisting of sections 1471-1479, was recodified as present sections 1395-1402 of this subchapter pursuant to 1985, No. 53 , § 2. The chapter heading of former chapter 51 was retained as the subchapter heading.

Former § 1475. Former § 1475 of this title, which was previously omitted, was not included in the recodification.

Amendments

—1989 (Adj. Sess.). 1989, No. 201 (Adj. Sess.), § 9, substituted “Well Contractors and Standards for Well Construction” for “Water Well Drillers” in the subchapter heading.

—1981 (Adj. Sess). 1981, No. 222 (Adj. Sess), § 29, inserted “water” preceding “well drillers” in the chapter heading.

CROSS REFERENCES

Department of Environmental Conservation, see § 905a et seq. of this title.

Enforcement of laws governing well drillers, see § 8001 et seq. of this title.

§§ 1395, 1395a. Repealed. 2021, No. 69, § 11(a), (b), eff. June 8, 2021.

History

Former §§ 1395, 1395a. Former § 1395, relating to applications for drilling wells, was derived from 1965, No. 206 , § 1 and amended by 1981, No. 222 (Adj. Sess.), § 29; 1987, No. 76 , § 6; 1989, No. 201 (Adj. Sess.), § 2; 1995, No. 103 (Adj. Sess.), § 1; 2001, No. 65 , § 28; and 2019, No. 152 (Adj. Sess.), § 6.

Former § 1395a, relating to licenses and rules, was derived from 1989, No. 201 (Adj. Sess.), § 3 and amended by 1995, No. 103 (Adj. Sess.), § 2; 2001, No. 65 , § 29; and 2019, No. 152 (Adj. Sess.), § 5.

§ 1395a. Licenses; rules.

  1. Licenses.   The Department shall issue licenses under this subchapter. A licensee may be authorized to perform more than one class of activities under a single license. The Department shall, by rule, establish appropriate application, testing, and renewal procedures for each class of activity under a license. The rule shall include the opportunity for an applicant to take the licensing test orally or by demonstration if the applicant fails the written test. The classes of activities under a license shall be as follows:
    1. Water well driller.   This class shall consist of any person engaged in the business of constructing wells for the purpose of locating, extracting, or recharging groundwater, or for the purpose of transferring heat to or from the earth’s subsurface.
    2. Monitoring well driller.   This class shall consist of any person engaged in the business of constructing, servicing, or closing wells drilled for the purpose of monitoring groundwater quantity or quality.
    3. , (4)[Repealed.]
  2. Criminal background; pre-application determination.   The Department shall provide a pre-application determination of an individual’s criminal background. This determination shall not be binding on the Department in a future application if the individual violates probation or parole or is convicted of another crime following the determination.
    1. The Department shall initiate this determination upon an individual’s “second chance” determination request. This request shall provide documentation related to the individual’s conviction or convictions and evidence of rehabilitation.
    2. The individual shall submit this request online, accompanied by a pre-application fee of $25.00. If the individual thereafter applies for licensure, this pre-application fee shall be deducted from that license application fee.
    3. The Department shall:
      1. process a request within 30 days of receiving a complete request;
      2. assess the nature of the underlying conviction or convictions, the nexus to the well-drilling profession, and the provided evidence of rehabilitation; and
      3. respond to the individual’s request in writing.
  3. Continuing education; sunset review.
    1. Not less than once every five years, the Department shall review its continuing education or other continuing competency requirements for well drillers. The review results shall be in writing and address the following:
      1. the renewal requirements of the profession;
      2. the renewal requirements in other jurisdictions, particularly in the Northeast region;
      3. the cost of the renewal requirements for the profession’s licensees;
      4. an analysis of the utility and effectiveness of the renewal requirements with respect to public protection; and
      5. recommendations to the Secretary on whether the continuing education or other continuing competency requirements should be modified.
    2. The Secretary shall respond to the Department within 45 days of its submitted review results. The Secretary may require the Department to reduce, modify, or otherwise change the renewal requirements, including by proposing any necessary amendments to statute or rule.
  4. Military credentials.   The Department may evaluate specific military credentials to determine equivalency to credentials for well drillers. The determinations shall be adopted through written policy that shall be posted on the Department’s website.
  5. Uniform process for endorsement from other states.
    1. The Department shall issue licenses for well drillers who have been licensed in good standing in another jurisdiction within the United States for at least three years, regardless of whether that jurisdiction has licensing requirements substantially similar to those of this State.
    2. If the Department determines that three years of demonstrated practice in another specific jurisdiction is not adequately protective of the public, it shall provide its rationale to the Secretary, who may propose any necessary statutory or rule amendments in order to implement more restrictive requirements for endorsement for that jurisdiction.
    3. The Secretary may issue to an endorsement applicant a waiver of the practice requirement if there is a showing that the waiver follows State policy and the public is adequately protected.
  6. Uniform process for foreign credential verification.
    1. The Secretary shall adopt rules in consultation with the Department that prescribe a process for the Secretary to assess the equivalence of an applicant’s professional credentials earned outside the United States as compared to State licensing requirements for well drillers.
    2. Any determination of equivalence by the Secretary under this section shall be in consultation with the Department, recorded in the applicant’s licensing file, and binding upon the Department.
    3. In administering this section, the Secretary may rely upon third-party credential verification services. The cost of such services shall be paid by the applicant.
  7. Rules.
    1. The Department may adopt rules to implement the provisions of this subchapter and to establish well construction standards for persons engaged in the business of well construction.
      1. Rules relating to licensing standards shall be fair and reasonable and shall be designed and implemented to ensure that all applicants are granted licensure if they demonstrate that they possess the minimal occupational qualifications necessary for the purposes of groundwater protection. They shall not be designed or implemented for the purpose of limiting the number of licensees. (2) (A) Rules relating to licensing standards shall be fair and reasonable and shall be designed and implemented to ensure that all applicants are granted licensure if they demonstrate that they possess the minimal occupational qualifications necessary for the purposes of groundwater protection. They shall not be designed or implemented for the purpose of limiting the number of licensees.
      2. All other rules to implement the provisions of this subchapter shall be rationally related to the purposes of this chapter, and shall be designed to achieve a reasonable balance between the expected governmental, societal, and occupational costs and the expected benefits.

HISTORY: Added 1989, No. 201 (Adj. Sess.), § 3; amended 1995, No. 103 (Adj. Sess.), § 2; 2001, No. 65 , § 29; 2019, No. 152 (Adj. Sess.), § 5, eff. April 1, 2021.

History

Amendments

—2019 (Adj. Sess.). Section amended generally.

—2001. Deleted “classes of” preceding “licenses” in the section catchline and amended subsec. (a) generally.

—1995 (Adj. Sess.) Subsec. (a): Substituted “two classes” for “four classes” in the first sentence of the introductory paragraph and repealed subdivs. (3) and (4).

Subsec. (b): Deleted “and servicing” following “construction” in two places.

Effective date of amendments—

2019 (Adj. Sess.). 2019, No. 152 (Adj. Sess.), § 25 provides that the amendments to this section by 2019, No. 152 (Adj. Sess.), § 5 shall take effect on April 1, 2021.

Adoption of required rules. 2019, No. 152 (Adj. Sess.), § 24 provides: “An agency required to adopt rules under this act shall finally adopt those rules on or before July 1, 2021, unless that deadline is extended by the Legislative Committee on Administrative Rules pursuant to 3 V.S.A. § 843(c) .”

CROSS REFERENCES

Procedure for adoption of administrative rules, see 3 V.S.A. part 1, chapter 25.

§ 1395b. Repealed. 2018, No. 2 (Sp. Sess.), § 2.

History

Former § 1395b. Former § 1395b, relating to the water well advisory committee, was derived from 1995, No. 103 (Adj. Sess.), § 3.

§ 1396. Repealed. 2021, No. 69, § 11(c), eff. June 8, 2021.

History

Former § 1396. Former § 1396, relating to records and reports, was derived from 1965, No. 206 , § 2 and amended by 1981, No. 222 (Adj. Sess.), § 29; 1987, No. 76 , § 18; 1989, No. 201 (Adj. Sess.), § 4; 1995, No. 103 (Adj. Sess.), § 4; and 2011, No. 163 (Adj. Sess.), § 2.

§ 1397. Repealed. 1995, No. 103 (Adj. Sess.), § 5.

History

Former § 1397. Former § 1397, which related to the analysis of water samples from newly drilled wells, was derived from 1965, No. 206 , § 4; and amended by 1967, No. 168 ; 1981, No. 222 (Adj. Sess.), § 29.

§ 1398. Repealed. 1995, No. 103 (Adj. Sess.), § 10.

History

Former § 1398. Former § 1398, which related to the water resources revolving fund, was derived from 1965, No. 206 , § 5; and amended by 1981, No. 222 (Adj. Sess.), § 29; 1987, No. 76 , § 18.

§§ 1399, 1400. Repealed. 2021, No. 69, § 11(d), (e), eff. June 8, 2021.

History

Former §§ 1399, 1400. Former § 1399, relating to penalties, was derived from 1965, No. 206 , § 6 and amended by 1981, No. 222 (Adj. Sess.), § 29 and 1989, No. 201 (Adj. Sess.), § 5.

Former § 1400, relating to appeals, was derived from 1965, No. 206 , § 3 and amended by 1981, No. 222 (Adj. Sess.), § 29; 1987, No. 76 , § 18; 1989, No. 201 (Adj. Sess.), § 6; and 2003, No. 115 (Adj. Sess.), § 33.

Revision note—

Substituted “subchapter” for “chapter” for purposes of clarity in light of 1985, No. 53 , § 2, which provided for the recodification of former chapter 51 of this title as present subchapter 3 of this chapter.

§ 1400. Appeals.

Appeals of any act or decision of the Commissioner or Secretary under this chapter shall be made in accordance with chapter 220 of this title.

HISTORY: Added 1965, No. 206 , § 3; amended 1981, No. 222 (Adj. Sess.), § 29; 1987, No. 76 , § 18; 1989, No. 201 (Adj. Sess.), § 6; 2003, No. 115 (Adj. Sess.), § 33, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Rewrote the section.

—1989 (Adj. Sess.). Section amended generally.

—1987. Substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

—1981 (Adj. Sess.). Section amended generally.

§ 1401. Repealed. 1989, No. 98, § 4(b).

History

Former § 1401. Former § 1401, relating to enforcement, was derived from 1981, No. 222 (Adj. Sess.), § 29.

§ 1402. Repealed. 2021, No. 69, § 11(f), eff. June 8, 2021.

History

Former § 1402. Former § 1402, relating to denial and revocation of license, was derived from 1981, No. 222 (Adj. Sess.), § 29 and amended by 1989, No. 201 (Adj. Sess.), § 7; and 2001, No. 133 (Adj. Sess.), § 3.

§ 1403. Closure of abandoned wells.

The Commissioner may order a person legally responsible for an abandoned well to close the abandoned well in accordance with the rules established by the Department for the purpose of groundwater protection. An order shall not be issued under this section until the person legally responsible for the abandoned well has been given notice and an opportunity for an informal conference with the Commissioner.

HISTORY: Added 1989, No. 201 (Adj. Sess.), § 8.

Subchapter 4. Groundwater Cause of Action

§ 1410. Groundwater; right of action.

  1. Findings and policy.   The General Assembly hereby finds and declares that:
    1. surface and subsurface water are inherently interrelated in both quality and quantity;
    2. groundwater hydrology is a science that allows groundwater quality and quantity to be mapped and forecast;
    3. groundwater is a mobile resource that is necessarily shared among all users;
    4. all persons have a right to the beneficial use and enjoyment of groundwater free from unreasonable interference by other persons; and
    5. it is the policy of the State that the common-law doctrine of absolute ownership of groundwater is hereby abolished.
  2. Definitions.   As used in this section:
    1. “Groundwater” means water below the land surface.
    2. “Surface water” means any water on the land surface.
    3. “Person” means any individual, partnership, company, corporation, association, unincorporated 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.
  3. Cause of action.   Any person may maintain under this section an action for equitable relief or an action in tort to recover damages, or both, for the unreasonable harm caused by another person withdrawing, diverting, or altering the character or quality of groundwater.
  4. Scope of liability.   Notwithstanding the provisions of subsection (c) of this section, a person who alters groundwater quality or character as a result of agricultural or silvicultural activities, or other activities regulated by the Secretary of Agriculture, Food and Markets, shall be liable only if that alteration was either negligent, reckless, or intentional.
  5. Factors in determining reasonableness.   Factors to be considered in determining the unreasonableness of any harm referred to in subsection (c), above, shall include, but need not be limited to, the following:
    1. the purpose of the respective uses or activities affected;
    2. the economic, social, and environmental value of the respective uses, including protection of public health;
    3. the nature and extent of the harm caused, if any;
    4. the practicality of avoiding the harm, if any;
    5. the practicality of adjusting the quantity or quality of water used or affected and the method of use by each party;
    6. the maintenance or improvement of groundwater and surface water quality;
    7. the protection of existing values of land, investments, enterprises, and productive uses;
    8. the burden and fairness of requiring a person who causes harm to bear the loss; and
    9. the burden and fairness of requiring a person to bear the loss, who causes harm in the conduct of reasonable agricultural activities, utilizing good agricultural practices conducted in conformity with federal, State, and local laws and regulations.
  6. Effect on other remedies.   Nothing in this section shall be construed to preclude or supplant any other statutory or common-law remedies.
  7. Presumption of compliance.   For the purposes of this section, a person who obtains and complies with a withdrawal permit issued pursuant to the requirements of section 1418 of this title shall be presumed to be engaged in a reasonable use of groundwater and not to cause unreasonable harm under subsection (b) of this section.

HISTORY: Added 1985, No. 69 , §§ 1, 2; amended 1989, No. 256 (Adj. Sess.), § 10(a), eff. Jan. 1, 1991; 2003, No. 42 , § 2, eff. May 27, 2003; 2007, No. 199 (Adj. Sess.), § 3, eff. June 9, 2008.

History

Amendments

—2007 (Adj. Sess.). Added “As used in this section” to the introductory language of subsec. (b), and added subsec. (g).

—2003. Subsec. (d): Substituted “secretary of agriculture, food and markets” for “commissioner of the department of agriculture, food and markets”.

—1989 (Adj. Sess.). Subsec. (d): Substituted “department of agriculture, food and markets” for “department of agriculture”.

ANNOTATIONS

Insurance policies.

Groundwater in Vermont is not subject to private ownership. Therefore, groundwater contamination was not damage to property “owned” by an insured within the scope of the owned-property exclusion, and the costs incurred to monitor and clean up the pollution causing the contamination were therefore not excluded from coverage. Towns v. N. Sec. Ins. Co., 2008 VT 98, 184 Vt. 322, 964 A.2d 1150, 2008 Vt. LEXIS 96 (2008).

Although the Vermont Groundwater Protection Act declared groundwater to be a mobile resource necessarily shared among all users, in which all persons had a right to the beneficial use and enjoyment free from unreasonable interference by other persons, this right did not create an ownership interest sufficient to trigger an insurance policy’s owned-property exclusion. Towns v. N. Sec. Ins. Co., 2008 VT 98, 184 Vt. 322, 964 A.2d 1150, 2008 Vt. LEXIS 96 (2008).

Court was not persuaded that a policy exclusion for property in the “care of” the insured applied to groundwater. Read in context, the exclusion for “damage to property rented to, occupied or used by or in the care of the insured” implied a degree of custody and control over the property inconsistent with the character of groundwater in Vermont as a public resource; at a minimum, the “care of” exclusion was sufficiently ambiguous that it could not be said to clearly include a public resource beneath one’s property. Towns v. N. Sec. Ins. Co., 2008 VT 98, 184 Vt. 322, 964 A.2d 1150, 2008 Vt. LEXIS 96 (2008).

Cited.

Cited in Dague v. City of Burlington, 935 F.2d 1343, 1991 U.S. App. LEXIS 11997 (2d Cir. 1991).

Law Reviews —

For note regarding reforms in groundwater law, see 10 Vt. L. Rev. 479 (1985).

Subchapter 5. Interim Groundwater Withdrawal Permit

§ 1415. Repealed. 2005, No. 144 (Adj. Sess.), § 7.

History

Former § 1415. Former § 1415, relating to permit for interim groundwater withdrawal, was derived from 2005, No. 144 (Adj. Sess.), § 1.

Subchapter 6. Groundwater Withdrawal Program

§ 1416. Definitions.

As used in this subchapter:

  1. “Farming” means farming as the term is defined in subdivision 6001(22) of this title.
  2. “Groundwater” means water below the land surface, including springs.
  3. “Person” means any individual, partnership, company, corporation, cooperative, association, unincorporated association, joint venture, trust, the State of Vermont, or any department, agency, subdivision, or municipality, the U.S. government or any department, agency, or subdivision, or any other legal or commercial entity.
  4. “Spring” means a groundwater source where groundwater flows naturally to the surface of the earth and is collected with a developed structure that is designed to locate or extract groundwater.
  5. “Surface water” means waters within the meaning of subdivision 1251(13) of this title.
  6. “Water resources” means groundwater or surface water.
  7. “Well” means any hole drilled, driven, bored, excavated, or created by similar method into the earth to locate, monitor, extract, or recharge groundwater where the water table or potentiometric surface is artificially lowered through pumping.
  8. “Withdraw” or “withdrawal” means the intentional removal by any method or instrument of groundwater from a well, spring, or combination of wells or springs.

HISTORY: Added 2007, No. 199 (Adj. Sess.), § 2, eff. June 9, 2008.

§ 1417. Existing groundwater withdrawal; reporting.

  1. Beginning September 1, 2009, any person that withdraws more than 20,000 gallons per day, averaged over a calendar month at a single tract of land or place of business shall file a groundwater report with the Secretary of Natural Resources on or before September 1 for the preceding calendar year. The report shall be made on a form prescribed by the Secretary and shall include:
    1. the location, capacity, frequency, and rate of the withdrawal;
    2. a description of the use of the water withdrawn; and
    3. where feasible, the distance of each withdrawal from the nearest surface water source and wetland.
  2. The following are exempt from the reporting requirements of this section:
    1. a groundwater withdrawal for fire suppression or other public emergency purposes;
    2. a withdrawal reported to the Agency of Natural Resources under any program that requires the reporting of substantially similar data. The Agency of Natural Resources shall record such withdrawals with the information from withdrawals reported under this section;
    3. domestic, residential use;
    4. groundwater withdrawal for farming;
    5. dairy processors and milk handlers licensed in accordance with 6 V.S.A. § 2721 ;
    6. public water systems, as that term is defined in section 1671 of this title; and
    7. closed loop, standing column, or similar non-extractive geothermal heat pumps.
  3. The Secretary of Natural Resources may adopt rules to implement this section, including methods for calculating or estimating the amount of groundwater withdrawn from a well or spring.

HISTORY: Added 2007, No. 199 (Adj. Sess.), § 2, eff. June 9, 2008.

§ 1418. Groundwater withdrawal permit.

    1. On and after July 1, 2010, no person, for commercial or industrial uses, shall make a new or increased groundwater withdrawal of more than 57,600 gallons a day from any well or spring on a single tract of land or at a place of business without first receiving from the Secretary of Natural Resources a groundwater withdrawal permit. The following shall constitute a “new or increased withdrawal”: (a) (1) On and after July 1, 2010, no person, for commercial or industrial uses, shall make a new or increased groundwater withdrawal of more than 57,600 gallons a day from any well or spring on a single tract of land or at a place of business without first receiving from the Secretary of Natural Resources a groundwater withdrawal permit. The following shall constitute a “new or increased withdrawal”:
      1. the expansion of any existing withdrawal through:
        1. additional withdrawal from one or more new wells or springs; or
        2. an increase in the rate of withdrawal from a well or spring above the maximum rate set forth in any existing permit issued by the Secretary of Natural Resources under this section; or
      2. for previously unpermitted withdrawals, an increase in the rate of withdrawal after July 1, 2010 from a well or spring on a single tract of land or at a place of business of 25 percent of the baseline withdrawal or an increase of 57,600 gallons of groundwater withdrawn, whichever is smaller.
    2. For the purposes of this subsection, the baseline withdrawal shall be the highest amount withdrawn by a person between 2005 and 2010.
  1. The following are exempt from the permitting requirements of this section:
    1. a groundwater withdrawal for fire suppression or other public emergency purpose;
    2. domestic, residential use;
    3. groundwater withdrawal for farming;
    4. dairy processors and milk handlers licensed in accordance with 6 V.S.A. § 2721 ;
    5. public water systems, as that term is defined in section 1671 of this title; and
    6. closed loop, standing column, or similar non-extractive geothermal heat pumps.
  2. When an application is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title.
  3. Application for a permit shall be on a form prepared by the Secretary. An application shall, at a minimum, contain the information necessary to make the determinations contained in subsection (e) of this section, and the following:
    1. the purpose for the withdrawal;
    2. the location and source of the withdrawal;
    3. the amount of the proposed withdrawal, including estimates of the projected mean and peak daily, monthly, and annual withdrawals;
    4. the place of the proposed return flow of withdrawn water;
    5. the estimated amount of water that will not be returned to the watershed where the proposed withdrawal is located;
    6. the location, demand on, and yield of existing sources of groundwater and surface water utilized by the applicant; and
    7. a brief description of the alternative means considered for satisfying the applicant’s stated use for water.
  4. The Secretary shall not issue a permit for a new or increased groundwater withdrawal unless the Secretary determines:
    1. that the proposed withdrawal is planned in a fashion that provides for efficient use of the water;
    2. that the proposed withdrawal, in combination with other existing withdrawals, will meet the standards set by the Secretary of Natural Resources in rule for establishing a safe yield in the area of the withdrawal;
    3. that the proposed withdrawal is consistent with the town or regional plan in which the proposed withdrawal is located, and with any duly adopted State policy to manage groundwater as a shared resource for the benefit of all citizens of the State, including any policies and programs of the State of Vermont regarding long-range planning, management, allocation, and use of groundwater and surface water in effect at the time the application for the withdrawal is filed;
    4. that the proposed withdrawal will not have an undue adverse effect on existing uses of water dependent on the same water source;
    5. that the proposed withdrawal will not have an undue adverse effect on a public water system permitted by the Agency of Natural Resources;
    6. that the proposed withdrawal will not have an undue adverse effect on significant wetlands under the Vermont wetland rules or on other water resources hydrologically interconnected with the well or spring from which the proposed withdrawal would be made;
    7. that the proposed withdrawal will not violate the Vermont water quality standards; and
    8. any other consideration that the Secretary determines necessary for the conservation of water or protection of groundwater quality.
  5. A permit issued under this section shall be valid for the period of time specified in the permit but not for more than 10 years. A permit issued under this section shall include the following:
    1. that groundwater withdrawals from a well or spring for drinking water supplies, farming, or dairy processing shall be given priority over other uses during times of shortage; and
    2. any other condition that the Secretary determines necessary for the conservation of water or protection of groundwater quality.
  6. The Secretary may require any person withdrawing groundwater in the State to obtain a permit under this section if the withdrawal is not exempt under subsection (b) of this section and the Secretary determines that the withdrawal violates the Vermont water quality standards or has an undue adverse effect on an existing use of groundwater, a public water system permitted by the Agency of Natural Resources, wetlands, or water resources hydrologically interconnected with the well or spring from which the withdrawal occurs. The Secretary shall make a determination under this section based on review of the information set forth under subsection (d) of this section that is readily available to the Secretary.
  7. A withdrawal permit issued under this section may be transferred upon a change of ownership of the facility or project for which the permit was issued, provided that the new owner applies for an administrative amendment to the permit certifying its agreement to comply with all terms and conditions of the transferred permit and assume all other associated obligations.
  8. The following groundwater withdrawals shall be deemed to comply with the public trust requirements of the State for groundwater management and shall be entitled to a presumption that the withdrawal complies with the public trust requirements of the State:
    1. A groundwater withdrawal permitted under this section;
    2. A groundwater withdrawal for domestic, residential use;
    3. A groundwater withdrawal for public water systems, except for a bottled water facility operating under a source permit issued prior to June 9, 2008, permitted under chapter 56 of this title;
    4. A groundwater withdrawal for a potable water supply permitted under chapter 64 of this title;
    5. A groundwater withdrawal for farming conducted in compliance with the requirements of 6 V.S.A. chapter 215; and
    6. A groundwater withdrawal by a dairy processor or milk handler licensed in accordance with 6 V.S.A. § 2721 .
  9. On or before July 1, 2010, the Secretary shall adopt rules to implement this section. When rules are adopted by the Secretary under this section, section 1415 of this title shall be repealed. The rules adopted under this section shall include:
    1. requirements for the mitigation of an undue adverse effect on drinking water supplies, farming, public water systems, or any other affected use when the Secretary determines such an undue adverse effect is likely to occur due to a proposed withdrawal;
    2. requirements for the renewal of permits issued under this section.
  10. Nothing contained in this subchapter shall be construed to alter or modify a right under a deed or contract to access groundwater in this State.

HISTORY: Added 2007, No. 199 (Adj. Sess.), § 2, eff. June 9, 2008; amended 2009, No. 154 (Adj. Sess.), § 236; 2015, No. 150 (Adj. Sess.), § 19, eff. Jan. 1, 2018; 2019, No. 14 , § 35, eff. April 30, 2019.

History

Amendments

—2019. Subsec. (a): Amended generally.

—2015 (Adj. Sess.). Subsec. (c): Rewritten.

—2009 (Adj. Sess.) Subdiv. (c)(5): Substituted “environmental division” for “environmental court”.

§ 1419. Circumvention.

The Secretary may require a person to report under section 1417 of this title or obtain a permit under section 1418 of this title when the Secretary, in his or her discretion, determines that a withdrawal, subdivision of land, transfer of property, or other action is intended to circumvent the requirements of this subchapter.

HISTORY: Added 2007, No. 199 (Adj. Sess.), § 2, eff. June 9, 2008.

Chapter 48A. Abandoned Vessels

§ 1420. Vessels; abandonment prohibited; removal and disposition of abandoned vessels.

  1. Definitions.   In this chapter, unless the context clearly requires otherwise:
    1. “Abandon” means, with respect to a vessel, any of the following:
      1. to leave unattended on public waters or on immediately adjacent land for more than 30 days without the express consent of the Secretary or, if on immediately adjacent land, of the person in control of the land;
      2. to leave partially or fully submerged in public waters for more than 30 days without the express consent of the Secretary;
      3. to leave partially or fully submerged in public waters a petroleum-powered vessel for more than 48 hours without the express consent of the Secretary; or
      4. to leave unattended on public waters or on immediately adjacent land for any period if the vessel poses an imminent threat to navigation or to public health or safety.
    2. “Commissioner” means the Commissioner of Motor Vehicles or designee.
    3. “Law enforcement officer” means an individual described in 23 V.S.A. § 3302 who is certified by the Vermont Criminal Justice Council as a level II or level III law enforcement officer under 20 V.S.A. § 2358 .
      1. “Public waters” means: (4) (A) “Public waters” means:
        1. the portions of Lake Champlain, Lake Memphremagog, and the Connecticut River that are within the territorial limits of Vermont;
        2. boatable tributaries of Lake Champlain and Lake Memphremagog upstream to the first barrier to navigation, and impoundments and boatable tributaries of those impoundments of the Connecticut River upstream to the first barrier to navigation, within the territorial limits of Vermont; and
        3. all natural inland lakes, ponds, and rivers within Vermont, and other waters within the territorial limits of Vermont including the Vermont portion of boundary waters, that are boatable under the laws of this State.
      2. “Public waters” does not include waters in private ponds and private preserves as set forth in chapter 119 of this title.
    4. “Secretary” means the Secretary of Natural Resources or designee.
    5. “Storage operator” means:
      1. the Secretary, if storing an abandoned vessel after causing its removal pursuant to this section; or
      2. a person who stores a vessel removed pursuant to this section at the request of the Secretary, or a subsequent transferee thereof.
    6. “Vessel” means:
      1. a motorboat; or
      2. a sailboat, or other boat, that is 16 or more feet in length.
  2. Relationship with other laws.   The authority conferred to the Secretary and the penalties established in this section are in addition to authority granted or penalties established elsewhere in law, and nothing in this section shall be construed to modify any authority or the application of penalties under any other provision of law, including under chapter 47, 159, 201, or 211 of this title.
  3. Abandonment of vessels prohibited.
    1. Civil violation.   A person shall not abandon a vessel on public waters or immediately adjacent land. A person who violates this subdivision shall be subject to civil enforcement under chapters 201 and 211 of this title and, in any such enforcement action, the Secretary may obtain an order to recover costs specified in subdivision (d)(1) of this section incurred by the Agency of Natural Resources.
    2. Criminal violation.   A person shall not knowingly abandon a petroleum-powered vessel or knowingly abandon a vessel that poses an imminent threat to navigation or to public health or safety. A person who violates this subdivision shall be subject to a fine of up to $10,000.00.
    1. Removal of abandoned vessel.   Upon request from a law enforcement officer or at his or her own initiative, the Secretary shall promptly cause the removal and safe storage of a vessel that is abandoned as described in subdivision (a)(1) of this section, unless the vessel is to be removed by a federal agency. If removal is requested by a law enforcement officer, the Secretary shall make reasonable efforts to determine if the vessel qualifies as abandoned. In addition, the Secretary shall have the authority to take actions as may be necessary to eliminate risks to public health or safety caused by the condition of the vessel. (d) (1) Removal of abandoned vessel.   Upon request from a law enforcement officer or at his or her own initiative, the Secretary shall promptly cause the removal and safe storage of a vessel that is abandoned as described in subdivision (a)(1) of this section, unless the vessel is to be removed by a federal agency. If removal is requested by a law enforcement officer, the Secretary shall make reasonable efforts to determine if the vessel qualifies as abandoned. In addition, the Secretary shall have the authority to take actions as may be necessary to eliminate risks to public health or safety caused by the condition of the vessel.
    2. Responsibility for costs; lien.
      1. The owner of a vessel removed under the authority of this section shall be responsible for reasonable:
        1. removal costs;
        2. cleanup and disposal costs;
        3. storage costs incurred after the storage operator sends the Department of Motor Vehicles a notice of removal consistent with subdivision (e)(1) of this section; and
        4. costs of enforcing this section borne by the Secretary.
      2. Costs for which an owner is responsible under subdivision (d)(2)(A) of this section shall be a lien on the vessel held by the person who incurred the costs. Nothing in this subdivision (d)(2)(B) shall be construed to modify any rights or authority to recover such costs that may exist under any other provision of law.
    3. Limitation on liability.   Except in the case of intentionally inflicted damages, the Secretary shall not be liable to the owner or lienholder of an abandoned vessel for any damages to the vessel incurred during its removal or storage, or as a result of actions taken to eliminate risks to public health or safety caused by the condition of the vessel, in accordance with this section.
    1. Notice of removal and place of storage.   Within three business days of the date of removal of an abandoned vessel, the storage operator shall send notice to the Commissioner of: (e) (1) Notice of removal and place of storage.   Within three business days of the date of removal of an abandoned vessel, the storage operator shall send notice to the Commissioner of:
      1. the federal, state, or foreign registration number, and the hull identification number, of the vessel, if any;
      2. a description of the vessel, including its color, size, and, if available, its manufacturer’s trade name and manufacturer’s series name;
      3. the date of removal and the location from where the vessel was removed;
      4. the name and contact information of an individual at the Agency of Natural Resources who can provide information about the vessel’s removal and how to reclaim it; and
      5. the periodic storage charges that will apply, if any.
    2. Listing of removed vessel.   The Commissioner shall post and maintain on the website of the Department of Motor Vehicles a listing of vessels removed under the authority of this section with the information received under subdivision (1) of this subsection.
  4. Disposition following removal.
    1. As used in this subdivision:
      1. A “notice of intent” shall include the information described in subdivision (e)(1) of this section and an indication of the storage operator’s intent to take ownership or otherwise dispose of an abandoned vessel.
      2. The term “address” shall mean the plural “addresses” if more than one address is ascertained.
    2. Within 30 days after the date of removal of the abandoned vessel, a storage operator shall:
      1. Cause a notice of intent to be published in the environmental notice bulletin under 3 V.S.A. § 2826 .
      2. Make reasonable efforts to ascertain the address of the owner and any lienholder and, if the address is ascertained, send the notice of intent to the address by certified mail, return receipt requested. Reasonable efforts shall include inquiring of the person in control of the waters or land from which the abandoned vessel was removed, the clerk of the municipality in which the waters or land is located, the State Police, the Office of the Secretary of State, and the Department of Motor Vehicles as to the identity and address of the owner and any lienholder.
    3. Ownership of the vessel shall pass to the storage operator free of all claims of any prior owner or lienholder if the owner or lienholder has not reclaimed the vessel and paid all costs authorized under subdivision (d)(2) of this section within 60 days after the later of:
      1. publication in the environmental notice bulletin under 3 V.S.A. § 2826 ; or
      2. if the address of the owner or lienholder is ascertained, the date the notice of intent is mailed.
    4. If ownership passes to the storage operator under this subsection, the storage operator may sell, transfer, or otherwise dispose of the vessel. However, if the vessel is subject to titling under 23 V.S.A. chapter 36, the storage operator shall apply to the Commissioner for a title or salvage title as may be appropriate, and the Commissioner shall issue an appropriate title or salvage title, at no charge, if the storage operator offers sufficient proof that ownership of the vessel lawfully passed to the storage operator under this section.
  5. Owner and lienholder rights.   An owner or lienholder of an abandoned vessel removed from public waters or immediately adjacent land under this section may contest the removal, transfer of title, or other disposition of a vessel under this section, and the necessity or reasonableness of any costs described in subdivision (d)(2) of this section, by petitioning the Secretary. The contested case provisions of 3 V.S.A. chapter 25 shall govern any matter brought under this subsection. A person aggrieved by a final decision of the Secretary may appeal the decision to the Civil Division of the Superior Court. Nothing in this subsection shall be construed to interfere with the right of an owner or lienholder to contest these issues in any enforcement action brought by the Secretary.

HISTORY: Added 2017, No. 158 (Adj. Sess.), § 11.

History

Revision note

—2020. In subdiv. (a)(3), substituted “Vermont Criminal Justice Council” for “Vermont Criminal Justice Training Council” in accordance with 2019, No. 166 (Adj. Sess.), § 2(b).

Chapter 49. Protection of Navigable Waters and Shorelands

CROSS REFERENCES

General provisions relating to rivers and streams, see 25 V.S.A. § 141 et seq.

Management of lakes and ponds, see 29 V.S.A. § 401 et seq.

Motorboats, see 23 V.S.A. § 3301 et seq.

Regulation of shorelands, see 24 V.S.A. § 4411 .

Water pollution control generally, see § 1250 et seq. of this title.

§ 1421. Policy.

To aid in the fulfillment of the State’s role as trustee of its navigable waters and to promote public health, safety, convenience, and general welfare, it is declared to be in the public interest to make studies, establish policies, make plans, make rules, encourage and promote buffers adjacent to lakes, ponds, reservoirs, rivers, and streams of the State, encourage and promote protected river corridors adjacent to rivers and streams of the State, and authorize municipal shoreland and river corridor protection zoning bylaws for the efficient use, conservation, development, and protection of the State’s water resources. The purposes of the rules shall be to further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish, and aquatic life; control building sites, placement of structures, and land uses; reduce fluvial erosion hazards; reduce property loss and damage; preserve shore cover, natural beauty, and natural stability; and provide for multiple use of the waters in a manner to provide for the best interests of the citizens of the State.

HISTORY: Added 1969, No. 281 (Adj. Sess.), § 13; amended 2009, No. 110 (Adj. Sess.), § 2; 2011, No. 138 (Adj. Sess.), § 7, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Added “reduce fluvial erosion hazards” in the last sentence.

—2009 (Adj. Sess.) Inserted “encourage and promote buffers adjacent to lakes, ponds, reservoirs, rivers, and streams of the state, encourage and promote protected river corridors adjacent to rivers and streams of the state” and “and river corridor protection” preceding “zoning bylaws” in the first sentence, and “reduce property loss and damage” preceding “preserve shore”, deleted “and” preceding “natural beauty”, and inserted “, and natural stability” thereafter in the second sentence.

ANNOTATIONS

Cited.

Cited in Beyers v. Water Resources Board, 2006 VT 65, 180 Vt. 605, 910 A.2d 810, 2006 Vt. LEXIS 170 (2006) (mem.).

Law Reviews —

Recreational rights in public water overlying private property, see 8 Vt. L. Rev. 301 (1983).

§ 1422. Definitions.

In this chapter, unless the context clearly requires otherwise:

  1. “Agency” means the Agency of Natural Resources.
  2. “Board” means the Natural Resources Board.
  3. “Department” means Department of Environmental Conservation.
  4. “Navigable water” or “navigable waters” means Lake Champlain, Lake Memphremagog, the Connecticut River, all natural inland lakes within Vermont and all streams, ponds, flowages, and other waters within the territorial limits of Vermont, including the Vermont portion of boundary waters, that are boatable under the laws of this State.
  5. “Public shorelands” means State-owned lands adjacent to navigable waters.
  6. “Public waters” means navigable waters excepting those waters in private ponds and private preserves as set forth in sections 5204, 5205, 5206, and 5210 of this title.
  7. “Secretary” means the Secretary of Natural Resources or the Secretary’s duly authorized representative.
  8. “Shorelands” means the lands being between the normal mean water level of a lake, pond, or impoundment exceeding 20 acres and a line not less than 500 feet nor more than 1,000 feet from such mean water level.
  9. “Outstanding resource waters” mean waters of the State designated by the Secretary as having exceptional natural, recreational, cultural, or scenic values.
  10. “Buffer” means an undisturbed area consisting of trees, shrubs, ground cover plants, duff layer, and generally uneven ground surface that extends a specified distance horizontally across the surface of the land from the mean water level of an adjacent lake or from the top of the bank of an adjacent river or stream, as determined by the Secretary of Natural Resources.
  11. “Lake” means a body of standing water, including a pond or a reservoir, that may have natural or artificial water level control. Private ponds as defined under section 5210 of this title, and reservoirs specifically constructed for the following purposes shall not be considered lakes: snowmaking storage, golf course irrigation, stormwater management, and fire suppression.
  12. “River corridor” means the land area adjacent to a river that is required to accommodate the dimensions, slope, planform, and buffer of the naturally stable channel and that is necessary for the natural maintenance or natural restoration of dynamic equilibrium conditions and for minimization of fluvial erosion hazards, as delineated by the Agency of Natural Resources in accordance with river corridor protection procedures.
  13. “River” means the full length and width, including the bed and banks, of any watercourse, including rivers, streams, creeks, brooks, and branches, which experience perennial flow. “River” does not mean constructed drainageways, including water bars, swales, and roadside ditches.
  14. “Equilibrium condition” means the width, depth, meander pattern, and longitudinal slope of a stream channel that occurs when water flow, sediment, and woody debris are transported by the stream in such a manner that it generally maintains dimensions, pattern, and slope without unnaturally aggrading or degrading the channel bed elevation.
  15. “Flood hazard area” shall have the same meaning as “area of special flood hazard” under 44 C.F.R. § 59.1.
  16. “Fluvial erosion” means the erosion or scouring of riverbeds and banks during high flow conditions of a river.
  17. “Geomorphic condition” means the degree of departure from the dimensions, pattern, and profile associated with a naturally stable channel representing the unique dynamic equilibrium condition of a river segment.
  18. “Infrastructure” means public and private buildings, roads, and public works, including public and private buildings; State and municipal highways and roads; bridges; sidewalks and other traffic enhancements; culverts; private roads; public and private utility construction, State and municipal public works, cemeteries, and public parks and fields.
  19. “River corridor protection area” means the area within a delineated river corridor subject to fluvial erosion that may occur as a river establishes and maintains the dimension, pattern, and profile associated with its dynamic equilibrium condition and that would represent a hazard to life, property, and infrastructure placed within the area.
  20. “Sensitivity” means the potential of a river, given its inherent characteristics and present geomorphic conditions, to be subject to a high rate of fluvial erosion and other river channel adjustments, including erosion, deposit of sediment, and flooding.

HISTORY: Added 1969, No. 281 (Adj. Sess.), § 13; amended 1973, No. 147 (Adj. Sess.), § 1; 1987, No. 67 , § 2; 1987, No. 76 , § 18; 2003, No. 115 (Adj. Sess.), § 34, eff. Jan. 31, 2005; 2009, No. 110 (Adj. Sess.), § 3; 2011, No. 138 (Adj. Sess.), §§ 8, 27, eff. May 14, 2012.

History

Revision note

—2015. In subdiv. (1), deleted “the Water Resources Panel of” pursuant to the repeal of that panel by 2013, No. 11 , § 9 and to the revision authority granted by 2011 (Adj. Sess.), No. 138, § 27 and 2013, No. 11 , § 25.

Amendments

—2011 (Adj. Sess.). Subdiv. (9): Substituted “secretary” for “board”.

Subdiv. (12): Substituted “and that is necessary for the natural maintenance or natural restoration of dynamic equilibrium conditions and for minimization of fluvial erosion hazards” for “and necessary to maintain or restore fluvial equilibrium conditions and minimize fluvial erosion”.

Subdivs. (14)-(20): Added.

—2009 (Adj. Sess.) In subdiv. (8), substituted “water level” for “water mark” in two places, “20” for “twenty”, “500” for “five-hundred”, and “1,000” for “one-thousand”, added subdivs. (10)-(13), and made minor changes in punctuation throughout the section.

—2003 (Adj. Sess.). Subdiv. (2): Substituted “the water resources panel of the natural resources” for “water resources”.

Subdiv. (7): Inserted “or the secretary’s duly authorized representative” following “natural resources”.

—1987. Subdiv. (1): Act No. 76 substituted “agency of natural resources” for “agency of environmental conservation”.

Subdiv. (3): Act No. 76 substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

Subdiv. (9): Added by Act No. 67.

—1973 (Adj. Sess.). Section amended generally.

Statutory revision. 2011, No. 138 (Adj. Sess.), § 27 provides: “To effect the purpose of this act of transferring the rulemaking authority of the water resources panel to the secretary of natural resources, the office of legislative council is directed to revise the existing Vermont Statutes Annotated and, where applicable, replace the terms ‘natural resources board,’ ‘water resources panel of the natural resources board,’ ‘water resources panel,’ ‘water resources board,’ and similar terms with the term ‘secretary of natural resources,’ ‘secretary,’ ‘agency of natural resources,’ ‘agency,’ ‘department of environmental conservation,’ or ‘department’ as appropriate, including the following revisions:

“(1) in 10 V.S.A. §§ 913 and 915, by replacing ‘panel’ with ‘department’;

“(2) in 10 V.S.A. chapter 47, by replacing ‘board’ with ‘secretary’ where appropriate;

“(3) in 10 V.S.A. §§ 1422 and 1424, by replacing ‘board’ with ‘secretary’ where appropriate; and

“(4) in 29 V.S.A. §§ 401 , 402, and 403, by replacing ‘board’ with “department’ where appropriate.”

Law Reviews —

Recreational rights in public water overlying private property, see 8 Vt. L. Rev. 301 (1983).

§ 1423. Water resources and shoreland use plan.

  1. The Secretary shall make studies, establish policies, and make plans for the efficient use, conservation, development, and protection of the State’s water resources and:
    1. On the basis of these studies and plans, make recommendations to State agencies relative to their water resources activities.
    2. Locate and maintain information relating to the State’s water resources. The Secretary shall collect pertinent data available from State, regional, and federal agencies, the University of Vermont, Vermont State Colleges, local units of government, and other sources.
    3. Public shorelands in which the existing use is exclusively as a public water supply and public shorelands in which the potential use may be as a public water supply shall be classified on that basis.
    4. Serve as a clearinghouse for information relating to water resources including referring citizens and local units of government to the appropriate sources for advice and assistance in connection with particular water use problems.
  2. The Secretary shall prepare a comprehensive plan relating to water resources as a guide for the preparation of a State, regional, or municipal land use or development plan. The plan shall be based on the classification of waters pursuant to chapter 47 of this title. The plan shall to the extent possible give consideration to any existing regional or municipal plans that are compatible with the interests of the State. The primary purpose of the plan shall be for the preventive control of pollution, giving due consideration to necessary development and growth. The plans shall be governed by the following general standards:
    1. Domestic uses shall be generally preferred.
    2. Uses not inherently a source of pollution within an area shall be preferred over uses that are or may be a pollution source.
    3. Areas in which the existing or potential economic value of public, recreational or similar uses exceeds the existing or potential economic value of any other use shall be classified primarily on the basis of the higher economic use value.
    4. Use locations within an area tending to minimize the possibility of pollution shall be preferred over use locations tending to increase that possibility.
    5. Use dispersions within an area shall be preferred over concentrations of uses or their undue proximity to each other.
    6. Particular attention shall be given to safe and healthful conditions for the enjoyment of aquatic recreation; the demands of water traffic, boating, and water sports; the capability of the water resource; requirements necessary to ensure proper operation of septic tank disposal fields near navigable waters; building setbacks from the water; preservation of shore growth and cover; conservancy uses for low lying lands; and shoreland layout for residential and commercial developments.
  3. [Repealed.]

HISTORY: Added 1969, No. 281 (Adj. Sess.), § 13; amended 1973, No. 147 (Adj. Sess.), § 2; 1989, No. 265 (Adj. Sess.), § 2; 1989, No. 265 (Adj. Sess.), § 10(b), eff. March 1, 1994; 2003, No. 115 (Adj. Sess.), § 35, eff. Jan. 31, 2005; 2015, No. 97 (Adj. Sess.), § 22.

History

Amendments

—2015 (Adj. Sess.). Subsec. (a): Deleted “the natural resources board and existing” following “recommendations to” in subdiv. (1), rewrote subdiv. (2), deleted the undesignated paragraph, and substituted “clearinghouse” for “clearing house” preceding “for information” in subdiv. (4).

—2003 (Adj. Sess.). Subdiv. (a)(1): Inserted “natural resources” preceding “board” and made minor changes in punctuation.

—1989 (Adj. Sess.). Subsec. (c): Added by Act No. 265, § 2; repealed by Act No. 265, § 10(b).

—1973 (Adj. Sess.). Subsec. (a): Substituted “secretary” for “department” in the introductory clause and in the second sentence of subdiv. (2).

Subsec. (b): Substituted “secretary” for “department”.

Law Reviews —

Recreational rights in public water overlying private property, see 8 Vt. L. Rev. 301 (1983).

§ 1424. Use of public waters.

  1. The Secretary may establish rules to implement the provisions of this chapter, including:
    1. Rules to regulate the use of public waters of the State by:
      1. defining areas on public waters wherein certain uses may be conducted;
      2. defining the uses which may be conducted in the defined areas;
      3. regulating the conduct in these areas, including the size of motors allowed, size of boats allowed, allowable speeds for boats, and prohibiting the use of motors or houseboats;
      4. regulating the time various uses may be conducted.
    2. Rules to govern the surface levels of lakes, ponds, and reservoirs that are public waters of the State.
  2. The Secretary in establishing rules under subdivision (a)(2) of this section shall consider the size and flow of the navigable waters, the predominant use of adjacent lands, the depth of the water, the predominant use of the waters prior to regulation, the uses for which the water is adaptable, the availability of fishing, boating, and bathing facilities, the scenic beauty, and recreational uses of the area.
  3. The Secretary shall attempt to manage the public waters so that the various uses may be enjoyed in a reasonable manner, in the best interests of all the citizens of the State. To the extent possible, the Secretary shall provide for all normal uses.
  4. [Repealed.]
  5. On receipt of a written request that the Secretary adopt, amend, or repeal a rule with respect to the use of public waters signed by not less than one person, the Secretary shall consider the adoption of rules authorized under this section and take appropriate action as required under 3 V.S.A. § 806 .
  6. By rule, the Secretary may delegate authority under this section for the regulation of public waters where:
    1. The delegation is to a municipality that is adjacent to or which contains the water; and
    2. The municipality accepts the delegation by creating or amending a bylaw or ordinance for regulation of the water. Appeals from a final act of the municipality under the bylaw or ordinance shall be taken to the Environmental Division. The Secretary may terminate a delegation for cause or without cause upon six months’ notice to the municipality.

HISTORY: Added 1969, No. 281 (Adj. Sess.), § 13; amended 1973, No. 147 (Adj. Sess.), § 3; 1979, No. 113 (Adj. Sess.), § 1; 1981, No. 222 (Adj. Sess.), §§ 27, 28; 2003, No. 115 (Adj. Sess.), § 36, eff. Jan. 31, 2005; 2003, No. 115 (Adj. Sess.), § 37; 2011, No. 138 (Adj. Sess.), § 23, eff. May 14, 2012.

History

References in text.

Sections 320 and 321 of Title 25, referred to in subsec. (d), were repealed by 1983, No. 212 (Adj. Sess.), § 7. The subject matter of the repealed sections is now covered by §§ 3320 and 3321 of Title 23.

Amendments

—2011 (Adj. Sess.). Amended the section generally.

—2009 (Adj. Sess.) Subdiv. (f)(2): Substituted “environmental division” for “environmental court”.

—2003 (Adj. Sess.). Subsec. (e): Substituted “receipt of a written request that the board adopt, amend, or repeal a rule with respect to the use of public waters” for “a petition”, “one person” for “ten freemen or the legislative body of a municipality”; deleted “or promulgated” following “authorized” and inserted “and take appropriate action as required under 3 V.S.A. § 806 ” following “under this section”.

Subdiv. (f)(2): Inserted “under the bylaw or ordinance” following “municipality” and substituted “environmental court” for “board”.

—1981 (Adj. Sess.). Deleted “and shorelands” following “waters” in the catchline.

Subsec. (d): Deleted “and lands” preceding “otherwise controlled by this section” and substituted “that” for “such” preceding “other agency’s” and “sections 320 and 321” for “sections 318 and 319”.

—1979 (Adj. Sess.). Subsec. (f): Added.

—1973 (Adj. Sess.). Subsec. (a): Deleted “and public shorelands” following “public waters” in the introductory clause and “and public shorelines” following “public waters” in subdiv. (1).

Subsec. (b): Deleted “and lands” following “uses for which the water” and substituted “is” for “are” preceding “adaptable”.

Subsec. (c): Deleted “and public shorelands” following “public waters” in the first sentence.

Effect of section upon municipal charters. 1979, No. 113 (Adj. Sess.), § 2, provided: “Nothing in this act [which added subsec. (f)] shall be read to limit or repeal the terms of any municipal charter.”

CROSS REFERENCES

Motorboats, see 23 V.S.A. § 3301 et seq.

ANNOTATIONS

Cited.

Cited in Beyers v. Water Resources Board, 2006 VT 65, 180 Vt. 605, 910 A.2d 810, 2006 Vt. LEXIS 170 (2006) (mem.).

Law Reviews —

Recreational rights in public water overlying private property, see 8 Vt. L. Rev. 301 (1983).

§ 1424a. Outstanding resource waters.

  1. The Secretary, on his or her own motion, may hold a public hearing on the question of whether particular waters should be designated as outstanding resource waters, or whether an existing designation should be amended or repealed. On receipt of a signed written request, the Secretary shall consider the adoption, amendment, or repeal of rules regarding outstanding resource water designation and shall take appropriate action as required under 3 V.S.A. § 806 . Any hearing shall be held convenient to the waters in question, or in a county where the waters are located.
  2. Any hearing shall be conducted as part of the rulemaking process established under 3 V.S.A. chapter 25.
  3. [Repealed.]
  4. In making its rulemaking decision, the Secretary may consider, but shall not be limited to considering, the following:
    1. existing water quality and current water quality classification;
    2. the presence of aquifer protection areas;
    3. the waters’ value in providing temporary water storage for flood water and storm runoff;
    4. the waters’ value as fish habitat;
    5. the waters’ value in providing or maintaining habitat for threatened or endangered plants or animals;
    6. the waters’ value in providing habitat for wildlife, including stopover habitat for migratory birds;
    7. the presence of gorges, rapids, waterfalls, or other significant geologic features;
    8. the presence of scenic areas and sites;
    9. the presence of rare and irreplaceable natural areas;
    10. the presence of known archeological sites;
    11. the presence of historic resources, including those designated as historic districts or structures;
    12. existing usage and accessibility of the waters for recreational, educational, and research purposes and for other public uses;
    13. studies, inventories and plans prepared by local, regional, statewide, national, or international groups or agencies, that indicate the waters in question merit protection as outstanding resource waters;
    14. existing alterations, diversions or impoundments by permit holders under State or federal law.
  5. After consideration of all relevant information, the Secretary shall adopt rules designating the waters as outstanding resource waters if it finds that they have exceptional natural, recreational, cultural, or scenic values. Designation as outstanding resource waters shall not invalidate the terms of existing permits issued by the State or federal government.

HISTORY: Added 1987, No. 67 , § 3; amended 1987, No. 74 , § 18; 2003, No. 115 (Adj. Sess.), § 38, eff. Jan. 31, 2005; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Substituted “secretary” for “board” and made conforming changes.

—2003 (Adj. Sess.). Subsec. (a): Substituted “may” for “or upon petition by a state agency, a municipality, or 30 or more persons who can demonstrate an interest under subsection (e) of this section, shall”; deleted “in a timely manner” following “hearing”; added the present second sentence; and substituted “Any” for “The” at the beginning of the present third sentence.

Subsec. (b): Rewrote the subsec.

Subsec. (c): Deleted.

Subsec. (d): Inserted “rulemaking” preceding “decision”.

Subsec. (e): Substituted “After consideration of all relevant information” for “Upon consideration of the evidence” and “adopt rules designating” for “designate”.

—1987. Subsec. (b): Substituted “agency of natural resources” for “agency of environmental conservation” at the end of the first sentence.

Legislative policy and intent. 1987, No. 67 , § 1, provided: “It is the policy of the state to designate certain waters as outstanding resource waters. The designation of outstanding resource waters shall constitute one element of the state comprehensive plan for rivers conservation, for the purposes of the Federal Power Act amendments of 1986 (Act Oct. 16, 1986, P.L. 99-495, 100 Stat. 1243). Outstanding resource waters, so designated, shall also constitute state protected waterways with respect to the provisions of PURPA under section 10(a) of 16 U.S.C. 800.”

Statutory revision. 2011, No. 138 (Adj. Sess.), § 27 provides: “To effect the purpose of this act of transferring the rulemaking authority of the water resources panel to the secretary of natural resources, the office of legislative council is directed to revise the existing Vermont Statutes Annotated and, where applicable, replace the terms ‘natural resources board,’ ‘water resources panel of the natural resources board,’ ‘water resources panel,’ ‘water resources board,’ and similar terms with the term ‘secretary of natural resources,’ ‘secretary,’ ‘agency of natural resources,’ ‘agency,’ ‘department of environmental conservation,’ or ‘department’ as appropriate.”

§ 1425. Shoreland protection bylaws.

  1. The Secretary of Natural Resources shall establish a shoreland management program to aid and support municipalities in adopting municipal shoreland bylaws that comply with 24 V.S.A. § 4411 . The Secretary shall prepare and provide general recommended standards and criteria for shoreland bylaws utilizing the criteria set forth in section 1423 of this title. On or before February 2011, the Secretary shall develop best management practices for the management of shorelands, including buffers within shorelands, and other management techniques designed to protect the quality of public waters. The Secretary shall assist the regional planning commissions in preparing appropriate sample bylaws that conform to the intent of this section.
  2. The Secretary, the municipalities, and all State agencies shall mutually cooperate to accomplish the objectives of this section. To that end, the Secretary shall consult with the governing bodies of municipalities and shall extend all possible assistance. The Secretary shall provide appropriate sample bylaws by September 1, 1974. By September 1, 1974 the Secretary shall also contact every municipality with shorelands:
    1. commenting on their existing shoreland bylaws; and
    2. providing them with a detailed and specific program as to the steps necessary to adopt shoreland bylaws. In contacting municipalities, the Secretary shall send copies of his correspondence by certified mail to the selectboard, town clerk, and planning commission. Copies of this correspondence should also be sent to the regional planning commission for that municipality, the State planning office and the Agency of Commerce and Community Development.
  3. On or before January 15, 1975 and again on or before January 15, 1976 the Secretary shall make a complete and definitive report to the General Assembly on the status of shoreland zoning in Vermont. This report shall contain a municipality-by-municipality analysis of which municipalities have received appropriate sample bylaws and what actions, if any, have been taken thereon by the municipalities.
  4. This section and 24 V.S.A. § 4411 shall be construed together to accomplish the purposes and objectives of this section.
  5. Beginning February 1, 2011, the Secretary of Administration, after consultation with the State agencies of relevant jurisdiction, shall offer financial incentives to municipalities through existing grants and pass-through funding programs that encourage municipal adoption and implementation of zoning bylaws that protect shorelands and buffers.

HISTORY: Added 1969, No. 281 (Adj. Sess.), § 13; amended 1973, No. 147 (Adj. Sess.), §§ 4, 5; 1995, No. 190 (Adj. Sess.), § 1(a); 2009, No. 110 (Adj. Sess.), § 4.

History

Revision note

—2018. Substituted “selectboard” for “selectmen” in accordance with 2013, No. 161 , § 72.

Amendments

—2009 (Adj. Sess.) Subsec. (a): Rewrote the former first sentence as the present first and second sentences and added the third sentence.

Subsec. (e): Added.

—1995 (Adj. Sess.) Subdiv. (b)(2): Substituted “agency of commerce and community development” for “agency of development and community affairs”.

—1973 (Adj. Sess.). Subsec. (a): Substituted “secretary” for “department”, “regional planning commissions” for “central planning office” and “sample bylaws” for “model bylaws”.

Subsec. (b): Amended generally.

Subsec. (c): Added. Former subsec. (c) redesignated as present subsec. (d).

Subsec. (d): Redesignated from former subsec. (c).

§ 1426. Penalty.

Any person who violates a rule adopted under this chapter shall be subject to the civil penalty provision of 23 V.S.A. § 3317(b) .

HISTORY: Added 1969, No. 281 (Adj. Sess.), § 13; amended 1989, No. 65 , § 15; 1999, No. 42 , § 2, eff. May 25, 1999; 2019, No. 14 , § 36, eff. April 30, 2019.

History

Amendments

—2019. Substituted “adopted” for “promulgated”.

—1999. Section amended generally.

—1989. Inserted “except for a rule promulgated pursuant to section 1424 (pertaining to the operation of vessels) which shall be subject to the penalty provision of 23 V.S.A. § 3317(b) ” following “thereunder”.

§ 1427. River corridors and buffers.

  1. River Corridor and Floodplain Management Program.   The Secretary of Natural Resources shall establish a River Corridor and Floodplain Management Program to aid and support the municipal adoption of a flood resilience plan under 24 V.S.A. § 4382 and of river corridor, floodplain, and buffer bylaws. Under the River Corridor and Floodplain Management Program, the Secretary shall:
    1. assess the geomorphic condition and sensitivity of the rivers of the State and identify where the sensitivity of a river poses a probable risk of harm to life, property, or infrastructure;
    2. delineate and map river corridors based on the river sensitivity assessments required under subdivision (1) of this subsection according to a priority schedule established by the Secretary by procedure; and
    3. develop recommended best management practices for the management of river corridors, floodplains, and buffers.
  2. River sensitivity assessment; Secretary’s discretion.   Notwithstanding the schedule established by the Secretary under subdivision (a)(2) of this section, the Secretary may complete a sensitivity assessment for a river if, in the Secretary’s discretion, the sensitivity of a river and the risk it poses to life, property, and infrastructure require an expedited assessment.
  3. Municipal consultation during river assessment.   Prior to and during an assessment of river sensitivity required under subsection (a) of this section, the Secretary shall consult with the legislative body or designee of municipalities and the regional planning commissions in the area in which a river is located.

HISTORY: Added 2009, No. 110 (Adj. Sess.), § 5; amended 2011, No. 138 (Adj. Sess.), § 9, eff. May 14, 2012; 2013, No. 16 , § 7, eff. July 1, 2014.

History

Amendments

—2013. Subsec. (a): Inserted “a flood resilience plan under 24 V.S.A. § 4382 and of” preceding “river”.

—2011 (Adj. Sess.). Amended the section generally.

§ 1428. River corridor protection.

  1. River corridor maps.   Upon completion of a sensitivity assessment for a river or river segment under section 1427 of this title, the Secretary shall provide to each municipality and regional planning commission in which the river or river segment is located a copy of the sensitivity assessment and a river corridor map for the municipality and region. A river corridor map provided to a municipality and regional planning commission shall identify floodplains, river corridor protection areas, flood hazard areas, and other areas or zones indicated on a Federal Emergency Management Agency flood insurance rate map, and shall recommend best management practices, including vegetated buffers, based on site-specific conditions. The Secretary shall post a copy of the sensitivity assessment and river corridor map to the Agency of Natural Resources’ website. A municipality with a mapped river or river segment shall post a copy of a sensitivity assessment and river corridor map received under this subsection in the municipal offices and on the municipality’s website, if the municipality regularly updates its website. A regional planning commission shall post a sensitivity assessment or river corridor map received under this subsection in the commission’s offices and on the commission’s website. When a sensitivity assessment or a river corridor map is provided to a municipality, provided to a regional planning commission, or posted on the Agency website, the Agency shall provide all information, including the supportive data, in a digital format.
  2. River corridor protection area bylaw.   The Secretary shall create and make available to municipalities several alternative model river corridor protection area bylaws or ordinances for potential adoption by municipalities pursuant to 24 V.S.A. chapter 117 or 24 V.S.A. § 2291 . The model bylaws or ordinances shall use terminology consistent with the National Flood Insurance Program regulations.
  3. Flood Resilient Communities Program; incentives.   No later than February 1, 2013, the Secretary of Administration, after consultation with the State agencies of relevant jurisdiction, shall offer financial incentives through a Flood Resilient Communities Program. The Program shall list the existing financial incentives under State law for which municipalities may apply for financial assistance, when funds are available, for municipal adoption and implementation of bylaws under 24 V.S.A. chapter 117 that protect river corridors and floodplains. The Secretary of Natural Resources shall summarize minimum standards for municipal eligibility for any financial incentives established under this subsection.

HISTORY: Added 2011, No. 138 (Adj. Sess.), § 10, eff. May 14, 2012.

Chapter 49A. Lake Shoreland Protection Standards

History

Transition. 2013, No. 172 (Adj. Sess.), § 9 provides: “A permit or registration under 10 V.S.A. chapter 49A for the creation of impervious surface or cleared area within a protected shoreland area shall not be required on a parcel of land for a project for which:

“(1) all necessary State, local, or federal permits have been obtained prior to the effective date of this act [July 1, 2014] and the permit holder takes no subsequent act that would require a permit or registration under 10 V.S.A. chapter 49A; or

“(2) a complete application for all applicable local, State, and federal permits has been submitted on or before the effective date of this act [July 1, 2014], provided that the applicant does not subsequently file an application for a permit amendment that would require a permit under 10 V.S.A. chapter 49A and substantial construction of the impervious surface or cleared area commences within two years of the date on which all applicable local, State, and federal permits become final.”

§ 1441. Purpose.

The purposes of this chapter shall be to:

  1. provide clear and adaptable standards for the creation of impervious surface or cleared area in lands adjacent to lakes;
  2. prevent degradation of water quality in lakes and preserve natural stability of shoreline;
  3. protect aquatic biota and protect habitat for wildlife and aquatic life;
  4. mitigate, minimize, and manage any impact of new impervious surface and new cleared area on the lakes of the State;
  5. mitigate the damage that floods and erosion cause to development, structures, and other resources in the lands adjacent to lakes;
  6. accommodate creation of cleared areas and impervious surfaces in protected shoreland areas in a manner that allows for reasonable development of existing parcels;
  7. protect shoreland owners’ access to, views of, and use of the State’s lakes; and
  8. preserve and further the economic benefits and values of lakes and their adjacent shorelands.

HISTORY: Added 2013, No. 172 (Adj. Sess.), § 2.

§ 1442. Definitions.

As used in this chapter:

  1. “Agency” means the Agency of Natural Resources.
  2. “Best management practices” means approved activities, maintenance procedures, and other practices to prevent or reduce the effects of impervious surface or cleared area on water quality and natural resources.
  3. “Cleared area” means an area where existing vegetative cover, soil, tree canopy, or duff is permanently removed or altered. Cleared area shall not mean management of vegetative cover conducted according to the requirements of section 1447 of this title.
  4. “Duff” means leaf litter plus small fragments of plants and organic debris that provide a spongy substrate that absorbs the energy of falling water and allows runoff to infiltrate soil.
  5. “Expansion” means an increase or addition of impervious surface or cleared area.
  6. “Grass lawn” means land maintained in continuous plant coverage of grasses and similar plants that are closely and regularly mowed, including meadow or pasture on nonagricultural land. “Grass lawn” does not include pasture cropland, land used to grow sod, or similar land used for agricultural production.
  7. “Habitable structure” means a permanent assembly of materials built for the support, shelter, or enclosure of persons, animals, goods, or property, including a dwelling, a commercial or industrial building, and driveways, decks, and patios attached or appurtenant to a dwelling or commercial or industrial building. “Habitable structure” shall not mean a motor home, as that term is defined under 32 V.S.A. § 8902 , tents, lean-tos, or other temporary structures.
  8. “Highway” shall have the same meaning as in 19 V.S.A. § 1(12) .
  9. “Impervious surface” means those manmade surfaces, including paved and unpaved roads, parking areas, roofs, driveways, and walkways, from which precipitation runs off rather than infiltrates.
  10. “Lake” means a body of standing water, including a pond or a reservoir, which may have natural or artificial water level control. Private ponds shall not be considered lakes.
  11. “Management road” shall have the same meaning as in 19 V.S.A. § 1(13) .
  12. “Mean water level” means the mean water level of a lake as defined in the Mean Water Level Rules of the Agency of Natural Resources adopted under 29 V.S.A. § 410 .
  13. “Parcel” means a portion of land or a tract of land with defined boundaries created by dividing the land by sale, gift, lease, mortgage foreclosure, court-ordered partition or decree, or filing of a plat, plan, or deed in the records of the municipality where the act of division occurred.
  14. “Private pond” means a body of standing water that is a natural water body of not more than 20 acres located on property owned by a person or an artificial water body of any size located on property owned by one person. A “private pond” shall include a reservoir specifically constructed for one of the following purposes: snowmaking storage, golf course irrigation, stormwater management, or fire suppression.
  15. “Private road” means a road or street other than a highway, as that term is defined in 19 V.S.A. § 1(12) , that is owned by one or more persons and that is used as a means of travel from a highway to more than one parcel of land.
  16. “Project” means an act or activity that results in cleared area or the creation of impervious surface in a protected shoreland area.
  17. “Protected shoreland area” means all land located within 250 feet of the mean water level of a lake that is greater than 10 acres in surface area.
  18. “Secretary” means the Secretary of Natural Resources or the Secretary’s duly authorized representative.
  19. “Slope” means the vertical rise divided by the horizontal run of a plane expressed as a percentage.
  20. “State forest highway” shall have the same meaning as in 19 V.S.A. § 1(19) .
  21. “Stormwater runoff” means precipitation and snowmelt that does not infiltrate into the soil, including material dissolved or suspended in it, but does not include discharges from undisturbed natural terrain or wastes from combined sewer overflows.
  22. “Vegetative cover” means mixed vegetation within the protected shoreland area, consisting of trees, shrubs, groundcover, and duff. “Vegetative cover” shall not mean grass lawns, noxious weeds designated by the Secretary of Agriculture, Food and Markets under 6 V.S.A. chapter 84, or nuisance plants, such as poison ivy and poison oak, designated by the Secretary of Natural Resources.

HISTORY: Added 2013, No. 172 (Adj. Sess.), § 2.

§ 1443. Individual permit requirements for impervious surface or cleared area in a protected shoreland area.

  1. Permit requirement.   A person shall not create cleared area or impervious surface in a protected shoreland area without a permit from the Secretary issued under this section, except for activities authorized to occur without a permit under section 1446 of this title.
  2. Permit issuance.   The Secretary shall issue a permit under this section if the proposed impervious surface or cleared area meets the requirements of section 1444 or 1445 of this title.
  3. Permit process.   When an application is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title.
  4. Permit condition.   A permit issued under this section may include permit conditions, including authorizing a permittee, no more frequently than two times per year, to clear vegetative cover within three feet of both sides of a footpath within the protected shoreland area in order to allow access to the mean water level for maintenance or repair of recreational structures or for other activity approved by the Secretary.
  5. Permit term.   Individual permits issued under this section shall be for an indefinite term, provided that the permittee complies with the requirements of the permit and takes no additional action for which an individual permit is required.
  6. Recording.   A permit or registration issued under this chapter shall, for the purposes of having the permit or registration run with the land, be recorded in the land records of the municipality in which the impervious surface or cleared area is located.
  7. Public recreational areas.   Notwithstanding the requirements of sections 1444 and 1445 of this title, the Secretary shall issue a permit under this chapter for a public recreational area project if the permit applicant demonstrates and the Secretary finds that:
    1. the recreational activity provides access to the water for the general public and promotes the public trust uses of the water;
    2. the impervious surface or cleared area is necessary to achieve the recreational purpose of the project, and the project must be constructed within the protected shoreland area to achieve its recreational function; and
    3. the project conforms with best management practices approved by the Secretary that protect the habitat and water quality of the lake while achieving the public recreational purposes.

HISTORY: Added 2013, No. 172 (Adj. Sess.), § 2; amended 2015, No. 150 (Adj. Sess.), § 20, eff. Jan. 1, 2018.

History

Amendments

—2015 (Adj. Sess.). Subsec. (c): Rewritten.

§ 1444. Permit standards.

  1. Permit standards; generally.   Except for permits issued under section 1445 of this title, the Secretary shall issue a permit under this chapter if the permit applicant, including the State of Vermont, demonstrates that:
    1. cleared area or impervious surface shall be located at least 100 feet from the mean water level, except for shoreland stabilization measures designed to repair or prevent erosion or flood risks and approved by the Secretary;
    2. cleared area or impervious surface within the protected shoreland area shall be located on a site:
      1. with a slope of less than 20 percent; or
      2. that will have a stable slope with minimal erosion and minimal negative impacts to water quality;
      1. no more than 20 percent of the protected shoreland area of the parcel shall consist of impervious surface; or (3) (A) no more than 20 percent of the protected shoreland area of the parcel shall consist of impervious surface; or
      2. best management practices will be used to manage, treat, and control erosion due to stormwater runoff from that portion of impervious surface that exceeds 20 percent of the protected shoreland area;
      1. no more than 40 percent of the protected shoreland area of the parcel shall consist of cleared area, including area cleared for the purposes of creating impervious surface; or (4) (A) no more than 40 percent of the protected shoreland area of the parcel shall consist of cleared area, including area cleared for the purposes of creating impervious surface; or
      2. best management practices will be used to provide erosion control, bank stability, and wildlife habitat functionally equivalent to that which would be provided by clearing less than 40 percent of the protected shoreland area; and
    3. vegetative cover shall be managed according to the requirements of section 1447 of this title.
  2. Repair of highway, State forest highway, management road, or private road.   Under this chapter, when the repair, emergency repair, or replacement of a highway, management road, State forest highway, or private road results in the construction, creation, or expansion of impervious surface or cleared area on a property adjacent to the highway, management road, State forest highway, or private road, the impervious surface or cleared area constructed or created on the adjacent property shall not be calculated as square footage of impervious surface or cleared area for purposes of permitting or registration under this chapter.
  3. Calculation of area.   Under this chapter, the area of constructed, created, or expanded impervious surface or cleared area shall be the square footage as measured on a horizontal plane.

HISTORY: Added 2013, No. 172 (Adj. Sess.), § 2.

§ 1445. Nonconforming parcels; permit standards.

  1. Permit for nonconforming parcels.   A permit applicant shall comply with the requirements of subsection (b) of this section if the applicant cannot meet the standard required under subdivision 1444(a)(1) of this title on a parcel of land in existence on July 1, 2014, due to one of the following limitations:
    1. parcel size;
    2. the site characteristic or site limitations of the parcel, including presence of highway or rights of way and soil type; or
    3. application of municipal setback requirement in a municipal bylaw adopted on or before July 1, 2014.
  2. Permit standards for nonconforming parcels.
    1. For a parcel on which there is no habitable structure, the cleared area or impervious surface shall be as far as possible from the mean water level, and at a minimum shall be no less than 25 feet from the mean water level, except for shoreland stabilization measures designed to repair or prevent erosion or flood risks and approved by the Secretary.
    2. For a parcel on which a habitable structure is located, the expansion of any portion of the structure within 100 feet of the mean water level shall be on the side of the structure farthest from the lake, unless the Secretary determines that:
      1. expansion on an alternate side of the structure will have an impact on water quality that is equivalent to or less than expansion of the structure on the side farthest from the lake; and
      2. the structure is not expanded toward the mean water level.
    3. Cleared area or impervious surface within the protected shoreland area shall be located on a site:
      1. with a slope of less than 20 percent; or
      2. that the permit applicant demonstrates will have a stable slope with minimal erosion and minimal negative impacts to water quality.
      1. No more than 20 percent of the protected shoreland area of the parcel shall consist of impervious surface; or (4) (A) No more than 20 percent of the protected shoreland area of the parcel shall consist of impervious surface; or
      2. The permit applicant shall demonstrate that best management practices will be used to manage, treat, and control erosion due to stormwater runoff from that portion of impervious surface that exceeds 20 percent of the protected shoreland area.
      1. No more than 40 percent of the protected shoreland area of the parcel shall consist of cleared area, including area cleared for the purposes of creating an impervious surface; or (5) (A) No more than 40 percent of the protected shoreland area of the parcel shall consist of cleared area, including area cleared for the purposes of creating an impervious surface; or
      2. The permit applicant shall demonstrate that best management practices will be used to provide erosion control, bank stability, and wildlife habitat functionally equivalent to that which would be provided by clearing less than 40 percent of the protected shoreland area.
  3. Vegetation maintenance on nonconforming parcels.   A permit issued under this section for creation of cleared area or impervious surface on a nonconforming parcel shall not require compliance with the requirements of section 1447 for the management of vegetative cover.
  4. Application process.   An applicant for a permit under this section shall submit to the Secretary a form that identifies the basis of the nonconformity on the parcel. The Secretary may issue a permit under this section to an applicant who meets the requirements of subsection (b) of this section.

HISTORY: Added 2013, No. 172 (Adj. Sess.), § 2.

§ 1446. Registered projects; exemptions from permitting.

    1. Registered projects.   The following projects in a protected shoreland area do not require a permit under section 1444 or 1445 of this title: (a) (1) Registered projects.   The following projects in a protected shoreland area do not require a permit under section 1444 or 1445 of this title:
      1. The creation of no more than 100 square feet of impervious surface or cleared area, or a combination of impervious surface or cleared area, within 100 feet of the mean water level, provided that:
        1. the owner of the property on which the impervious surface or cleared area is created registers with the Secretary, on a form provided by the Secretary that contains the name of the property owner, the address of the property, and a certification that the project meets the requirements of this subsection (a);
        2. the impervious surface or cleared area is located at least 25 feet from the mean water level; and
        3. vegetative cover shall be managed according to the requirements of section 1447 of this title.
      2. The creation of 500 square feet or less of impervious surface, cleared area, or a combination of impervious surface and cleared area, provided that:
        1. the owner of the property on which the impervious surface or cleared area is created registers with the Secretary a form provided by the Secretary that contains the name of the property owner, the address of the property, and a certification that the project meets the requirements of this subsection;
        2. the impervious surface or cleared area is at least 100 feet from the mean water level;
        3. any proposed cleared area or area within the protected shoreland area where an impervious surface shall be sited has a slope of less than 20 percent;
        4. after the completion of the project, the protected shoreland area shall consist of no more than 20 percent impervious surface; and
        5. after the completion of the project, the protected shoreland area shall consist of no more than 40 percent cleared area, including any area cleared for the purposes of creating impervious surface.
    2. Limit on registration per parcel.   A person shall not use the registration process under this subsection to create more than a maximum total per parcel of:
      1. 100 square feet of impervious surface or cleared area within 100 feet of the mean water level; and
      2. 500 square feet of impervious surface or cleared area within the protected shoreland area that is at least 100 feet from the mean water level.
    3. Effect of registration.   A registration shall take effect 15 days after being filed with the Secretary, unless the Secretary requests that the person registering submit additional information that the Secretary considers necessary or the Secretary notifies the person registering that an individual permit is required.
    4. Term.   Registrations shall be for an indefinite term, provided that the person complied with the requirements of this subsection and takes no action for which an individual permit is required.
  1. Exemptions.   The following activities in a protected shoreland area do not require a permit under section 1444 or 1445 of this title:
    1. Management of vegetative cover.   Management of vegetative cover conducted in compliance with section 1447 of this title.
    2. Removal of vegetation for recreational purposes.   The cutting or removal of no more than 250 square feet of the existing vegetation under three feet in height within 100 feet of the mean water level to allow for recreational use in the protected shoreland area, provided that:
      1. the cutting or removal of vegetation occurs at least 25 feet from the mean water level; and
      2. other ground cover, including leaf litter and the forest duff layer, shall not be removed from the area in which cutting occurs.
    3. Maintenance of lawns.   The maintenance, but not the enlargement, of lawns, gardens, landscaped areas, and beaches in existence as of July 1, 2014.
    4. Creation of footpaths.   The creation of one footpath per parcel with a width of no greater than six feet that provides access to the mean water level. Under this subdivision, a footpath includes stairs, landings, or platforms within the authorized six-feet width.
    5. Construction within footprint.   Construction within the footprint of an impervious surface, existing as of July 1, 2014, that does not result in a net increase in the amount of impervious surface on a parcel.
    6. Silvicultural activities  Silvicultural activities in a protected shoreland area if the silvicultural activities are in compliance with:
      1. a forest management plan, approved by the Commissioner of Forests, Parks and Recreation, for the land in the protected shoreland area in which the silvicultural activities occur; and
      2. the accepted management practices adopted by the Commissioner of Forests, Parks and Recreation under section 2622 of this title.
    7. Agricultural activities.   Agricultural activities on land in agricultural production on July 1, 2014, provided that:
      1. no impervious surface shall be created or expanded in a protected shoreland area except: when no alternative outside the protected shoreland area exists, the construction of a best management practice is necessary to abate an agricultural water quality issue, and the best management practice is approved by the Secretary of Agriculture, Food and Markets under 6 V.S.A. chapter 215; and
      2. the agricultural activities within the protected shoreland area comply with the rules adopted by the Secretary of Agriculture, Food and Markets under 6 V.S.A. chapter 215 regarding agricultural water quality, including required agricultural practices, best management practices, medium and small farm operation, and large farm operation.
    8. Transportation infrastructure and private roads.   The maintenance, emergency repair, repair, and replacement of:
      1. Transportation infrastructure by the Vermont Agency of Transportation or by a municipality.
      2. A private road that does not require a permit under section 1264 of this title, provided that emergency repair, repair, and replacement of the private road shall comply with the applicable water quality best management practices approved by the Secretary under 19 V.S.A. § 996 and incorporated within the Vermont Agency of Transportation town road and bridge standards for controlling stormwater runoff and direct discharges to State waters. The requirement to comply with the water quality best management practices shall apply even if the municipality in which the private road is located has not adopted the town road and bridge standards. Under this subdivision, expansion of a private road in order to allow for passage of emergency vehicles shall be considered repair that does not require a permit under section 1443 of this title.
    9. Railroad activities.   Railroad activities and facilities within the jurisdiction of federal law.
    10. Parcel intersected by public highway.   The creation or expansion of impervious surface or cleared area on a parcel within the protected shoreland area when the parcel is intersected by a highway and the impervious surface or cleared area is created or expanded on that portion of the parcel on the side of the highway away from the mean water level.
    11. Wastewater systems and potable water supplies.   Installation, maintenance, repair, or replacement of a wastewater system or potable water supply permitted by the Agency of Natural Resources under chapter 64 of this title.
    12. Stormwater treatment.   Discharges of stormwater, stormwater treatment facilities or practices, including repair or maintenance, permitted by the Agency of Natural Resources under section 1264 of this title.
    13. Utility projects and utility lines.
      1. The construction of projects that require a certificate of public good under 30 V.S.A. § 248 subject to the Agency of Natural Resources Riparian Buffer Guidance for Act 250 and Section 248 projects.
      2. The routine repair and maintenance of utility lines and structures including vegetation maintenance in utility line corridors, in a protected shoreland area that are subject to 30 V.S.A. § 248 , chapter 151 of this title, or a vegetation management plan approved by the Agency in a protected shoreland area. Vegetation management practices in a protected shoreland area shall be performed in accordance with a vegetation management plan approved by the Agency of Natural Resources.
      3. The emergency repair of utility lines and poles in protected shoreland areas, provided that such repair minimizes adverse impacts to vegetation in the protected shoreland area.
    14. Act 250 permit.   Projects that have received a permit pursuant to chapter 151 of this title.
    15. Designated downtowns and village centers.   Projects in downtowns and village centers designated pursuant to 24 V.S.A. chapter 76A.
    16. Urban and industrial redevelopment.   Construction, creation, or expansion of impervious surface or cleared area within a protected shoreland area, provided that:
      1. the area in which the impervious surface or cleared area will be constructed, created, or expanded is:
        1. urban or industrial in nature;
        2. contains as of July 1, 2014 impervious surface or cleared area; and
        3. has been designated by municipal bylaw for redevelopment.
      2. the municipality has adopted a shoreland bylaw or ordinance that:
        1. is at least as stringent as the permitting requirements and exemptions of this chapter; or
        2. requires best management practices or other controls that are, as determined by the Secretary, functionally equivalent to compliance with the permitting requirements and exemptions of this chapter.
    17. Mosquito control.   Where mosquito populations create a public health hazard, as that term is defined in 18 V.S.A. § 2 , physical practices or activities approved by the Secretary that create cleared area or remove vegetative cover in order to reduce mosquito breeding habitat, provided that any activity authorized under this subdivision shall comply with the Vermont Wetlands Rules.
    18. Removal of constructed feature.   Temporary cutting or removal of vegetation to remove an existing constructed feature, provided that the area of removal is revegetated according to the requirements for the management of vegetative cover under section 1447 of this title and all cutting and removal of vegetation complies with the Agency’s low-risk site handbook for erosion prevention and sediment control.
  2. Application of vegetative cover requirements.   Activities authorized under subdivisions (b)(2)-(17) of this section shall not be required to comply with the requirements for the management of vegetative cover under section 1447 of this title.

HISTORY: Added 2013, No. 172 (Adj. Sess.), § 2; amended 2015, No. 64 , § 13; 2019, No. 50 , § 4, eff. June 10, 2019.

History

Revision note

—2015. In subdiv. (b)(7)(B), substituted “required agricultural practices” for “accepted agricultural practices” in accordance with 2015, No. 64 , § 13.

Amendments

—2019. Subdiv. (b)(18): Added.

§ 1447. Lake shoreland vegetation protection standards.

  1. Within 100 feet of the mean water level, cutting of trees is allowed provided that a well-distributed stand of trees and other natural vegetation is maintained. Vegetation management that occurs within the protected shoreland area and that is conducted according to the requirements of this section shall not be counted toward the cleared area on a parcel.
  2. A “well-distributed stand of trees” shall be defined as maintaining a minimum rating score of 12, in each 25-foot by 25-foot area within 100 feet of the mean water level, as determined by the following rating system.
    1. Diameter of tree at 4-1/2 feet above Points ground level (inches) 2-< 4 in. 1 4-< 8 in. 2 8-< 12 in. 4 12 in. or greater 8

      Click to view

    2. The following shall govern in applying this point system:
      1. 25-foot by 25-foot plots shall be established for vegetation management purposes.
      2. Each successive plot must be adjacent to but not overlap a previous plot.
      3. Any plot not containing the required points must have no vegetative cover removed unless the removal is allowed pursuant to a registration or individual permit.
      4. Any plot containing the required points may have trees removed down to the minimum points allowed.
      5. Existing vegetative cover under three feet in height and other ground cover, including leaf litter and the forest duff layer, shall not be cut, covered, or removed, except to provide for a footpath or as allowed pursuant to a registration or individual permit.
      6. Pruning of tree branches on the bottom one-third of a tree’s height is allowed.
      7. Removal of dead, diseased, or unsafe trees shall be allowed regardless of points.
  3. As used in this section, “other natural vegetation” means retaining existing vegetation under three feet in height and other ground cover and retaining at least five saplings less than two inches in diameter at four and one-half feet above ground level for each 25-foot by 25-foot area. If five saplings do not exist, no woody stems less than two inches in diameter can be removed until five saplings have been planted or rooted in the plot.

HISTORY: Added 2013, No. 172 (Adj. Sess.), § 2.

§ 1448. Municipal delegation.

  1. Municipal shoreland bylaws or ordinances.   The Secretary shall delegate authority to permit the construction, creation, or expansion of impervious surface or cleared area under this chapter to a municipality that has adopted a shoreland bylaw or ordinance if:
    1. the municipality adopts a bylaw or ordinance regulating construction of impervious surface or creation of cleared area in a protected shoreland area;
    2. the municipal bylaw or ordinance is, as determined by the Secretary, functionally equivalent to the requirements under sections 1444, 1445, 1446, and 1447 of this title; and
    3. the Secretary determines that the municipality provides adequate resources for administration and enforcement of the bylaw or ordinance.
  2. Delegation agreement.
    1. Delegation under subsection (a) of this section shall be by agreement between the Secretary and the delegated municipality. The delegation agreement shall set the terms for revocation of delegation.
    2. Under the delegation agreement, the Secretary and the municipality may agree, in instances where a delegated municipality does not or cannot address noncompliance, that the Secretary, after consultation with the municipality, may institute enforcement proceedings under chapter 201 of this title.
    3. The delegation agreement shall require the municipality to:
      1. have or establish a process for accepting, reviewing, and processing applications and issuing permits for construction of impervious surface or creation of cleared area in protected shoreland areas;
      2. take timely and appropriate enforcement actions;
      3. commit to reporting annually to the Secretary on a form and date determined by the Secretary;
      4. comply with all other requirements of the rules adopted under this chapter; and
      5. cure any defects in such bylaw or ordinance or in the administration or enforcement of such bylaw or ordinance upon notice of a defect from the Secretary.
    4. A municipality that seeks delegation under subsection (a) of this section shall be presumed to satisfy the requirements of this subsection for a permit process and enforcement if the municipality has designated a municipal zoning administrator or other municipal employee or official as responsible for the permitting and enforcement of the construction, creation, or expansion of impervious surface or cleared area within the municipality.

HISTORY: Added 2013, No. 172 (Adj. Sess.), § 2.

§ 1449. Coordination of Agency of Natural Resources’ permitting of activities in protected shoreland areas.

  1. Coordination of permitting in protected shoreland area.   During technical review of a permit application for a wastewater system, potable water supply, stormwater discharge, or stormwater treatment facility that is proposed to be located in a protected shoreland area and that does not require a permit under this chapter, the Agency division issuing the wastewater system, potable water supply, stormwater discharge, or stormwater treatment facility permit shall consult with the Agency’s Lakes and Ponds Section regarding practices or activities that could reduce the impact of the proposed activity on the protected shoreland area or water quality of lakes adjacent to the protected shoreland area.
  2. Agency guidance or procedure.   The Agency may formalize the consultation process required by this section in a guidance document or internal agency procedure.

HISTORY: Added 2013, No. 172 (Adj. Sess.), § 2.

§ 1450. Municipal zoning bylaw or ordinance.

  1. Construction of impervious surface or creation of cleared area occurring outside protected shoreland areas.   Construction of impervious surface or creation of cleared area occurring outside a protected shoreland area shall conform to duly adopted municipal zoning bylaws and applicable municipal ordinances and shall not be subject to regulation by the Secretary of Natural Resources under this chapter.
  2. Existing municipal bylaws and ordinances.   The requirements of this chapter are in addition to existing municipal bylaws and ordinances, and proposed construction of impervious surface or creation of cleared area within the protected shoreland area shall comply with all relevant, existing municipal, State, and federal requirements.

HISTORY: Added 2013, No. 172 (Adj. Sess.), § 2.

§ 1450a. Rulemaking.

The Secretary may adopt rules necessary for the purposes of implementing, administering, or enforcing the requirements of this chapter, including best management practices for the construction of impervious surfaces or the creation of cleared area in a protected shoreland area, including standards for:

  1. managing vegetative cover that may be required as a best management practice in order to ensure that some level of the required vegetative cover is maintained in the protected shoreland area;
  2. allowing reasonable use of the protected shoreland area subject to a vegetative cover requirement for construction, creation, or expansion of an impervious surface or cleared area;
  3. minimizing and mitigating the creation of an impervious surface or cleared area in a protected shoreland area.

HISTORY: Added 2013, No. 172 (Adj. Sess.), § 2.

History

Revision note—

Under 2013, No. 172 (Adj. Sess.) § 2, Section 1450a was enacted as Section 1451. To avoid conflict with the existing 10 V.S.A. § 1451 (aquatic nuisance; findings), the section was renumbered as Section 1450a.

§ 1450b. Education and outreach; citizen’s guide.

The Secretary shall conduct ongoing education and outreach to assist Vermont citizens with understanding and complying with the requirements of this chapter. The education and outreach activities shall include publication on or before January 1, 2015 of a Citizen’s Guide to Shoreland Protection, which shall provide easily understood instructions on the requirements of this chapter, how to apply for a permit or registration, and the activities that are exempt from or otherwise not subject to the requirements of this chapter.

HISTORY: Added 2013, No. 172 (Adj. Sess.), § 2.

History

Revision note—

Under 2013, No. 172 (Adj. Sess.) § 2, Section 1450b was enacted as Section 1452. To avoid conflict with the existing 10 V.S.A. § 1452 (aquatic nuisance; definitions), the section was renumbered as Section 1450b.

Chapter 50. Aquatic Nuisance Control

History

Effective date of chapter. 2009, No. 46 , § 11(b) provides in part: “Sec. 1 [which enacted this chapter] of this act shall take effect July 1, 2010”.

§ 1451. Findings.

The General Assembly finds that:

  1. It is the policy of the State of Vermont that the water resources of the State shall be protected, regulated, and where necessary controlled under the authority of the State in the public interest to promote the general welfare and to protect public health and the environment.
  2. It is the policy of the State of Vermont to prevent the infestation and proliferation of invasive species in the State that result in negative environmental impacts, including habitat loss and a reduction in native biodiversity along with adverse social and economic impacts and impacts to the public health and safety.
  3. The Agency of Agriculture, Food and Markets and the Department of Forests, Parks and Recreation have established an informal working group to address invasive and noxious weeds, but additional authority is necessary for the Agency of Natural Resources to adequately respond to invasive aquatic nuisance species.
  4. The ability to initiate quickly a response to contain and control a new aquatic species introduction before it can spread is critical to reduce future management costs and protect the integrity of Vermont’s ecosystems.
  5. Infestations of new aquatic species must be detected early and acted upon swiftly to minimize economic, social, and ecological impacts as well as to increase the probability of a successful eradication effort.

HISTORY: Added 2009, No. 46 , § 1, eff. July 1, 2010.

§ 1452. Definitions.

As used in this chapter:

  1. “Agency” means the Agency of Natural Resources.
  2. “Aquatic nuisance” means undesirable or excessive substances or populations that interfere with the recreational potential or aquatic habitat of a body of water, including rooted aquatic plants and animal and algal populations. Aquatic nuisances include zebra mussels (Dreissena polymorpha), quagga mussels (Dreissena bugensis), Asian clam (Corbicula fluminea), fishhook waterflea (Cercopagis pengoi), rusty crayfish (Orconectes rusticus), spiny waterflea (Bythotrephes longimanus), or other species identified by the Secretary by rule.
  3. “Aquatic plant” means a plant that naturally grows in water, saturated soils, or seasonally saturated soils, including algae and submerged, floating-leafed, floating, or emergent plants.
  4. “Biological controls” means multi-cellular organisms.
  5. [Repealed.]
  6. “Lessee” means a person who acquires the right to occupancy or use of property under a lease or rental agreement.
  7. “New aquatic species” means an aquatic species that was not known to occur in a surface water of Vermont or in a segment of Lake Champlain as of January 1, 2007.
  8. “Pesticide” means any substance produced, distributed, or used for preventing, destroying, or repelling nuisance aquatic plants, insects, or other aquatic life, including lamprey. Pesticide includes unicellular organisms or extracts from unicellular organisms and does not include biological controls.
  9. “Secretary” means the Secretary of Natural Resources.
  10. “Water resources” means the waters and the values inherent or potential in waters and their uses.
  11. “Waters” means all rivers, streams, creeks, brooks, reservoirs, ponds, lakes, and springs and all bodies of surface waters, artificial or natural, that are contained within, flow through, or border upon the State or any portion of it.
  12. “Baitbox” means a receptacle, not exceeding 25 cubic feet in volume, used for holding or keeping baitfish alive for personal use.
  13. “Live well” means a well for keeping fish alive in a vessel by allowing water to circulate through the well.
  14. “Ballast tank” means any tank or hold on a vessel used for carrying ballast water, whether or not the tank or hold was designed for that purpose.
  15. “Bilge area” means the lowest point in the vessel where water can collect when the vessel is in its static floating position.
  16. “Decontaminate” means a process used to kill, destroy, or remove aquatic nuisance species and other organic material that may be present in or on a vessel, motor vehicle transporting the vessel, trailer, or other equipment. Decontamination may include washing a vessel, motor vehicle transporting the vessel, trailer, or other equipment with water at a sufficiently high temperature to kill or remove aquatic nuisance species.
  17. “Lake association” means a lake protection organization registered with the Secretary of Natural Resources on a form provided by the Secretary.
  18. “Marina” means a property, other than a public access or landing area regulated under section 4145 of this title, on the shoreline of a water of the State that contains a dock, basin, or ramp that, at no cost or for remuneration, provides to the public secure moorings or vessel access to the water.
  19. “Motor vehicle” means any vehicle propelled or drawn by power other than muscular power, including a snowmobile, motorcycle, all-terrain vehicle, farm tractor, or tracked vehicle.
  20. “Personal watercraft” shall have the same meaning as set forth in 23 V.S.A. § 3302 .
  21. “Transport” means to move motor vehicles, vessels, personal watercraft, seaplanes, trailers, and other equipment over land, but does not include movement within the immediate area required for loading and preparing vehicles, vessels, personal watercraft, seaplanes, trailers, and other equipment prior to movement into or away from a body of water.
  22. “Vessel” means every description of watercraft used or capable of being used as a means of transportation on water, including personal watercraft.

HISTORY: Added 2009, No. 46 , § 1, eff. July 1, 2010; 2017, No. 67 , § 1, eff. June 8, 2017.

History

Amendments

—2017. Subdiv. (2): Amended generally.

Subdiv. (4): Substituted “means” for “mean” following “‘Biological controls”’.

Subdiv. (5): Repealed.

Subdiv. (11): Substituted “that” for “which” preceding “are contained”.

Subsecs. (12)-(22): Added.

§ 1453. Aquatic nuisance control program.

  1. The Agency of Natural Resources shall establish and maintain an aquatic nuisance control program.
  2. The aquatic nuisance control program shall perform the following services:
    1. receive and respond to aquatic nuisance complaints;
    2. work with municipalities, local interest organizations, private individuals, and agencies of the state to develop long-range programs regarding aquatic nuisance controls;
    3. work with federal, state, and local governments to obtain funding for aquatic nuisance control programs;
    4. implement an aquatic species rapid response program under this chapter;
    5. administer a grant-in-aid program under section 1458 of this title;
    6. place a sign at least two feet by two feet in size that states that the water is infected with an aquatic nuisance and that a person transporting the nuisance in violation of section 1454 of this title may be subject to a penalty of up to $1,000.00 pursuant to 23 V.S.A. § 3317 , so that the sign is easily visible from a ramp used to launch vessels at any fish and wildlife access area on a body of water infected with an aquatic nuisance;
    7. provide the Commissioner of Fish and Wildlife and the Commissioner of Motor Vehicles with written educational information about aquatic nuisances that can be included in an envelope containing a boat registration and in a Department of Fish and Wildlife publication pertaining to fishing and boating.

HISTORY: Added 2009, No. 46 , § 1, eff. July 1, 2010.

§ 1454. Transport of aquatic plants and aquatic nuisance species.

  1. Transport of aquatic nuisance species; prohibition.   A person shall not transport an aquatic plant, aquatic plant part, or aquatic nuisance species to or from any Vermont water. This section shall not restrict:
    1. proper harvesting or other control activities undertaken for the purpose of eliminating or controlling the growth or propagation of aquatic nuisance species; or
    2. proper collection of water samples for the purpose of water quality monitoring.
  2. Inspection of vessel entering or leaving water.   A person transporting a vessel to or from a water shall, prior to launching the vessel and upon leaving a water, inspect the vessel, the motor vehicle transporting the vessel, the trailer, and other equipment, and shall remove and properly dispose of any aquatic plants, aquatic plant parts, and aquatic nuisance species.
  3. No-cost boat wash; aquatic nuisance species inspection station.   It shall be a violation of this section for a person transporting a vessel to or from a water to not have the vessel, the motor vehicle transporting the vessel, the trailer, and other equipment inspected and decontaminated at an approved aquatic nuisance species inspection station prior to launching the vessel and upon leaving a water if:
    1. an aquatic nuisance species inspection station is maintained at the area where the vessel is entering or leaving the water;
    2. the aquatic nuisance species inspection station is open; and
    3. an individual operating the aquatic nuisance species inspection station identifies the vessel for inspection or decontamination.
  4. Draining of vessel; transport.
      1. When leaving a water of the State and prior to transport away from the area where the vessel left the water, a person operating a vessel shall drain the vessel, trailer, and other equipment of water, including water in live wells, ballast tanks, and bilge areas. A person is not required to drain: (1) (A) When leaving a water of the State and prior to transport away from the area where the vessel left the water, a person operating a vessel shall drain the vessel, trailer, and other equipment of water, including water in live wells, ballast tanks, and bilge areas. A person is not required to drain:
        1. baitboxes when authorized under 10 App. V.S.A. § 122(5) to transport bait in a baitbox away from a water; or
        2. vehicles and trailers specifically designed and used for water hauling.
      2. A person operating a vessel shall drain the vessel, trailer, and other equipment of water in a manner to avoid a discharge to the water of the State. This subdivision (d)(1) does not authorize a person to discharge waste, as defined in section 1251 of this title, to waters of the State. A person shall dispose of waste in the manner required by law.
    1. When a person transports a vessel, the person shall remove or open the drain plugs, bailers, valves, and other devices that are used to control the draining of water from ballast tanks, bilge areas, and live wells of the vessel, trailer, and other equipment, except for vehicles and trailers specifically designed and used for water hauling and emergency response vehicles and equipment.
  5. Presumption of compliance; aquatic nuisance species inspection station.   A person transporting a vessel to or from a water will be presumed to have not violated subsections (a), (b), and (d) of this section if, upon launching a vessel and upon leaving a water, the vessel is decontaminated at an approved aquatic nuisance inspection station. If staff of an approved aquatic nuisance inspection station observe a violation of subsection (a), (b), or (d) of this section, staff shall notify the person transporting the vessel.
  6. Exceptions to transport prohibition.   The Secretary may allow the transport of aquatic plants, aquatic plant parts, or aquatic nuisance species for scientific purposes, educational purposes, or other purposes specifically authorized by the Secretary. When allowing the transport of aquatic plants, aquatic plant parts, or aquatic nuisance species under this subsection, the Secretary shall take into consideration both the value of the scientific or educational purpose and the risk to Vermont surface waters posed by the transport and ultimate use of the specimens. A letter from the Secretary authorizing the transport must accompany the specimens during transport.
  7. Signage; access areas and marinas.   Signage shall be posted at all public access and landing areas regulated under section 4145 of this title and at all marinas regarding the requirements of subsections (a)-(d) of this section relating to aquatic nuisance transport and inspection and decontamination of vessels, motor vehicles transporting vessels, trailers, or other equipment. The Secretary shall provide marinas with the signs required under this section.
  8. Violations.   Pursuant to 4 V.S.A. § 1102 , a violation of this section may be brought in the Judicial Bureau by any law enforcement officer, as that term is defined in 23 V.S.A. § 3302(2) , or, pursuant to section 8007 or 8008 of this title, a violation of this section may be brought in the Environmental Division of the Superior Court. If a violation of this section is adjudicated in the Judicial Bureau or the Environmental Division, the violation shall not be addressed or adjudicated a second time in the other court.

HISTORY: Added 2009, No. 46 , § 1, eff. July 1, 2010; amended 2013, No. 172 (Adj. Sess.), § 8; 2015, No. 61 , § 10, eff. June 17, 2015; 2017, No. 67 , § 2, eff. June 8, 2017.

History

Amendments

—2017. Section amended generally.

—2015. Subsec. (c): Substituted “23 V.S.A. § 3302(2)” for “ 23 V.S.A. § 4(11) ” in the first sentence.

—2013 (Adj. Sess.). Subsec. (c): Added.

ANR public outreach regarding aquatic nuisance species transport and inspection requirements. 2017, No. 67 , § 10 provides: “Beginning on July 1, 2017, the Secretary of Natural Resources shall provide education and outreach to the public regarding the transport and inspection requirements in 10 V.S.A chapter 50 for the reduction of the spread of aquatic nuisance species. The education and outreach shall include a notification in the Department of Fish and Wildlife guides to hunting and fishing in Vermont regarding the aquatic nuisance transport prohibition and the requirements to inspect vessels for aquatic nuisance species when entering or leaving a water.”

§ 1455. Aquatic nuisance control permit.

  1. A person shall not use pesticides, chemicals other than pesticides, biological controls, bottom barriers, structural barriers, structural controls, or powered mechanical devices in waters of the State to control nuisance aquatic plants, insects, or other aquatic nuisances, including lamprey, unless that person has been issued a permit by the Secretary.
  2. Notwithstanding other requirements set forth in chapter 47 of this title to the contrary, the Secretary may issue permits under this section.
  3. Persons desiring a permit under this section shall make application to the Secretary on a form prescribed by the Secretary.
  4. The Secretary shall issue a permit for the use of pesticides in waters of the State for the control of nuisance aquatic plants, insects, or other aquatic life, including lamprey, when the applicant demonstrates and the Secretary finds:
    1. there is no reasonable nonchemical alternative available;
    2. there is acceptable risk to the nontarget environment;
    3. there is negligible risk to public health;
    4. a long-range management plan has been developed which incorporates a schedule of pesticide minimization; and
    5. there is a public benefit to be achieved from the application of a pesticide or, in the case of a pond located entirely on a landowner’s property, no undue adverse effect upon the public good.
  5. A landowner applying to use a pesticide on a pond located entirely on the landowner’s property is exempt from the requirement of subdivision (d)(4) of this section.
  6. The Secretary shall issue a permit for the control of aquatic nuisances by biological controls, bottom barriers, structural barriers, structural controls, powered mechanical devices, or chemicals other than pesticides when the Secretary finds:
    1. there is acceptable risk to the nontarget environment;
    2. there is negligible risk to public health; and
    3. there is either benefit to or no undue adverse effect upon the public good.
  7. The use of bottom barriers, structural barriers, structural controls, powered mechanical devices, and copper compounds as an algaecide in waters with a surface area of one acre or less located entirely on a person’s property and with an outlet where the flow can be controlled for at least three days is exempt from the permit requirements of this section.
  8. When an application is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title.
  9. An aquatic nuisance control permit issued under this section shall:
    1. specify in writing the Secretary’s findings under subsection (d) or (f) of this section;
    2. specify the location, manner, nature, and frequency of the permitted activity;
    3. contain additional conditions, requirements, and restrictions as the Secretary deems necessary to preserve and protect the quality of the receiving waters, to protect the public health, and to minimize the impact on the nontarget environment. Such conditions may include requirements concerning recording, reporting, and monitoring;
    4. be valid for the period of time specified in the permit, not to exceed five years for chemical control, and not to exceed ten years for nonchemical control.
  10. An aquatic nuisance control permit issued under this chapter may be renewed from time to time upon application to the Secretary. The process of permit renewal will be consistent with the requirements of this section.
  11. An applicant for a permit under this section shall pay an application fee as required by 3 V.S.A. § 2822 . The Agency of Natural Resources shall be exempt from this fee requirement.
  12. No permit shall be required under this section for mosquito control activities that are regulated by the Agency of Agriculture, Food and Markets, provided that:
    1. Prior to authorizing the use of larvicides or pupacides in waters of the State, the Secretary of Agriculture, Food and Markets shall designate acceptable control products and methods for their use and issue permits pursuant to 6 V.S.A. § 1083(a)(5) ; and
    2. [Repealed.]
  13. The Secretary may issue general permits for the use of nonchemical aquatic nuisance control activities provided that the Secretary makes the findings required in subsection (f) of this section. A general permit issued under this subsection is not required to specify the exact location or the frequency of the permitted activity.

HISTORY: Added 2009, No. 46 , § 1, eff. July 1, 2010; amended 2013, No. 142 (Adj. Sess.), § 89; 2015, No. 150 (Adj. Sess.), § 21, eff. Jan. 1, 2018; 2017, No. 67 , § 3, eff. June 8, 2017.

History

Amendments

—2017. Subsec. (a): Substituted “A person shall not” for “No person may” at the beginning.

—2015 (Adj. Sess.). Subsec. (h): Rewritten.

—2013 (Adj. Sess.). Subdiv. ( l )(2): Repealed.

§ 1456. Aquatic species rapid response general permits.

  1. Notwithstanding the requirements of section 1455 of this title, the Secretary may issue an aquatic species rapid response general permit under this section for a term not to exceed ten years for the control of a nonindigenous new aquatic species. This general permit shall identify the control technique, including the use of biological controls, pesticides, and any other control techniques for the nonindigenous new aquatic species for which coverage may be sought under the permit.
  2. Applications for coverage under this general permit shall be limited to the Commissioner of Environmental Conservation and the Commissioner of Fish and Wildlife. The application shall state the grounds for declaring an emergency situation as defined in subsection (f) of this section. The application shall identify the nonindigenous new aquatic species and control techniques selected to respond to the emergency.
  3. When an application is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title.
  4. The Secretary may issue an authorization under an aquatic species rapid response general permit only when the Secretary finds:
    1. that an emergency exists; and
    2. that the proposed control technique meets the requirements of the general permit and is acceptable when considering the emergency situation.
  5. Authorization to act under the terms of a general permit issued under this section shall not exceed three years.
  6. Prior to determining that a nonindigenous new aquatic species emergency exists, the Secretary shall consider the following factors:
    1. the likelihood that the nonindigenous new aquatic species will cause harm to human health, safety, or the environment;
    2. the likelihood that the nonindigenous new aquatic species will cause significant harm to the economy;
    3. the magnitude of the potential adverse impact of the nonindigenous new aquatic species upon public health, safety, the environment, native biodiversity, water bodies, outdoor recreation, or any other use of the State’s water resources;
    4. the likelihood that the nonindigenous new aquatic species would naturalize in the State if not immediately controlled;
    5. the rate at which the invasion would spread throughout the State; and
    6. the difficulty to control the spread of the nonindigenous new aquatic species in the State.

HISTORY: Added 2009, No. 46 , § 1, eff. July 1, 2010; amended 2015, No. 150 (Adj. Sess.), § 22, eff. Jan. 1, 2018.

History

Amendments

—2015 (Adj. Sess.). Subsec. (c): Rewritten.

Aquatic Nuisance Control general permit. 2017, No. 67 , § 9 provides: “On or before February 1, 2018, the Secretary of Natural Resources shall issue a general permit for aquatic nuisance control activities. The general permit shall allow for nonchemical aquatic nuisance control activities and any other management or control measures that the Secretary considers appropriate and for which the Secretary has general permit authority under 10 V.S.A. chapter 50. The general permit shall authorize rapid response activities that an individual or lake association may take to control aquatic nuisance species. The provisions of 10 V.S.A. § 1456(a) and (c)-(f) related to the rapid response permits for aquatic nuisance control shall apply to the rapid response activities authorized in the permit required under this section.”

§ 1457. Entrance upon lands to prevent the introduction and spread of new aquatic species.

  1. The aquatic nuisance control program shall take reasonable steps to prevent the introduction and spread of new aquatic species that may become invasive in the State. To accomplish this objective, the Secretary or his or her agent may, after first obtaining the permission of the landowner or lessee, enter upon lands for the following purposes:
    1. to survey for, inspect, or investigate conditions relating to new aquatic species that may become invasive;
    2. to collect information to issue coverage under rapid response general permits under section 1456 of this title;
    3. to conduct or use control techniques that are available under or authorized by a rapid response general permit issued under section 1456 of this title; and
    4. to determine whether the rules of the agency adopted or issued under this chapter are being complied with.
  2. If a land owner refuses to grant the Secretary or his or her agent permission to enter onto the owner’s land under this section, the Secretary or the duly authorized representative of the Secretary may apply for and obtain a warrant or subpoena to allow such entry, surveying, collection, and control as is necessary to protect human health, safety, and the environment or prevent economic loss.

HISTORY: Added 2009, No. 46 , § 1, eff. July 1, 2010.

§ 1458. Grant-in-aid to municipalities and agencies of the State.

  1. A municipality or agency of the State that desires State assistance to control aquatic nuisances may apply in writing to the Agency of Natural Resources in a manner prescribed by the Agency of Natural Resources.
  2. When the Agency finds that a proposed aquatic nuisance control program is suitable to control or minimize the effect an aquatic nuisance has on water quality and water use, it may award a grant of 75 percent or less of the project costs as determined by the Agency. Recurring maintenance projects may be awarded grants of 75 percent or less of the annual project cost. In approving requests and determining the amount of any grant, the Agency shall consider the following:
    1. the use of the waters by persons outside the municipality in which the waters are located;
    2. the long-range effect of the control project;
    3. the recreational use of the waters; and
    4. the effectiveness of municipal shoreland zoning and other controls in minimizing or preventing existing or new development from having any adverse effects on the waters subject to the control program.
  3. The Agency shall make awards to priority projects to the extent funds are available. First priority shall be projects to manage incipient infestations of aquatic nuisances, second priority shall be projects to prevent or control the further spread of aquatic nuisances, and third priority shall be recurring maintenance projects. In establishing priorities for individual projects, the Agency shall consider the following:
    1. public accessibility and recreational uses;
    2. the importance to commercial, agricultural, or other interests;
    3. the degree of local interest, as manifested by municipal or other contributions to the project;
    4. local efforts to control aquatic nuisances;
    5. other considerations affecting feasibility, probability of achieving long-term control, and necessity or advantage of the proposed work; and
    6. the extent to which the control project is a developmental rather than a maintenance program.
  4. With the approval of the Secretary, the Agency may use funds provided under this section as well as other funds for restoration, management, or protection projects or for studies in the best interests of the State when the appropriate municipal applicant is not available or not eligible to receive a grant.
  5. When the Agency finds that a proposed aquatic nuisance control program is necessary and involves construction or installation of permanent facilities designed to control or minimize the effect that an aquatic nuisance has on water quality or water use, it may award a grant of up to 50 percent of the nonfederal costs of the project provided that evidence is received that the project applicant has voted funds in a specific amount to undertake the project. The applicant shall demonstrate it has or will acquire adequate interests in the site of the project to provide undisturbed possession and use during the life of the project and shall demonstrate ability to operate and maintain the project. The applicant may enter into agreements with the Agency for prosecution of all or any portion of the project. For purposes of this subsection, corporations registered with the Secretary of State may be eligible applicants.
  6. The Agency may make periodic grant payments upon submission by the grantee showing that costs for which reimbursement is requested have been incurred and paid by the grantee. Partial payments shall be made not more frequently than monthly. After the project has been completed and its costs audited by the Agency, the Agency shall certify the remainder of the award to the Commissioner of Finance and Management who shall issue his or her warrant for payment. Interest costs incurred in local short-term borrowing of the grant amount may be reimbursed as part of the grant.

HISTORY: Added 2009, No. 46 , § 1, eff. July 1, 2010.

§ 1459. Joint municipal participation.

Should the shorelands of waters for which funds are requested under sections 1451-1460 of this title be under more than one municipal governmental jurisdiction, the provisions herein shall apply to the respective municipalities under a joint application, except that the required municipal contribution shall be apportioned among the respective municipalities.

HISTORY: Added 2009, No. 46 , § 1, eff. July 1, 2010.

§ 1460. Rulemaking.

The Secretary may adopt rules to implement the requirements of this chapter.

HISTORY: Added 2009, No. 46 , § 1, eff. July 1, 2010.

§ 1461. Aquatic nuisance inspection stations; training program.

  1. The Secretary of Natural Resources shall establish a training program regarding how to conduct inspection of vessels, motor vehicles, trailers, and other equipment for the presence of aquatic plants, aquatic plant parts, and aquatic nuisance species. The training program shall include online training, recorded material, training manuals, or other material that allows a person to complete training remotely.
  2. The Secretary of Natural Resources shall establish a training program regarding how to decontaminate vessels, motor vehicles, trailers, and other equipment to prevent the spread of aquatic plants, aquatic plant parts, and aquatic nuisance species. The training program shall instruct participants regarding how to address noncompliance with the requirements of section 1454 of this title, including how:
    1. operators of the inspection station do not have authority to board a vessel unless authorized by the vessel owner; and
    2. operators of the inspection station do not have law enforcement authority to mandate compliance with the requirements of section 1454 of this title.
  3. In order to establish an aquatic nuisance species inspection station for the purposes of the vessel inspection and decontamination requirements of subsection 1454(c) of this title, a lake association, municipality, or the Commissioner of Environmental Conservation shall apply to the Secretary for approval. As a condition of approval, a representative of a lake association or municipality shall complete the training programs established under subsections (a) and (b) of this section. A lake association or municipality seeking to operate an aquatic nuisance species inspection station shall designate a representative to complete the training programs established under subsections (a) and (b) of this section.
  4. A lake association or municipality approved to operate an aquatic nuisance species inspection station under subsection (c) of this section shall provide persons who will operate the aquatic nuisance species inspection station with training materials furnished by the Secretary regarding how to conduct the inspection and decontamination of vessels, motor vehicles, trailers, and other equipment for the presence of aquatic plants, aquatic plant parts, and aquatic nuisance species.
  5. The Secretary may adopt rules under section 1460 of this title to implement the training requirements of this section, including an annual schedule of available training.

HISTORY: Added 2017, No. 67 , § 4, eff. June 8, 2017.

Chapter 51. Licensing of Water Well Drillers

History

Amendments

—1981 (Adj. Sess.). 1981, No. 222 (Adj. Sess.), § 29, inserted “water” preceding “well drillers” in the chapter heading.

§§ 1471-1479. Recodified. 1985, No. 53, § 2. [Repealed]

History

Former §§ 1471-1479. Former §§ 1471-1479, relating to licensing of water well drillers, were recodified as present §§ 1395-1402 of this title pursuant to 1985, No. 53 , § 2.

Chapter 53. Beverage Containers; Deposit-Redemption System

History

Amendments

—1983 (Adj. Sess.). 1983, No. 171 (Adj. Sess.), § 1, substituted “Beverage Containers; Deposit-Redemption System” for “Litter Levy; Aid to Municipalities for Sanitary Landfills, Recycling Centers” in the chapter heading.

Commingling and audit pilot program. 2007, 123 (Adj. Sess.), § 5 provides: “(a) The secretary of natural resources may implement, by procedure, requirements for the commingling of beverage containers from differing manufacturers and auditing for compliance with these requirements. This commingling program may include provisions establishing administrative penalties for the failure by a redemption center or retailer to remove containers that are not labeled prior to their pickup by a distributer or manufacturer. Penalties may include nonpayment of the deposit and handling fee established under section 1522 of Title 10 for a reasonable period of time and for the number of containers that were not labeled.

“(b) The pilot program established by this section shall expire on July 1, 2010.”

CROSS REFERENCES

Alcoholic beverages generally, see 7 V.S.A. § 1 et seq.

Enforcement of environmental laws generally, see § 8001 et seq. of this title.

§ 1521. Definitions.

For the purpose of this chapter:

  1. “Beverage” means beer or other malt beverages and mineral waters, mixed wine drink, soda water and carbonated soft drinks in liquid form and intended for human consumption.  As of January 1, 1990 “beverage” also shall mean liquor.
  2. “Biodegradable material” means material that is capable of being broken down by bacteria into basic elements.
  3. “Container” means the individual, separate, bottle, can, jar, or carton composed of glass, metal, paper, plastic ,or any combination of those materials containing a consumer product. This definition shall not include containers made of biodegradable material.
  4. “Distributor” means every person who engages in the sale of consumer products in containers to a dealer in this State including any manufacturer who engages in such sales.  Any dealer or retailer who sells, at the retail level, beverages in containers without having purchased them from a person otherwise classified as a distributor, shall be a distributor.
  5. “Manufacturer” means every person bottling, canning, packing, or otherwise filling containers for sale to distributors or dealers.
  6. “Recycling” means the process of sorting, cleansing, treating, and reconstituting waste and other discarded materials for the purpose of reusing the materials in the same or altered form.
  7. “Redemption center” means a store or other location where any person may, during normal business hours, redeem the amount of the deposit for any empty beverage container labeled or certified pursuant to section 1524 of this title.
  8. “Secretary” means the Secretary of Natural Resources.
  9. “Mixed wine drink” means a beverage containing wine and more than 15 percent added plain, carbonated, or sparkling water; and that contains added natural or artificial blended material, such as fruit juices, flavors, flavoring, adjuncts, coloring, or preservatives; that contains not more than 16 percent alcohol by volume; or other similar product marketed as a wine cooler.
  10. “Liquor” means spirits as defined in 7 V.S.A. § 2 .

HISTORY: Added 1971, No. 252 (Adj. Sess.), § 1; amended 1975, No. 105 , § 1; 1983, No. 171 (Adj. Sess.), § 2; 1987, No. 76 , § 18; 1987, No. 261 (Adj. Sess.), §§ 1, 2, eff. July 1, 1989; 2005, No. 128 (Adj. Sess.), § 1.

History

Amendments

—2005 (Adj. Sess.). Deleted former subdiv. (8) and redesignated former subdivs. (9)-(11) as subdivs. (8)-(10).

—1987 (Adj. Sess.). Subdiv. (1): Inserted “mixed wine drink” preceding “soda water” in the first sentence and added the second sentence.

Subdiv. (10): Added.

Subdiv. (11): Added.

—1987. Subdiv. (9): Substituted “agency of natural resources” for “agency of environmental conservation”.

—1983 (Adj. Sess.). Subdiv. (4): Added the second sentence.

—1975. Subdiv. (1): Amended generally.

Subdiv. (7): Added.

Subdiv. (8): Added.

Subdiv. (9): Added.

§ 1522. Beverage containers; deposit.

  1. Except with respect to beverage containers that contain liquor, a deposit of not less than five cents shall be paid by the consumer on each beverage container sold at the retail level and refunded to the consumer upon return of the empty beverage container. With respect to beverage containers of volume greater than 50 ml. that contain liquor, a deposit of 15 cents shall be paid by the consumer on each beverage container sold at the retail level and refunded to the consumer upon return of the empty beverage container. The difference between liquor bottle deposits collected and refunds made is hereby retained by the Liquor Control Enterprise Fund for administration of this subsection.
  2. A retailer or a person operating a redemption center who redeems beverage containers shall be reimbursed by the manufacturer or distributor of such beverage containers in an amount that is three and one-half cents per container for containers of beverage brands that are part of a commingling program and four cents per container for containers of beverage brands that are not part of a commingling program.
  3. [Repealed.]
  4. Containers shall be redeemed during no fewer than 40 hours per week during the regular operating hours of the establishment.

HISTORY: Added 1971, No. 252 (Adj. Sess.), § 1; amended 1975, No. 105 , § 2; 1979, No. 132 (Adj. Sess.), § 1; 1987, No. 261 (Adj. Sess.), § 3, eff. Jan. 1 1990; 1991, No. 245 (Adj. Sess.), § 272; 1999, No. 49 , § 193; 2005, No. 128 (Adj. Sess.), § 2; 2007, No. 123 (Adj. Sess.), § 2; 2017, No. 83 , § 143.

History

Amendments

—2017. Subsec. (a): Substituted “Liquor Control Enterprise Fund” for “liquor control fund” preceding “for administration” in the third sentence.

—2007 (Adj. Sess.) Subsec. (b): Deleted “at least” preceding “three” and added “for containers of beverage brands that are part of a commingling program and four cents per container for containers of beverage brands that are not part of a commingling program”.

Subsec. (c): Deleted.

—2005 (Adj. Sess.). Subsec. (b): Substituted “three and one-half cents per container” for “the greater of two cents per container or 20 percent of the amount of the deposit returned to the consumer”.

Subsec. (d): Amended generally.

—1999. Subsec. (a): Substituted “retained by” for “appropriated to” preceding “the liquor control” in the third sentence.

—1991 (Adj. Sess.). Subsec. (a): Rewrote the third sentence and deleted the fourth sentence.

—1987 (Adj. Sess.). Subsec. (a): Amended generally.

—1979 (Adj. Sess.). Subsec. (b): Inserted “the greater of two cents per container or” preceding “twenty percent”.

—1975. Section amended generally.

§ 1522a. Rules.

The Secretary may adopt rules, in accordance with 3 V.S.A. chapter 25, necessary for the administration of this chapter. These rules may include the following:

  1. Provisions to ensure that beverage containers not labeled in accordance with section 1524 of this title are not redeemed.
  2. Provisions to ensure that beverage containers are commingled.
  3. Administrative penalties for the failure by a redemption center or retailer to remove beverage containers that are not labeled prior to pickup by a distributor or manufacturer. Penalties may include nonpayment of the deposit and handling fee established under section 1522 of this title for a reasonable period of time and for the number of beverage containers that were not labeled.
  4. Any other provision that may be necessary for the implementation of this chapter.

HISTORY: Added 2007, No. 123 (Adj. Sess.), § 1.

History

Former § 1522a, relating to litter levy, was derived from 1975, No. 105 , § 3.

§ 1523. Acceptance of beverage containers.

  1. Except as provided in section 1522 of this title:
    1. A retailer shall not refuse to accept from any person any empty beverage containers, labeled in accordance with section 1524 of this title, of the kind, size, and brand sold by the retailer, or refuse to pay to that person the refund value of a beverage container as established by section 1522 of this title, except as provided in subsection (b) of this section.
    2. A manufacturer or distributor may not refuse to pick up from a retailer that sells its product or a person operating a certified redemption center any empty beverage containers, labeled in accordance with section 1524 of this title, of the kind, size, and brand sold by the manufacturer or distributor, or refuse to pay the retailer or a person operating a redemption center the refund value of a beverage container as established by section 1522 of this title.
  2. A retailer, with the prior approval of the Secretary, may refuse to redeem beverage containers if a redemption center or centers are established that serve the public need.
  3. A retailer or a person operating a redemption center may refuse to redeem beverage containers that are not clean, or are broken, and shall not redeem beverage containers that are not labeled in accordance with section 1524 of this title.
  4. -(f) [Repealed.]

HISTORY: Added 1971, No. 252 (Adj. Sess.), § 1; amended 1975, No. 105 , § 4; 1983, No. 171 (Adj. Sess.), § 3; 2005, No. 128 (Adj. Sess.), § 3; 2007, No. 123 (Adj. Sess.), § 3.

History

Amendments

—2007 (Adj. Sess.) Inserted “labeled in accordance with section 1524 of this title” in subdivs. (a)(1) and (2); substituted “pick up” for “accept” following “refuse to” in subdiv. (a)(2); rewrote subsec. (c) and deleted subsecs. (d)-(f).

—2005 (Adj. Sess.). Subdiv. (a)(2): Inserted “that sells its product” following “retailer” and “certified” preceding “redemption”.

Subsec. (c): Substituted “containers that are not clean are broken, or were not purchased in Vermont” for “containers which are not clean or which are broken”.

Subsec. (e): Amended generally.

Subsec. (f): Added.

—1983 (Adj. Sess.). Subsec. (c): Added “or which are broken” following “clean”.

—1975. Section amended generally.

§ 1524. Labeling.

  1. Every beverage container sold or offered for sale at retail in this State shall clearly indicate by embossing or imprinting on the normal product label, or in the case of a metal beverage container on the top of the container, the word “Vermont” or the letters “VT” and the refund value of the container in not less than one-eighth inch type size or such other alternate indications as may be approved by the Secretary.  This subsection does not prohibit including names or abbreviations of other states with deposit legislation comparable to this chapter.
  2. The Commissioner of Liquor and Lottery may allow, in the case of liquor bottles, a conspicuous, adhesive sticker to be attached to indicate the deposit information required in subsection (a) of this section, provided that the size, placement, and adhesive qualities of the sticker are as approved by the Commissioner. The stickers shall be affixed to the bottles by the manufacturer, except that liquor that is sold in the State in quantities less than 100 cases per year may have stickers affixed by personnel employed by the Division of Liquor Control.
  3. This section shall not apply to permanently labeled beverage containers.
  4. [Repealed.]

HISTORY: Added 1971, No. 252 (Adj. Sess.), § 1; amended 1975, No. 105 , § 5, eff. Sept. 1, 1975; 1979, No. 132 (Adj. Sess.), § 2; 1983, No. 171 (Adj. Sess.), § 4; 1989, No. 175 (Adj. Sess.), §§ 1-3; 1989, No. 286 (Adj. Sess.), § 6; 1991, No. 97 , eff. June 27, 1991; 2005, No. 128 (Adj. Sess.), § 5; 2019, No. 73 , § 21.

History

Amendments

—2019. Subsec. (b): Substituted “and Lottery” for “Control” in the first sentence, and substituted “Division of Liquor Control” for “Department” at the end of the second sentence.

—2005 (Adj. Sess.). Subsec. (d): Repealed.

—1991. Subsec. (b): Rewrote the second sentence.

—1989 (Adj. Sess.). Act No. 175 substituted “one-eighth” for “one-quarter” preceding “inch type” in subsec. (a), added a new subsec. (b) and redesignated former subsec. (b) as subsec. (c).

Act No. 286 added subsec. (c).

—1983 (Adj. Sess.). Subsec. (a): Added “or such other alternate indications as may be approved by the secretary” following “size” in the first sentence.

Subsec. (b): Inserted “permanently labeled” preceding “beverage containers” and deleted “which are certified as refillable by the secretary” thereafter.

—1979 (Adj. Sess.). Subsec. (a): Inserted “or the letters ‘VT”’ preceding “and the refund value” in the first sentence and added the second sentence.

—1975. Section amended generally.

Notes to Opinions

Employment of notices in lieu of labels.

Neither the posting of notice in retail stores nor the accompanying of home deliveries with a printed notice complies with the container labeling requirement that each container be clearly labeled with the amount of deposit and the name of this state. 1974 Vt. Op. Att'y Gen. 69.

§ 1525. Prohibitions.

    1. No beverage shall be sold or offered for sale at retail in this State: (a) (1) No beverage shall be sold or offered for sale at retail in this State:
      1. in a metal container designed and constructed so that part of the container other than a piece of pressure sensitive tape is detachable in opening the container; or
      2. in containers connected to each other with plastic rings or similar devices that are not classified as biodegradable by the Secretary.
    2. For the purposes of this subsection only, the word “beverage” includes all drinks sold in liquid form intended for human consumption, whether or not specifically listed in section 1521 of this chapter.
  1. The Secretary of Natural Resources may exempt specific products from subdivision (a)(1) of this section for so long as existing technology does not permit compliance for those products.
  2. No distributor shall sell or offer for sale in this State a brand of beverage in a beverage container labeled as provided in subsection 1524(a) of this title if that distributor sells that beverage container containing that brand in a state that does not have a deposit-redemption system similar to the one established by this chapter and that is adjacent to this State. A distributor that violates this subsection is prohibited from selling or offering those beverages for sale in this State until the violation is corrected.
  3. No person shall knowingly attempt to redeem a container to a retailer or a redemption center for deposit return if that container was purchased outside this State.

HISTORY: Added 1971, No. 252 (Adj. Sess.), § 1; amended 1975, No. 105 , § 6, eff. Jan. 1, 1977; 1979, No. 63 , § 1, eff. Jan. 1, 1981; 1987, No. 261 (Adj. Sess.), § 4, eff. Jan. 1, 1990; 2005, No. 128 (Adj. Sess.), § 4; 2019, No. 14 , § 37, eff. April 30, 2019.

History

Revision note

—2012. In subsec. (c), substituted “subsection 1524(a) of this title” for “subsection (a) of this section.”

Amendments

—2019. Subsec. (a): Redesignated subdiv. (a)(1) as (a)(1)(A), redesignated subdiv. (a)(2) as (a)(1)(B), and added the designation (a)(2) to the last paragraph of the subsection.

—2005 (Adj. Sess.). Deleted former subsec. (b), redesignated former subsec. (c) as subsec. (b), and added subsecs. (c) and (d).

—1987 (Adj. Sess.). Subsec. (b): Inserted “other than liquor” following “chapter”.

—1979. Section amended generally.

—1975. Section amended generally.

§ 1526. Educational program.

  1. State informational material such as travel pamphlets, road maps, and similar publications submitted for printing on or after July 1, 1975 shall bear information relating to this chapter.  This information shall take the form of a standard public statement relating to the deposit law provided by the Secretary.
  2. The Agency of Education may incorporate information on this chapter in educational material which it normally distributes to primary and secondary educational institutions within the State. The Agency may cooperate with the Agency of Natural Resources in distributing any additional informative material on this chapter to schools in the State.

HISTORY: Added 1975, No. 105 , § 7; amended 1987, No. 76 , § 18; 2013, No. 92 (Adj. Sess.), § 254, eff. Feb. 14, 2014.

History

Amendments

—2013 (Adj. Sess.). Subsec. (b): Substituted “Agency of Education” for “department of education” and “Agency” for “department”.

—1987. Subsec. (b): In the second sentence, substituted “agency of natural resources” for “agency of environmental conservation”.

CROSS REFERENCES

Guidebooks and other published information provided by the Agency of Commerce and Community Development, see § 487 of this title.

§ 1527. Penalty.

A person who violates a provision of this chapter shall be fined not more than $1,000.00 for each violation.

HISTORY: Added 1975, No. 105 , § 8.

§ 1528. Beverage registration.

No distributor or manufacturer shall sell a beverage container in the State of Vermont without the manufacturer registering the beverage container with the Agency of Natural Resources prior to sale, unless distributed by the Department of Liquor and Lottery. This registration shall take place on a form provided by the Secretary and include the following:

  1. the name and principal business address of the manufacturer;
  2. the name of the beverage and the container size;
  3. whether the beverage is a part of an approved commingling agreement; and
  4. the name of the person picking up the empty beverage container, if that person is different from the manufacturer.

HISTORY: Added 2007, No. 123 (Adj. Sess.), § 4; amended 2019, No. 73 , § 22.

History

Amendments

—2019. Substituted “and Lottery” for “Control” at the end of the first sentence.

§ 1529. Redemption center certification.

A person operating a redemption center may obtain a certification from the Secretary. A redemption center certification shall include the following:

  1. Specification of the name and location of the facility;
  2. If the certified redemption center redeems more than 250,000 containers per year, a requirement that the certified redemption center shall participate in an approved commingling agreement; and
  3. Additional conditions, requirements, and restrictions as the Secretary may deem necessary to implement the requirements of this chapter. This may include requirements concerning reporting, recording, and inspections of the operation of the site.

HISTORY: Added 2007, No. 123 (Adj. Sess.), § 4.

§ 1530. Abandoned beverage container deposits.

  1. As used in this section, “deposit initiator” means the first distributor or manufacturer to collect the deposit on a beverage container sold to any person within the State.
  2. Beginning on January 1, 2020, and quarterly thereafter, every deposit initiator shall report to the Secretary of Natural Resources and the Commissioner of Taxes. The report shall be submitted on or before the 25th day of the calendar month succeeding the quarter ending on the last day of March, June, September, and December each year. The deposit initiator shall submit the report on a form provided by the Commissioner of Taxes. The report shall include:
    1. the number of beverage containers sold in the preceding quarter and the number of beverage containers returned in the preceding quarter;
    2. the amount of beverage container deposits received by the deposit initiator;
    3. the amount of refund payments made in the preceding quarter; and
    4. any additional information required by the Commissioner of Taxes.
    1. On or before January 1, 2020, and quarterly thereafter, at the time a report is filed pursuant to subsection (d) of this section, each deposit initiator shall remit to the Commissioner of Taxes any abandoned beverage container deposits from the preceding quarter. The amount of abandoned beverage container deposits for a quarter is the amount equal to the amount of deposits that the deposit initiator collected in the quarter less the amount of the total refund value paid out by the deposit initiator for beverage containers during the quarter. (c) (1) On or before January 1, 2020, and quarterly thereafter, at the time a report is filed pursuant to subsection (d) of this section, each deposit initiator shall remit to the Commissioner of Taxes any abandoned beverage container deposits from the preceding quarter. The amount of abandoned beverage container deposits for a quarter is the amount equal to the amount of deposits that the deposit initiator collected in the quarter less the amount of the total refund value paid out by the deposit initiator for beverage containers during the quarter.
    2. In any calendar quarter, the deposit initiator may submit to the Commissioner of Taxes a request for reimbursement of refunds paid under this chapter that exceed the amount of deposits collected in the quarter. The Commissioner of Taxes shall pay a request for reimbursement under this subdivision from the funds remitted to the Commissioner under subdivision (1) of this subsection, provided that:
      1. the Commissioner determines that the deposits collected by the deposit initiator are insufficient to pay the refunds on returned beverage containers; and
      2. a reimbursement paid by the Commissioner to the deposit initiator shall not exceed the amount paid by the deposit initiator under subdivision (1) of this subsection (c) less amounts paid to the initiator pursuant to this subdivision (2) in the previous four quarterly filings.
    3. Except as expressly provided otherwise in this chapter, all the administrative provisions of 32 V.S.A. chapter 151, including those relating to collection, enforcement, interest, and penalty charges, shall apply to the remittance of abandoned beverage container deposits.
    4. A deposit initiator may within 60 days after the date of mailing of a notice of deficiency, the date of a full or partial denial of a request for reimbursement, or the date of an assessment petition the Commissioner of Taxes in writing for a hearing and determination on the matter. The hearing shall be subject to and governed by 3 V.S.A. chapter 25. Within 30 days after a determination, an aggrieved deposit initiator may appeal a determination by the Commissioner of Taxes to the Washington Superior Court or the Superior Court of the county in which the deposit initiator resides or has a place of business.
    5. Notwithstanding any appeal, upon finding that a deposit initiator has failed to remit the full amount required by this chapter, the Commissioner of Taxes may treat any refund payment owed by the Commissioner to a deposit initiator as if it were a payment received and may apply the payment in accordance with 32 V.S.A. § 3112 .
  3. The Secretary of Natural Resources may prohibit the sale of a beverage that is sold or distributed in the State by a deposit initiator who fails to comply with the requirements of this chapter. The Secretary may allow the sale of a beverage upon the deposit initiator’s coming into compliance with the requirements of this chapter.
  4. Data reported to the Secretary of Natural Resources and the Commissioner of Taxes by a deposit initiator under this section shall be confidential business information exempt from public inspection and copying under 1 V.S.A. § 317(c)(9) but shall not be confidential return information under 32 V.S.A. § 3102 , provided that the Commissioner of Taxes may use and disclose such information in summary or aggregated form that does not directly or indirectly identify individual deposit initiators except to the Secretary of Natural Resources in relation to the administration of this chapter.

HISTORY: Added 2017, No. 208 (Adj. Sess.), § 4a, eff. May 30, 2018; amended 2019, No. 62 , § 8, eff. June 17, 2019; 2019, No. 175 (Adj. Sess.), § 21, eff. Oct. 8, 2020.

History

Amendments

—2019 (Adj. Sess.). Subsec. (e): Inserted “but shall not be confidential return information under 32 V.S.A. § 3102 ” and added “except to the Secretary of Natural Resources in relation to the administration of this chapter.”

—2019. Section amended generally.

Chapter 55. Aid to Municipalities for Water Supply and Water Pollution Abatement and Control

History

Amendments

—2015 (Adj. Sess.). 2015, No. 103 (Adj. Sess.), § 1, eff. May 12, 2016, substituted “and Water Pollution Abatement and Control” for “, Pollution Abatement and Sewer Separation” in the chapter heading.

CROSS REFERENCES

Consolidated sewer districts, see 24 V.S.A. § 3671 et seq.

Consolidated water districts, see 24 V.S.A. § 3341 et seq.

Power of secretary of agency of natural resources to order municipality to provide facilities to correct or abate improper sewage discharge, see § 1277 of this title.

Power of state board of health to order municipality to construct water treatment facilities, see 18 V.S.A. § 1221 .

Sewage disposal systems, see 24 V.S.A. § 3601 et seq.

Sewage systems, see 24 V.S.A. § 3501 et seq.

State board of health to advise municipal officers in regard to drainage, water supply, and sewerage, see 18 V.S.A. § 108 .

Water mains and sewer, see 24 V.S.A. § 3401 et seq.

Water pollution control generally, see § 1250 et seq. of this title.

Water resources management, see § 901 et seq. of this title.

Waterworks, see 24 V.S.A. § 3301 et seq.

Subchapter 1. General Provisions

§ 1571. Definitions.

As used in this chapter:

  1. “Agency” means Agency of Natural Resources.
  2. “Board” means the Natural Resources Board.
  3. [Repealed.]
  4. “Department” means the Department of Environmental Conservation.
  5. “Municipality” means a municipality as defined in 1 V.S.A. § 126 .
  6. “Water pollution abatement and control facilities” means such equipment, conveyances, and structural or nonstructural facilities owned or operated by a municipality that are needed for and appurtenant to the prevention, management, treatment, storage, or disposal of stormwater, sewage, or waste, including a wastewater treatment facility, combined sewer separation facilities, an indirect discharge system, a wastewater system, flood resiliency work related to a structural facility, or a groundwater protection project.
  7. [Repealed.]
  8. “Secretary” means the Secretary of Natural Resources or the Secretary’s duly authorized representative.
  9. [Repealed.]
  10. “Designated center” means a downtown development district, village center, new town center, growth center, Vermont neighborhood, or neighborhood development area designated under 24 V.S.A. chapter 76A.
  11. “Sewage” shall have the same meaning as used in 24 V.S.A. § 3501 .
  12. “Stormwater” shall have the same meaning as stormwater runoff in section 1264 of this title.
  13. “Waste” shall have the same meaning as used in section 1251 of this title.

HISTORY: Added 1971, No. 97 , § 3, eff. April 22, 1971; amended 1981, No. 222 (Adj. Sess.), § 30; 1987, No. 76 , § 18; 1997, No. 62 , § 57, eff. June 26, 1997; 2003, No. 63 , § 61, eff. June 11, 2003; 2003, No. 115 (Adj. Sess.), § 39, eff. Jan. 31, 2005; 2003, No. 121 (Adj. Sess.), § 63, eff. June 8, 2004; 2013, No. 147 (Adj. Sess.), § 10, eff. June 1, 2014; 2015, No. 103 (Adj. Sess.), § 5, eff. May 12, 2016.

History

Amendments

—2015 (Adj. Sess.). Subdivs. (3), (7), and (9): Repealed.

Subdiv. (6): Amended generally.

Subdivs. (11), (12), and (13): Added.

—2013 (Adj. Sess.). Subdiv. (10): Added.

—2003 (Adj. Sess.). Subdiv. (2): Substituted “natural” for “water”.

Subdiv. (8): Inserted “or the secretary’s duly authorized representative” following “natural resources”.

Subdiv. (9)(B): Amended generally.

—2003. Subdiv. (9): Substituted “one” for “1.25” preceding “percent”.

—1997. Subdiv (9): Added.

—1987. Subdiv. (1): Substituted “agency of natural resources” for “agency of environmental conservation”.

Subdiv. (4): Substituted “department of environmental conservation” for “department of water resources and environmental engineering”.

Subdiv. (8): Substituted “agency of natural resources” for “agency of environmental conservation”.

—1981 (Adj. Sess.). Section amended generally.

§ 1572. Repealed. 2015, No. 103 (Adj. Sess.), § 6, eff. May 12, 2016.

History

Former § 1572. Former § 1572, relating to coordinated plan review, was derived from 1979, No. 33 and amended by 1981, No. 222 (Adj. Sess.), § 30.

Subchapter 2. Engineering Planning Advances

§§ 1591-1595. Repealed. 2015, No. 103 (Adj. Sess.), § 7, eff. May 12, 2016.

History

Former §§ 1591-1595. Former § 1591, relating to planning, was derived from 1971, No. 97 , § 3 and amended by 1971, No. 255 (Adj. Sess.), § 7; 1981, No. 222 (Adj. Sess.), § 31 and 1987, No. 219 (Adj. Sess.), § 4. For present provisions, see 10 V.S.A. § 4764 .

Former § 1592, relating to application, was derived from 1971, No. 97 , § 3. For present provisions, see 10 V.S.A. § 4765 .

Former § 1593, relating to award of advance, was derived from 1971, No. 97 , § 3 and amended by 1991, No. 71 , § 8. For present provisions, see 10 V.S.A. § 4766 .

Former § 1594, relating to payment of awards, was derived from 1971, No. 97 , § 3 and amended by 1983, No. 195 (Adj. Sess.), § 5(b) and 1989, No. 276 (Adj. Sess.), § 31. For present provisions, see 10 V.S.A. § 4767 .

Former § 1595, relating to repayment of advances, was derived from 1971, No. 97 , § 3 and amended by 1983, No. 198 (Adj. Sess.), § 1. For present provisions, see 10 V.S.A. § 4768 .

§§ 1596-1598. Repealed. 1981, No. 222 (Adj. Sess.), § 32.

History

Former §§ 1596-1598. Former § 1596, relating to priorities and limitations, was derived from 1971, No. 97 , § 3, and amended by 1975, No. 2 , § 1.

Former § 1597, relating to appeals, was derived from 1971, No. 97 , § 3.

Former § 1598, relating to regulations, was derived from 1971, No. 97 , § 3.

Subchapter 3. Construction Grants

History

Amendments

—2015 (Adj. Sess.). 2015, No. 103 (Adj. Sess.), § 12, eff. May 12, 2016, deleted “-in-Aid” following “Grants” in the subchapter heading.

Pollution control revolving loan fund; drinking water revolving fund; loan forgiveness. 2009, No. 43 , § 40 provides: “(a) Upon awarding a loan to a municipality from the Vermont environmental protection agency pollution control revolving fund or the Vermont environmental protection agency drinking water state revolving fund, the secretary of the agency of natural resources may forgive up to 100 percent of the loan if the award is made from funds appropriated from the American Recovery and Reinvestment Act of 2009 (ARRA).

“(b) Notwithstanding 10 V.S.A. § 1624a(b) , the assistance provided by a loan from the Vermont environmental protection agency pollution control revolving fund made from ARRA funds may be for up to 100 percent of the eligible project cost.

“(c) The secretary shall establish standards, policies, and procedures as necessary for implementing the provisions of this section and for revising standard priority lists in order to comply with regulations associated with the ARRA.”

§ 1621. Financial assistance.

A municipality that desires State financial assistance for construction, improvement, or expansion of water pollution abatement and control facilities may make application to the Department in accordance with this subchapter.

HISTORY: Added 1971, No. 97 , § 3, eff. April 22, 1971; amended 1997, No. 62 , § 58, eff. June 26, 1997; 2015, No. 103 (Adj. Sess.), § 13, eff. May 12, 2016.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—1997. Rewrote the section catchline and substituted “state financial assistance” for “a state assistance grant” following “which desires”.

§ 1622. Eligible projects.

As used in this subchapter, eligible project costs for water pollution abatement and control facilities projects shall include equipment, conveyances, and structural or nonstructural facilities needed for and appurtenant to the prevention, management, treatment, storage, or disposal of sewage, waste, or stormwater, and the associated costs, including planning and design costs, necessary to construct the improvements, including costs to acquire land for the project.

HISTORY: Added 1971, No. 97 , § 3, eff. April 22, 1971; amended 1971, No. 255 (Adj. Sess.), § 8, eff. April 11, 1972; 1973, No. 112 , § 1, eff. April 25, 1973; 1977, No. 241 (Adj. Sess.), § 2; 1983, No. 198 (Adj. Sess.), § 2, eff. Oct. 1, 1984; 1997, No. 62 , § 59, eff. June 26, 1997; 2015, No. 103 (Adj. Sess.), § 14, eff. May 12, 2016; 2017, No. 185 (Adj. Sess.), § 18, eff. May 28, 2018.

History

Amendments

—2017 (Adj. Sess.). Inserted “, including planning and design costs,”.

—2015 (Adj. Sess.). Section amended generally.

—1997. Subdiv. (1): Amended generally.

—1983 (Adj. Sess.). Subdiv. (1): Substituted “an approved grant allowance to defray all or a portion of the” for “and may include” preceding “engineering”.

Subdiv. (2)(A): Substituted “an approved grant allowance to defray all or a portion of the” for “and may include” preceding “engineering” and inserted “and” preceding “up”.

Subdiv. (2)(B): Substituted “an approved grant allowance to defray all or a portion of the” for “and may include” preceding “engineering”.

Subdiv. (2)(C): Inserted “and” preceding “alteration” and “of facilities, an approved grant allowance to defray all or a portion of the engineering costs” thereafter.

Subdiv. (3): Substituted “an approved grant allowance to defray all or a portion of the” for “and may include” preceding “engineering costs”.

—1977 (Adj. Sess.). Section amended generally.

—1973. Subdiv. (2): Added “which are not eligible for federal assistance” following “costs incident thereto”.

—1971 (Adj. Sess.). Subdiv. (2): Inserted “and such other sewers necessary for federal aid requirements” following “by the department”.

§ 1623. Application.

A municipality that has voted funds in a specific amount to construct a water pollution abatement and control facility as described in section 1622 of this title, at a meeting duly warned for that purpose, which desires to avail itself of State aid funds under this subchapter, shall apply for such funds in writing to the Department in a manner prescribed by the Department.

HISTORY: Added 1971, No. 97 , § 3, eff. April 22, 1971; amended 1977, No. 39 , § 3, eff. April 19, 1977; 2015, No. 103 (Adj. Sess.), § 15, eff. May 12, 2016.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—1977. Section amended generally.

§§ 1624-1626a. Repealed. 2016, No. 103 (Adj. Sess.), § 16, eff. May 12, 2016.

History

Former §§ 1624-1626a. Former § 1624, relating to financial assistance with water supply projects, was derived from 1971, No. 97 , § 3 and amended by 1971, No. 255 (Adj. Sess.), § 9; 1973, No. 112 , § 2; 1979, No. 73 , § 1; 1985, No. 172 (Adj. Sess.), § 6; 1987, No. 76 , § 18; 1993, No. 233 (Adj. Sess.), § 58; 1995, No. 190 (Adj. Sess.), § 1(b); 1997, No. 62 , § 60; 1997, No. 134 (Adj. Sess.), § 7; 2001, No. 61 , §§ 36, 37; 2003, No. 63 , § 59 and 2003, No. 121 (Adj. Sess.), § 64.

Former § 1624a, relating to awards for pollution abatement projects for combined sewer overflows, was derived from 1987, No. 219 (Adj. Sess.), § 1 and amended by 1995, No. 190 (Adj. Sess.), § 1(b); 2011, No. 117 (Adj. Sess.), § 1 and 2011, No. 138 (Adj. Sess.), § 27.

Former § 1625, relating to awards for pollution abatement projects to abate dry weather sewage flows, was derived from 1971, No. 97 , § 3 and amended by 1973, No. 35 ; 1973, No. 112 , § 7; 1977, No. 39 , § 4; 1977, No. 241 (Adj. Sess.), § 1; 1983, No. 198 (Adj. Sess.), §§ 3, 3a; 1985, No. 172 (Adj. Sess.), § 7; 1987, No. 219 (Adj. Sess.), §§ 2, 3a; 1991, No. 261 (Adj. Sess.), § 1; 1993, No. 180 (Adj. Sess.), § 1; 1995, No. 190 (Adj. Sess.), § 1(b); 2003, No. 63 , § 54; 2011, No. 138 (Adj. Sess.), § 27 and 2015, No. 64 , § 48.

Former § 1626, relating to awards for combined sewer separation projects, was derived from 1971, No. 97 , § 3 and amended by 1981, No. 222 (Adj. Sess.), § 33. The subject matter is now covered in § 1624 of this title.

Former § 1626a, relating to awards for wastewater treatment plants with a capacity of 250,000 gallons or more per day, was derived from 1993, No. 233 (Adj. Sess.), § 60 and amended by 2007, No. 52 , § 42.

§ 1626b. Municipal water pollution control grants.

  1. Projects.   The Secretary may award State assistance grants to municipalities for water pollution abatement and control facilities.
  2. Application.   The Secretary shall prescribe the form of application to apply for a grant under this section. The application shall include:
    1. a description of the project;
    2. a schedule for project implementation;
    3. an estimate of the project cost;
    4. the information necessary for the Secretary to determine the grant amount using the criteria described in section 1628 of this title;
    5. whether the project requires a permit under chapter 151 of this title; and
    6. any other information that the Secretary deems necessary to implement this section.
  3. Grant award.   The Secretary shall make grant awards pursuant to the project priority system adopted under section 1628 of this title in an amount not to exceed 35 percent of eligible project costs. The Secretary shall not award a grant under this section until the applicant provides a permit or jurisdictional opinion that a permit is not required, issued pursuant to chapter 151 of this title.
  4. Payment of awards.   Payment of awards shall be made pursuant to section 1627 of this title.

HISTORY: Added 2015, No. 103 (Adj. Sess.), § 20, eff. May 12, 2016.

§ 1627. Payment of awards.

The Department may make periodic grant payments based upon certification by the grantee that costs for which reimbursement is requested have been incurred and paid by the grantee. The recipient shall provide supporting evidence of payment upon the request of the Department. Partial payments shall be made not more frequently than monthly. Interest costs incurred in local short-term borrowing of the grant amount shall be reimbursed as part of the grant. After the construction has been completed, and its cost audited by the Department, the Department shall certify the remainder of the award to the Commissioner of Finance and Management who shall issue his or her warrant for payment.

HISTORY: Added 1971, No. 97 , § 3, eff. April 22, 1971; amended 1977, No. 39 , § 5, eff. April 19, 1977; 1983, No. 195 (Adj. Sess.), § 5(b); 1989, No. 276 (Adj. Sess.), § 32, eff. June 20, 1990.

History

Amendments

—1989 (Adj. Sess.). Rewrote the first sentence, added the second through fourth sentences, and substituted “commissioner of finance and management” for “commissioner of finance and information support” and inserted “or her” following “his” in the fifth sentence.

—1983 (Adj. Sess.). Inserted “and information support” following “commissioner of finance” in the first and second sentences.

—1977. Section amended generally.

CROSS REFERENCES

Disbursement of monies from the State Treasury, see 32 V.S.A. § 461 et seq.

Subchapter 4. Priority System, Regulations, Appeals, and Transfer of Funds

History

Amendments

—1981 (Adj. Sess.). 1981, No. 222 (Adj. Sess.), §§ 34 and 38 designated §§ 1628-1632 of this chapter as subchapter 4 and redesignated former subchapter 4, consisting of §§ 1650-1653 of this chapter, as present subchapter 5.

§ 1628. Priorities.

The Department shall make grant awards under this chapter to eligible municipal water pollution abatement and control projects on the basis of need as determined according to a system of priorities adopted by rule by the Department and to the extent appropriate funds are available. The system of priorities shall require consideration of criteria, including:

  1. whether a project is grant or loan eligible;
  2. the condition of the waters affected by the project and whether the waters are:
    1. not in compliance with the Vermont Water Quality Standards; or
    2. have a total maximum daily load (TMDL);
  3. whether the project will address water quality issues identified in a basin plan;
  4. whether the project will abate or control pollution that is causing or may cause a threat to public health;
  5. whether the project will address an emergency situation affecting or constituting a threat to the environment or the public health, safety, or welfare;
  6. if the project repairs or replaces existing infrastructure, the condition and integrity of such infrastructure;
  7. whether the project incorporates principles of environmental resiliency or sustainability, including energy efficiency, which reduce the environmental impacts of the project or a water pollution abatement and control facility;
  8. the fiscal integrity and sustainability of the project, including whether the project is a cost-effective alternative, when compared to other alternatives;
  9. whether the project serves a designated center;
  10. affordability factors for the municipality or municipalities in which the project is located, including:
    1. median household income;
    2. unemployment rate; and
    3. population trends; and
  11. if the project removes a pollutant for which the water or waters affected by the project are impaired, the cost-effectiveness of the project at removing that pollutant.

HISTORY: Added 1971, No. 97 , § 3, eff. April 22, 1971; amended 1981, No. 222 (Adj. Sess.), § 35; 1989, No. 276 (Adj. Sess.), § 33, eff. June 20, 1990; 2013, No. 147 (Adj. Sess.), § 11, eff. June 1, 2014; 2015, No. 103 (Adj. Sess.), § 21, eff. May 12, 2016.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—2013 (Adj. Sess.). Added the second sentence.

—1989 (Adj. Sess.). Added the second sentence.

—1981 (Adj. Sess.). Section amended generally.

§ 1629. Appeals.

Appeals of any act or decision of the Department under this subchapter shall be made in accordance with chapter 220 of this title.

HISTORY: Added 1971, No. 97 , § 3, eff. April 22, 1971; amended 1981, No. 222 (Adj. Sess.), § 36; 2003, No. 115 (Adj. Sess.), § 40, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Rewrote the section.

—1981 (Adj. Sess.). Section amended generally.

§ 1630. Rules.

The Department with the approval of the Secretary shall adopt rules consistent with this subchapter as it finds necessary for proper administration of the subchapter.

HISTORY: Added 1971, No. 97 , § 3, eff. April 22, 1971; amended 2015, No. 103 (Adj. Sess.), § 22, eff. May 12, 2016.

History

Amendments

—2015 (Adj. Sess.). Substituted “Rules” for “Regulations” in section heading and “rules” for “regulations” following “adopt”.

§ 1631. Transfer of funds.

The Commissioner of the Department, with the approval of the Secretary of Natural Resources, the Secretary of Administration, and the Emergency Board, may transfer any unexpended balance of funds between a municipal pollution control or water supply planning or construction and storm water separation project authorized under this chapter if, in his or her judgment, financial or economic conditions are such that the best interests of the State would be served thereby.

HISTORY: Added 1975, No. 254 (Adj. Sess.), § 139; amended 1981, No. 222 (Adj. Sess.), § 37; 1987, No. 76 , § 18.

History

Amendments

—1987. Substituted “agency of natural resources” for “agency of environmental conservation”.

—1981 (Adj. Sess.). Deleted “of water resources” following “commissioner of the department”.

CROSS REFERENCES

Emergency board generally, see 32 V.S.A. § 131 et seq.

§ 1632. State administrative departments.

For the purpose of constructing or substantially improving a water pollution abatement and control facility, any State administrative department as authorized in Title 3 shall be deemed a municipality under section 1623 of this title and subject to the terms and conditions applicable to municipalities; provided, however, that a State administrative department deemed a municipality shall only receive State assistance under this chapter if the Department has a surplus of funds at the end of each fiscal year after all municipal grant applicants have received committed funds.

HISTORY: Added 1979, No. 73 , § 2, eff. May 7, 1979; amended 1981, No. 44 ; 2015, No. 103 (Adj. Sess.), § 23, eff. May 12, 2016.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—1981. Substituted “any state administrative department as authorized in Title 3” for “the department of forests, parks, and recreation”.

Subchapter 5. Technical and Other Services to Municipality

History

Amendments

—1981 (Adj. Sess.). 1981, No. 222 (Adj. Sess.), § 38, redesignated former subchapter 4 as subchapter 5 in light of the designation of §§ 1628-1632 of this chapter as subchapter 4. See note following heading for subchapter 4.

§ 1650. Department acting on behalf of municipality.

Any municipality may request the Department to act in its behalf in undertaking the planning and construction of facilities described in this chapter.

HISTORY: Added 1971, No. 97 , § 3, eff. April 22, 1971; amended 1981, No. 222 (Adj. Sess.), § 39.

History

Amendments

—1981 (Adj. Sess.). Substituted “department” for “water resources department” and deleted “the preceding subchapters of” preceding “this chapter”.

§ 1651. Application for assistance.

When the voters of the municipality at a duly warned meeting have authorized the proper officials of the municipality to make application to and to enter into a contract with the Department for specific engineering and technical services, the municipality pursuant to a written application to the Department submitted in a form prescribed by the Department may enter into a contract with the Department under this subchapter.

HISTORY: Added 1971, No. 97 , § 3, eff. April 22, 1971.

§ 1652. Contracts.

Upon approval of the application, the Department shall prepare and offer to the municipality a contract for services requested, which shall include such terms and conditions as the Department determines to be reasonable, including reimbursement of all costs of such services.

HISTORY: Added 1971, No. 97 , § 3, eff. April 22, 1971.

History

Revision note

—2018. Deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

§ 1653. Eligibility.

For the purposes of this subchapter, the Department, when acting on behalf of a municipality, is an eligible applicant for funds available under this chapter. Eligible planning and construction costs shall include the cost to the Department of undertaking these services on behalf of the municipality; however, in no case shall the Department administration charges exceed two percent of the project cost. Nothing in this subchapter shall relieve a municipality of its duty to provide the land required for the project or to contribute funds toward the cost of the project as otherwise required by law.

HISTORY: Added 1971, No. 97 , § 3, eff. April 22, 1971; amended 1981, No. 222 (Adj. Sess.), § 40.

History

Amendments

—1981 (Adj. Sess.). Rewrote the first sentence.

Chapter 56. Public Water Supply

History

Legislative intent. 1991, No. 71 , § 1a, provided:

“(a) The purpose of this act (which added this chapter and 18 V.S.A. § 501b , amended 3 V.S.A. § 2822 , 10 V.S.A. §§ 1593 , 8003 and 18 V.S.A. § 503 , and repealed 18 V.S.A. §§ 1231-1239 ) is to transfer the federal Safe Drinking Water program to the agency of natural resources without sacrificing public health vigilance in insuring access to adequate quantities of safe, clean drinking water for the citizens of Vermont.

“(b) In order to accomplish this, the secretary of the agency of natural resources shall reach consensus with the commissioner of health on recognized issues of public health concern.”

CROSS REFERENCES

Enforcement of environmental laws generally, see § 8001 et seq. of this title.

Protection of groundwaters, see § 1391 et seq. of this title.

§ 1671. Definitions.

As used in this chapter:

  1. “Drinking water” means noncarbonated water that is intended for human consumption or other consumer uses whether provided by a public water system or in a container, bottle, or package, or in bulk, including water used for production of ice, foodstuffs, or other products designed for human consumption.
  2. “Department” means the Department of Environmental Conservation.
  3. “Person” means any individual, partnership, company, corporation, cooperative, association, unincorporated association, joint venture, trust, the State of Vermont or any department, agency, subdivision, or municipality, the U.S. government or any department, agency, or subdivision, or any other legal or commercial entity.
  4. “Public water source” means any surface water or groundwater supply used as a source of drinking water for a public water system.
    1. “Public water system” means any system, or combination of systems owned or controlled by a person, that provides drinking water through pipes or other constructed conveyances to the public and that: (5) (A) “Public water system” means any system, or combination of systems owned or controlled by a person, that provides drinking water through pipes or other constructed conveyances to the public and that:
      1. has at least 15 service connections; or
      2. serves an average of at least 25 individuals for at least 60 days a year.
    2. Public water system shall also mean any part of a piped system that does not provide drinking water, if use of such a part could affect the quality or quantity of the drinking water supplied by the system. Public water system shall also mean a system that bottles drinking water for public distribution and sale.
  5. “Secretary” means the Secretary of Natural Resources or the Secretary’s designee.
  6. “Public water source protection area” means a surface and subsurface area from or through which contaminants are reasonably likely to reach a public water source.
  7. “Required agricultural practices” shall be as defined by the Secretary of Agriculture, Food and Markets under 6 V.S.A. § 4810 .
  8. “Agricultural land” means any land, exclusive of any housesite, in active use to grow hay or cultivated crops, Christmas trees, horticultural crops, greenhouse and nursery crops, pasture livestock, or to cultivate trees bearing edible fruit or produce an annual maple product, and that is 25 acres or more in size except as provided below.  There shall be a presumption that the land is used for agricultural purposes if it has produced an annual gross income from the sale of agricultural commodities in one of two, or three of the five, preceding calendar years of at least:
    1. $2,000.00 for parcels of up to 25 acres;
    2. $75.00 per acre for each acre over 25, with the total income required not to exceed $5,000.00;
    3. exceptions to these income requirements shall be made in cases of horticultural or nursery production Christmas tree production, or orchard lands planted to fruit producing trees that are not yet of saleable size or bearing age.
  9. “Community water system” means a public water system that serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents. The construction of a water system that upon completion of construction could be reasonably expected to serve at least 15 service connections or at least 25 year-round residents shall require a community water system construction permit.
  10. “Noncommunity water system” means a public water system that is not a community water system. There are two categories of noncommunity systems:
    1. “nontransient” systems, that are systems that serve 25 or more of the same people daily for more than six months in any year; and
    2. “transient” systems, which are all other noncommunity public water systems.
  11. “Conservation” means methods and procedures designed to promote efficient use of water and to minimize waste of water.
  12. “Capacity” means that a public water system has the technical, financial, and managerial capabilities to consistently comply with current performance standards, including the requirements of the Safe Drinking Water Act, 42 U.S.C. § 300f et seq., as amended.

HISTORY: Added 1991, No. 71 , § 2; amended 1995, No. 103 (Adj. Sess.), § 6; 1997, No. 134 (Adj. Sess.), § 8; 2001, No. 15 , § 1; 2003, No. 42 , § 2, eff. May 27, 2003; 2015, No. 64 , § 13; 2015, No. 97 (Adj. Sess.), § 23.

History

Revision note

—2015. In subdiv. (8), substituted “required agricultural practices” for “accepted agricultural practices” in accordance with 2015, No. 64 , § 13.

Amendments

—2015 (Adj. Sess.). Subdiv. (8): Substituted “ 6 V.S.A. § 4810 ” for “subsection 1021(f) of this title”.

—2003. Subdiv. (8): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets”.

—2001. Subdiv. (5): Deleted “piped” preceding “drinking water” and inserted “through pipes or other constructed conveyances” thereafter in the first sentence, and deleted “piped” preceding “system” in the first sentence of the last undesignated paragraph.

Subdiv. (11): Amended generally.

—1997 (Adj. Sess.). Subdiv. (5)(A): Substituted “15” for “ten”.

Subdiv. (10): Substituted “15” for “ten” and added the second sentence.

Subdivs. (12), (13): Added.

—1995 (Adj. Sess.) Subdiv. (5)(B): Added the second sentence to the final undesignated paragraph.

§ 1672. Authority of the Agency of Natural Resources.

  1. Except as provided in subsections (c) through (f) of this section, to prevent and minimize public health hazards, the Secretary shall have authority over and shall regulate the purity of drinking water, the adequacy, construction, and operation of public water systems, public water sources, and public water source protection areas.
  2. The Secretary may establish by rule standards or requirements for:
    1. Drinking water quality.  Such standards or requirements shall be at least as stringent as the most recent national primary drinking water regulations, issued or promulgated by the U.S. Environmental Protection Agency pursuant to the Safe Drinking Water Act, 42 U.S.C. section 300f et seq.
    2. The construction, protection, testing, and monitoring of public water sources.
    3. The design, flows, construction, installation, operation, and maintenance of new public water systems.
    4. The design, flows, construction, operation, maintenance and alteration, repair, or extension to an existing public water system.
    5. The approval or denial of connections by public water systems.
    6. The ongoing monitoring and testing of drinking water and public water systems to be performed by a laboratory certified pursuant to 18 V.S.A. § 501b .
    7. Public water source protection areas.
    8. The mitigation or prevention of public health risks arising from public water sources, public water systems, and public water source protection areas.
    9. [Repealed.]
    10. Obtaining a construction permit for a new water system. At a minimum, the water system shall demonstrate that it possesses the long-term financial, managerial, and technical capability to operate and maintain a water system in conformance with federal and State regulatory requirements.
  3. Nothing in this chapter is intended to limit the authority of the Agency of Human Services, the Commissioner of Health, or the Board of Health to manage the public health of the State of Vermont.  In adopting rules pursuant to this section, the Secretary shall submit the proposed rules to the Secretary of Human Services at least 30 days before filing them with the Secretary of State under 3 V.S.A. chapter 25.
  4. Nothing in this chapter is intended to limit or supersede the authority of the Secretary of Agriculture, Food and Markets under the provisions of Title 6 and this title.  The Secretary shall not manage or restrict agricultural activities or other activities regulated by the Secretary of Agriculture, Food and Markets without his or her consent.  When adopting rules under this section, the Secretary shall consult with the Secretary of Agriculture, Food and Markets to minimize any conflicts with that Agency.
  5. Nothing in this chapter is intended to limit or supersede the authority of the Board of Health, the Commissioner of Health, or local health officers under Title 18.
  6. Nothing in this chapter is intended to limit the authority of the Public Utility Commission under the provisions of Title 30.
  7. If the Public Utility Commission does not concur with the rules proposed by the Secretary, the Secretary shall publicize the comments submitted by the Public Utility Commission, at each step specified in 3 V.S.A. § 836 , and the Legislative Committee on Administrative Rules shall consider those comments.

HISTORY: Added 1991, No. 71 , § 2; amended 1993, No. 2 , § 1, eff. April 9, 1993; 1995, No. 103 (Adj. Sess.), § 7; 1997, No. 134 (Adj. Sess.), § 9; 2003, No. 42 , § 2, eff. May 27, 2003; 2003, No. 163 (Adj. Sess.), § 22; 2009, No. 56 , § 27.

History

Revision note

—2017. In subsecs. (f) and (g), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

Editor’s note

—2004. In subdiv. (b)(6), substituted “section 501b of Title 18” for “section 510b of Title 18” to correct inaccurate statutory cross reference.

Amendments

—2009. Subsec. (f): Deleted the former second and third sentences.

—2003 (Adj. Sess.). Subdiv. (6): Amended generally.

—2003. Subsec. (d): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” in the first sentence, “secretary of agriculture, food and markets” for “commissioner of the department of agriculture, food and markets” and “agency” for “department” in the last sentence.

—1997 (Adj. Sess.). Subsec. (b): Deleted subdiv. (9), relating to requirements for smaller systems, and added subdiv. (10).

—1995 (Adj. Sess.) Subdiv. (b)(6): Amended generally.

—1993. Subdiv. (b)(9): Inserted “and other” following “the monitoring” and substituted “10 through 14” for “less than 15” preceding “connections”, “that shall” for “may” thereafter and “and shall be limited to bacteriological and nitrate monitoring” for “to the extent allowed by state and federal law” following “systems”.

Water supply rulemaking. 2009, No. 56 , § 28 provides: “The failure of the secretary to solicit concurrence from the public service board under subsection 1672(f) of Title 10 shall not affect the validity of any rule adopted under chapter 56 of Title 10 prior to July 1, 2009.”

§ 1673. Prohibitions.

  1. A person shall not alter, expand, or otherwise modify an existing public water system or public water source without a permit from the Secretary.
  2. A person shall not construct a new public water system or public water source or change an existing water system or source into a public water system or public water source without a permit from the Secretary.
  3. A person shall not operate a public water system or public water source without a permit from the Secretary.
  4. As of July 1, 1993, a person shall not operate a public water system unless the Secretary has certified the person as a public water system operator pursuant to this chapter.
  5. A person shall not operate or maintain a public water system or public water source in a manner that causes or allows that system or source to be at risk of damage or contamination.
  6. A person shall not sell imported or domestic containerized, bottled, or packaged drinking water in the State of Vermont unless:
    1. the water and the source and system of the imported water is regulated by drinking water standards or requirements substantially equivalent to or more stringent than standards or requirements established by the Secretary pursuant to subsection 1672(b) of this title and the importer of the water has presented certification of such standards;
    2. the water and the source and system of the domestic drinking water meet the standards or requirements established by the Secretary pursuant to subsection 1672(b) of this title; and
    3. the name, source, and the location of the bottler of spring, artesian, or municipal water are identified.

HISTORY: Added 1991, No. 71 , § 2; amended 1993, No. 47 , § 2; 1999, No. 50 , § 1; 1999, No. 63 , § 4.

History

Editor’s note—

During the 1999 Session, both Act Nos. 50 and 63 amended subsec. (f) of this section. The amendments by both acts made the same change (deleting subdiv. (3) and inserting “or municipal” in former subdiv. (4)); however, both acts differed in their stylistic treatment of this subdiv. The stylistic version of the subdiv. is set out above as amended by Act No. 63.

Amendments

—1999. Subsec. (f): Act No. 50 deleted subdiv. (3), and substituted “spring, artesian, or municipal water” for “spring or artesian water” in subdiv. (4) and substituted periods for semicolons at the end of subdivs. (1) and (2).

Act No. 63 inserted “and” following “of this title” in subdiv. (2), deleted former subdiv. (3), redesignated former subdiv. (4) as present subdiv. (3) and substituted “spring, artesian, or municipal water” for “spring or artesian water” in that subdiv.

—1993. Subsec. (f): Deleted “or” following “standards” in subdiv. (1) and following “title” in subdiv. (2), substituted “to show the amounts of arsenic, lead, sodium, and nitrates it contains, together with the amounts of” for “with respect to arsenic, lead, sodium, nitrates and” following “labeled” in the first sentence and deleted “and” following “nitrates” and substituted “and” for “or” following “agency” in the second sentence of subdiv. (3) and added subdiv. (4).

Use of existing labels referring to department of health. 1991, No. 71 , § 9(c), provided: “A person who prepared labels under Title 18 which are now subject to section 1673(f)(3) of Title 10, and which labels refer the reader to the department of health for further information, may continue to use that reference until stocks are depleted, until the labels must be changed for some reason other than the reference, or until July 1, 1993, whichever is sooner.”

CROSS REFERENCES

Labeling requirements for spring or artesian well water bottled in Vermont, see 6 V.S.A. § 2964a .

Law Reviews —

For note, “Filtration Avoidance Under the Safe Drinking Water Act”, see 19 Vt. L. Rev. 557 (1995).

§ 1674. Certification of water system operators.

    1. The Secretary shall by rule establish processes and criteria for: (a) (1) The Secretary shall by rule establish processes and criteria for:
      1. the classification of public water systems for the purpose of certifying operators; and
      2. the certification of persons qualified to operate specific classes of public water systems.
    2. The rules shall minimize the regulatory burden on smaller systems, to the extent allowable by State and federal law.
    1. The Secretary may suspend or revoke a certificate granted under this section, after notice and opportunity to be heard, if the Secretary finds that the certificate holder has: (b) (1) The Secretary may suspend or revoke a certificate granted under this section, after notice and opportunity to be heard, if the Secretary finds that the certificate holder has:
      1. submitted materially false or materially inaccurate information; or
      2. violated any material requirement, restriction, or condition of the certificate.
    2. The Secretary shall set forth what steps, if any, may be taken by the certificate holder to relieve the holder of the suspension or enable the certificate holder to reapply for certification if a previous certificate has been revoked.

HISTORY: Added 1991, No. 71 , § 2.

History

Effect of existing rules. 1991, No. 71 , § 9(a), provided: “Existing rules for public water supplies adopted under Title 18 shall remain in effect as rules adopted under 10 V.S.A. chapter 56 until superseded by rules adopted by the secretary of natural resources under this chapter.”

CROSS REFERENCES

Fees for public water system operator certification, see 3 V.S.A. § 2822 .

Procedure for adoption of administrative rules, see 3 V.S.A. part 1, chapter 25.

§ 1675. Permits; conditions; duration; suspension of revocation.

  1. Authority to issue, renew, or deny permit.   The Secretary may issue, renew, or deny a public water system permit required by this chapter. As part of this authority, the Secretary may issue general operating permits for the operation of transient noncommunity water systems.
  2. Avoidance of public health hazard or risk.   A public water system permit shall be issued or renewed only upon a finding by the Secretary, included in the permit, that operation of the system will comply with the standards adopted under this chapter and will not constitute a public health hazard or a significant public health risk.
    1. In making this finding for the issuance of a permit for a new public water source, the Secretary shall consider the probable effects of existing and likely future land use practices, including the effects of the uses of agricultural lands, that may affect the quantity or quality of the water associated with any proposed public water source, and whether such practices are likely to constitute a public health hazard relating to such source. The Secretary shall not issue a permit for a new public water source if he or she determines that such existing or likely future land use practices are likely to constitute such a public health hazard.
    2. In making this finding for the issuance of a permit for the addition of a new type of disinfectant, the Secretary shall, after consultation with the Department of Health, consider the likely effects on health from the use of the new type of disinfectant. The Secretary shall not issue a permit for a new or existing public water system if he or she determines that use of a new type of disinfectant will result in a health effect that is likely to constitute a public health hazard.
  3. Permit process; additional information.   When an application is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title. The Secretary may require the applicant to submit additional information that the Secretary considers necessary in order to support the findings required in subsection (b) of this section, and may refuse to grant a permit until the information is furnished and evaluated. The Secretary may also consult with the Commissioner of Health, as necessary, in making decisions regarding health issues raised by the application. The Commissioner’s response, if any, shall be part of the public record for the application.
  4. Permit conditions.   Public water system permits issued under this chapter may include conditions that:
    1. require the construction, installation, operation, and maintenance of any purification, disinfection, or other water processing or treatment facility in accordance with standards and requirements established by the Secretary;
    2. require the person owning or controlling the system to adequately control and protect the public water source and source protection area;
    3. require that construction be in accordance with the Vermont standards for water system design and construction;
    4. require notification of the characteristics of the water provided by the system to the public by notice conforming with the requirements of the Federal Safe Drinking Water Act;
    5. limit the number of connections to the system;
    6. limit maximum and daily output of the system;
    7. require the development and submission to the Secretary of a long-range plan for expansion, capital improvements, and future service area;
    8. require the development, submission to the Secretary, and implementation of a water conservation plan in accordance with the policy established in section 1684 of this title;
    9. require the development and submission to the Secretary of a system-level business plan and comprehensive water supply plan to ensure system capacity in the long-term; and
    10. contain any additional conditions, requirements, schedules, or restrictions, or monitoring or testing programs that are deemed necessary to ensure compliance with this chapter and the rules adopted under this chapter.
  5. [Repealed].
  6. Suspension or revocation of permits.
    1. The Secretary may, after notice and opportunity for hearing, revoke or suspend any permit issued pursuant to the authority under this title if the Secretary finds that:
      1. the permit holder submitted materially false or inaccurate information;
      2. the permit holder has violated any material requirement, restriction, or condition of this chapter, any rule adopted pursuant to this chapter, any permit or certification issued pursuant to this chapter, or any assurance of discontinuance or order relating to the provisions of this chapter or the rules adopted pursuant to this chapter; or
      3. there is a change in any condition that requires either a temporary or permanent restriction, limitation, or elimination of the permitted use.
    2. Revocation shall be effective upon actual notice thereof to the permit holder or permit holder’s designated agent.
  7. Beginning July 1, 2010, the Secretary shall not issue a source permit for a bottled drinking water supply unless, in addition to all other requirements for a source permit:
    1. the permit application contains the information required by subdivisions 1418(d)(4)-(7) of this title;
    2. the Secretary finds that considerations in subdivisions 1418(e)(1)-(3) and (6)-(8) of this title have been satisfied;
    3. the permit contains the permit conditions required by subsection (f) of this section; and
    4. the permit applicant complies with the notice requirements of subsection 1418(c) of this title.
  8. A public water system permitted after June 9, 2008 that bottles drinking water for public distribution and sale shall obtain from the Secretary a source water permit under subsection 1672(g) of this title upon renewal of its operating permit under this section and every 10 years thereafter.
  9. Notwithstanding the requirements of this subsection, the Secretary may issue an operating permit for an existing public water system that is unable to comply with the standards adopted under this chapter provided that:
    1. the operating permit contains a compliance schedule that is designed to achieve compliance with the applicable standards within a reasonable period of time based on the nature and extent of the applicable standards at issue;
    2. the Secretary finds that the continued operation of the public water system pursuant to the compliance schedule and associated permit conditions shall not present an unacceptable risk to public health; and
    3. the person who owns the public water system shall be responsible for informing all persons using the system of the nature and extent of the noncompliance with the applicable standards.

HISTORY: Added 1991, No. 71 , § 2; amended 1991, No. 256 (Adj. Sess.), § 23a, eff. June 9, 1992; 1997, No. 134 (Adj. Sess.), § 10; 2005, No. 15 , § 2; 2005, No. 144 (Adj. Sess.), § 2; 2007, No. 133 (Adj. Sess.), § 1; 2007, No. 199 (Adj. Sess.), § 5, eff. June 9, 2008; 2011, No. 117 (Adj. Sess.), § 2; 2015, No. 150 (Adj. Sess.), § 23, eff. Jan. 1, 2018; 2019, No. 14 , § 38, eff. April 30, 2019.

History

References in text.

The federal Safe Drinking Water Act, referred to in this section, is codified as 42 U.S.C. § 300f et seq.

Revision note

—2011. Cross reference in subsec. (h) to “subsection 1672(b) of this title” was revised to read “subsection 1672(g) of this title” to correctly reference the authority for the issuance of a source water permit.

Amendments

—2019. Subdiv. (f)(1)(B): Substituted “adopted pursuant to this chapter” for “promulgated thereunder,” and “adopted pursuant to this chapter” for “promulgated thereunder”.

—2015 (Adj. Sess.). Subsec. (c): Rewritten.

—2011 (Adj. Sess.) Subsec. (e): Deleted.

Subsec. (i): Added.

—2007 (Adj. Sess.). Subsec. (b): Act 133 designated existing second paragraph as subdiv. (b)(1) and added subdiv. (b)(2).

Subsec. (c): Act 133 designated existing provisions of subsec. as subdiv. (1) and added subdiv. (2).

Subsec. (g): Rewritten by Act 199.

Subsec. (h): Added by Act 199.

—2005 (Adj. Sess.). Subsec. (g): Added.

—2005. Subsec. (a): Added the second sentence.

Subsec. (e): Substituted “an operating permit” for “a permit”.

—1997 (Adj. Sess.). Subsec. (d): Deleted “and” following “future service area” in subdiv. (7), redesignated former subdiv. (8) as subdiv. (10) and added subdivs. (8) and (9).

—1991 (Adj. Sess.). Subsec. (b): Inserted “significant” preceding “public health” in the first sentence.

Review of existing applications. 1991, No. 71 , § 9(b), provided in part: “Applications for public water system permits and approval shall be reviewed under the law and regulations in effect at the time of filing of a complete application.”

CROSS REFERENCES

Fees for public water supply permits and applications, see 3 V.S.A. § 2822 .

§ 1675a. Permitting exemption.

  1. The requirements of this chapter and the rules adopted under this chapter, except the construction permitting requirements, shall not apply to a public water system that:
    1. Consists only of distribution and storage facilities and does not have any collection and treatment facilities;
    2. Obtains all of its water from, but is not owned or operated by, a public water system to which this chapter applies;
    3. Does not engage in the sale of water to any person. For purposes of this section and 30 V.S.A. § 203(3) , a “sale” of water does not occur when:
      1. the rate charged to the consumer by the receiving water system is the same as the rate charged by the public water system for supplying water to the receiving water system; and
      2. the receiving water system follows the uniform water and sewer disconnect requirements of 24 V.S.A. chapter 129, except that 24 V.S.A. § 5147 shall not apply and appeals shall be governed by the Vermont Rules of Civil Procedure;
    4. Is not a carrier that conveys passengers in interstate commerce;
    5. Serves less than 500 persons; and
    6. Is served by a public water system that certifies to the Secretary that:
      1. the receiving public water system is responsible for the repair and maintenance of their own water system unless otherwise agreed to by the wholesale system; and
      2. the public water system supplying water to the receiving water system is responsible for:
        1. including the receiving public water system in its water quality sampling plans;
        2. providing consumer confidence reports to the receiving system’s users; and
        3. issuing public notice to the receiving system’s users if a violation of a drinking water contaminant standard exists or if the Secretary determines that a condition exists that may present a risk to public health.
  2. The water system supplying water to the receiving water system is responsible for the requirements contained in subdivision (a)(6)(B) of this section until 180 days after the water system supplying water to the receiving water system files a notice with the Secretary of Natural Resources and the receiving system of its intent to withdraw from any obligation made under subdivision (a)(6)(B) of this section.
  3. Notwithstanding the exemption contained in subsection (a) of this section, the Secretary of Natural Resources may take any reasonable steps that are necessary to abate a public health threat at a public water system that is otherwise exempt.

HISTORY: Added 2007, No. 156 (Adj. Sess.), § 1.

§ 1676. Repealed. 2011, No. 117 (Adj. Sess.), § 3.

History

Former § 1676. Former § 1676, relating to temporary permits, was derived from 1991, No. 71 , § 2 and amended by 1999, No. 109 (Adj. Sess.), § 1.

§ 1676a. Permits; systems affecting farms; liability for contamination.

  1. The Secretary shall issue a permit for a new source for a public water system only after making the findings required by subsection 1675(b) of this title.  In addition, if the Secretary finds there are agricultural lands in the area that are likely to affect the proposed source but not likely to constitute a public health hazard, the Secretary shall require the applicant to certify in the permit that the proposed source will be abandoned, replaced, or treated if it becomes contaminated by agricultural activities conducted on the agricultural lands.
  2. The Secretary may require the permittee to monitor the area around the permitted source to obtain knowledge of potential contaminants.  If contamination occurs, the Secretary shall make a determination whether the permittee shall abandon the contaminated source and use an alternative source or, if use of an alternative source is not feasible, treat the contaminated source.  If the source is treated, the Secretary shall find that it has been properly treated according to applicable drinking water standards and that continued use of the source will not adversely affect the health and safety of the public.
  3. An owner or lessee of agricultural lands who alleges that the agricultural lands are within the area of a proposed new public water source may appeal a decision of the Secretary pursuant to section 1680 of this title.
  4. An owner or lessee of agricultural lands shall not be liable for personal injury or property damage resulting from contamination of a permitted water source so long as the owner or lessee was utilizing required agricultural practices at the time the water source was contaminated and so long as the lands were agricultural at the time the permit was issued.
  5. Nothing in this section shall prohibit an applicant from negotiating an agreement with an owner of agricultural lands or from using authority granted in any other provision of law to secure rights to the property in question.

HISTORY: Added 1991, No. 71 , § 2; amended 2015, No. 64 , § 13.

History

Revision note

—2015. In subsec. (d), substituted “required agricultural practices” for “accepted agricultural practices” in accordance with 2015, No. 64 , § 13.

Review of existing applications. 1991, No. 71 , § 9(b), provided in part: “Applications for public water system permits and approvals shall be reviewed under the law and regulations in effect at the time of filling of a complete application.”

CROSS REFERENCES

Fees for public water supply permits and applications, see 3 V.S.A. § 2822 .

§ 1677. Inspection and application for search warrants.

Any health officer or municipal board of health is authorized:

  1. to inspect public water sources, public water systems, or public water source protection areas, pursuant to 18 V.S.A. § 107 ; and
  2. to apply for search warrants pursuant to 18 V.S.A. § 121 .

HISTORY: Added 1991, No. 71 , § 2.

§ 1678. Prohibition on use of lead pipes, solder, and flux.

  1. No person shall use any pipe, solder, or flux in the installation or repair of any public water system, or in any plumbing providing drinking water that is connected to a public water system, unless it is lead free.
  2. For purposes of this section, the term “lead free” means:
    1. solders and flux containing not more than 0.2 percent lead;
    2. pipes and pipe fittings containing not more than 8.0 percent lead.
  3. Each public water system shall identify and provide notice in the manner required by the Secretary by rule to persons that may be affected by lead contamination of their drinking water where such contamination results from the following:
    1. the lead content in the construction materials of the public water system; or
    2. corrosivity of the public water source sufficient to cause leaching of lead.
  4. This section shall not apply to leaded joints necessary for the repair of cast iron pipes.

HISTORY: Added 1991, No. 71 , § 2.

§ 1679. Public water source protection areas.

  1. The Secretary shall, after review by the Groundwater Coordinating Committee established in subsection 1392(c) of this title, adopt rules for the protection of public water source protection areas. Rules adopted under this section may include:
    1. the duties of the Agency, other State agencies, consistent with their statutory mandates, local government entities, and owners of public water systems with respect to the development and implementation of programs to protect public water sources;
    2. procedures to determine the public water source protection area;
    3. procedures to identify within each public water source protection area all potential sources of contaminants that may have any adverse effect on the health of persons;
    4. a program that contains, as appropriate, technical assistance, financial assistance, implementation of control measures, education, training, and demonstration projects to protect the public water source within the public water source protection area; and
    5. contingency plans for the provision of alternate drinking water supplies for each public water system in the event of contamination or disruption.
  2. Rules adopted by the Secretary under subsection (a) of this section shall complement the classification requirements of chapter 48 of this title and the rules adopted under that chapter.
  3. Rules adopted by the Secretary under subsection (a) of this section shall include provisions for the identification of agricultural lands, as defined in 32 V.S.A. § 3752 , within public water source protection areas and for ensuring that required agricultural practices on those lands are not unduly restricted by the development of the public water source protection area without the consent of the owner of those agricultural lands.  Prior to the adoption of rules under this subsection, the Secretary shall consult with the Secretary of Agriculture, Food and Markets and, if possible, obtain concurrence of the Secretary of Agriculture, Food and Markets.  If the Secretary of Agriculture, Food and Markets does not concur, the Secretary of Agriculture, Food and Markets shall state any objections in writing; and those objections shall be included by the Secretary in filing the final proposed rule with the Legislative Committee on Administrative Rules.
  4. When the Secretary proposes to designate a public water source protection area under the rules adopted pursuant to subsection (a) of this section, the Secretary shall proceed in accordance with chapter 170 of this title.
  5. Rules, standards, and criteria adopted by the Secretary under subsection (a) of this section for the protection of public water sources shall allow for human activity within the watershed of a public water source, provided that such human activity does not constitute a public health hazard or a significant public health risk.

HISTORY: Added 1991, No. 71 , § 2; amended 1991, No. 256 (Adj. Sess.), § 23, eff. June 9, 1992; 1995, No. 189 (Adj. Sess.), § 4; 2003, No. 42 , § 2, eff. May 27, 2003; 2015, No. 64 , § 13; 2015, No. 150 (Adj. Sess.), § 24, eff. Jan. 1, 2018.

History

Revision note

—2017. In subsec. (a), deleted “but are not limited to” following “include” in accordance with 2013, No. 5 , § 4.

—Revision note—2015. In subsec. (c), substituted “required agricultural practices” for “accepted agricultural practices” in accordance with 2015, No. 64, § 13.

Amendments

—2015 (Adj. Sess.). Subsec. (d): Rewritten.

—2003. Subsec. (c): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” throughout.

—1995 (Adj. Sess.) Subsec. (e): Deleted the former second sentence.

—1991 (Adj. Sess.). Subsec. (e): Added.

Effect of existing rules. 1991, No. 71 , § 9(a), provided: “Existing rules for public water supplies adopted under Title 18 shall remain in effect as rules adopted under 10 V.S.A. chapter 56 until superseded by rules adopted by the secretary of natural resources under this chapter.”

CROSS REFERENCES

Procedure for adoption of administrative rules, see 3 V.S.A. part 1, chapter 25.

§ 1680. Appeals.

Appeals of any act or decision of the Department under this subchapter shall be made in accordance with chapter 220 of this title.

HISTORY: Added 1991, No. 71 , § 2; amended 2003, No. 115 (Adj. Sess.), § 41, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Rewrote the section.

Appeals from decisions on applications filed prior to July 1, 1991. 1991, No. 71 , § 9(b), provided in part: “Appeals of decisions of the secretary of natural resources on applications filed before July 1, 1991 shall be to the commissioner of health. An appeal of an appellate decision of the commissioner of health under this transitory provision shall be to the superior court of the county in which the water supply is located.”

§ 1681. Criminal enforcement.

  1. Any permit holder or person who violates a provision of this chapter or the rules adopted pursuant to this chapter, who fails or neglects to obey or comply with the terms of a permit issued under this chapter, or who fails or neglects to obey or comply with an assurance of discontinuance or order relating to this chapter or the rules adopted pursuant to this chapter shall be fined not more than $5,000.00. Each violation shall be a separate and distinct offense and, in the case of a continuing violation, each day’s continuance shall be deemed a separate violation.
  2. Any permit holder or person who refuses to obey or comply with the terms of a permit issued under this chapter or who refuses to obey or comply with an assurance of discontinuance or order relating to this chapter or the rules adopted pursuant to this chapter shall be fined not more than $25,000.00 or be imprisoned not more than six months, or both. Each violation shall be a separate offense and, in the case of a continuing violation, each day’s continuance shall be deemed a separate violation.
  3. Any person who knowingly makes a false statement, representation, or certification as to any material fact in any application, record, report, plan, testing result, or other document filed or required to be maintained under this chapter, or who falsifies, tampers with, or knowingly renders inaccurate a testing device or method required to be maintained under this chapter or the rules adopted pursuant to this chapter, or any permit or certification issued pursuant to this chapter, or any assurance of discontinuance or order relating to the provisions of this chapter or the rules adopted pursuant to this chapter shall be fined not more than $10,000.00 or be imprisoned for not more than six months, or both.
  4. When a municipal corporation, as defined in 24 V.S.A. § 3301 , acquires any existing public water source or existing public water system, as defined in subdivisions 1671(4) and (5) of this title, the Secretary shall establish, in a permit issued under this chapter, a compliance schedule that provides for reasonable time and effort for the municipal corporation to achieve compliance with this chapter for any deficiencies in the acquired source or system. If the municipal corporation remains in compliance with the terms of its permit, no cause of action or grounds for enforcement shall lie against the municipal corporation for violations due to the reasons giving rise to the compliance schedule.

HISTORY: Added 1991, No. 71 , § 2; amended 1993 No. 164 (Adj. Sess.). § 11; 2019, No. 14 , § 39, eff. April 30, 2019.

History

Amendments

—2019. Subsecs. (a) through (c): Substituted “adopted pursuant to this chapter” for “promulgated thereunder” four times, and inserted “adopted pursuant to this chapter” preceding “or any permit or certification”.

—1993 (Adj. Sess.). Subsec. (d): Added.

§ 1682. Private right of action.

The provisions of 18 V.S.A. § 122 shall apply to this chapter.

HISTORY: Added 1991, No. 71 , § 2.

§ 1683. Filtration requirements.

  1. The Department of Environmental Conservation shall review each application for a construction grant to determine whether the project qualifies for an avoidance of filtration waiver under the surface water treatment rule and notify the applicant of the results of that review. The Department shall provide an opportunity for the applicant to submit information in support of an affirmative finding.
  2. The Department of Environmental Conservation shall grant waivers to requirements for water filtration and exemptions to public and private water systems as provided under the federal Safe Drinking Water Act, surface water rule, when a water system owner demonstrates that the water system has a proven record of delivering adequate quantities of clean and safe drinking water and that adequate protection of the surface water source is or may be assured.

HISTORY: Added 1991, No. 256 (Adj. Sess.), § 22, eff. June 9, 1992; amended 1995, No. 189 (Adj. Sess.), § 5; 2003, No. 115 (Adj. Sess.), § 42, eff. Jan. 31, 2005; 2019, No. 14 , § 40, eff. April 30, 2019.

History

References in text.

10 V.S.A. § 1624 , referred to in subsec. (a), was repealed by 2016, No. 103 (Adj. Sess.), § 16, eff. May 12, 2016.

The federal Safe Drinking Water Act, cited in subsec. (b), is codified as 42 U.S.C. § 300f et seq.

Amendments

—2019. Subsec. (a): Deleted “under section 1624 of this title” following “construction grant”.

—2003 (Adj. Sess.). Subsec. (b): Deleted the former second and third sentences.

—1995 (Adj. Sess.) Subsec. (a): Deleted the third sentence.

§ 1684. Conservation requirements.

The General Assembly finds that water is a natural resource that should be managed efficiently to reduce waste through promotion of water conservation. It shall be the policy of the State to conserve the water resources of Vermont through technology, methods, and procedures designed to promote efficient use of water; to consider water conservation in all water use decisions; and to reduce or minimize the waste of water through water supply management practices.

HISTORY: Added 1997, No. 134 (Adj. Sess.), § 11.

§ 1685. Public water system capacity.

The Secretary, by rule, shall establish standards and requirements for implementing a public water system capacity program for community water systems and nontransient, noncommunity water systems. The program shall place particular emphasis on addressing the problems and capital needs facing the State’s small, rural community water systems and public water systems operated by school districts. The program may include the following measures to improve public water system infrastructure and to provide safe drinking water to small community water systems and schools:

  1. source water protection programs;
  2. capital improvement planning;
  3. minimum design and construction standards;
  4. operation and management practices;
  5. development of a program to assess the capacity of public water systems in order to prevent formation of new systems lacking capacity; to assess existing system capacity; and to promote restructuring of systems lacking capacity; and
  6. to the extent it is consistent with federal law, preference in providing State financial and technical assistance to small systems whose water supply is contaminated or threatened by contamination or who fail to comply with State drinking water standards.

HISTORY: Added 1997, No. 134 (Adj. Sess.), § 12.

History

Revision note

—2018. Deleted “, but shall not be limited to,” following “including” in accordance with 2013, No. 5 , § 4.

Chapter 57. Vermont Whey Pollution Abatement Authority Law

Subchapter 1. General Provisions

§§ 1701-1705. Repealed. 1995, No. 178 (Adj. Sess.), § 417(a), eff. May 22, 1996.

History

Former subchapter 1, §§ 1701-1705. Former subchapter 1, §§ 1701-1705, relating to general provisions regarding the whey pollution abatement authority, was added by 1971, No. 83 , §§ 3, 27, 32, 33, and 35.

1995, No. 188 (Adj. Sess.), § 4(2) and No. 189 (Adj. Sess.), § 8, purported to repeal this chapter; however, the repeal of this chapter by 1995, No. 178 (Adj. Sess.), § 417(a), effective May 22, 1996, had already taken effect.

Subchapter 2. Establishment and Organization

§§ 1731-1737. Repealed. 1995, No. 178 (Adj. Sess.), § 417(a), eff. May 22, 1996.

History

Former §§ 1731-1737. Former §§ 1731-1737, relating to establishment and organization of the whey pollution abatement authority, were added by 1971, No. 83 , §§ 4-9 and 1983, No. 95 , § 306, and amended by 1987, No. 183 (Adj. Sess.), § 17a.

1995, No. 188 (Adj. Sess.), § 4(2) and No. 189 (Adj. Sess.), § 8, purported to repeal this chapter; however, the repeal of this chapter by 1995, No. 178 (Adj. Sess.), § 417(a), effective May 22, 1996, had already taken effect.

Subchapter 3. Powers and Duties

§§ 1761-1766. Repealed. 1995, No. 178 (Adj. Sess.), § 417(a), eff. May 22, 1996.

History

Former §§ 1761-1766. Former §§ 1761-1766, relating to powers and duties of the whey pollution abatement authority, were added by 1971, No. 83 , §§ 10, 23(a) and (b), 24, 28 and 29, and amended by 1979, No. 131 (Adj. Sess.), § 1.

1995, No. 188 (Adj. Sess.), § 4(2) and No. 189 (Adj. Sess.), § 8, purported to repeal this chapter; however, the repeal of this chapter by 1995, No. 178 (Adj. Sess.), § 417(a), effective May 22, 1996, had already taken effect.

Subchapter 4. Form and Nature of Bonds and Notes

§§ 1791-1794. Repealed. 1995, No. 178 (Adj. Sess.), § 417(a), eff. May 22, 1996.

History

Former §§ 1791-1794. Former §§ 1791-1794, relating to form and nature of bonds and notes issued under provisions pertaining to the whey pollution abatement authority, were added by 1971, No. 83 , §§ 17-20.

1995, No. 188 (Adj. Sess.), § 4(2) and No. 189 (Adj. Sess.), § 8, purported to repeal this chapter; however, the repeal of this chapter by 1995, No. 178 (Adj. Sess.), § 417(a), effective May 22, 1996, had already taken effect.

Subchapter 5. Sale and Issuance of Bonds and Notes

§§ 1821-1830. Repealed. 1995, No. 178 (Adj. Sess.), § 417(a), eff. May 22, 1996.

History

Former §§ 1821-1830. Former §§ 1821-1830, relating to sale and issuance of bonds and notes by the whey pollution abatement authority, were added by 1971, No. 83 , §§ 11-16, 21, 22, 34 and 37.

1995, No. 188 (Adj. Sess.), § 4(2) and No. 189 (Adj. Sess.), § 8, purported to repeal this chapter; however, the repeal of this chapter by 1995, No. 178 (Adj. Sess.), § 417(a), effective May 22, 1996, had already taken effect.

Subchapter 6. Eminent Domain

§§ 1861-1865. Repealed. 1995, No. 178 (Adj. Sess.), § 417(a), eff. May 22, 1996.

History

Former §§ 1861-1865. Former §§ 1861-1865, which granted the whey pollution abatement authority the right to acquire property by eminent domain, were added by 1971, No. 83 , §§ 36(a)-(e), and amended by 1973, No. 193 (Adj. Sess.), § 3.

1995, No. 188 (Adj. Sess.), § 4(2) and No. 189 (Adj. Sess.), § 8, purported to repeal this chapter; however, the repeal of this chapter by 1995, No. 178 (Adj. Sess.), § 417(a), effective May 22, 1996, had already taken effect.

Subchapter 7. Protection of Bond and Noteholders

§§ 1891-1894. Repealed. 1995, No. 178 (Adj. Sess.), § 417(a), eff. May 22, 1996.

History

Former §§ 1891-1894. Former §§ 1891-1894, relating to protection of holders of notes and bonds issued by the whey pollution abatement authority, were added by 1971, No. 83 , §§ 25, 26, 30, and 31, and amended by 1971, No. 185 (Adj. Sess.), § 236; 1973, No. 193 (Adj. Sess.), § 3.

1995, No. 188 (Adj. Sess.), § 4(2) and No. 189 (Adj. Sess.), § 8, purported to repeal this chapter; however, the repeal of this chapter by 1995, No. 178 (Adj. Sess.), § 417(a), effective May 22, 1996, had already taken effect.

Chapter 59. Underground and Aboveground Liquid Storage Tanks

History

Amendments

—1997 (Adj. Sess.). 1997, No. 132 (Adj. Sess.), § 1, eff. April 23, 1998, inserted “and aboveground” in the chapter heading.

ANNOTATIONS

Cited.

Cited in Secretary v. Henry, 161 Vt. 556, 641 A.2d 1345, 1994 Vt. LEXIS 38 (1994).

Law Reviews —

For note relating to federal regulation of leaking underground storage tanks, see 11 Vt. L. Rev. 267 (1986).

Subchapter 1. Underground Storage Tank Regulation

History

Amendments

—1987. 1987, No. 85 , § 1, eff. June 9, 1987, designated the existing provisions of this chapter, comprising sections 1921-1936, as subchapter 1 and added the subchapter heading.

§ 1921. Purpose.

The ground and surface waters of the State are an essential and significant portion of the natural resources of the State historically protected by State programs. Significant contamination of these natural resources and hazard to the public health results from the failure of aboveground storage tanks and underground facilities for the storage and handling of petroleum liquids, related sludges, and other chemicals. It is the purpose of this chapter to prevent ground and surface water contamination from these facilities by authorizing the establishment of State standards and criteria for the design, installation, operation, maintenance, and monitoring of underground liquid storage facilities. It is the intent of this chapter to provide authority to the Secretary to enable the Secretary to operate a program consistent with or more stringent than that contained in Title VI of the Hazardous and Solid Waste Amendments of 1984.

HISTORY: Added 1985, No. 66 , § 1; amended 1997, No. 132 (Adj. Sess.), § 2, eff. April 23, 1998.

History

References in text.

Title VI of the Hazardous and Solid Waste Amendments of 1984, referred to in the last sentence, is codified as 42 U.S.C. § 6991 et seq.

Amendments

—1997 (Adj. Sess.). Inserted “aboveground storage tanks and” following “failure of” in the second sentence.

Law Reviews —

For note, “ ‘Tanks for the Memories’: Abandoning Caveat Emptor for the Transfers of Residential Property Contaminated with Petroleum from Leaking Underground Storage Tanks,” see 22 Vt. L. Rev. 979 (1998).

§ 1922. Definitions.

As used in this chapter:

  1. “Aboveground storage tank” means any tank, other than an underground storage tank, used to store any of the following petroleum products: gasoline, diesel, kerosene, used oil, or heating oil.
  2. “Agency” means the Agency of Natural Resources.
  3. “Operator” means any person in control of, or having responsibility for, the daily operation of the underground or aboveground storage tank.
  4. “Owner” means:
    1. in the case of any underground storage tank in use on July 1, 1985 or brought into use after that date, any person who owns an underground storage tank used for storage or dispensing of regulated substances;
    2. in the case of any underground storage tank in use before July 1, 1985 and no longer in use on that date, any person who owned such tank immediately before the discontinuance of its use;
    3. any person who owns an aboveground storage tank.
  5. “Person” means any individual, partnership, company, corporation, association, unincorporated 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.
  6. “Regulated substance” means all petroleum and toxic, corrosive, or other chemicals and related sludge included in the following:
    1. any substance defined in section 101(14) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 but does not include any substance regulated as a hazardous waste under chapter 159 of this title;
    2. petroleum, including crude oil or any fraction thereof that is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute);
    3. any other substance as designated by rule of the Secretary.
  7. “Release” means any spilling, leaking, emitting, discharging, escaping, leaching, or disposing from an underground storage tank or aboveground storage tank into groundwater, surface water, or soils.
  8. “Secretary” means the Secretary of Natural Resources or the Secretary’s duly authorized representative.
  9. “Tank integrity demonstration” means a test or a series of tests or other appropriate procedures prescribed by the Secretary to ascertain the condition of an underground storage tank and its surroundings.  A tank integrity demonstration may be performed only by a tank inspector licensed under this chapter and shall be completed upon submission of a report detailing the results of one or more approved tests and the Secretary’s approval of that report.
  10. “Underground storage tank” means any one or combination of tanks, including underground pipes connected to it or them, that is or has been used to contain an accumulation of regulated substances, and the volume of which, including the volume of the underground pipes connected to it or them, is 10 percent or more beneath the surface of the ground.  Provided, however, that the following are excluded from the definition of “underground storage tanks” established under this section:
    1. septic tanks and manure storage tanks;
    2. flow through process tanks permitted under chapter 47 of this title and tanks regulated by chapter 159 of this title;
    3. stormwater or wastewater collection systems;
    4. storage tanks situated in an underground area if the tank is upon or above the area floor;
    5. pipeline facilities regulated by the federal Natural Gas Pipeline Safety Act (49 U.S.C. App. 1671 et seq.), the Hazardous Liquid Pipeline Safety Act (49 U.S.C. App. 2001 et seq.) or an intrastate pipeline regulated under State laws similar to the foregoing;
    6. liquid petroleum gas storage tanks, used predominantly for the storage of propane, propylene, butane, and butylenes, regulated by the Vermont Fire Prevention and Building Code.
  11. “Category one tank” means an underground storage tank, except for the following:
    1. fuel oil storage tanks used for on-premises heating purposes,
    2. farm or residential tanks for storing motor fuel.
  12. “Bodily injury” means bodily injury, including sickness, disease, or death, sustained by any person.
  13. “Property damage” means:
    1. physical damage to tangible property including all resulting loss of use of that property; or
    2. loss of use of tangible property that is not physically damaged.
  14. “Bulk storage tank” means any aboveground petroleum storage tank at a facility required to have a Spill Prevention Control and Countermeasure (SPCC) Plan pursuant to 40 C.F.R. § 112.
  15. “Public building” shall have the same meaning as defined in 20 V.S.A. § 2730 .
  16. “Acceptable piping” means:
    1. double-wall pressurized piping; or
    2. single-wall piping that operates under suction, is pitched evenly uphill from the tank top, and has only one check valve that is located at the dispenser, fuel burner, generator, or other piping termination point.
  17. “Double-wall tank system” means an underground storage tank system consisting of a double-wall tank and acceptable piping.
  18. “Combination tank system” means an underground storage tank system consisting of a single-wall tank and acceptable piping.
  19. “Single-wall tank system” means an underground storage tank system consisting of a single-wall tank and single-wall pressurized piping.
  20. “Petroleum Cleanup Fund” or “Fund” means the fund created by section 1941 of this title.
  21. “Motor Fuel Account” means the Motor Fuel Account of the Fund created by section 1941 of this title.
  22. “Heating Fuel Account” means the Heating Fuel Account of the Fund created by section 1941 of this title.

HISTORY: Added 1985, No. 66 , § 1; amended 1987, No. 76 , § 18; 1987, No. 282 (Adj. Sess.), §§ 7, 7a; 1989, No. 110 , §§ 1, 2, eff. June 20, 1989; 1991, No. 85 , § 1; 1995, No. 57 , § 2; 1997, No. 132 (Adj. Sess.), § 3, eff. April 23, 1998; 2003, No. 153 (Adj. Sess.), § 4; 2009, No. 22 , § 1; 2009 No. 3 (Sp. Sess.), § 19; 2011, No. 161 (Adj. Sess.), § 2; 2013, No. 55 , § 1, eff. May 30, 2013.

History

References in text.

Section 101(14) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, referred to in subdiv. (6)(A), is codified as 42 U.S.C. § 9601(14). The federal Natural Gas Pipeline Safety Act and Hazardous Liquid Pipeline Safety Act, cited in subdiv. (10)(E), were repealed in 1994. Comparable provisions regulating pipelines appear in 49 U.S.C. § 60101 et seq.

Amendments

—2013. Introductory paragraph: Substituted “As used in” for “For purposes of” preceding “this”.

Subdivs. (20)-(22): Added.

—2011 (Adj. Sess.). Subdivs. (16)-(19): Added.

—2009. Subdiv. (15): Added.

—2009 (Sp. Sess.). Subdivs. (15)(A) & (B): Deleted.

—2003. Subdiv. (14): Added.

—1997 (Adj. Sess.). Added subdiv. (1), redesignated former subdiv. (1) as subdiv. (2), inserted “or aboveground” preceding “storage” in subdiv. (3), added subdiv. (4)(C) and in subdiv. (7), inserted “or aboveground storage tank” and deleted “subsurface” before “soils”.

—1995. Subdiv. (2): Repealed.

—1991. Subdiv. (10): Deleted former subdiv. (A) and redesignated former subdivs. (B)-(G) as subdivs. (A)-(F).

—1989. Subdiv. (10)(A): Added “farm and residential” preceding “tanks of equal” and substituted “used for” for “for farm and residential use” preceding “storing motor”.

Subdiv. (10)(G): Added.

Subdiv. (11)(B): Made a minor change in punctuation at the end of the subdivision.

Subdiv. (11)(C): Repealed.

Subdiv. (12): Added.

Subdiv. (13): Added.

—1987 (Adj. Sess.) Subdiv. (10)(A): Amended generally.

Subdiv. (11)(B): Made minor changes in punctuation.

Subdiv. (11)(C): Added.

—1987. Substituted “agency of natural resources” for “agency of environmental conservation” in subdivs. (1) and (8).

§ 1923. Notice of new or existing underground storage tank.

  1. New tanks.   When an underground storage tank is installed or entered into service after June 30, 1985, the owner shall notify the Secretary of the existence of that tank.
  2. Tanks in service on June 30, 1985.   Before April 1, 1986, any person who on June 30, 1985 owns an underground storage tank currently in use shall notify the Secretary of the existence of that tank.
  3. Tanks no longer in service.   Any person who knowingly owned or used an underground storage tank after January 1, 1974, and who does not have knowledge that the tank has been closed in accordance with tank closure requirements prescribed by the rules, shall make a one-time notification to the Secretary regarding the existence of that tank. No person is required under this section to report a tank that has been reported under subsection (b) of this section.
  4. Notices.   Notices under this section shall be in the form and manner prescribed by the Secretary.
    1. All notices shall include at least the following information, to the extent known by the person reporting:
      1. the tank’s size, type, and location; and
      2. the type and quantity of substance, if any, stored in it.
    2. Notices for tanks that are no longer in operation shall also include the following information, to the extent known by the person reporting:
      1. the date the tank was taken out of operation; and
      2. the age of the tank at that time.
  5. Applicability.   Notices under this section and section 1925 of this title shall apply to any underground storage tank, except for: farm or residential tanks of equal to or less than 1,100 gallons capacity that are used for storing motor fuel for noncommercial purposes; and heating oil tanks used for on-premises heating purposes that are less than or equal to 1,100 gallons capacity.

HISTORY: Added 1985, No. 66 , § 1; amended 1991, No. 85 , § 2; 1997, No. 132 (Adj. Sess.), § 4, eff. April 23, 1998.

History

Amendments

—1997 (Adj. Sess.). Subsec. (c): Rewrote the first sentence.

—1991. Subsec. (e): Added.

§ 1924. Integrity report.

The owner or operator of an underground storage tank may be ordered by the Secretary to complete a tank integrity demonstration in the following circumstances:

  1. when the Secretary has reason to suspect there is or has been a release, or
  2. when in the Secretary’s opinion the age, operation, or conditions surrounding the installation, or any combination of the above, so warrant.

HISTORY: Added 1985, No. 66 , § 1.

§ 1925. Notice in land records.

In order to make the information available to future purchasers, tank owners shall record the existence and location of underground storage tanks in local land records. The Secretary shall establish by rule the information to be recorded and the manner of recording.

HISTORY: Added 1985, No. 66 , § 1.

CROSS REFERENCES

Tanks exempted from notice requirements, see § 1923 of this title.

§ 1926. Unused and abandoned tanks.

  1. Any underground storage tank that does not meet new construction standards as prescribed by the rules, and that has not been used for a period of one year shall be closed in accordance with tank closure requirements prescribed by the rules. Any underground storage tank that has not been used for a period of one year may be closed in accordance with tank closure requirements prescribed by rules adopted under this chapter.
  2. The responsibility for the closure of an underground storage tank shall rest with:
    1. the person who owned the tank immediately before its use was discontinued; and
    2. any subsequent purchaser of the tank or the property on which the tank is located, if the purchaser knew or had reason to know of the existence of the tank prior to the purchase.
  3. The person identified in subdivision (b)(2) of this section shall have the primary responsibility for closure, except that a secured lender who acquires record title to the property on which the tank is located, through or incident to foreclosure, shall not have responsibility under this section, provided that the secured lender discloses in writing the presence of the unused underground tank or tanks to the subsequent buyer, and, within 30 days of the date the secured lender becomes record title holder of the property, the secured lender takes all of the following actions:
    1. the contents of the tank or tanks are removed such that less than one inch or 0.3 percent by weight of the tank’s capacity remains in the tank;
    2. all fill pipes, gauge openings, manways, and other openings are secured to prevent infiltration from rainwater, surface runoff, and accidental deliveries; and
    3. the vent line is left open and functioning and is secured to prevent infiltration from rainwater and debris.
  4. If the persons described in subdivisions (b)(1) and (2) of this section are unknown or cannot be contacted, or if the person owning the land on which the tank is located does not allow access to the tank, the person owning the land on which the tank is located, upon direction of the Secretary, shall close the tank. If the following conditions are met, the Secretary shall draw upon the Petroleum Cleanup Fund established by section 1941 of this title in order to reimburse the person owning the land for the reasonable costs of that action and the Secretary shall not seek repayment to the Fund from the person owning the land:
    1. the person owning the land can establish that after making a diligent and appropriate investigation he or she had no knowledge or reason to know of the existence of an underground storage tank; and
    2. the person owning the land has given all reasonable assistance in the closing of the tank; and
    3. the person owning the land is directed in writing by the Secretary to close the tank, and does so.

HISTORY: Added 1985, No. 66 , § 1; amended 1987, No. 282 (Adj. Sess.), § 20; 1995, No. 57 , § 1; 1997, No. 132 (Adj. Sess.), § 5, eff. April 23, 1998; 2009, No. 22 , § 2.

History

Amendments

—2009. Subsec. (a): Added the second sentence.

—1997 (Adj. Sess.). Rewrote subsec. (a); deleted “removal or” before “closure” and “closing” and “remove or” before “close” throughout the section; added the subdiv. (b)(1) designation and added subdiv. (b)(2); added subsec. (c); added the subsec. (d) designation and rewrote the first sentence of that subsection; and made stylistic changes.

—1995. Subdiv. (b) (3): Substituted “directed in writing by the secretary” for “ordered” following “land”.

—1987 (Adj. Sess.) Subsec. (b): In the third sentence, substituted “petroleum cleanup fund established by 10 V.S.A. § 1941 ” for “environmental contingency fund established by 10 V.S.A. § 1283 ” following “draw upon the”.

§ 1927. Regulation of category one tanks.

  1. After June 30, 1986, no owner or operator shall operate or maintain a category one tank without first having obtained a permit from the Secretary.  Application for a permit shall be made on a form prescribed by the Secretary.  Permits issued by the Secretary shall not exceed five years.
  2. A permit for an underground storage tank shall specify:
    1. that new tanks be cathodically protected or be constructed of a noncorrosive material or be constructed of steel clad with noncorrosive material;
    2. standards for design of new tanks that shall ensure a technology and provide a level of protection that is at least equivalent to that provided by double wall tanks which may be monitored from the surface.  The Secretary, by rule, may determine that in specific circumstances these standards are not necessary to protect the environment and the public health;
    3. installation and compatibility requirements;
    4. leak detection and monitoring requirements, including at least one of the following: the maintenance of inventory, leak detection, or monitoring records;
    5. reporting requirements;
    6. requirements for maintaining evidence of financial responsibility for corrective action, including compensating third parties, except for tanks used to store a hazardous substance defined in subdivision 1922(6)(A) of this title, unless that financial responsibility is required by federal law;
    7. requirements for taking corrective action in response to releases;
    8. requirements for reporting releases and corrective action taken and its effectiveness;
    9. requirements for tank closure as prescribed by the rules;
    10. requirements for the upgrade or closure of tanks by December 22, 1998 that do not meet standards adopted to prevent releases due to corrosion, and spills or overfills; and
    11. other requirements necessary to carry out the purposes indicated in section 1921 of this title.
  3. If inventory records are not properly maintained, the Secretary may require that a tank integrity demonstration be completed.
  4. No person shall deliver a regulated substance to a category one tank that is visibly designated by the Agency as not meeting standards adopted by the Secretary related to corrosion protection, spill prevention, leak detection, financial responsibility, or overfill protection.
  5. The following tank systems shall be closed in accordance with rules adopted by the Secretary:
    1. not later than January 1, 2016, single-wall tank systems; and
    2. not later than January 1, 2018, combination tank systems, except that combination tank systems in which the tank has been lined shall be closed by January 1, 2018 or by ten years from the date by which the tank was lined, whichever is later.
  6. A tank owner may petition the Secretary to allow a lined combination tank system to remain in service an additional five years beyond the date established in subdivision (e)(2) of this section. The Secretary may grant the petition upon a determination that:
    1. no release has occurred from the tank system;
    2. the tank system has passed an inspection for lined tank systems adopted by the Secretary by rule; and
    3. no repairs are suggested or needed to the tank liner.
  7. On and after May 30, 2013, a person shall not line a single-wall or combination tank system, unless the single-wall or combination system meets standards for new lined systems adopted by procedure by the Secretary. At a minimum, these standards shall address the tank system’s piping, secondary containment for all portions of the system except the tank, leak detection, liquid tight containment sumps on the tank top, and liquid tight dispenser sumps.
  8. Notwithstanding the provisions of subsection (g) of this section, a person shall not line a single-wall or combination tank system after January 1, 2014.

HISTORY: Added 1985, No. 66 , § 1; amended 1987, No. 76 , § 9; 1987, No. 282 (Adj. Sess.), § 8; 1989, No. 110 , § 3, eff. June 20, 1989; 1991, No. 85 , § 5; 1997, No. 132 (Adj. Sess.), § 6, eff. April 23, 1998; 2007, No. 18 , § 1; 2013, No. 55 , § 2, eff. May 30, 2013; 2019, No. 14 , § 41, eff. April 30, 2019.

History

Amendments

—2019. Subdiv. (b)(10): Added “and” at the end of the subdiv.

—2013. Subsecs. (e)-(h): Added.

—2007. Subsec. (d): Substituted “No” for “After December 22, 1998, no” at the beginning; deleted “not” preceding “visibly” and “on the premises in a manner prescribed” following “designated”; inserted “not” preceding “meeting” and “by the secretary related” following “adopted”; deleted “prevent releases due to” preceding “corrosion”; inserted “protection” following “corrosion”; and substituted “spill prevention, leak detection, financial responsibility” for “spills,” and “overfill protection” for “overfills”.

—1997 (Adj. Sess.). Subdiv. (b)(9): Substituted “closure as prescribed by the rules” for “removal, or performance of tank closure procedures”.

Subdiv. (b)(10): Substituted “closure” for “removal” and “December 22” for “June 30”.

Subsec. (d): Added.

—1991. Subdiv. (b)(6): Added “except for tanks used to store a hazardous substance defined in subdivision 1922(6)(A) of this title, unless that financial responsibility is required by federal law” following “parties”.

—1989. Subsec. (b): Inserted “at least one of the following” following “including” and substituted “or” for “and” preceding “monitoring” in subdiv. (4), added “and its effectiveness” following “taken” in subdiv. (8), added a new subdiv. (10) and redesignated former subdiv. (10) as subdiv. (11).

—1987 (Adj. Sess.). Subdiv. (b)(3): Inserted “and compatibility” following “installation”.

Subdiv. (b)(4): Inserted “leak detection and monitoring” following “inventory”.

—1987. Subsec. (d): Repealed.

CROSS REFERENCES

Assessment of fees for category one tanks, see § 1943 of this title.

§ 1928. Regulation of farm and residential large motor fuel tanks.

The Secretary shall establish rules for the new installation of or reentry into service of farm and residential underground storage tanks of greater than 1,100 gallons that are or have been used for storing motor fuel for noncommercial purposes. These rules shall establish registration requirements and requirements that address tank condition, composition, size, type, compatibility, and method of installation. No person shall install or reenter into service such a tank after the effective date of these rules without complying with these rules. The Secretary also shall adopt rules that establish requirements for any monitoring or leak detection system or inventory control system or tank testing system deemed appropriate and maintaining records thereof. The rules also shall establish requirements for reporting of any releases and taking corrective action, requirements for tank closure and evidence of financial responsibility, and requirements for the upgrade or closure of tanks by December 22, 1998 that do not meet standards adopted to prevent releases due to corrosion, and spills or overfills. These rules for new and existing tanks shall take into account the unique schedule of home and farm use. Inventory control measures shall be appropriate to these uses. After December 22, 1998, no person shall deliver a regulated substance to a farm or residential tank regulated under this section if that tank is not visibly designated on the premises in a manner prescribed by the Agency as meeting standards adopted to prevent releases due to corrosion, spills, or overfills.

HISTORY: Added 1985, No. 66 , § 1; amended 1987, No. 282 (Adj. Sess.), § 9; 1989, No. 110 , § 4, eff. June 20, 1989; 1997, No. 132 (Adj. Sess.), § 7, eff. April 23, 1998.

History

Amendments

—1997 (Adj. Sess.). Deleted “large” preceding “farm” and inserted “large” preceding “motor” in the section catchline, substituted “closure” for “removal” preceding “of tanks by” and “December 22” for “June 30” thereafter in the fifth sentence, and added the last sentence.

—1989. Inserted “taking” preceding “corrective action”, deleted “and” thereafter and added “and requirements for the upgrade or removal of tanks by June 30, 1998 that do not meet standards adopted to prevent releases due to corrosion, and spills or overfills” following “responsibility” in the fifth sentence.

—1987 (Adj. Sess.) Inserted “compatibility” following “size, type” in the second sentence, rewrote the fourth sentence, and added the fifth sentence.

Law Reviews —

For note, “ ‘Tanks for the Memories ’: Abandoning Caveat Emptor for the Transfers of Residential Property Contaminated with Petroleum from Leaking Underground Storage Tanks,” see 22 Vt. L. Rev. 979 (1998).

§ 1929. Regulation of large heating oil tanks.

The Secretary shall establish tank registration requirements for underground storage tanks of greater than 1,100 gallons that are or have been used to contain fuel oil for on-premises heating purposes.

HISTORY: Added 1985, No. 66 , § 1.

§ 1929a. Standards for aboveground storage tanks.

  1. On or before December 31, 2011, the Secretary shall adopt rules addressing the design and proper installation of aboveground storage tanks.
  2. After January 1, 2012, no person shall offer for sale, install, or substantially improve an aboveground storage tank that does not meet the standards adopted by the Secretary under subsection (a) of this section.
  3. On or before July 1, 2017, the Secretary shall adopt rules for the inspection of aboveground storage tanks. The rules shall include, at a minimum, the following:
    1. when installation of secondary containment systems for types of aboveground storage tanks is required, the required specifications of the systems, and the process for installation of the systems;
    2. the protocol to be followed and the criteria to be reviewed in the performance of inspections required under this section, including:
      1. the appropriate methods to document the age of tanks installed on or after July 1, 2017;
      2. the frequency of required tank inspections;
      3. requirements for the tagging or marking of tanks and tank fill pipes when tanks are determined to be noncompliant with the requirements of this section or the rules adopted by the Secretary under this section;
    3. an updated checklist to be used in the performance of inspections required under this section or the rules adopted by the Secretary under this section;
    4. training and certification requirements for tank inspectors;
    5. the protocol to address tanks identified as noncompliant with the inspection criteria established by the rules adopted by the Secretary under this section; and
    6. requirements for the reuse of an aboveground storage tank removed under the requirement of subsection (g) of this section.
  4. A fuel supplier shall inspect an aboveground storage tank in accordance with the requirements of this chapter and the rules adopted by the Secretary pursuant to subsection (c) of this section.
  5. The Secretary shall maintain a database of tanks that have been determined to be noncompliant with the requirements of this section or the rules adopted by the Secretary pursuant to subsection (c) of this section. The database shall be accessible to the public.
  6. No person shall deliver heating fuel to an aboveground storage tank that has been visibly designated as noncompliant with the requirements of this chapter.
  7. If the owner of any aboveground storage tank that serves a structure converts the type of fuel used for the structure from fuel oil or kerosene to natural gas so that the structure is no longer served for any purpose by the aboveground storage tank, the owner shall have the aboveground storage tank used to store fuel oil or kerosene and any fill pipes removed at the same time as the conversion. As used in this subsection, “structure” means any assembly of materials that is intended for occupancy or use by a person and that has at least three walls and a roof.

HISTORY: Added 2007, No. 18 , § 2; amended 2015, No. 76 (Adj. Sess.), § 1.

History

Amendments

—2015 (Adj. Sess.). Subsecs. (c)-(g): Added.

Effective date of subsecs. (d)-(g). 2015, No. 76 (Adj. Sess.), § 4 provides: “This act shall take effect on July 1, 2016, except that 10 V.S.A. § 1929a(d) -(g) (aboveground storage tank inspection, database, delivery, and removal requirements) shall take effect on July 1, 2017.”

§ 1929b. Regulation of heating oil tanks at public buildings.

The Secretary shall establish tank registration requirements for underground storage tanks equal to or less than 1,100 gallons that are or have been used to contain fuel oil for on-premises heating purposes at a public building.

HISTORY: Added 2009, No. 22 , § 3.

§ 1930. Implementation; coordination.

  1. Rulemaking standards.   To the extent compatible with this chapter, in establishing rules and standards, the Secretary may distinguish between types, classes, and ages of underground storage tanks.  In making such distinctions the Secretary may take into consideration factors including location of tanks, soil and climate considerations, uses of the tanks, history of maintenance, age, current industry recommended practices, national codes, hydrogeology, water table, size of tanks, volume of use, technical capability of owners and operators, and compatibility of the regulated substance and materials of fabrication.  The distinctions may also take into consideration the location of storage tanks in relation to recharge areas for community type water supply wells.  Where appropriate, the Secretary may designate whether the owner or the operator is responsible for monitoring a particular tank. The Secretary shall ensure that standards established with respect to financial responsibility shall bear a reasonable relation to the risk associated with a regulated substance release.  Financial responsibility may be established by any one or a combination of the following: insurance, guarantee, surety bond, letter of credit, or qualification as a self-insurer.  The Secretary may suspend enforcement of the financial responsibility requirements for a particular class or category of underground storage tanks if the Secretary makes a determination that methods of financial responsibility are not generally available for underground storage tanks in that class or category.  The suspension shall extend for a period not to exceed 180 days and may be extended for additional 180 day periods by further determination by the Secretary that the need continues to exist and that progress is being made as required by federal law or regulation (section 9003 of the federal Solid Waste Disposal Act).
  2. Advisory committee.   The Secretary shall select an advisory committee from among groups representing municipal, environmental, business, and industry interests.  The Secretary shall consult with the advisory committee in preparing rules under this chapter.
  3. Coordination with other departments.   Nothing in this chapter is intended to interfere with the authorities of the Department of Health or the Department of Labor or the Agency of Agriculture, Food and Markets.  The Secretary shall work cooperatively with the Commissioner of Health, Labor and Industry, and the Secretary of Agriculture, Food and Markets in the Secretary’s development of procedures and rules to carry out the intent of this chapter.

HISTORY: Added 1985, No. 66 , § 1; amended 1987, No. 85 , § 4, eff. June 9, 1987; 2003, No. 42 , § 2, eff. May 27, 2003; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

References in text.

Section 9003 of the federal Solid Waste Disposal Act, referred to at the end of the last sentence of subsec. (a), is codified as 42 U.S.C. § 6991b .

Revision note

—2018. Deleted “but not limited to” following “including” in the second sentence of subsec. (a) in accordance with 2013, No. 5 , § 4.

—2003. In subdiv. (c) redesignated “the department of agriculture, food and markets” as “the agency of agriculture, food and markets”, and redesignated “the commissioner of agriculture, food and markets” as “the secretary of agriculture, food and markets” in conformance with Sec. 2 of No. 42 of 2003.

Amendments

—2005 (Adj. Sess.). Subsec. (c): Substituted “department of labor” for “department of labor and industry”.

—2003. Subsec. (c): Substituted “agency of agriculture, food and markets” for “department of agriculture, food and markets” in the first sentence, and “commissioner of health, labor and industry, and the secretary of agriculture, food and markets” for “commissioners of health, labor and industry, and agriculture, food and markets” in the second sentence.

—1989 (Adj. Sess.). Subsec. (c): Substituted “department of agriculture, food and markets” for “department of agriculture” in the first sentence.

—1987. Subsec. (a): Added the fourth, seventh and eighth sentences.

§ 1931. Inspections; right of entry; information.

For the purposes of developing or enforcing any rule, regulation, standard, permit, or order authorized by this chapter, the Secretary, or the Secretary’s authorized representative, may request and any permittee or owner or operator shall conduct monitoring or testing of tanks, associated equipment, contents, or surrounding soils, air, surface water, or groundwater and shall furnish information relating to tanks, associated equipment, and tank contents, and any duly authorized representative of the Secretary may upon presentation of appropriate credentials at any reasonable time:

  1. enter any property where underground storage tanks are located;
  2. inspect and obtain samples;
  3. inspect and copy records, reports, information, or test results relating to the purposes of this chapter;
  4. conduct monitoring or testing of the tanks, associated equipment, contents, or surrounding soils, air, surface water, or groundwater;
  5. conduct corrective action;
  6. upon refusal of entry by a permittee or owner or operator for inspection, sampling, monitoring or testing, corrective action, or copying pursuant to this section, the Secretary or the duly authorized representative may apply for and obtain an entry order or subpoena, or both, to allow such entry, inspection, sampling, monitoring or testing, corrective action, or copying from the District or Superior Court in whose jurisdiction the property is located.  An entry order or subpoena, or both, shall issue upon a showing that:
    1. there is probable cause to believe an underground storage tank is located on the property;
    2. entry onto the property has been requested; and
    3. entry has been denied.

HISTORY: Added 1985, No. 66 , § 1; amended 1987, No. 282 (Adj. Sess.), § 10; 1989, No. 110 , § 5, eff. June 20, 1989.

History

Amendments

—1989. Inserted “or the secretary’s authorized representative” preceding “may request” in the introductory paragraph and “or owner or operator” following “permittee” in the first sentence of subdiv. (6).

—1987 (Adj. Sess.). Section amended generally.

§ 1932. Orders.

Upon receiving information that the operation, maintenance, or condition of an underground storage tank or the surrounding environs may present a threat or a hazard to the health of persons or to the environment, or may present an actual or threatened violation of any provision of this chapter, the Secretary may issue to the owner or operator an order establishing reasonable and proper methods for the control of the activity, tank closure, removal of contaminated materials, and the management of substances in the tank or the surrounding environs in order to reduce or eliminate the hazard or the violation. Orders of the Secretary may include requiring the owner to undertake investigations on properties of the owner.

HISTORY: Added 1985, No. 66 , § 1; amended 1987, No. 282 (Adj. Sess.), § 11.

History

Amendments

—1987 (Adj. Sess.) Inserted “a threat or” following “may present” and substituted “present an actual or threatened” for “be in” following “environment, may be” in the first sentence.

§ 1933. Appeals.

Appeals of any act or decision of the Department under this subchapter shall be made in accordance with chapter 220 of this title.

HISTORY: Added 1985, No. 66 , § 1; amended 1995, No. 57 , § 3; 2003, No. 115 (Adj. Sess.), § 43, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Rewrote the section.

—1995. Deleted the subsec. (a) designation at the beginning of the section, deleted “to the board” preceding “within 30 days to” and added “to the superior court of the county where the tanks are located” thereafter in the first sentence, substituted “court” for “board” in two places and deleted “within 30 days following the conclusion of the hearing” following “secretary” in the second sentence, added “unless the court specifically grants that stay upon petition or its own motion” following “department” in the fourth sentence, and deleted subsec. (b).

§ 1934. Enforcement.

  1. Notwithstanding any other provisions or procedure set forth in this chapter, if the Secretary finds that a person is in violation of this chapter or has failed to comply with any provisions of any order, standard, rule, or permit issued in accordance with this chapter, he or she may bring suit in the Superior Court in any county where the noncompliance has occurred to enjoin the act and to obtain compliance.  The suit shall be brought by the Attorney General or the appropriate State’s Attorney in the name of the State for injunctive relief or for the imposition of penalties and fines as provided in section 1935 of this title.  The court may issue a temporary injunction or order in such proceedings and may exercise all plenary powers available to it in addition to the power to:
    1. enjoin further releases;
    2. order design, construction, installation, or operation of alternate facilities;
    3. order the removal of facilities, contaminated soils and the restoration of the environment;
    4. fix and order compensation for any public or private property destroyed, damaged, or injured;
    5. assess and award punitive damages;
    6. order reimbursement to any agency of federal, State, or local government from any person whose acts caused governmental expenditures under section 1283 of this title, or under subdivision 1941(b)(3) or (7) of this title and in accordance with the provisions of subsection 1941(f) of this title.
  2. In addition to the remedies described in subsection (a) of this section, if the Secretary finds that a person has installed, removed, repaired, or tested an underground storage tank in violation of this chapter or the rules adopted under this chapter, the person who installed, removed, repaired, or tested the tank may be subject to penalties and required to take all actions necessary to correct the violation in accordance with the provisions of chapters 201 and 211 of this title.

HISTORY: Added 1985, No. 66 , § 1; amended 1989, No. 110 , § 6, eff. June 20, 1989; 1997, No. 12 , § 1.

History

Amendments

—1997. Subsec. (b): Amended generally.

—1989. Subdiv. (a)(6): Substituted “section 1283 of this title, or under subdivisions 1941(b)(3) or (b)(7) of this title and in accordance with the provisions of subsection 1941(f) of this title” for “ 10 V.S.A. § 1283 ” following “expenditures under”.

CROSS REFERENCES

Enforcement of environmental laws generally, see § 8001 et seq. of this title.

Limitation of liability of volunteers assisting in prevention, mitigation, or remediation of hazardous materials accidents, see 12 V.S.A. § 5783 .

§ 1935. Penalties.

  1. Criminal penalty.   Any person who knowingly or intentionally violates any provision of this chapter or the rules promulgated herein, or any permits or any order standards issued in accordance with this chapter shall be subject to a criminal penalty not to exceed $25,000 or imprisonment for not more than six months, or both.
  2. Civil penalty.   Any person who violates any provision of this chapter, the rules adopted pursuant to this chapter, or the terms and conditions of any order or permit issued by the Secretary, shall be subject to a civil penalty not to exceed $10,000.00 per storage tank.
  3. Violations.   Each violation may be a separate and distinct offense and in the case of a continuing violation, each day’s continuance of the violation may be deemed a separate and distinct offense.

HISTORY: Added 1985, No. 66 , § 1; amended 1989, No. 110 , § 7, eff. June 20, 1989; 2019, No. 14 , § 42, eff. April 30, 2019; 2021, No. 20 , § 48.

History

Amendments

—2021. Subsec. (c): Added the subsection heading; and substituted “of the violation” for “thereof”.

—2019. Subsec. (b): Substituted “adopted pursuant to this chapter,” for “promulgated herein”.

—1989. Subsec. (a): Inserted “or any permits or any order standards issued in accordance with this chapter” following “promulgated herein”.

CROSS REFERENCES

Limitation of liability of volunteers assisting in prevention, mitigation, or remediation of hazardous materials accidents, see 12 V.S.A. § 5783 .

§ 1936. Licensure of tank inspectors.

  1. The Secretary may establish a process for licensing persons to perform tank integrity demonstrations, as provided by this section.  Under that process, the Secretary shall charge a fee, in accordance with 3 V.S.A. § 2822 .  The Secretary shall license persons who demonstrate to the satisfaction of the Secretary that they possess the ability to perform tank integrity demonstrations.  This demonstration of ability may consist of written and field examinations and may establish different types of licenses for different types of demonstrations.  No person shall be required to obtain a license in order to carry out duties as a State employee.
  2. After offering opportunity for hearing before the Secretary or a hearing officer, the Secretary may revoke the license of any tank inspector who has committed fraud or deceit in obtaining licensure or submitting an application or who has demonstrated gross negligence or incompetence in performing a tank integrity demonstration or in other work relating to a tank integrity demonstration.

HISTORY: Added 1985, No. 66 , § 1; amended 1987, No. 76 , § 7; 1991, No. 85 , § 3.

History

Amendments

—1991. Subsec. (a): Substituted “may” for “shall” preceding “establish” in the first sentence.

—1987. Subsec. (a): Rewrote the second sentence and deleted the former third sentence.

Subchapter 2. Underground Storage Tank Assistance Program

§ 1938. Underground Storage Tank Trust Fund.

There is hereby created in the State Treasury a fund to be known as the Underground Storage Tank Trust Fund, to be expended by the Secretary of Natural Resources as allowed by federal law. The Secretary may accept and use funds available through the federal underground storage tank trust fund for those purposes. All balances in the Fund at the end of any fiscal year shall be carried forward and remain a part of the fund. Interest earned by the Fund shall be deposited into the Fund. The Secretary may seek reimbursement of the funds expended. Funds recovered shall be deposited as required by federal regulations. Disbursements from the Fund shall be made by the State Treasurer on warrants drawn by the Commissioner of Finance and Management.

HISTORY: Added 1987, No. 85 , § 2, eff. June 9, 1987; amended 1987, No. 76 , § 18.

History

Amendments

—1987. Substituted “agency of natural resources” for “agency of environmental conservation” preceding “as allowed” in the first sentence.

§ 1939. Risk retention pool.

The owners and operators of underground storage tanks may obtain the advice of the Commissioner of Financial Regulation, and may establish an insurance pool. The Commissioner shall adopt rules to assist in the formation of such pools and to expedite approval of any plan of operation. The Commissioner shall also adopt rules relating to the administration and operation of such pools in order to provide for the fiscal integrity of agreements entered into and to provide that trade, market, and claim practices engaged in are equitable, fair, and consistent. The establishment of such a pool shall conform to all requirements of the Commissioner of Financial Regulation and applicable State and federal laws, rules, and regulation.

HISTORY: Added 1987, No. 85 , § 2, eff. June 9, 1987; amended 1989, No. 225 (Adj. Sess.), § 25; 1995, No. 180 (Adj. Sess.), § 38(a); 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.

History

Amendments

—2011 (Adj. Sess.) Substituted “department of financial regulation” for “department of banking, insurance, securities, and health care administration” following “commissioner of the “ and “commissioner of financial regulation” for “commissioner of banking, insurance, securities, and health care administration” in the first and last sentences.

—1995 (Adj. Sess.) Substituted “department of banking, insurance, securities, and health care administration” for “department of banking, insurance, and securities” in the first sentence and “commissioner of banking, insurance, securities, and health care administration” for “commissioner of banking, insurance, and securities” in the fourth sentence.

—1989 (Adj. Sess.). Substituted “department of banking, insurance, and securities” for “department of banking and insurance” in the first sentence and “commissioner of banking, insurance, and securities” for “commissioner of banking and insurance” in the fourth sentence.

CROSS REFERENCES

Procedure for adoption of administrative rules, see 3 V.S.A. part 1, chapter 25.

§ 1940. Underground storage tank incentive program.

  1. The owners of a retail gasoline outlet that sells less than 20,000 gallons of gasoline per month and that desire assistance to replace underground storage tanks in compliance with this chapter, and municipalities with a population of less than 2,500 people may apply to the Secretary for such assistance.  The financial assistance may be in the form of grants of up to $5,000.00 or the cost of complying with the requirements of this chapter, whichever is less.
  2. The application shall be supported by information covering:
    1. proof of tank ownership;
    2. an estimated cost of tank replacement;
    3. the amount and type of assistance requested;
    4. a tank replacement schedule;
    5. in the case of gasoline stations, the monthly volume of gasoline sales for the previous 12 months;
    6. such other information and assurances as the Secretary may require.
  3. In cases of applications from the owners of retail gasoline outlets, priority shall be given to those applicants from areas with a low density of retail gasoline outlets and for whom the expense of tank replacement is likely to cause termination of retail gasoline services.
  4. Assistance in accordance with this section shall be provided from funds authorized for this purpose from the oil overcharge funds.

HISTORY: Added 1987, No. 85 , § 2, eff. June 9, 1987.

History

Adoption of rules. 1987, No. 85 , § 7, eff. June 9, 1987, provided: “The department to which oil overcharge funds are appropriated in section 2 of this act [which added sections 1938-1940 of this title] shall adopt rules or procedure governing use of those funds through 3 V.S.A. chapter 25.”

§ 1941. Petroleum Cleanup Fund.

  1. A fund to be known as the Petroleum Cleanup Fund is created in the State Treasury, to be expended by the Secretary of Natural Resources. The Fund shall consist of licensing fees and petroleum tank fees assessed under the provisions of this chapter, loan repayments, and disbursements that have been recovered, except for underground storage tank permit fees and licensing fees for tank inspectors. The Fund shall have two accounts: the Motor Fuel Account and the Heating Fuel Account. The Motor Fuel Account shall consist of all monies deposited into the Fund, with the exception of the licensing fees for heating oil and kerosene described in section 1942 of this title. The Heating Fuel Account shall consist of all the monies deposited into the Fund from the licensing fees for heating oil and kerosene sold or used in the State. All balances in the Fund at the end of any fiscal year shall be carried forward and remain a part of the Fund. The Secretary may transfer money, in each fiscal year, between the accounts, provided that the transfer is approved by the advisory committee established under subsection (e) of this section and does not exceed $750,000.00. Interest earned by the Fund shall be deposited into the Fund. Disbursements from the Fund shall be made by the State Treasurer on warrants drawn by the Commissioner of Finance and Management. The Secretary shall seek to recover from responsible parties costs incurred under subdivision (b)(8) of this section.
  2. The Secretary may authorize disbursements from the Fund for the purpose of the cleanup and restoration of contaminated soil and groundwater caused by releases of petroleum, including aviation gasoline, from underground storage tanks and aboveground storage tanks, including air emissions for remedial actions, and for compensation of third parties for injury and damage caused by a release. This Fund shall be used for no other governmental purposes, nor shall any portion of the Fund ever be available to borrow from by any branch of government; it being the intent of the General Assembly that this Fund and its increments shall remain intact and inviolate for the purposes set out in this chapter. Disbursements under this section may be made only for uninsured costs incurred after January 1, 1987 and for which a claim is made prior to July 1, 2029 and judged to be in conformance with prevailing industry rates. This includes:
    1. costs incurred by taking corrective action as directed by the Secretary for any release of petroleum into the environment from:
      1. an underground storage tank defined as a category one tank, provided disbursements on any site shall not exceed $1,240,000.00 and shall be made from the Motor Fuel Account, as follows:
        1. after the first $10,000.00 of the cleanup costs have been borne by the owners or operators of double-wall tank systems used for commercial purposes;
        2. after the first $15,000.00 of cleanup costs have been borne by the owners or operators of combination tank systems, whether lined or unlined, used for commercial purposes, unless the system is a lined combination tank system that has been granted a five-year extension under subsection 1927(f) of this title;
        3. after the first $25,000.00 of cleanup costs have been borne by the owners or operators of lined combination tank systems that have been granted a five-year extension to operate under subsection 1927(f) of this title;
        4. after the first $25,000.00 of cleanup costs have been borne by the owners or operators of single-wall tank systems used for commercial purposes;
      2. an underground motor fuel tank after the first $250.00 of the cleanup costs have been borne by the owners or operators of tanks with a capacity equal to or less than 1,100 gallons and used for farming or residential purposes. Disbursements on any site shall not exceed $990,000.00 and shall be made from the Motor Fuel Account;
      3. an underground heating fuel tank used for on-premises heating after the first $10,000.00 of the cleanup costs have been borne by the owners or operators of tanks with capacities over 1,100 gallons used for commercial purposes, or after the first $250.00 of the cleanup costs have been borne by the owners or operators of tanks with capacities equal to or less than 1,100 gallons used for commercial purposes, or after the first $250.00 of the cleanup costs have been borne by the owners or operators of residential and farm tanks. Disbursements on any site shall not exceed $990,000.00 and shall be made from the Heating Fuel Account;
      4. an aboveground storage tank site after the first $1,000.00 of the cleanup costs have been borne by the owners or operators of tanks used for commercial purposes, or after the first $250.00 of the cleanup costs have been borne by the owners or operators of residential and farm tanks. Disbursements under this subdivision (b)(1)(D) on any individual site shall not exceed $25,000.00. These disbursements shall be made from the Motor Fuel Account or Heating Fuel Account, depending upon the use or contents of the tank;
      5. a bulk storage aboveground motor fuel or heating fuel storage tank site after the first $10,000.00 of the cleanup costs have been borne by the owners or operators of tanks used for commercial purposes. Disbursements under this subdivision (b)(1)(E) on any individual site shall not exceed $990,000.00. These disbursements shall be made from the Motor Fuel Account;
      6. if a site is contaminated by petroleum releases from both heating fuel and motor fuel tanks, or where the source of the petroleum contamination has not been ascertained, the Secretary shall have the discretion to disburse funds from either the Heating Fuel or Motor Fuel Account, or both;
    2. costs incurred in compensating third parties for bodily injury and property damage, as approved by the Secretary in consultation with the Commissioner of Financial Regulation caused by release of petroleum from an underground category one storage tank into the environment from a site, up to $1 million, but shall not include payment of any punitive damages;
    3. costs incurred in taking immediate corrective action to contain or mitigate the effects of any release of petroleum into the environment from an underground storage tank or aboveground storage tank if, in the judgment of the Secretary, such action is necessary to protect the public health and the environment. The Secretary may seek reimbursement of the first $10,000.00 of the costs;
    4. the cost of corrective action up to $1 million for any release of petroleum into the environment from an underground storage tank or tanks:
      1. whose owner, in the judgment of the Secretary, is incapable of carrying out the corrective action; or
      2. whose owner or operator cannot be determined; or
      3. [Repealed.]
      4. whose owner, in the judgment of the Secretary, is financially incapable of carrying out the corrective action in a timely manner;
    5. [Repealed.]
    6. the costs of creating and operating a risk retention pool authorized by section 1939 of this title, which costs are in excess of a reasonable contribution by participants, as determined by the Secretary with the advice of the Commissioner of Financial Regulation. The authority for disbursements under this subdivision shall terminate on June 1, 1992;
    7. administrative and field supervision costs incurred by the Secretary in carrying out the provisions of this subchapter. Annual disbursements shall not exceed six percent of annual receipts;
    8. the cost of initiating spill control procedures, removal actions, and remedial actions to clean up spills of oil and other petroleum products where the responsible party is unknown, cannot be contacted, is unwilling to take action, or does not take timely action that the Secretary considers necessary.
  3. The Secretary may use up to one-half the amount deposited to the Motor Fuel Account of the Fund from the licensing fees assessed under section 1942 of this title to capitalize the Underground Motor Fuel Storage Tank Loan Assistance Program established by section 1944 of this title and the cost of administering the Program. If the Secretary determines that a balance will remain after all qualifying loan applications have been satisfied, the unneeded balance may be used for cleanup. The Secretary may use the amount in the Heating Fuel Account of the Fund for purposes of funding measures related to heating oil and kerosene.
  4. Disbursements from the Fund for cleanup costs incurred prior to passage shall be limited to uninsured costs.
  5. The Secretary shall establish a Petroleum Cleanup Fund Advisory Committee that shall meet not less than annually to review receipts and disbursements from the Fund, to evaluate the effectiveness of the Fund in meeting its purposes and the reasonableness of the cost of cleanup, and to recommend alterations and statutory amendments deemed appropriate. The Advisory Committee shall submit an annual report of its findings to the General Assembly on January 15 of each year. In its annual report, the Advisory Committee shall review the financial stability of the Fund, evaluate the implementation of assistance related to underground farm or residential heating fuel storage tanks and aboveground storage tanks, and the need for continuing assistance, and shall include recommendations for sustainable funding sources to finance the provision of that assistance. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection. The membership of the Committee shall include the following or their designated representative:
    1. the Secretary of Natural Resources who shall be chair;
    2. the Commissioner of Environmental Conservation;
    3. the Commissioner of Financial Regulation;
    4. a licensed gasoline distributor;
    5. a retail gasoline dealer;
    6. a representative of a statewide refining-marketing petroleum association;
    7. one member of the House to be appointed by the Speaker of the House;
    8. one member of the Senate to be appointed by the Committee on Committees;
    9. a licensed heating fuel dealer;
    10. a representative of a statewide heating fuel dealers’ association;
    11. a licensed real estate broker.
  6. The Secretary may seek reimbursement to the Fund of cleanup expenditures only when the owner of the tank is in significant violation of his or her permit or rules, or when a required fee has not been paid for the tank from which the release occurred or, to the extent covered, when there is insurance coverage. When the Secretary has paid the first $10,000.00 of costs under subdivision (b)(4)(D) of this section, the Secretary may seek reimbursement of those costs.
  7. The owner of a farm or residential heating fuel storage tank used for on-premises heating or an underground or aboveground heating fuel storage tank used for on-premises heating by a mobile home park resident, as defined in section 6201 of this title, who desires assistance to close, replace, or upgrade the tank may apply to the Secretary for such assistance. The financial assistance may be in the form of grants of up to: $2,000.00 or the costs of closure, replacement, or upgrade, whichever is less for an aboveground storage tank located inside a structure; up to $3,000.00 or the costs of closure, replacement, or upgrade, whichever is less for an aboveground storage tank located outside a structure; and up to $4,000.00 or the costs of closure, replacement, or upgrade, whichever is less for an underground storage tank. As used in this subsection, “structure” means any assembly of materials that is intended for occupancy or use by a person and that has at least three walls and a roof. Grants shall be made only to the current property owners, except at mobile home parks where a grant may be awarded to a mobile home park resident. To be eligible to receive the grant, an environmental site assessment must be conducted by a qualified consultant during the tank closure, replacement, or upgrade if the tank is an underground heating fuel storage tank. In addition, if the closed tank is to be replaced with an underground heating fuel storage tank, the replacement tank and piping shall provide a level of environmental protection at least equivalent to that provided by a double wall tank and secondarily contained piping. Grants shall be awarded on a priority basis to projects that will avoid the greatest environmental or health risks. The Secretary shall also give priority to applicants who are replacing their underground heating fuel tanks with aboveground heating fuel storage tanks that will be installed in accordance with the Secretary’s recommended standards. The Secretary shall also give priority to lower income applicants. To be eligible to receive the grant, the owner must provide the previous year’s financial information, and, if the replacement tank is an aboveground tank, must assure that any work to replace or upgrade a tank shall be done in accordance with industry standards (National Fire Protection Association, or NFPA, Code 31), as it existed on July 1, 2004, until another date or edition is specified by rule of the Secretary. The Secretary shall authorize only up to $400,000.00 in assistance for underground and aboveground heating fuel tanks in any one fiscal year from the Heating Fuel Account for this purpose. The application must be accompanied by the following information:
    1. proof of ownership, including information disclosing all owners of record of the property, except in the case where the applicant is a mobile home park resident;
    2. for farm or residential aboveground heating fuel storage tank owners, a copy of the federal income tax return for the previous year;
    3. identification of the contractor performing any heating fuel storage tank closure, replacement, or upgrade;
    4. an estimated cost of tank closure, replacement, or upgrade;
    5. the amount and type of assistance requested;
    6. a schedule for the work;
    7. description of surrounding area, including location of water supply wells, surface waters, and other sensitive receptors; and
    8. such other information and assurances as the Secretary may require.

HISTORY: Added 1987, No. 282 (Adj. Sess.), § 1; amended 1989, No. 110 , §§ 8, 8a, eff. June 20, 1989; 1989, No. 225 (Adj. Sess.), § 25; 1991, No. 50 , § 197a; 1991, No. 85 , § 4; 1991, No. 225 (Adj. Sess.), § 2; 1993, No. 188 (Adj. Sess.), § 1; 1995, No. 180 (Adj. Sess.), § 38; 1997, No. 12 , §§ 2, 3; 1997, No. 132 (Adj. Sess.), § 8, eff. April 23, 1998; 1997, No. 155 (Adj. Sess.), § 36; 1999, No. 128 (Adj. Sess.), § 1; 2003, No. 48 , § 1, eff. June 2, 2003; 2003, No. 153 (Adj. Sess.), § 1; 2007, No. 18 , § 3; 2007, No. 192 (Adj. Sess.), § 6.002; 2009, No. 22 , § 4; 2009, No. 160 (Adj. Sess.), § 42; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2013, No. 55 , § 3, eff. May 30, 2013; 2013, No. 142 (Adj. Sess.), § 19; 2015, No. 66 (Adj. Sess.), § 1, eff. Feb. 10, 2016; 2015, No. 76 (Adj. Sess.), § 2; 2017, No. 158 (Adj. Sess.), § 38; 2017, No. 168 (Adj. Sess.), § 10, eff. May 22, 2018.

History

Amendments

—2017 (Adj. Sess.). Subsec. (b): Act No. 158 inserted “, including aviation gasoline,” following “releases of petroleum” in the first sentence.

Subsec. (b): Act No. 168 substituted “July 1, 2029” for “July 1, 2019” in the last sentence.

—2015 (Adj. Sess.). Subsec. (g): Act 66 amended second sentence generally, and substituted “$400,000.00” for “$350,000.00” in the eleventh sentence.

Subsec. (g): Act 76 added the present third sentence.

—2013 (Adj. Sess.). Subsec. (e): Added the fourth sentence.

—2013. Subsec. (b): Substituted “July 1, 2019” for “July 1, 2014” in the introductory paragraph and rewrote subdiv. (1).

Subsec. (g): Substituted “$350,000.00” for “$300,000.00” in the introductory paragraph.

—2011 (Adj. Sess.) Substituted “commissioner of financial regulation” for “commissioner of banking, insurance, securities, and health care administration” in subdivs. (b)(2), (b)(6), and (e)(3).

—2009 (Adj. Sess.) Subdiv. (b)(1)(A): Substituted “$1,240,000.00” for “$990,000.00” in the second sentence.

—2009. Subsec. (b): Substituted “July 1, 2014” for “July 1, 2009” in the third sentence of the introductory paragraph, and “six percent” for “four percent” in subdiv. (7).

Subsec. (g): Substituted “who” for “that” preceding “desires” in the first sentence, “$2,000.00 “ for “$1,000.00” in the second sentence, and “$300,000.00” for “$200,000.00” in the last sentence of the introductory paragraph.

—2007 (Adj. Sess.). Subsec. (a): Substituted “$750,000.00” for “$250,000.00” in the seventh sentence.

—2007. Subsec. (a): Inserted the present seventh sentence.

Subsec. (g): Amended generally.

—2003. Section amended generally.

—2003. Subsec. (b): Added second sentence and substituted the year “2009” for “2004” in the third sentence.

—1999 (Adj. Sess.). Subsec. (a): Substituted “subdivision (b)(8)” for “subdivision (b)(7)” in the sixth sentence.

Subsec. (g): Amended generally.

—1997 (Adj. Sess.). Act No. 132, in the introductory language of subsec. (b), inserted “and aboveground storage tanks” and substituted “2004” for “1999”; in subdiv. (b)(1), added “(A) an underground storage tank” and subdiv. (b)(1)(B); in subdiv. (b)(3) inserted “or aboveground storage tank”; in subdiv. (b)(4) substituted “an underground storage” for “a”; deleted subdiv. (b)(4)(C) relating to owners not required to provide evidence of financial responsibility; added subdiv. (b)(5) and redesignated the following subdivs. accordingly; added the last sentence in subsec. (c); added the third sentence in subsec. (e); and added subsec. (g).

Act No. 155 made a stylistic change in the first sentence and added “, except for underground storage tank permit fees and licensing fees for tank inspectors” at the end of the second sentence in subsec. (a).

—1997. Subdiv. (b)(4): Added subdiv. (D) and made minor stylistic changes.

Subsec. (f): Added the second sentence.

—1995 (Adj. Sess.) Substituted “commissioner of banking, insurance, securities, and health care administration” for “commissioner of banking, insurance, and securities” in subdivs. (b)(2), (5) and (e)(3).

—1993 (Adj. Sess.) Subsec. (b): Substituted “1999” for “1994” in the second sentence of the introductory paragraph.

—1991 (Adj. Sess.). Subsec. (f): Added “or, to the extent covered, when there is insurance coverage” following “occurred”.

—1991. Subdiv. (b)(4): Amended generally by Act No. 85.

Subdiv. (b)(6): Act No. 50 substituted “four” for “2.5” preceding “percent”.

—1989 (Adj. Sess.). Substituted “commissioner of banking, insurance, and securities” for “commissioner of banking and insurance” in subdiv. (b)(2), in the first sentence of subdiv. (b)(5), and in subdiv. (e)(3).

—1989. Subsec. (a): Deleted “and” preceding “loan repayments” and added “and disbursements that have been recovered” thereafter in the second sentence and added the sixth sentence.

Subdiv. (b)(2): Added “but shall not include payment of any punitive damages” following “dollars”.

Aboveground petroleum storage tanks. 2001, No. 59 , § 1, provides: “Notwithstanding the annual limit established under 10 V.S.A. § 1941(c) with respect to expenditures that may be made from the petroleum cleanup fund in order to finance measures related to aboveground petroleum storage tanks, the secretary of natural resources may use up to $500,000.00 from this fund for these purposes in fiscal year 2001. The legislature intends that after fiscal year 2001, the amount spent from the fund for these purposes shall revert to $250,000.00, as is established by statute.”

Transfer of general funds to the Petroleum Cleanup Fund. 2003, No. 80 (Adj. Sess.), § 53a(a) provides: “The sum of $530,000.00 is transferred from the general fund in fiscal year 2004 to the petroleum cleanup fund created under this section.”

ANNOTATIONS

Action for reimbursement.

Because subdiv. (f) of this section clearly establishes that the state may itself seek reimbursement in instances where the land is covered by insurance, to the extent of the coverage, the trial court correctly concluded that it granted the state a legal basis upon which to rest its standing in its action for restitution for costs incurred in investigation and clean-up of an underground petroleum leak. Agency of Natural Resources v. United States Fire Insurance Co., 173 Vt. 302, 796 A.2d 476, 2001 Vt. LEXIS 384 (2001).

Construction.

Statute allowing the state to recover cleanup costs to the extent covered, when there is insurance coverage, authorizes the state to seek reimbursement in instances where the land is covered by insurance, to the extent of the coverage. Consistent with the use of the term “to the extent covered,” the statute does not govern how coverage will be determined; the state stands in the shoes of the insured when it sues the insurer. Bradford Oil Co. v. Stonington Insurance Co., 2011 VT 108, 190 Vt. 330, 54 A.3d 983, 2011 Vt. LEXIS 102 (2011).

State’s agreement with insurer to expend State funds for petroleum cleanup was premised on understanding, which later proved unfounded, that gasoline service station was uninsured for certain releases; there was thus no authority for State’s expenditure of cleanup funds, and trial court properly dismissed insurer’s counterclaim against State based on agreement. Agency of Natural Resources v. Glens Falls Insurance Co., 169 Vt. 426, 736 A.2d 768, 1999 Vt. LEXIS 205 (1999).

Right to jury trial.

State’s accounting classification of the monies expended under the Vermont Petroleum Cleanup Fund for a gasoline spill did not alter the essentially equitable nature of the State’s action against an oil company, in which the prayer for expenses was intertwined with and subsidiary to the effort to compel abatement, and therefore did not entitle the oil company to a jury trial. State v. Irving Oil Corp., 2008 VT 42, 183 Vt. 386, 955 A.2d 1098, 2008 Vt. LEXIS 45 (2008).

§ 1941a. Repealed. 2003, No. 55, §§ 9(1) and (2), eff. May 30, 2013 and Jan. 1, 2018.

History

Former § 1941a. Former § 1941a, relating to single-wall and combination tanks and tank removal, was derived from 2013, No. 55 , § 7.

Repeal of subsec. (a). Former § 1941a(a), relating to cleanup costs for releases from single-wall underground storage tanks, was repealed by 2013, No. 55 , § 9(1).

Repeal of subsec. (b). Former § 1941a(b), relating to closure and removal of a combination tank system, was repealed by 2013, No. 55 , § 9(1).

2013, No. 55 , § 9(2) provides for the repeal of subsec. (b) of this section on January 1, 2018.

§ 1942. Petroleum distributor licensing fee.

  1. There is hereby established a licensing fee of one cent per gallon of motor fuel sold by a distributor or dealer or used by a user in this State, that will be assessed against every distributor, dealer, or user as defined in 23 V.S.A. chapters 27 and 28, and that will be deposited into the Petroleum Cleanup Fund established pursuant to subsection 1941(a) of this title. The Secretary, in consultation with the Petroleum Cleanup Fund Advisory Committee established pursuant to subsection 1941(e) of this title, shall annually report to the General Assembly on the balance of the Motor Fuel Account and shall make recommendations, if any, for changes to the program. The Secretary shall also determine the unencumbered balance of the Motor Fuel Account as of May 15 of each year, and if the balance is equal to or greater than $7,000,000.00, then the licensing fee shall not be assessed in the upcoming fiscal year. The Secretary shall promptly notify all sellers assessing this fee of the status of the fee for the upcoming fiscal year. This fee shall be paid in the same manner, at the same time, and subject to the same restrictions or limitations as the tax on motor fuels. The fee shall be collected by the Commissioner of Motor Vehicles and deposited into the Petroleum Cleanup Fund. This fee requirement shall terminate on April 1, 2031.
  2. There is assessed a licensing fee of one cent per gallon for the bulk retail sale of heating oil, kerosene, or other dyed diesel fuel sold in this State. This fee shall be subject to the collection, administration, and enforcement provisions of 32 V.S.A. chapter 233, and the fees collected under this subsection by the Commissioner of Taxes shall be deposited into the Petroleum Cleanup Fund established pursuant to subsection 1941(a) of this title. The Secretary, in consultation with the Petroleum Cleanup Fund Advisory Committee established pursuant to subsection 1941(e) of this title, shall annually report to the General Assembly on the balance of the Heating Fuel Account and shall make recommendations, if any, for changes to the program. The Secretary shall also determine the unencumbered balance of the Heating Fuel Account as of May 15 of each year, and if the balance is equal to or greater than $3,000,000.00, then the licensing fee shall not be assessed in the upcoming fiscal year. The Secretary shall promptly notify all sellers assessing this fee of the status of the fee for the upcoming fiscal year. This fee provision shall terminate on April 1, 2031.

HISTORY: Added 1987, No. 282 (Adj. Sess.), § 2, eff. April 1, 1989; amended 1989, No. 110 , § 9, eff. June 20, 1989; 1993, No. 188 (Adj. Sess.), § 2; 1997, No. 132 (Adj. Sess.), § 9, eff. April 23, 1998; 2003, No. 48 , § 2, eff. June 2, 2003; 2003, No. 153 (Adj. Sess.), § 2; 2007, No. 18 , § 4; 2007, No. 192 (Adj. Sess.), § 7.006; 2009, No. 4 , § 127, eff. April 24, 2009; 2009, No. 22 , § 5; 2009, No. 160 (Adj. Sess.), § 43; 2011, No. 143 (Adj. Sess.), § 1; 2013, No. 55 , § 4, eff. May 30, 2013; 2017, No. 168 (Adj. Sess.), § 11, eff. May 22, 2018.

History

Amendments

—2017 (Adj. Sess.). Substituted “that” for “which” preceding “will” and “shall” for “will” following “fee” throughout subsec. (a) and substituted “on April 1, 2031” for “April 1, 2021” in the last sentences of subsecs. (a) and (b).

—2013. Subsec. (a): Substituted “General Assembly” for “legislature” in the second sentence, “Motor Fuel Account” for “motor fuel account of the fund” in the second and third sentences, and “April 1, 2021” for “April 1, 2016” in the last sentence.

Subsec. (b): Amended generally.

—2011 (Adj. Sess.). Subsec. (b): Added “bulk” and deleted “and not used to propel a motor vehicle” following “state” in the first sentence, and substituted “32 V.S.A. chapter 233” for “chapter 233 of Title 32” in the second sentence.

—2009 (Adj. Sess.) Section amended generally.

—2009. Subsec. (a): Act No. 4 substituted “After analysis of the projected unencumbered fund balance, the” for “The” at the beginning of the second sentence and “may make a recommendation to the legislature as to” for “shall annually determine” in that sentence; and deleted the former third through fifth sentences.

Subsec. (a): Act No. 22 substituted “April 1, 2016” for “April 1, 2011” in the last sentence.

Subsec. (b): Act No. 4 substituted “After analysis of the projected unencumbered fund balance, the” for “The” at the beginning of the third sentence and “may make a recommendation to the legislature as to” for “shall annually determine” in that sentence; and deleted the former fourth through sixth sentences.

Subsec. (b): Act No. 22 deleted “or” preceding “kerosene” and inserted “or other dyed diesel fuel” thereafter in two places in the first sentence, and substituted “April 1, 2016” for “April 1, 2011” in the last sentence.

—2007 (Adj. Sess.). Subsec. (a): Added second through fifth sentences.

Subsec. (b): Added third through sixth sentences.

—2007. Subsec. (b): Substituted “2011” for “2008” at the end.

—2003 (Adj. Sess.). Designated existing provisions of section as subsec. (a), substituted “2011” for “2006” following “April 1” in the last sentence of subsec. (a), and added subsec. (b).

—2003. Act No. 48 changed the termination date for the petroleum distributor license fee to “April 1, 2011” from “April 1, 2006” in the last sentence.

—1997 (Adj. Sess.). Substituted “2006” for “2001” in the last sentence.

—1993 (Adj. Sess.). Substituted “on April 1, 2001” for “upon the passage of seven years from April 1, 1989” following “terminate” in the fourth sentence.

—1989. Substituted “seven” for “two” preceding “years” in the fourth sentence.

Reports repeal delayed. 2015, No. 131 (Adj. Sess.), § 36 provides: “The reports set forth in this section shall not be subject to expiration under the provisions of 2 V.S.A. § 20(d) (expiration of required reports) until July 1, 2018.

§ 1943. Petroleum tank assessment.

  1. Each owner of a category one tank used for storage of petroleum products shall annually remit to the Secretary $100.00 per double-wall tank system; $250.00 per combination tank system if the single-wall tank has been lined; $500.00 for all other combination tank systems; and $1,000.00 per single-wall tank system, which shall be deposited to the Petroleum Cleanup Fund established by section 1941 of this title, except that:
    1. For retail gasoline outlets that sell less than 40,000 gallons of motor fuel per month, the fee shall be:
      1. $75.00 per double-wall tank system;
      2. $125.00 per combination tank system; and
      3. $175.00 per single-wall tank system.
    2. The fee shall be reduced by 50 percent if the owner or permittee provides to the satisfaction of the Secretary evidence of financial responsibility to allow the taking of corrective action in the amount of $100,000.00 per occurrence and the compensation of third parties for bodily injury and property damage in the amount of $300,000.00 per occurrence.
    3. The fee shall be relieved if the owner provides to the satisfaction of the Secretary, evidence of financial responsibility to allow the taking of corrective action and the compensation of third parties for bodily injury and property damage each in the amount of $1,000,000.00 per occurrence.
    4. The fee for retail motor fuel outlets selling 20,000 gallons or less per month shall not exceed $100.00 per year for all double-wall tanks at a single location and shall not exceed $300.00 for all combination tank systems at a single location. This cap shall not apply to a retail motor fuel outlet utilizing a single-wall tank system.
    5. For any municipality that uses an annual average of less than 40,000 gallons of motor fuel per month, provided that all of the tanks of that municipality meet the requirements of this chapter, the fee shall be:
      1. $50.00 per double-wall tank system;
      2. $100.00 per combination tank system; and
      3. $150.00 per single-wall tank system.
  2. For purposes of this section, an occurrence is an accident, including continuous or repeated exposure to conditions, that results in the release of petroleum from one or more underground storage tanks at the same site.
  3. This tank assessment shall terminate on July 1, 2029.
  4. The Secretary shall establish forms and procedures for the payment of the petroleum tank assessment, including a notice of the obligation 30 days prior to being due. Failure to receive notice shall not waive the payment obligation.

HISTORY: Added 1987, No. 282 (Adj. Sess.), § 3; amended 1989, No. 110 , §§ 9a, 10; 1993, No. 188 (Adj. Sess.), § 3; 1997, No. 132 (Adj. Sess.), § 10, eff. April 23, 1998; 2003, No. 48 , § 3, eff. June 2, 2003; 2007, No. 76 , § 31; 2009, No. 22 , § 6; 2011, No. 161 (Adj. Sess.), § 3; 2013, No. 55 , § 5, eff. July 1, 2014; 2017, No. 168 (Adj. Sess.), § 12, eff. May 22, 2018.

History

Amendments

—2017 (Adj. Sess.). Subsec. (c): Substituted “July 1, 2029” for “July 1, 2019”.

—2013. Subsec. (a): Inserted “annually” preceding “remit”, deleted “on October 1 of each year” following “Secretary”, substituted “$250.00” for “$150.00”, inserted “if the single-wall tank has been lined; $500.00 for all other combination tank systems” and substituted “$1,000.00” for “$200.00” in the introductory paragraph.

Subsec. (c): Substituted “July 1, 2019” for “July 1, 2014”.

—2011 (Adj. Sess.). Subsec. (a): Amended generally.

—2009. Subsec. (c): Substituted “July 1, 2014” for “July 1, 2009”.

—2007. Subsec. (a): Lowered the fees in subdivs. (1), (4) and (5).

—2003. Subdivs. (a)(1) and (2): Minor grammar changes.

Subsec. (c): Substituted the year “2009” for “2004”.

—1997 (Adj. Sess.). Subsec. (c): Substituted “2004” for “1999”.

—1993 (Adj. Sess.). Substituted “on July 1, 1999” for “upon the passage of seven years from the effective date of this subchapter” following “terminate”.

—1989. Subdiv. (a)(5): Added.

Subsec. (c): Substituted “seven” for “four” preceding “years”.

§ 1944. Underground Storage Tank Loan Assistance Program.

  1. The Secretary may make individual loans of up to $150,000.00 for:
    1. the replacement or removal of category one tanks used for the storage of petroleum products. These loans shall be made from the Motor Fuel Account;
    2. the removal, or the replacement or improvement, or both, of piping, tank-top sumps, and other components of the secondary containment and release detection systems of category one tanks, for the purpose of reducing the likelihood of a release of regulated substance to the environment. These loans shall be made from the Motor Fuel Account;
    3. the removal, replacement, or upgrade of an underground or aboveground storage tank used for the storage of petroleum products for the purpose of reducing the likelihood of a release of petroleum into the environment. These loans shall be made from the Motor Fuel Account or Heating Fuel Account depending upon the use or contents of the tank.
  2. Loans shall be made to the person who owns the existing motor fuel tanks or will own the new motor fuel tanks. Loans will be in accordance with terms and conditions established by the Secretary that shall include requirements that:
    1. loans be made only for the costs associated with the replacement or removal of an underground motor fuel storage tank or improvement of piping and ancillary equipment used for the storage of petroleum products and associated facilities with a tank and facilities conforming to the requirements of this chapter;
    2. loans be secured by means satisfactory to the Secretary;
    3. proposed projects comply with all planning, zoning, laws, and regulation of the municipality where they are located and of the State of Vermont;
    4. loans have a satisfactory maturity date, in no case later than ten years from the date of the loan. The Secretary may, upon a showing of financial hardship by the person who took out the loan, extend the maturity date for not more than an additional five years.
  3. The loans will be at a zero interest rate, except that a person who owns five or more facilities shall have an interest rate of two percent. As used in this subsection, “facility” shall mean the property upon which a category one tank is located.
  4. The Secretary shall deposit repayments to the Petroleum Cleanup Fund.
  5. The Secretary may contract with other State agencies or authorities or with a commercial lending institution to carry out all or any portion of this loan program.
  6. At no time shall the amount of outstanding loans exceed the total of the amount of funds deposited to the Petroleum Cleanup Fund from the licensing fee established by section 1942 of this title.
  7. The Secretary may refinance existing loans for motor fuel tanks used for the storage of petroleum products incurred after July 1, 1987 under the same terms, conditions, and limitations that apply to initial loans.

HISTORY: Added 1987, No. 282 (Adj. Sess.), § 4; amended 1999, No. 128 (Adj. Sess.), § 2; 2003, No. 153 (Adj. Sess.), § 3; 2007, No. 18 , § 5; 2009, No. 22 , § 9; 2013, No. 55 , § 6, eff. May 30, 2013.

History

Amendments

—2013. Subsec. (a): Substituted “$150,000.00” for “$75,000.00” in the introductory paragraph, and deleted “of the fund established under subsection 1941(a) of this title” following “Motor Fuel Account” in subdivs. (1) through (3).

—2009. Subdiv. (b)(4): Added the second sentence.

Subsec. (c): Substituted “two percent” for “four percent” in the first sentence.

—2007. Subsec. (a): Added subdiv. (3) and amended generally.

Subsec. (c): Amended generally.

—2003 (Adj. Sess.). Inserted “or removal” following “replacement” and inserted “motor fuel” preceding “storage tanks” or “tanks” throughout subsecs. (a) and (b) and in subsec. (g), and inserted “the removal, or” preceding “the replacement” in subdiv. (a)(2).

—1999 (Adj. Sess.). Section amended generally.

Chapter 61. Water Supply and Wastewater Permit

History

Amendments

—2001 (Adj. Sess.). Section 1956 of this title was added pursuant to No. 94, § 1. Chapter 61, in its entirety which would have included this section 1956, was repealed pursuant to No. 133, § 14.

CROSS REFERENCES

Enforcement of environmental laws generally, see § 8001 et seq. of this title.

Municipal water supplies generally, see 24 V.S.A. § 3301 et seq.

Permits for construction of potable water supply and wastewater facilities, see § 1951 et seq. of this title.

Sewage disposal systems generally, see 24 V.S.A. § 3601 et seq.

Waste management generally, see § 6601 et seq. of this title.

§§ 1951-1955. Repealed. 2001, No. 133 (Adj. Sess.), § 14, eff. June 13, 2002.

History

Former §§ 1951-1955. Former § 1951, relating to purpose, was derived from 1987, No. 268 (Adj. Sess.), § 3, and amended by 1989, No. 105 , § 2.

Former § 1952, relating to definitions, was derived from 1987, No. 268 (Adj. Sess.), § 3.

Former § 1953, relating to permits, was derived from 1987, No. 268 (Adj. Sess.), § 3.

Former § 1954, relating to exemptions, was derived from 1987, No. 268 (Adj. Sess.), § 3, and amended by 1989, No. 105 , § 3; 1997, No. 155 (Adj. Sess.), § 39a; 1999, No. 161 (Adj. Sess.), § 5.

Former § 1955, relating to rules, was derived from 1987, No. 268 (Adj. Sess.), § 3, and amended by 1989, No. 170 (Adj. Sess.).

§ 1956. Repealed. 2013, No. 34, § 31.

History

Former § 1956. Former § 1956, relating to appeals, was derived from 2001, No. 94 (Adj. Sess.), § 5.

§§ 1957, 1958. Repealed. 2001, No. 133 (Adj. Sess.), § 14, eff. June 13, 2002.

History

Former §§ 1957, 1958. Former § 1957, relating to enforcement, was derived from 1987, No. 268 (Adj. Sess.), § 3, and was previously repealed by 1989, No. 98 , § 4(b).

Former § 1958, relating to civil penalties, was derived from 1987, No. 268 (Adj. Sess.), § 3, and was previously repealed by 1989, No. 98 , § 4(b).

Chapter 63. Vermont Citizens Advisory Committee on Lake Champlain’s Future

§ 1960. Vermont Citizens Advisory Committee on Lake Champlain’s future created.

  1. The Vermont Citizens Advisory Committee on Lake Champlain’s future is created to gather and disseminate information and make recommendations about the condition and management of the waters of the Lake Champlain basin region.  The Advisory Committee shall consist of 14 members: two Senators appointed by the Committee on Committees, two Representatives appointed by the Speaker of the House, and ten Vermont citizens, including one recommended by the Secretary of Agriculture, Food and Markets, who come from a variety of geographic locations in Vermont appointed by the Governor with advice and consent of the Senate. The Advisory Committee shall elect a chair by a majority vote of its members.  Legislative Committee members shall serve two-year terms that coincide with their term of office, or until the biennial appointment of successors.  Other Advisory Committee members shall be appointed for three-year terms, except that initial appointments shall be for staggered terms.
  2. Advisory Committee members shall receive a per diem pursuant to 32 V.S.A. § 1010 and shall be reimbursed for necessary expenses incurred in performance of their duties as Advisory Committee members.
  3. The Secretary, in consultation with the Advisory Committee, may appoint an executive director who shall be an exempt State employee and who shall report to the Secretary.
  4. The Advisory Committee shall be assigned to the Agency of Natural Resources for budgetary and administrative purposes.
  5. The Advisory Committee shall present a proposed budget to the Secretary before September 15 of each year.
  6. [Repealed.]

HISTORY: Added 1989, No. 265 (Adj. Sess.), § 1; amended 2003, No. 42 , § 2, eff. May 27, 2003; 2007, No. 121 (Adj. Sess.), § 32.

History

Amendments

—2007 (Adj. Sess.). Subsec. (f): Repealed.

—2003. Subsec. (a): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” in the second sentence.

Prospective repeal. 1999, No. 1 , § 106, eff. March 31, 1999, provides that notwithstanding the provisions of No. 69 of the Acts of the 1993 session, which extended the repeal date originally created by No. 265 of the Acts of the 1990 Session, both of which are noted in the main volume, 10 V.S.A. chapter 63 (creating the Vermont citizens advisory committee on Lake Champlain) shall not be repealed on March 1, 1999, but shall continue to exist.

§ 1961. Powers and duties.

  1. The Advisory Committee shall:
    1. Gather existing scientific data concerning the condition of the water and wildlife in the Lake Champlain basin region. Such data may include information concerning:
      1. Factors affecting water quality of the lake with emphasis on the levels and sources of nutrient loading and the presence of toxic materials.
      2. Condition of the lake’s fishery resource and health of wildlife populations.
      3. Level and impact of aquatic nuisance infestations.
      4. Potential and current impacts of hazardous material spills.
      5. Impact of shoreline development and marinas.
      6. Quality and purity of the lake as a drinking water source.
    2. Using existing government and nonprofit resources whenever possible, gather information about activities that affect or have the potential to affect the water and wildlife in the Lake Champlain basin region.  The Advisory Committee shall also consider the effect of these activities on regional needs for agricultural and industrial development, for employment opportunities and for a high quality environment.  Such information may include data concerning:
      1. Recreational management issues, including land acquisition for protection of valuable natural areas, or to enhance public access where desired, or both.
      2. Federal, state, and local activities that affect the lake.
    3. Act as the Citizens Advisory Committee to the Joint Committee created in the memorandum of understanding on environmental cooperation on the management of Lake Champlain, and signed by the Governor of Vermont, Governor of New York, and the Premier of Quebec on August 23, 1988.  The Advisory Committee shall also work with the New York and Quebec representatives of the Lake Champlain Citizens Advisory Committee created as a result of the memorandum of understanding.
    4. By June 15, 1991 and every January thereafter, recommend to the Secretary a Vermont policy for Lake Champlain or changes to existing policy.  By June 15, 1991 and every January thereafter, the Secretary shall recommend to the Legislature a policy or policy changes regarding Lake Champlain.  The policy shall:
      1. address management concerns identified under this subsection;
      2. recommend a governance process for making decisions regarding cooperative management of the lake’s cultural and natural resources, that may include development of a tripartite governmental framework ratified by Congress;
      3. recommend a process for creating a research consortium to monitor the condition of the lake;
      4. recommend ongoing funding sources for carrying out the purposes of this chapter.
    5. On or before June 15, 1991, and every January thereafter, present a report to the Vermont General Assembly. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subdivision. The report shall include the following:
      1. an update on the quality of the waters of the lake;
      2. findings of pertinent research;
      3. an action plan including water quality and fishery improvement measures and ways to enhance public use of and access to the lake;
      4. recommended budgets and revenue sources including an expanded lake user fee structure.
    6. Carry out activities designed to educate the public about Lake Champlain issues and to disseminate information gathered under this subsection.
    7. Act as a Citizen’s Advisory Committee to the federal Lake Champlain Management Conference created in the Lake Champlain Special Designation Act of 1990 (Pub. L. No. 101-596).  The Advisory Committee shall review the activities of the Conference and make appropriate recommendations to the Conference members. After June 15, 1991, all recommendations shall be based upon the Citizen’s Advisory Committee Action Plan duly adopted after public comment and one or more public hearings.
  2. The Advisory Committee may:
    1. Contract for studies and prepare reports on existing or potential problems within the basin.  In contracting for studies the Advisory Committee shall follow public bidding procedures as prescribed for Executive Branch agencies by the Secretary of Administration.
    2. Apply for grants or other funding sources to finance or assist in effectuating the purposes of this chapter.  The Advisory Committee may accept grants or funds only pursuant to the provisions of 32 V.S.A. § 5 .
    3. With the Secretary’s approval, present information and make recommendations to federal, state, and local legislatures regarding the coordinated management of the lake and for the purpose of helping the legislatures to make sound decisions regarding management of the lake.
    4. Offer to act as a forum for discussion and mediation of lake-related conflicts.
    5. Work cooperatively with governmental and other groups having jurisdiction over or interested in the management and quality of Lake Champlain.

HISTORY: Added 1989, No. 265 (Adj. Sess.), § 1; amended 1991, No. 27 ; 2013, No. 142 (Adj. Sess.), § 20.

History

References in text.

The Lake Champlain Special Designation Act of 1990 (Pub. L. No. 101-596), referred to in subdiv. (a)(7), is codified as 33 U.S.C. §§ 1270 and 1324.

Amendments

—2013 (Adj. Sess.). Subdiv. (a)(5): Substituted “General Assembly. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subdivision.” for “legislature.”

Subdiv. (a)(5)(C): Deleted “, but not limited to,” following “including”.

—1991. Subsec. (a): Added subdivs. (6) and (7).

Prospective repeal. 1999, No. 1 , § 106, eff. March 31, 1999, provides that notwithstanding the provisions of No. 69 of the Acts of the 1993 session, which extended the repeal date originally created by No. 265 of the Acts of the 1990 Session, both of which are noted in the main volume, 10 V.S.A. chapter 63 (creating the Vermont citizens advisory committee on Lake Champlain) shall not be repealed on March 1, 1999, but shall continue to exist.

Reports repeal delayed. 2015, No. 131 (Adj. Sess.), § 36 provides: “The reports set forth in this section shall not be subject to expiration under the provisions of 2 V.S.A. § 20(d) (expiration of required reports) until July 1, 2018.

Chapter 64. Potable Water Supply and Wastewater System Permit

History

Use value appraisal, land use change tax; wastewater permits. 2011, No. 45 , § 13a provides: “Land which has been classified as agricultural land or managed forest land pursuant to this chapter shall be subject to a land use change tax on the earliest of either the development of that land, as defined in section 3752 of this chapter, or two years after the issuance of all permits legally required by a municipality for any action constituting development, or two years after the issuance of a wastewater system and potable water supply permit under 10 V.S.A. § 1973 .

§ 1971. Purpose.

It is the purpose of this chapter to:

  1. establish a comprehensive program to regulate the construction, replacement, modification, and operation of potable water supplies and wastewater systems in the State in order to protect human health and the environment, including potable water supplies, surface water, and groundwater;
  2. eliminate duplicative or unnecessary permitting requirements through the consolidation of existing authorities and, where appropriate, the use of permits by rule;
  3. allow the use of alternative, innovative, and experimental technologies for the treatment and disposal of wastewater in the appropriate circumstances;
  4. protect the investment of homeowners through a flexible remediation process for failed potable water supplies and wastewater systems;
  5. increase reliance on and the accountability of the private sector for the design and installation of potable water supplies and wastewater systems, through licensing and enforcement; and
  6. allow delegation of the permitting program created by this chapter to municipalities demonstrating the capacity to administer the chapter.

HISTORY: Added 2001, No. 133 (Adj. Sess.), § 1, eff. June 13, 2002.

ANNOTATIONS

Design and installation certifications required for permits.

Because the authorizing statute and applicable wastewater rules explicitly require both design and installation certifications for granting wastewater permits, there is no authority allowing the Agency of Natural Resources (ANR) to waive these requirements. Further, there is no rule conflict since the wastewater rules authorize ANR to waive only certain enumerated application materials, not including the certifications. In re Lyon, 2005 VT 63, 178 Vt. 232, 882 A.2d 1143, 2005 Vt. LEXIS 150 (2005).

§ 1972. Definitions.

For the purposes of this chapter:

  1. “Agency” means the Agency of Natural Resources.
  2. “Building or structure” means a building or structure whose use or useful occupancy requires the construction or modification of a potable water supply or wastewater system.
  3. “Campground” means any lot of land containing more than three campsites occupied for vacation or recreational purposes by camping units, such as: tents, yurts, tepees, lean-tos, camping cabins, and recreational vehicles, including motor homes, folding camping trailers, conventional travel trailers, fifth wheel travel trailers, truck campers, van campers, and conversion vehicles designed and used for travel, recreation, and camping. There shall be no distinction made between noncommercial (no charge, no service) and commercial operations.
    1. “Failed supply” means a potable water supply: (4) (A) “Failed supply” means a potable water supply:
      1. that has been found to exceed the standard set by the Secretary in rule for one or more of the following contaminants:
        1. total coliform;
        2. nitrates;
        3. nitrites;
        4. arsenic; or
        5. uranium;
      2. that the Secretary affirmatively determines as not potable, due to the presence of a contaminated site, a leaking underground storage tank, or other known sources of groundwater contamination or naturally occurring contaminants, and that information has been posted on the Agency of Natural Resources’ website; or
      3. the Secretary affirmatively determines to be failed due to the supply providing an insufficient quantity of water to maintain the usual and customary uses of a building or structure or campground, and that information has been posted on the Agency of Natural Resources’ website.
    2. Notwithstanding the provisions of this subdivision, a potable water supply shall not be a failed supply if:
      1. these effects can be and are remedied solely by minor repairs, including the repair of a broken pipe leading from a building or structure to a well, the replacement of a broken pump, repair or replacement of a mechanical component, or deepening or hydrofracturing a well; or
      2. these effects have lasted for only a brief period of time, the cause of the failure has been determined to be an unusual and nonrecurring event, and the supply has recovered from the state of failure. Supplies that have recurring, continuing, or seasonal failures shall be considered to be failed supplies.
    3. If a project is served by multiple potable water supplies, the failure of one supply will not require the issuance of a permit or permit amendment for any other supply that is not in a state of failure.
    1. “Failed system” means a wastewater system that is functioning in a manner: (5) (A) “Failed system” means a wastewater system that is functioning in a manner:
      1. that allows wastewater to be exposed to the open air, pool on the surface of the ground, discharge directly to surface water, or back up into a building or structure, unless, in any of these instances, the approved design of the system specifically requires the system to function in such a manner; or
      2. that results in a potable water supply being affirmatively determined by the Secretary to be a failed supply, and that information has been posted on the Agency of Natural Resources’ website.
    2. Notwithstanding the provisions of subdivision (A) of this subdivision (5), a system shall not be a failed system if:
      1. these effects can be and are remedied solely by minor repairs, including the repair of a broken pipe leading from a building or structure to the septic tank, replacement of a cracked or broken septic tank, or replacement of a broken pump or associated valves, switches, and controls; or
      2. these effects have lasted for only a brief period of time, the cause of the failure has been determined to be an unusual and nonrecurring event, and the system has recovered from the state of failure. Systems which have recurring, continuing, or seasonal failures shall be considered to be failed systems.
    3. If a project is served by multiple wastewater systems, the failure of one system will not require the issuance of a permit or permit amendment for any other system that is not in a state of failure.
    4. A wastewater system may be determined to be a failed system by the completion of a site visit that identifies one or more of the conditions set forth in subdivision (A)(i) of this subdivision (5).
  4. “Potable water supply” means the source, treatment, and conveyance equipment used to provide water used or intended to be used for human consumption, including drinking, washing, bathing, the preparation of food, or laundering. This definition does not include any internal piping or plumbing, except for mechanical systems, such as pump stations and storage tanks or lavatories, that are located inside a building or structure and that are integral to the operation of a potable water system. This definition also does not include a potable water supply that is subject to regulation under chapter 56 of this title.
  5. “Professional engineer” means an engineer licensed and in good standing by the Board of Professional Engineering under 26 V.S.A. chapter 20.
  6. “Secretary” means the Secretary of Natural Resources or a duly authorized representative of the Secretary. A duly authorized representative of the Secretary includes a municipality that has requested delegation, in writing, and has been delegated the authority to implement provisions of this chapter in lieu of the Secretary.
  7. “Subdivide” means to divide land by sale, gift, lease, mortgage foreclosure, court-ordered partition, or filing of a plat, plan, or deed in the town records where the act of division creates one or more lots. Subdivision shall be deemed to have occurred on the conveyance of the first lot or the filing of a plat, plan, or deed in the town records, whichever first occurs. A subdivision of land shall also be deemed to have taken place when a lot is divided by a State or municipal highway, road, or right-of-way, or when a lot is divided by surface waters with a drainage area of greater than ten square miles.
  8. “Wastewater system” means any piping, pumping, treatment, or disposal system used for the conveyance and treatment of sanitary waste or used water, including carriage water, shower and wash water, and process wastewater. This definition does not include any internal piping or plumbing, except for mechanical systems, such as pump stations and storage tanks or toilets, that are located inside a building or structure and that are integral to the operation of a wastewater system. This definition also does not include wastewater systems that are used exclusively for the treatment and disposal of animal manure. In this chapter, “wastewater system” refers to a soil-based disposal system of less than 6,500 gallons per day, or a sewerage connection of any size.

HISTORY: Added 2001, No. 133 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2007, No. 32 , § 2, eff. May 18, 2007.

History

Revision note

—2018. In subdiv. (10), deleted “, but not limited to,” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2007. Subdivs. (4), (5): Amended generally.

§ 1973. Permits.

  1. Except as provided in this section and sections 1974 and 1978 of this title, a person shall obtain a permit from the Secretary before:
    1. subdividing land;
    2. creating or modifying a campground in a manner that affects a potable water supply or wastewater system or the requirements for providing potable water and wastewater disposal;
    3. constructing, replacing, or modifying a potable water supply or wastewater system;
    4. using or operating a failed supply or failed system;
    5. constructing a new building or structure;
    6. modifying an existing building or structure in a manner that increases the design flow or modifies other operational requirements of a potable water supply or wastewater system;
    7. making a new or modified connection to a new or existing potable water supply or wastewater system; or
    8. changing the use of a building or structure in a manner that increases the design flows or modifies other operational requirements of a potable water supply or wastewater system.
  2. Application for a permit shall be made on a form prescribed by the Secretary. The application shall be supported by such documents and information that the Secretary, by rule, deems necessary for proper application review and the issuance of a permit.
  3. When a person replaces a potable water supply or wastewater system that has been permitted, or was exempt from permitting requirements, the Secretary shall grant a variance from the technical standards if the supply or system cannot be replaced so that it is in full compliance with the rules adopted under section 1978 of this title, provided that the variance requested is the minimum necessary considering the cost of the replacement supply or system in addition to the potential impacts on human health and the environment. No variance shall be granted under this subsection if the supply or system would continue to meet the definition of a failed supply or failed system, or if the replacement supply or system allows for increases in design flows.
  4. No permit shall be issued by the Secretary unless the Secretary receives a statement from a licensed designer certifying that, in the exercise of his or her reasonable professional judgment,  the design-related information submitted with the permit application is true and correct and the design included in an application for a permit complies with the rules.
  5. No permit issued by the Secretary shall be valid for a substantially completed potable water supply and wastewater system until the Secretary receives a statement from an installer or a licensed designer certifying that, in the exercise of his or her reasonable professional judgment, the installation-related information submitted is true and correct and the potable water supply and wastewater system:
    1. were installed in accordance with:
      1. the permitted design and all permit conditions; or
      2. record drawings and such record drawings are in compliance with the applicable rules, were filed with the Secretary, and are in accordance with all other permit conditions;
    2. were inspected;
    3. were properly tested; and
    4. have successfully met those performance tests.
    1. The Secretary shall give deference to a certification by a licensed designer with respect to the engineering design or judgment exercised by the designer in order to minimize Agency review of certified designs. Nothing in this section shall limit the responsibility of the licensed designer to comply with all standards and rules, or the authority of the Secretary to review and comment on design aspects of an application or to enforce Agency rules with respect to the design or the design certification. (f) (1) The Secretary shall give deference to a certification by a licensed designer with respect to the engineering design or judgment exercised by the designer in order to minimize Agency review of certified designs. Nothing in this section shall limit the responsibility of the licensed designer to comply with all standards and rules, or the authority of the Secretary to review and comment on design aspects of an application or to enforce Agency rules with respect to the design or the design certification.
    2. The Secretary shall issue a permit for a new or modified connection to a water main and a sewer main or indirect discharge system from a building or structure in a designated downtown development district upon submission of an application under subsection (b) of this section that consists solely of the certification of a licensed designer, in accordance with subsection (d) of this section, and a letter from the owner of the water main and sewer main or indirect discharge system allocating the capacity needed to accommodate the new or modified connection. However, this subdivision (2) shall not apply if the Secretary finds one of the following:
      1. The Secretary has prohibited the system that submitted the allocation letter from issuing new allocation letters due to a lack of capacity.
      2. As a result of an audit of the application performed on a random basis or in response to a complaint, the system is not designed in accordance with the rules adopted under this chapter.
  6. If there is a dispute between the Secretary and a professional engineer concerning the design prepared by a professional engineer or the judgment exercised by a professional engineer, the professional engineer may request that the disputed issues be reviewed by a licensed professional engineer employed or retained by the Secretary. The Secretary shall grant all such requests for review.
  7. All permits required under this section, all design and installation certifications required under this section, and all documents required by the rules adopted under this chapter to be filed in the town records shall be properly indexed and recorded in the land records pursuant to 24 V.S.A. §§ 1154 and 1161.
  8. Notwithstanding section 1-407 of the State Wastewater System and Potable Water Supply Rules, effective August 16, 2002, a lot that contained two single family residences, as of January 1, 1999, but did not have the State permit required at that time is eligible for a permit for the subdivision of improved lots under subdivision 1-407(a)(2) of those rules, provided that the subdivision of the lot would only create a boundary between the two single family residences and thereby place each residence on its own lot.
    1. When an applicant for a permit under this section proposes a water supply or wastewater system with isolation distances that extend onto property other than the property for which the permit is sought, the permit applicant shall send by certified mail, on a form provided by the Secretary, a notice of an intent to file a permit application, including the site plan that accurately depicts all isolation distances, to any landowner affected by the proposed isolation distances at least seven calendar days prior to the date that the permit application is submitted to the Secretary. (j) (1) When an applicant for a permit under this section proposes a water supply or wastewater system with isolation distances that extend onto property other than the property for which the permit is sought, the permit applicant shall send by certified mail, on a form provided by the Secretary, a notice of an intent to file a permit application, including the site plan that accurately depicts all isolation distances, to any landowner affected by the proposed isolation distances at least seven calendar days prior to the date that the permit application is submitted to the Secretary.
    2. If, during the course of the Secretary’s review of an application for a permit under this section, the location of a water supply or wastewater system permit is revised and the isolation distances of the revised system extend onto property other than the property for which the permit is sought, the permit applicant shall send by certified mail a copy of any revised plan to any landowner affected by the isolation distances.
    3. If, after a permit has been issued under this section, a water supply or wastewater system is not installed according to the permitted plan and the record drawings submitted under subsection (e) of this section indicate that the isolation distances of the system as constructed extend onto property other than the property on which the system is located, the permittee shall send by certified mail a notification form provided by the Secretary with a copy of the record drawings showing all isolation distances to any landowner affected by the isolation distances.
    4. A permit applicant or permittee subject to the requirements of subdivisions (1) through (3) of this subsection shall certify to the Secretary that the notices and information required by this subsection have been sent to affected landowners and shall include in the certification the name and address of all affected landowners. If the Secretary approves a permit application under this section, the permit shall not be issued to a permit applicant subject to the requirements of subdivision (2) of this subsection until seven calendar days after the permit applicant certifies to the Secretary that the notice required under this subsection has been sent to affected landowners.

HISTORY: Added 2001, No. 133 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2003, No. 13 , § 2, eff. May 6, 2003; 2003, No. 121 (Adj. Sess.), § 71, eff. June 8, 2004; 2007, No. 32 , § 3, eff. May 18, 2007; 2009, No. 145 (Adj. Sess.), § 1, eff. June 1, 2010; 2011, No. 117 (Adj. Sess.), § 5, eff. Sept. 1, 2012; 2013, No. 147 (Adj. Sess.), § 12, eff. June 1, 2014.

History

Amendments

—2013 (Adj. Sess.). Subdiv. (f)(2): Added.

—2011 (Adj. Sess.) Subdiv. (j)(1): Rewritten.

Subdiv. (j)(2): Substituted “shall send by certified mail” for “shall provide” preceding “a copy of any revised plan”.

Subdiv. (j)(3): Rewritten.

Subdiv. (j)(4): Substituted “notices” for “notice” preceding “and information required by this subsection” in the first sentence, and “subdivision (2)” for “subdivisions (1) and (2)” in the second sentence.

—2009 (Adj. Sess.) Subsec. (j): Added.

—2007. Subsec. (e): Amended generally.

—2003 (Adj. Sess.). Subsec. (i): Added.

—2003. Subsecs. (d) and (e): Added “in the . . . professional judgment,” following “certifying that”, deleted “in the . . . judgment,” following “correct and”.

Effective date of amendments—

2011, No. 117 (Adj. Sess.), Sec. 6(b) provided that the amendment to this section by that act takes effect on September 1, 2012.

ANNOTATIONS

Design and installation certifications required for permits.

Because the authorizing statute and applicable wastewater rules explicitly require both design and installation certifications for granting wastewater permits, there is no authority allowing the Agency of Natural Resources (ANR) to waive these requirements. Further, there is no rule conflict since the wastewater rules authorize ANR to waive only certain enumerated application materials, not including the certifications. In re Lyon, 2005 VT 63, 178 Vt. 232, 882 A.2d 1143, 2005 Vt. LEXIS 150 (2005).

Revocation of permit.

Revocation of a landowners’ wastewater permit was not a retroactive application of law violating a vested right of the landowners; the permit was revoked pursuant to valid regulations already in effect at the time they applied for their permit. In re Lyon, 2005 VT 63, 178 Vt. 232, 882 A.2d 1143, 2005 Vt. LEXIS 150 (2005).

§ 1974. Exemptions.

Notwithstanding any other requirements of this chapter, the following projects and actions are exempt:

    1. All buildings or structures, campgrounds, and their associated potable water supplies and wastewater systems that were substantially completed before January 1, 2007 and all improved and unimproved lots that were in existence before January 1, 2007. This exemption shall remain in effect provided: (1) (A) All buildings or structures, campgrounds, and their associated potable water supplies and wastewater systems that were substantially completed before January 1, 2007 and all improved and unimproved lots that were in existence before January 1, 2007. This exemption shall remain in effect provided:
      1. no action for which a permit is required under this chapter or the rules adopted under this chapter is taken or caused to be taken on or after January 1, 2007, unless such action is exempt under one of the other permitting exemptions listed in this section or in the rules adopted under this chapter; and
      2. if a permit has been issued under this chapter or the rules adopted under this chapter before January 1, 2007 that contained conditions that required actions to be taken on or after January 1, 2007, including conditions concerning operation and maintenance and transfer of ownership, the permittee continues to comply with those permit conditions.
    2. If a permit or permit amendment is required because the potable water supply or wastewater system has failed, the Secretary may issue a permit that allows for a variance in accordance with the standards contained in section 1973 of this chapter, the rules adopted under this chapter, and the rules adopted under chapter 56 of this title.
    3. An owner of a single family residence that qualified on January 1, 2007 for the exemption set forth in subdivision (1)(A) of this section shall not be subject to administrative or civil penalties under chapters 201 and 211 of this title for a violation of this chapter or rules adopted under this chapter when the owner believes the supply or system meets the definition of a failed supply or failed system provided that the owner:
      1. conducts or contracts for an inspection of the supply or system;
      2. notifies the Secretary of Natural Resources of the results of the inspection; and
      3. has not taken or caused to be taken any other action after January 1, 2007 for which a permit would be required under this chapter or the rules adopted under this chapter.
  1. Primitive camps with no interior plumbing consisting of more than a sink with water, that are used no more than three consecutive weeks per year and no more than a total of 60 days per year, shall be exempt. This exemption does not apply to seasonal camps.
  2. [Repealed.]
  3. The installation or use of a water treatment system for a potable water supply where the treatment system is designed to:
    1. reduce or eliminate water hardness;
    2. reduce or eliminate properties or constituents on the list of secondary standards in the Vermont water supply rules;
    3. reduce or eliminate radon, lead, arsenic, or a combination of these; or
    4. eliminate bacteria or pathogenic organisms, provided that the treatment system treats all of the water used for drinking, washing, bathing, the preparation of food, and laundering.
  4. The installation or use of a water treatment device, provided that the installation or use is overseen by the Secretary as a part of a response action due to contamination or the threat of contamination of a potable water supply by a release or threat of release of a hazardous material or any other source of contamination.
  5. The increase in flow to an existing wastewater system as a result of the use of an exempt water treatment system under subdivisions (4) and (5) of this section.
  6. The subdivision of an unimproved or improved lot or campground where the subdivision results from a transfer of property for a highway or other transportation project that is authorized under the State’s enacted Transportation Program or is an emergency project within the meaning of 19 V.S.A. § 10g(h) , regardless of whether the State or the municipality has commenced any condemnation proceedings in connection with the project.
  7. From the permit required for operation of failed supply under subdivision 1973(a)(4) of this title for the use or operation of a failed supply that consists of only one groundwater source that provides water to only one single family residence.

HISTORY: Added 2001, No. 133 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2007, No. 32 , § 4, eff. May 18, 2007; 2009, No. 54 , § 85, eff. June 1, 2009; 2009, No. 3 (Sp. Sess.), § 11(d); 2009, No. 161 (Adj. Sess.), § 33, eff. June 4, 2010; 2015, No. 40 , § 18; 2017, No. 161 (Adj. Sess.), § 7.

History

Revision note

—2015. In subdiv. (1)(A)(ii), deleted “, but not limited to,” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2017 (Adj. Sess.). Subdiv. (8): Added.

—2015. Subdiv. (7): Added.

—2009 (Adj. Sess.) Subdivs. (4)-(6): Added.

—2009. Subdiv. (3): Added by Act No. 54.

—2009 (Sp. Sess.). Subdiv. (3): Repealed subdiv. as added by Act No. 54.

—2007. Rewrote the section.

§ 1975. Designer licenses.

  1. The Director of the Office of Professional Regulation, after due consultation with the Secretary, shall establish and implement a process to license and periodically renew the licenses of designers of potable water supplies or wastewater systems, establish different classes of licensing for different potable water supplies and wastewater systems, and allow individuals to be licensed in various categories.
  2. A person shall not design a potable water supply or wastewater system that requires a permit under this chapter without first obtaining a designer license from the Director of the Office of Professional Regulation, except a professional engineer who is licensed in Vermont shall be deemed to have a valid designer license under this chapter, provided that:
    1. the engineer is practicing within the scope of his or her engineering specialty; and
    2. the engineer:
      1. to design a soil-based wastewater system, has satisfactorily completed a college-level soils identification course with specific instruction in the areas of soils morphology, genesis, texture, permeability, color, and redoximorphic features;
      2. has passed a soils identification test administered by the Secretary; or
      3. retains one or more licensed designers who have taken the course specified in this subdivision or passed the soils identification test, whenever performing work regulated under this chapter.
  3. [Repealed.]
  4. The Secretary or the Director of the Office of Professional Regulation may review, on a random basis, or in response to a complaint, or on his or her own motion, the testing procedures employed by a licensed designer, the systems designed by a licensed designer, the designs approved or recommended for approval by a licensed designer, and any work associated with the performance of these tasks.
  5. [Repealed.]
  6. If a person who signs a design or installation certification submitted under this chapter certifies a design, installation, or related design or installation information and, as a result of the person’s failure to exercise reasonable professional judgment, submits design or installation information that is untrue or incorrect, or submits a design or installs a wastewater system or potable water supply that does not comply with the rules adopted under this chapter, the person who signed the certification may be disciplined by the Director of the Office of Professional Regulation and be required to take all actions to remediate the affected project in accordance with the provisions of chapters 201 and 211 of this title.
  7. In response to a complaint, or on his or her own motion, the Secretary shall refer deficiencies in design or installation performed under this chapter by a professional engineer to the Board of Professional Engineering for further investigation and potential disciplinary action.

HISTORY: Added 2001, No. 133 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2007, No. 32 , § 5, eff. May 18, 2007; 2015, No. 156 (Adj. Sess.), § 9, eff. Jan. 1, 2017.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—2007. Subsec. (f): Rewrote the subsec.

Provisional designer licenses. 2001, No. 133 (Adj. Sess.), § 15(a), eff. June 13, 2002, provides:

“A site technician operating within the scope of his or her legal authority shall be deemed to have a provisional designer license under 10 V.S.A. § 1975 . A provisional license shall remain in effect until 30 months after the effective date of rules adopted under 10 V.S.A. § 1978(a)(12) , governing designer licenses.”

§ 1976. Delegation of authority to municipalities.

    1. The Secretary may delegate to a municipality authority to: (a) (1) The Secretary may delegate to a municipality authority to:
      1. implement all sections of this chapter, except for sections 1975 and 1978 of this title; or
      2. implement permitting under this chapter for the subdivision of land, a building or structure, or a campground when the subdivision, building or structure, or campground is served by sewerage connections and water service lines, provided that:
        1. the lot, building or structure, or campground utilizes both a sanitary sewer service line and a water service line; and
        2. the water main and sanitary sewer collection line that the water service line and sanitary sewer service line are connected to are owned and controlled by the delegated municipality.
    2. If a municipality submits a written request for delegation of this chapter, the Secretary shall delegate authority to the municipality to implement and administer provisions of this chapter, the rules adopted under this chapter, and the enforcement provisions of chapter 201 of this title relating to this chapter, provided that the Secretary is satisfied that the municipality:
      1. has established a process for accepting, reviewing, and processing applications and issuing permits, that shall adhere to the rules established by the Secretary for potable water supplies and wastewater systems, including permits, by rule, for sewerage connections;
      2. has hired, appointed, or retained on contract, or will hire, appoint, or retain on contract, a licensed designer to perform technical work that must be done by a municipality under this section to grant permits;
      3. will take timely and appropriate enforcement actions pursuant to the authority of chapter 201 of this title;
      4. commits to reporting annually to the Secretary on a form and date determined by the Secretary;
      5. will only issue permits for water service lines and sanitary sewer service lines when there is adequate capacity in the public water supply system source, wastewater treatment facility, or indirect discharge system; and
      6. will comply with all other requirements of the rules adopted under section 1978 of this title.
  1. As of July 1, 2007, those provisions of municipal ordinances and zoning bylaws that regulate potable water supplies and wastewater systems are superseded by the provisions of this chapter and the rules adopted under this chapter. However, to the extent that local ordinances and bylaws apply to potable water supplies and wastewater systems that are exempt from the permitting requirements of this chapter, and to the extent that those local ordinances and bylaws establish procedural requirements that are consistent with this chapter and the rules adopted under this chapter, those provisions of existing and any future ordinances or bylaws shall not be superseded in municipalities that receive delegation under this section.
  2. Notwithstanding 24 V.S.A. § 3633(d) , municipal ordinances relating to sewage systems, which ordinances were approved before July 1984 under 18 V.S.A. § 613 by the Board of Health, and those approved before July 1984 by the Commissioner of Health, shall remain in effect unless superseded.
  3. A municipality may assess fees in an amount sufficient to support municipal services provided under this section.
  4. Notwithstanding the fact that local ordinances and bylaws may have been superseded by this chapter, a permit issued under those ordinances shall remain in effect, unless and until superseded by another permit issued pursuant to the provisions of this chapter.
  5. The Secretary may review municipal implementation of this section on a random basis, or in response to a complaint, or on his or her own motion. This review may include consideration of the municipal implementation itself, as well as consideration of the practices, testing procedures employed, systems designed, system designs approved, installation procedures used, and any work associated with the performance of these tasks.

HISTORY: Added 2001, No. 133 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2015, No. 57 , § 22a.

History

Amendments

—2015. Subsec. (a): Amended generally.

§ 1977. Appeals.

Appeals of any act or decision of the Department under this subchapter shall be made in accordance with chapter 220 of this title.

HISTORY: Added 2001, No. 133 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2003, No. 115 (Adj. Sess.), § 44, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Deleted the subsec. designations and rewrote the section.

§ 1978. Rules.

  1. The Secretary shall adopt rules, in accordance with 3 V.S.A. chapter 25, necessary for the administration of this chapter. These rules shall include the following:
    1. Performance standards for wastewater systems.
    2. Design flow standards for potable water supplies and wastewater systems.
    3. Design requirements, including isolation distances.
    4. Monitoring and reporting requirements.
    5. Soils and hydrogeologic requirements.
    6. Operation and maintenance requirements appropriate to the complexity of the system.
    7. Requirements for engineering plans and specifications for potable water supplies and wastewater systems.
    8. Provisions for the acceptance and approval of alternative or innovative technologies, based on performance evaluations provided by qualified organizations with expertise in wastewater systems, including the New England Interstate Water Pollution Control Commission.
    9. Provisions allowing the use of a variety of alternative or innovative technologies, including intermittent sand filters, recirculating sand filters, waterless toilets, and greywater disposal systems, and constructed wetlands, that provide an adequate degree of protection of human health and the environment. When alternative or innovative technologies are approved for general use, the rules shall not require either a bond or the immediate construction of a duplicate wastewater system for those alternative or innovative technologies.
    10. Provisions allowing for appropriate reductions in leachfield size, depth to the seasonal high water table, or other minimum site conditions when the wastewater system design does not solely rely on naturally occurring soils to provide an adequate degree of treatment, and when those systems, combined with the reductions, provide an adequate degree of protection of human health and the environment.
    11. Provisions allowing for experimental systems.
    12. Provisions regarding the licensing of certain classes of designers.
    13. Provisions regarding the delegation of authority to and removal of authority from a municipality to administer this chapter.
    14. Other requirements necessary to protect human health and the environment.
    15. Provisions authorizing the use by a residential dwelling of surface water as a source of a potable water supply permitted under this chapter.
  2. The Secretary may, by rule, establish permitting exemptions upon a determination that those exemptions are consistent with the purposes of this chapter, and are necessary for the appropriate implementation of this chapter.
  3. The Secretary shall first adopt rules under this section no later than July 30, 2002.
  4. The Secretary shall not adopt rules under this chapter that allow wastewater systems that serve lots created after June 13, 2002 to be constructed on ground with a maximum slope in excess of 20 percent. This limitation shall not apply to replacement wastewater systems.
    1. The Secretary shall periodically review and, if necessary, revise the rules adopted under this chapter to ensure that the technical standards remain current with the known and proven technologies regarding potable water supplies and wastewater systems. (e) (1) The Secretary shall periodically review and, if necessary, revise the rules adopted under this chapter to ensure that the technical standards remain current with the known and proven technologies regarding potable water supplies and wastewater systems.
    2. The Secretary shall seek advice from a Technical Advisory Committee in carrying out the mandate of this subdivision. The Governor shall appoint the members of the Committee and ensure that there is at least one representative of the following entities on the Committee: professional engineers, site technicians, well drillers, hydrogeologists, town officials with jurisdiction over potable water supplies and wastewater systems, water quality specialists, technical staff of the Agency of Natural Resources, and technical staff of the Department of Health. Administrative support for the Advisory Committee shall be provided by the Secretary of Natural Resources.
    3. The Technical Advisory Committee shall provide annual reports, starting January 15, 2003, to the Chairs of the House Committee on Corrections and Institutions and the Senate Committee on Institutions. The reports shall include information on the following topics: the implementation of this chapter and the rules adopted under this chapter; the number and type of alternative or innovative systems approved for general use, approved for use as a pilot project, and approved for experimental use; the functional status of alternative or innovative systems approved for use as a pilot project or approved for experimental use; the number of permit applications received during the preceding calendar year; the number of permits issued during the preceding calendar year; and the number of permit applications denied during the preceding calendar year, together with a summary of the basis of denial.
    4. [Repealed.]
  5. The Secretary may adopt emergency rules as necessary to assure that the implementation of this chapter does not have an undue adverse effect upon the marketability of title to real estate.

HISTORY: Added 2001, No. 133 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2001, No. 149 (Adj. Sess.), § 95, eff. June 27, 2002; 2009, No. 33 , § 83; 2011, No. 139 (Adj. Sess.), § 7, eff. May 14, 2012; 2015, No. 154 (Adj. Sess.), § 1.

History

Revision note

—2015. In subsec. (a), deleted “, but not limited to,” following “include” in the second sentence in accordance with 2013, No. 5 , § 4.

Amendments

—2015 (Adj. Sess.). Subdiv. (a)(15): Added.

—2011 (Adj. Sess.). Subdiv. (e)(3): Substituted “house committee on corrections and institutions and the senate committee on institutions” for “house and senate committees on natural resources and energy” in the first sentence.

—2009. Subdiv. (e)(4): Repealed.

—2001 (Adj. Sess.). Subsec. (f): Added by 2001, No. 149 (Adj. Sess.), § 95.

Report repeal delayed. 2015, No. 131 (Adj. Sess.), § 16 provides: “The reports set forth in this section shall not be subject to review under the provisions of 2 V.S.A. § 20(d) (expiration of required reports) until July 1, 2020”.

§ 1979. Holding tanks.

  1. The Secretary shall approve the use of sewage holding and pumpout tanks when he or she determines that:
    1. the existing or proposed buildings or structures to be served by the holding tank are publicly owned;
    2. the plan for construction and operation of the holding tank will not result in a public health hazard or environmental damage;
    3. a designer demonstrates that an economically feasible means of meeting current standards is significantly more costly than the construction and operation of sewage holding and pumpout tanks, based on a projected 20-year life of the project; and
    4. the design flows do not exceed 600 gallons per day.
    1. The Secretary shall approve the use of sewage holding and pumpout tanks for existing or proposed buildings or structures that are owned by a charitable, religious, or nonprofit organization when he or she determines that: (b) (1) The Secretary shall approve the use of sewage holding and pumpout tanks for existing or proposed buildings or structures that are owned by a charitable, religious, or nonprofit organization when he or she determines that:
      1. the plan for construction and operation of the holding tank will not result in a public health hazard or environmental damage;
      2. a designer demonstrates that an economically feasible means of meeting current standards is significantly more costly than the construction and operation of sewage holding and pumpout tanks, based on a projected 20-year life of the project; and
      3. the design flows do not exceed 600 gallons per day or the existing or proposed building or structure shall not be used to host events on more than 28 days in any calendar year.
    2. [Repealed.]
      1. A permit issued under this subsection shall run with the land for the duration of the permit and shall apply to all subsequent owners of the property being served by the holding tank regardless of whether the owner is a charitable, religious, or nonprofit organization. (3) (A) A permit issued under this subsection shall run with the land for the duration of the permit and shall apply to all subsequent owners of the property being served by the holding tank regardless of whether the owner is a charitable, religious, or nonprofit organization.
      2. All permit conditions shall apply to a subsequent owner.
      3. A subsequent owner shall not increase the design flows of the holding and pumpout tank system without approval from the Secretary.
  2. A holding tank may also be used for a project that is eligible for a variance under section 1973 of this title, whether or not the project is publicly owned, if the existing wastewater system has failed, or is expected to fail, and in either instance, if there is no other cost-feasible alternative.
  3. When a holding tank is proposed for use, a designer shall submit all information necessary to demonstrate that the holding tank will comply with the following requirements:
    1. The holding tank shall be capable of holding at least 14 days of the design flow from the building.
    2. The tank shall be constructed of durable materials that are appropriate for the site conditions and the nature of the sewage to be stored.
    3. The tank shall be watertight, including any piping connected to the tank and all access structures connected to the tank. The tank shall be leakage tested prior to being placed in service.
    4. The tank shall be designed to protect against floatation when the tank is empty, such as when it is pumped.
    5. The tank shall be equipped with audio and visual alarms that are triggered when the tank is filled to 75 percent of its design capacity.
    6. The tank shall be located so that it can be reached by tank pumping vehicles at all times when the structure is occupied.
    7. The analysis supports a claim under subdivision (a)(3) of this section.
  4. The permit application shall specify the method and expected frequency of pumping.
  5. Any building or structure served by a holding tank shall have a water meter, or meters, installed that measures all water that will be discharged as wastewater from the building or structure.
  6. Any permit issued for the use of a holding tank will require a designer to periodically inspect the tank, visible piping, and alarms. The designer shall submit a written report to the Secretary detailing the results of the inspection and any repairs or changes in operation that are required. The report also shall detail the pumping history since the previous report, giving the dates of pumping and the volume of wastewater removed. The frequency of inspections and reports shall be stated in the permit issued for the use of the tank, but shall be no less frequent than once per year. The designer also shall inspect the water meter or meters and verify that they are installed, calibrated, and measuring all water that is discharged as wastewater. The designer shall read the meters and compare the metered flow to the pumping records. Any significant deviation shall be noted in the report and explained to the extent possible.
  7. The owner of a holding tank shall maintain a valid contract with a licensed wastewater hauler at all times. The contract shall require the licensed wastewater hauler to provide written notice of dates of pumping and volume of wastewater pumped. Copies of all such notices shall be submitted with the written inspection reports.

HISTORY: Added 2001, No. 133 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2013, No. 151 (Adj. Sess.), § 1; 2019, No. 64 , § 20; 2019, No. 173 (Adj. Sess.), § 2, eff. Oct. 8, 2020.

History

Amendments

—2019 (Adj. Sess.). Subdiv. (b)(2): Repealed.

Subdiv. (b)(3)(B): Deleted “including the financial surety requirement of subdivision (2) of this subsection (b)” preceding “shall apply”.

—2019. Subdiv. (b)(1): Inserted “or proposed” preceding “buildings or structures”.

Subdiv. (b)(1)(C): Added “or the existing or proposed building or structure shall not be used to host events on more than 28 days in any calendar year”.

—2013 (Adj. Sess.). Subdiv. (a)(3): Inserted “the construction and operation of” following “more costly than”.

Subsec. (b): Added, and redesignated the remaining subsecs. accordingly.

§ 1980. Vermont Technical College demonstration project.

  1. There is established an on-site wastewater treatment and disposal project that shall be conducted at the Vermont Technical College in Randolph. The project shall be managed by the staff of the college, in conjunction with the Agency of Natural Resources.
  2. The purpose of the project is to provide information to interested local and State officials and members of the public with respect to the range of options that have been approved by the State and that are available for on-site systems, the relative effectiveness of various approved experimental and innovative systems, and their respective strengths and weaknesses.
  3. The project shall be designed with space sufficient to accommodate the demonstration of new designs for systems, as those designs are developed, during a number of years.

HISTORY: Added 2001, No. 133 (Adj. Sess.), § 1, eff. June 13, 2002.

§ 1981. Surface water source; potable water supply.

The Secretary shall approve the use of a surface water as the source of a potable water supply under this chapter if the following conditions are satisfied:

  1. the building or structure using the surface water as a source is a single-family residence occupied by the owner of record;
  2. only one single-family residence shall be served by a potable water supply using a surface water as a source;
  3. a single-family residence with a potable water supply using a surface water as a source shall not be used as the site of a home occupation that employs persons other than family members and is visited by the public in a manner or duration that would presume the need for use of a potable water supply;
  4. a professional engineer shall design the potable water supply using a surface water as a source, including a treatment system for the surface water;
  5. only surface waters that meet criteria adopted by the Secretary by rule are eligible as the source of a potable water supply permitted under this chapter; and
  6. the applicant or permit holder shall comply with other criteria and requirements adopted by the Secretary by rule for potable water supplies using a surface water as a source.

HISTORY: Added 2015, No. 154 (Adj. Sess.), § 2, eff. July 1, 2017.

§ 1982. Testing of groundwater sources.

  1. Definition.   As used in this section, “groundwater source” means that portion of a potable water supply that draws water from the ground, including a drilled well, shallow well, driven well point, or spring.
  2. Testing prior to new use.   Prior to use of a new groundwater source as a potable water supply, the person who owns or controls the groundwater source shall test the groundwater source for the parameters set forth in subsection (c) of this section.
  3. Parameters of testing.   A water sample collected under this section shall be analyzed for, at a minimum: arsenic, lead, uranium, gross alpha radiation, total coliform bacteria, total nitrate and nitrite, fluoride, manganese, and any other parameters required by the Agency by rule. The Agency by rule may require testing for a parameter by region or specific geographic area of concern.
  4. Submission of test results.   Results of the testing required under subsection (b) shall be submitted, in a form provided by the Department of Health, to the Department of Health and, when required by the Secretary pursuant to a permit, to the Secretary.
  5. Rulemaking.   The Secretary, after consultation with the Department of Health, the Wastewater and Potable Water Supply Technical Advisory Committee, private laboratories, and other interested parties, shall adopt by rule requirements regarding:
    1. when, prior to use of a new groundwater source, the test required under subsection (b) of this section shall be conducted;
    2. who shall be authorized to sample the source for the test required under subsections (b) and (c) of this section, provided that the rule shall include the person who owns or controls the groundwater source and licensed well drillers among those authorized to sample the source;
    3. how a water sample shall be collected in order to comply with the requirements of the analyses to be performed; and
    4. any other requirements necessary to implement this section.
  6. Marketability of title.   Noncompliance with the requirements of this section shall not affect the marketability of title or create a defect in title of a property, provided water test results required under this section are forwarded, prior to the conveyance of the property, to the Department of Health and, when required by the Secretary pursuant to a permit, to the Agency.

HISTORY: Added 2017, No. 161 (Adj. Sess.), § 4, eff. July 1, 2019.

History

Effective date of subsec. (e). 2017, No. 161 (Adj. Sess.), § 8(b) provides: “Sec. 4 (groundwater source testing) [which enacted this section] shall take effect on July 1, 2019, except that 10 V.S.A. § 1982(e) shall take effect on passage [May 22, 2018].”

Part 3. Forests and Parks

Chapter 71. Department of Forests and Parks

§§ 2001-2014. Repealed. 1977, No. 253 (Adj. Sess.), § 7; 1979, No. 3, retroactive to July 1, 1978.

History

Former §§ 2001-2014. Former § 2001, relating to members, term, and chairman of the department of forests and parks, was derived from 1955, No. 244 , § 1; V.S. 1947, § 7033; 1947, No. 112 , § 1 and amended by 1959, No. 329 (Adj. Sess.), § 25. The subject matter is now covered by § 2604 of this title.

Former § 2002, relating to the board of forests and parks, was derived from 1955, No. 244 , § 2; V.S. 1947, § 7034, repealed by 1955, No. 244 , § 9 and amended by 1955, No. 329 (Adj. Sess.), § 25. The subject matter is now covered by § 2604 of this title.

Former § 2003, relating to the commissioner of forests and parks, was derived from 1957, No. 187 , § 1; 1955, No. 244 , § 3; V.S. 1947, § 7035, repealed by 1955, No. 244 , § 9 and amended by 1959, No. 329 (Adj. Sess.), § 25; 1965, No. 105 , § 1. The subject matter is now covered by § 2603 of this title.

Former § 2004, relating to posting regulations, was derived from 1967, No. 60 , § 2.

Former § 2005, relating to the state forester, was derived from 1957, No. 187 , § 2; 1955, No. 244 , § 4; V.S. 1947, §§ 7043, 7044, repealed by 1955, No. 244 , § 9.

Former § 2006, relating to the powers of the state forester, was derived from V.S. 1947, § 7042; 1943, No. 60 , § 1; P.L. § 4556; 1933, No. 157 , § 4289; 1923, No. 8 , §§ 4, 6; G.L. § 463; 1917, No. 17 , § 8; 1908, No. 11 , §§ 2, 5; P.S. § 354; 1904, No. 16 , § 1.

Former § 2007, relating to complaints by the state forester, was derived from V.S. 1947, § 7045; P.L. § 4559; 1933, No. 157 , § 4292; 1923, No. 8 , §§ 4, 6; G.L. § 463; 1917, No. 17 , § 8; 1908, No. 11 , §§ 2, 5; P.S. § 354; 1904, No. 16 , § 1.

Former § 2008, relating to the supervisor of parks, was derived from 1955, No. 244 , § 5; V.S. 1947, §§ 7044, 7057, repealed by 1955, No. 244 , § 9.

Former § 2009, relating to lookouts, shelters, and barns, was derived from 1955, No. 244 , § 6; V.S. 1947, § 7059, repealed by 1955, No. 244 , § 9 and amended by 1959, No. 329 (Adj. Sess.), § 25.

Former § 2010, relating to acceptance of gifts and purchase of land, was derived from 1955, No. 244 , § 7; V.S. 1947, § 7056, repealed by 1955, No. 244 , § 9 and amended by 1963, No. 140 , §§ 1, 2; 1965, No. 107 ; 1967, No. 38 . The subject matter is now covered by § 2606 of this title.

Former § 2011, relating to records and reports, was derived from V.S. 1947, § 7036; 1947, No. 112 , § 4.

Former § 2012, relating to the revolving fund, was derived from 1955, No. 164 , § 1. The subject matter is now covered by § 2609 of this title.

Former § 2013, relating to dumping waste in travel trash barrels, was derived from 1959, No. 116 , §§ 1-3.

Former § 2014, relating to violations, was derived from 1967, No. 60 , § 1. The subject matter is now covered by § 2608 of this title.

Chapter 73. Conservation and Management of Forest Land

Subchapter 1. Forest Conservation by Landowners

§§ 2051-2055. Repealed. 1977, No. 253 (Adj. Sess.), § 7, 1979, No. 3, retroactive to July 1, 1978.

History

Former §§ 2051-2055. Former § 2051, relating to policy, was derived from 1951, No. 167 ; V.S. 1947, § 7037; 1945, No. 6 , §§ 1, 2. The subject matter is now covered by §§ 2621-2624 of this title.

Former §§ 2052-2055, relating to forest conservation by landowners, were derived from V.S. 1947, §§ 7038-7041; 1945, No. 6 , §§ 3-5. The subject matter is now covered by §§ 2621-2624 of this title.

Subchapter 2. Forests and Maple Orchards

§§ 2081-2116. Repealed. 1977, No. 253 (Adj. Sess.), § 7; 1979, No. 3, retroactive to July 1, 1978.

History

Former §§ 2081-2116. Former § 2081, relating to rules for planting and perpetuating forests, was derived from V.S. 1947, § 7092; 1947, No. 202 , § 6640; P.L. § 4601; 1933, No. 157 , § 4334; G.L. § 489; 1917, No. 254 , § 480; 1912, No. 40 , § 5; P.S. § 368; 1904, No. 17 , § 2.

Former § 2082, relating to forest seedlings, was derived from V.S. 1947, § 7085; 1945, No. 85 ; P.L. § 4594; 1929, No. 13 , § 1; 1927, No. 11 ; G.L. § 482; 1917, No. 17 , § 13; 1917, No. 254 , § 473; 1915, No. 24 , § 3; 1908, No. 11 , § 4 and amended by 1963, No. 79 , § 1(b); 1967, No. 303 (Adj. Sess.), § 15(b).

Former § 2083, relating to furnishing seedlings, was derived from V.S. 1947, § 7086; P.L. § 4595; G.L. § 483; P.S. § 366; 1906, No. 15 , § 4.

Former § 2084, relating to sale of surplus nursery stock, was derived from V.S. 1947, § 7087; P.L. § 4596; 1929, No. 13 , § 2; 1923, No. 11 , § 1; G.L. § 484; P.S. § 367; 1906, No. 15 , § 5.

Former §§ 2111-2116, relating to maple orchards, were derived from 1949, No. 392 (Joint Res.).

Subchapter 3. Nursery Inspection

§§ 2151-2158. Repealed. 1977, No. 253 (Adj. Sess.), § 7; 1979, No. 3, retroactive to July 1, 1978.

History

Former §§ 2151-2158. Former § 2151, relating to commissioner of agriculture as inspector of nurseries, was derived from 1955, No. 149 , § 1; 1953, No. 18 ; V.S. 1947, § 7046; P.L. § 4560; 1923, No. 8 , § 5; G.L. § 446; 1917, No. 17 , § 5; 1915, No. 1 , § 209; 1912, No. 22 , § 1; 1908, No. 15 , § 1. The subject matter is now covered by § 4023 of Title 6.

Former § 2152, relating to certificates of nursery inspection, was derived from 1955, No. 149 , § 2; V.S. 1947, § 7047; P.L. § 4561; G.L. § 447; 1917, No. 17 , § 6; 1912, No. 22 , § 2; 1908, No. 15 , § 2. The subject matter is now covered by § 4023 of Title 6.

Former § 2153, relating to foreign nursery stock, was derived from 1955, No. 149 , § 3; V.S. 1947, § 7048; 1947, No. 202 , § 6596; P.L. § 4562; G.L. § 448; 1917, No. 254 , § 439; 1908, No. 15 , §§ 3, 4. The subject matter is now covered by § 4026 of Title 6.

Former § 2154, relating to the requirement of nursery inspection, was derived from V.S. 1947, § 7049; P.L. § 4563; G.L. § 449; 1908, No. 15 , § 5.

Former § 2155, relating to regulations, was derived from 1955, No. 149 , § 4; V.S. 1947, § 7050; P.L. § 4564; G.L. § 450; 1917, No. 58 ; 1917, No. 254 , § 441; 1908, No. 15 , § 6. The subject matter is now covered by § 4029 et seq. of Title 6.

Former §§ 2156-2158, relating to nursery inspections, were derived from 1955, No. 149 , §§ 5-7. The subject matter is now covered by §§ 4029 et seq. of Title 6.

Subchapter 4. Forest Fires

§§ 2191-2215. Repealed. 1977, No. 253 (Adj. Sess.), § 7; 1979, No. 3, retroactive to July 1, 1978.

History

Former §§ 2191-2215. Former § 2191, relating to the town firewarden, was derived from V.S. 1947, § 7061; 1943, No. 69 , § 2; P.L. § 4571; 1933, No. 157 , § 4304; 1931, No. 6 ; 1923, No. 8 , §§ 4, 6, 15; 1921, No. 17 , § 1; 1919, No. 16 , § 1; G.L. § 468; 1917, No. 58 ; 1917, No. 254 , § 459; 1912, No. 27 , § 1; 1910, No. 20 , § 1; 1908, No. 14 , § 1; P.S. § 356; 1904, No. 16 , § 3. The subject matter is now covered by § 2641 of this title.

Former § 2192, relating to salary and compensation of town firewardens, was derived from 1955, No. 89 ; V.S. 1947, § 7062; 1947, No. 202 , § 6610; 1943, No. 69 , § 3; P.L. § 4573; 1933, No. 157 , § 4306; 1931, No. 6 ; 1923, No. 8 , §§ 4, 6, 15; 1921, No. 17 , § 1; 1919, No. 16 , § 1; G.L. § 468; 1917, No. 58 ; 1917, No. 254 , § 459; 1912, No. 27 , § 1; 1910, No. 20 , § 1; 1908, No. 14 , § 1; P.S. § 356; 1904, No. 16 , § 3 and amended by 1965, No. 141 . The subject matter is now covered by § 2642 of this title.

Former § 2193, relating to duties of firewardens, was derived from 1955, No. 68 ; V.S. 1947, § 7063; P.L. § 4574; 1933, No. 157 , § 4307; 1931, No. 6 ; 1923, No. 8 , §§ 4, 6, 15; 1921, No. 17 , § 1; 1919, No. 16 , § 1; G.L. § 468; 1917, No. 58 ; 1917, No. 254 , § 459; 1912, No. 27 , § 1; 1910, No. 20 , § 1; 1908, No. 14 , § 1; P.S. § 356; 1904, No. 16 , § 3. The subject matter is now covered by § 2644 of this title.

Former §§ 2194, 2195, relating to arrest without warrant and town’s liability for extinguishing forest fires, were derived from V.S. 1947, §§ 7064, 7065; P.L. §§ 4575, 4576; 1933, No. 157 , §§ 4308, 4309; 1931, No. 6 ; 1923, No. 8 , §§ 4, 6, 15; 1921, No. 17 , § 1; 1919, No. 16 , § 1; G.L. § 468; 1917, No. 58 ; 1917, No. 254 , § 459; 1912, No. 27 , § 1; 1910, No. 20 , § 1; 1908, No. 14 , § 1; P.S. § 356; 1904, No. 16 , § 3. The subject matter is now covered by §§ 2643, 2644 of this title.

Former § 2196, relating to liability to adjoining towns, was derived from V.S. 1947, §§ 7066, 7067; P.L. §§ 4777, 4778; 1933, No. 69 ; 1931, No. 6 ; 1923, No. 8 , §§ 4, 6, 15; 1921, No. 17 , § 1; 1919, No. 16 , § 1; G.L. § 468; 1917, No. 58 ; 1917, No. 254 , § 459; 1912, No. 27 , § 1; 1910, No. 20 , § 1; 1908, No. 14 , § 1; P.S. 356; 1904, No. 16 , § 3. The subject matter is now covered by § 2642 of this title.

Former § 2197, relating to state aid, was derived from V.S. 1947, § 7066; 1945, No. 83 , § 1; 1943, No. 69 , § 4; P.L. § 4577; 1933, No. 157 , § 4310; 1931, No. 6 ; 1923, No. 8 , §§ 4, 6, 15; 1921, No. 17 , § 1; 1919, No. 16 , § 1; G.L. § 468; 1917, No. 58 ; 1917, No. 254 , § 459; 1912, No. 27 , § 1; 1910, No. 20 , § 1; 1908, No. 14 , § 1; P.S. § 356; 1904, No. 16 , § 3. The subject matter is now covered by § 2643 of this title.

Former § 2198, relating to firewardens in unorganized places, was derived from V.S. 1947, § 7068; 1943, No. 69 , § 5; 1939, No. 99 ; P.L. § 4579; 1919, No. 16 , § 2; G.L. § 469; 1917, No. 58 ; 1917, No. 254 , § 460; 1910, No. 20 , § 2; P.S. § 357; 1904, No. 16 , § 4 and amended by 1959, No. 328 (Adj. Sess.) § 8b. The subject matter is now covered by §§ 2641, 2642 of this title.

Former § 2199, relating to records and reports, was derived from V.S. 1947, § 7069; P.L. § 4580; 1921, No. 17 , § 2; G.L. § 470; 1910, No. 20 , § 3; P.S. § 360; 1904, No. 16 , § 7. The subject matter is now covered by § 2644 of this title.

Former § 2200, relating to patrols, was derived from V.S. 1947, § 7070; P.L. § 4581; 1921, No. 17 , § 3; 1919, No. 16 , § 3; G.L. § 471; 1910, No. 20 , § 4. The subject matter is now covered by § 2644 of this title.

Former § 2201, relating to meetings, was derived from V.S. 1947, § 7071; P.L. § 4582; G.L. § 472; 1917, No. 17 , § 12; 1910, No. 20 , § 5. The subject matter is now covered by § 2642 of this title.

Former § 2202, relating to private lookout stations, was derived from 1949, No. 181 ; V.S. 1947, § 7072; P.L. § 4583; G.L. § 473; 1910, No. 20 , § 6.

Former § 2203, relating to deputy firewardens, was derived from 1949, No. 182 ; V.S. 1947, § 7073; 1947, No. 202 , § 6621; P.L. § 4584; G.L. § 474; 1917, No. 254 , § 465; 1910, No. 20 , § 7. The subject matter is now covered by § 2641 of this title.

Former § 2204, relating to city fire chief as warden, was derived from V.S. 1947, § 7074; P.L. § 4585; G.L. § 475; 1910, No. 20 , § 8.

Former § 2205, relating to bulletins, was derived from V.S. 1947, § 7075; P.L. § 4586; G.L. § 476; 1917, No. 254 , § 467; P.S. § 361; 1904, No. 16 , § 8.

Former § 2206, relating to brush fires, was derived from 1955, No. 252 ; 1953, No. 87 ; 1949, No. 183 , § 1; V.S. 1947, § 7076; 1947, No. 202 , § 6624; 1943, No. 70 , § 1; 1939, No. 100 , § 1; P.L. § 4587; G.L. § 477; P.S. § 362; 1904, No. 16 , § 9. The subject matter is now covered by § 2645 of this title.

Former § 2207, relating to jurisdiction of offenses, was derived from 1949, No. 183 , § 2, amended by 1965, No. 194 , § 10, and previously repealed by 1973, No. 249 (Adj. Sess.), § 111.

Former § 2208, relating to refusal of a permit, was derived from V.S. 1947, § 7077; 1939, No. 100 , § 3. The subject matter is now covered by § 2645 of this title.

Former § 2209, relating to fires in woods of another, was derived from 1951, No. 168 ; V.S. 1947, § 7078; P.L. § 4588; G.L. § 478; P.S. § 358; 1904, No. 16 , § 5. The subject matter is now covered by § 2647 of this title.

Former § 2210, relating to printed warnings, was derived from V.S. 1947, § 7079; P.L. § 4589; G.L. § 479; 1917, No. 254 , § 470; P.S. § 359; 1904, No. 16 , § 6.

Former § 2211, relating to penalties and complaints, was derived from V.S. 1947, § 7080; P.L. § 4590; G.L. § 480; P.S. § 363; 1904, No. 16 , § 10.

Former § 2212, relating to proclamations by the governor, was derived from V.S. 1947, § 7081; 1947, No. 202 , § 6629; 1939, No. 101 , § 2; P.L. § 4591; 1927, No. 10 , § 1. The subject matter is now covered by § 2646 of this title.

Former §§ 2213, 2214, relating to publication of proclamations and penalty for violation thereof, were derived from V.S. 1947, §§ 7082, 7083; P.L. §§ 4592, 4593; 1927, No. 10 , §§ 2, 3. The subject matter is now covered by § 2646 of this title.

Former § 2215, relating to special wardens, was derived from V.S. 1947, § 7084; 1939, No. 101 , § 1. The subject matter is now covered by § 2641 of this title.

Subchapter 5. Forest Resource Advisory Council

History

Citation. 1977, No. 234 (Adj. Sess.), § 2, provided: “This act [which added this subchapter] shall be known as the Forest Resource Assessment and Development Act of 1978.”

Repeal of subchapter. This subchapter comprised §§ 2221-2226, relating to forest resource advisory council, was repealed by 2009, No. 135 (Adj. Sess.), § 26(3)(F), effective May 29, 2010.

CROSS REFERENCES

Department of Forests, Parks and Recreation generally, see § 2600 et seq. of this title.

Forest conservation, see § 2621 et seq. of this title.

Forest pest control, see § 2661 et seq. of this title.

Municipal forests, see § 2651 et seq. of this title.

Nursery inspection, see 6 V.S.A. § 4023 et seq.

§§ 2221-2226. Repealed. 2009, No. 135 (Adj. Sess.), § 26(3)(F).

History

Former §§ 2221-2226. Former § 2221, relating to declaration of policy, was derived from 1977, No. 234 (Adj. Sess.), § 1.

Former § 2222, relating to findings, was derived from 1977, No. 234 (Adj. Sess.), § 1 and amended by 1995, No. 53 , § 1.

Former § 2223, relating to creation of a forest resources advisory council, was derived from 1977, No. 234 (Adj. Sess.), § 1 and amended by 1983, No. 170 (Adj. Sess.), § 9; 1995, No. 53 , § 2; and 2003, No. 42 , § 2.

Former § 2224, relating to powers and duties of council, was derived from 1977, No. 234 (Adj. Sess.), § 1 and amended by 1995, No. 53 , § 3.

Former § 2225, relating to assessments, was derived from 1977, No. 234 (Adj. Sess.), § 1 and amended by 1995, No. 53 , § 4.

Former § 2226, relating to funding, was derived from 1977, No. 234 (Adj. Sess.), § 1.

Chapter 75. State, National and Municipal Forests

§§ 2251-2304. Repealed. 1977, No. 253 (Adj. Sess.), § 7; 1979, No. 3, retroactive to July 1, 1978.

History

Former §§ 2251-2304. Former § 2251, relating to gifts of land, was derived from V.S. 1947, § 7051; P.L. § 4565; 1933, No. 157 , § 4298; 1919, No. 28 , § 1; G.L. § 465; 1917, No. 17 , § 10; 1908, No. 11 , § 3.

Former § 2252, relating to purchase of land, was derived from V.S. 1947, § 7052; 1937, No. 96 , § 1; P.L. § 4566; 1925, No. 15 ; 1921, No. 16 ; G.L. § 466; 1917, No. 58 ; 1912, No. 28 .

Former § 2253, relating to pledge of revenues, was derived from V.S. 1947, § 7053; 1937, No. 96 , § 2.

Former § 2254, relating to transfer of lands, was derived from 1953, No. 48 ; V.S. 1947, § 7054; 1937, No. 96 , § 3, and amended by 1973, No. 248 (Adj. Sess.), § 2.

Former § 2255, relating to reimbursement to towns, was derived from V.S. 1947, § 7055; 1937, No. 96 , § 4.

Former § 2256, relating to state forests, was derived from V.S. 1947, § 7093; 1935, No. 3 , § 1, and repealed by 1959, No. 329 (Adj. Sess.), § 59.

Former § 2257, relating to lease by state from United States, was derived from V.S. 1947, § 7094; 1935, No. 3 , § 2.

Former § 2258, relating to jurisdiction reserved by state, was derived from V.S. 1947, § 7095; 1935, No. 3 , § 3, and amended by 1959, No. 329 (Adj. Sess.), § 23(c).

Former § 2259, relating to control by state, was derived from V.S. 1947, § 7096; 1935, No. 3 , § 4.

Former § 2260, relating to state forest motor vehicle trials, was derived from 1955, No. 280 .

Former § 2281, relating to disposition of moneys from national forests, was derived from V.S. 1947, § 7060; 1935, No. 220 , §§ 1, 2, 3.

Former § 2300, relating to definition of municipal forest, was derived from 1973, No. 148 (Adj. Sess.), § 1.

Former § 2301, relating to municipal forests and state aid, was derived from V.S. 1947, § 7088; 1945, No. 86 , § 1; P.L. § 4597; G.L. § 485; 1915, No. 24 , § 1, and amended by 1973, No. 148 (Adj. Sess.), § 2.

Former § 2302, relating to designation of municipal forests, was derived from V.S. 1947, § 7089; 1947, No. 202 , § 6637; P.L. § 4598; G.L. § 486; 1917, No. 254 , § 477; 1915, No. 24 , § 2, and amended by 1973, No. 148 (Adj. Sess.), § 3.

Former § 2303, relating to management, was derived from V.S. 1947, § 7090; P.L. § 4599; G.L. § 487; 1915, No. 24 , § 4, and amended by 1973, No. 148 (Adj. Sess.), § 4.

Former § 2304, relating to receipts, was derived from V.S. 1947, § 7091; 1945, No. 86 , § 2; P.L. § 4600; G.L. § 488; 1915, No. 24 , § 5, and amended by 1973, No. 148 (Adj. Sess.), § 5.

Chapter 77. Camel’s Hump State Park and Camel’s Hump Forest Reserve

§ 2351. Creation.

  1. All lands in the Camel’s Hump region extending from Route 17 north to the Winooski River and from the Huntington River to the Mad River, are hereby declared to make up the Camel’s Hump Forest Reserve.
  2. All lands owned by the State in the Camel’s Hump Forest Reserve shall be known as Camel’s Hump State Park.

HISTORY: Added 1969, No. 71 , § 3.

CROSS REFERENCES

Vermont trails system, see § 441 et seq. of this title.

§ 2352. Administration.

The park shall be under the administration of the Department of Forests, Parks and Recreation.

HISTORY: Added 1969, No. 71 , § 3.

History

Revision note—

Reference to “department of forests and parks” changed to “department of forests, parks, and recreation” to conform reference to new title and reorganization of state government. See 3 V.S.A. § 2872 .

§ 2353. Use districts.

In the establishment of the Forest Reserve and administration of the Park, three districts shall be designated as follows:

  1. One area shall be designated as the ecological area to protect scarce and rare plants, to preserve the natural habitat, and to maintain the wilderness aspect.  This area will extend from approximately 2,500 feet m.s.l. to the summit, and from 900 feet m.s.l. to 2,500 feet m.s.l. in the Gleason Brook drainage.
  2. A timber management and wildlife area shall be designated to produce forest products, to protect the ecological area, to encourage wildlife habitat, and to preserve the natural appearance of the region as seen from surrounding areas.  This area will extend approximately from 1,800 feet m.s.l. to 2,500 feet m.s.l. except within the Gleason Brook drainage basin as indicated in subdivision (1) of this section.  Uses of this area will include sustained production of timber, water conservation, wildlife management, hunting, hiking, cross-country skiing, and nature appreciation.
  3. The balance of the land within the Reserve shall be designated as a multiple-use area.  Uses of this area shall include farming, vacation, and permanent residences in addition to those enumerated in the timber management area.

HISTORY: Added 1969, No. 71 , § 3; amended 1973, No. 28 .

History

Revision note—

For purposes of conformity with V.S.A. style, deleted subsection designation at beginning of section and substituted “subdivision (1) above” for “subsection (a)(1) of this section” in the second sentence of subdiv. (2).

Amendments

—1973. Subdiv. (1): Substituted “900 feet m.s.l. to 2,500 feet m.s.l. in the Gleason Brook drainage” for “the Winooski River to 2,500 feet m.s.l. between Preston and Gleason Brooks” in the second sentence.

Subdiv. (2): Substituted “within the Gleason Brook drainage basin as indicated in subsection (a)(1) above” for “between Preston and Gleason Brooks” in the second sentence.

§ 2353a. Permitted uses.

In addition to the uses stipulated in the three districts enumerated in section 2353 of this title, the Department of Forests, Parks and Recreation may establish other permitted uses in conjunction with the development and adoption of a comprehensive management plan for the Camel’s Hump State Park. Due consideration shall be given to the relationship and compatibility of such permitted uses with the purposes established for each of the three districts.

HISTORY: Added 1975, No. 51 , § 1, eff. April 15, 1975; amended 1993, No. 7 , § 1.

History

Revision note—

Reference to “department of forests and parks” changed to “department of forests, parks, and recreation” to conform reference to new title and reorganization of state government. See 3 V.S.A. § 2872 .

Amendments

—1993. Deleted “with the advice of the Camel’s Hump forest reserve commission” following “recreation” in the first sentence.

§ 2354. Repealed. 1993, No. 7, § 2.

History

Former § 2354. Former § 2354, relating to the Camel’s Hump forest reserve commission, was derived from 1975, No. 51 , § 1.

Chapter 79. Forest Pest Control

§§ 2401-2410. Repealed. 1977, No. 253 (Adj. Sess.), § 7; 1979, No. 3, retroactive to July 1, 1978.

History

Former §§ 2401-2410. Former §§ 2401-2410, relating to forest pest control, were derived from 1955, No. 64 , §§ 1-9. The subject matter is now covered by §§ 2661-2664 of this title.

Chapter 81. Northeastern Forest Fire Protection Compact

CROSS REFERENCES

Forest fires and fire prevention, see § 2641 et seq. of this title.

Subchapter 1. Provisions Relating to Forest Fire Protection Compact

§ 2461. Payment of fire fighting expense.

Whenever fire fighters or equipment, or both, are called from without the State to fight a forest fire or fires within this State, payment of the expense incurred therefor shall be made by the Commissioner of Finance and Management directly to the state from which came such fire fighters or equipment, or both, upon presentation to the Commissioner of Finance and Management by the Commissioner of Forests, Parks and Recreation of proper vouchers covering such expense, the funds for such payment to be taken from the appropriation for forest fire suppression.

HISTORY: 1959, No. 328 (Adj. Sess.), § 8; amended 1971, No. 145 (Adj. Sess.), § 1; 1983, No. 195 (Adj. Sess.), § 5(b).

History

Source.

1949, No. 271 , § 2.

Amendments

—1983 (Adj. Sess.). Inserted “and information support” following “commissioner of finance”.

—1971 (Adj. Sess.). Substituted “director of forests” for “state forester”.

—1959 (Adj. Sess.). Substituted “finance director” for “auditor of accounts”.

§ 2462. Mutual aid compact.

  1. The Commissioner of Forests, Parks and Recreation may enter into agreements with the federal government and other states outside the Northeastern Forest Fire Protection Compact to provide and accept assistance, including training of personnel, for the purpose of mutual fire protection.  Any employee of the Department of Forests, Parks and Recreation assigned to fire control duties or training programs outside this State shall be considered to be working in this State for purposes of compensation and any other employee benefits.
  2. The Commissioner of Forests, Parks and Recreation may not enter into any agreement under this section that supersedes or conflicts with sections 2501 through 2515 of this title.

HISTORY: Added 1971, No. 145 (Adj. Sess.), § 2.

History

Revision note

—2018. In subsec. (b), substituted “2515” for “2514” to reflect enactment of section 2515 of this title by 2015, No. 171 (Adj. Sess.), § 13.

Subchapter 2. Northeastern Forest Fire Protection Compact

§ 2501. Purpose—Article I.

The purpose of this compact is to promote effective prevention and control of forest fires in the northeastern region of the United States and adjacent areas in Canada by the development of integrated forest fire plans, by the maintenance of adequate forest fire fighting services by the member states, by providing for mutual aid in fighting forest fires among the states of the region and for procedures that will facilitate such aid, and by the establishment of a central agency to coordinate the services of member states and perform such common services as member states may deem desirable.

History

Source.

1949, No. 271 , § 1.

§ 2502. Effective date; new member states—Article II.

This agreement shall become operative immediately as to those states ratifying it whenever any two or more of the states of Maine, New Hampshire, Vermont, Rhode Island, Connecticut, New York, and the Commonwealth of Massachusetts have ratified it and the Congress has given its consent. Any state not mentioned in this article which is contiguous with any member state may become a party to this compact. Subject to the consent of the Congress of the United States, any province of the Dominion of Canada which is contiguous with any member state may become a party to this compact by taking such action as its laws and the laws of the Dominion of Canada may prescribe for ratification. In this event, the term “state” in this compact shall include within its meaning the term “province” and the procedures prescribed shall be applied in the instance of such provinces, in accordance with the forms and practices of the Canadian government.

History

Source.

1949, No. 271 , § 1.

Adoption of compact. The compact was executed by Vermont on Sept. 14, 1949.

The compact was approved by acts of Congress of June 25, 1949, ch. 246, 63 Stat. 271, and May 13, 1952, ch. 267, 66 Stat. 71.

The compact has been enacted into law by each of the following states and is codified at:

Conn.—C.G.S.A. § 23-53 et seq.

Me.—Priv. and Sp. Laws 1949, c. 75.

Mass.—M.G.L.A. c. 132 App. § 1-1 et seq.

N.H.—N.H.R.S.A. 227-L:25 et seq.

N.Y.—NY CLS Environmental Conservation Law § 9-1123.

R.I.—Gen. Laws 1956 § 2-13-1 et seq.

§ 2503. Commission; membership—Article III.

Each state joining herein shall appoint three representatives to a commission hereby designated as the Northeastern Forest Fire Protection Commission. One shall be the state forester or officer holding an equivalent position in such state who is responsible for forest fire control. The second shall be a member of the legislature of such state designated by the commission or committee on interstate cooperation of such state, or if there be none, or if said commission on interstate cooperation cannot constitutionally designate the said member, such legislator shall be designated by the governor thereof; provided that if it is constitutionally impossible to appoint a legislator as a commissioner from such state, the second member shall be appointed by the governor of said state in his or her discretion. The third member shall be a person designated by the governor as the responsible representative of the governor. In the event that any province of the Dominion of Canada shall become a member of this Commission, it shall designate three members who will approximate this pattern of representation to the extent possible under the law and practices of such province. This Commission shall be a body corporate with the powers and duties set forth herein.

History

Source.

1949, No. 271 , § 1.

§ 2504. Powers and duties of Commission—Article IV.

It shall be the duty of the Commission to make inquiry and ascertain from time to time such methods, practices, circumstances and conditions as may be disclosed for bringing about the prevention and control of forest fires in the area comprising the member states, to coordinate the forest fire plans and the work of the appropriate agencies of the member states and to facilitate the rendering of aid by the member states to each other in fighting forest fires.

The Commission shall formulate and, in accordance with need, from time to time, revise a regional forest fire plan for the entire region covered by the compact which shall serve as a common forest fire plan for that area.

The Commission shall, more than one month prior to any regular meeting of the legislature in any signatory state, present to the governor and to the legislature of the state its recommendations relating to enactments to be made by the legislature of that state in furthering the interests and purposes of this compact.

The Commission shall consult with and advise the appropriate administrative agencies of the states party hereto with regard to problems connected with the prevention and control of forest fires and recommend the adoption of such regulations as it deems advisable.

The Commission shall have power to recommend to the signatory states any and all measures that will effectuate the prevention and control of forest fires.

History

Source.

1949, No. 271 , § 1.

§ 2505. Common services—Article V.

Any two or more member states may designate the Northeastern Forest Fire Protection Commission as a joint agency to maintain such common services as those states deem desirable for the prevention and control of forest fires. Except in those cases where all member states join in such designation for common services, the representatives of any group of such designating states in the Northeastern Forest Fire Protection Commission shall constitute a separate section of such commission for the performance of the common service or services so designated provided that, if any additional expense is involved, the states so acting shall appropriate the necessary funds for this purpose. The creation of such a section as a joint agency shall not affect the privileges, powers, responsibilities or duties of the states participating therein as embodied in the other articles of this compact.

History

Source.

1949, No. 271 , § 1.

§ 2506. Cooperation with U.S. Forest Service—Article VI.

The Commission may request the U.S. Forest Service to act as the primary research and coordinating agency of the Northeastern Forest Fire Protection Commission, in cooperation with the appropriate agencies in each state and the U.S. Forest Service may accept the initial responsibility in preparing and presenting to the Commission its recommendations with respect to the regional fire plan. Representatives of the U.S. Forest Service may attend meetings of the Commission and of groups of member states.

History

Source.

1949, No. 271 , § 1.

§ 2507. Officers and employees; rules; annual meetings; quorum; sections—Article VII.

The Commission shall annually elect from its members a chair and a vice chair. The Commission shall appoint such officers or employees as may be required to carry the provisions of this compact into effect, shall fix and determine their duties, qualifications and compensation, and may at its pleasure, remove or discharge any such officer or employee. The Commission shall adopt rules and regulations for the conduct of its business. It may establish and maintain one or more offices for the transaction of its business and may meet at any time or place but must meet at least once a year.

A majority of the members of the Commission representing a majority of the signatory states shall constitute a quorum for the transaction of its general business, but no action of the Commission imposing any obligation on any signatory state shall be binding unless a majority of the members from such signatory state shall have voted in favor thereof. For the purpose of conducting its general business, voting shall be by state units.

The representatives of any two or more member states, upon notice to the Chairman as to the time and purpose of the meeting, may meet as a section for the discussion of problems common to those states.

Sections established by groups of member states shall have the same powers with respect to officers, employees and the maintenance of offices as are granted by this article to the Commission. Sections may adopt such rules, regulations, and procedures as may be necessary for the conduct of their business.

History

Source.

1949, No. 271 , § 1.

Revision note

—2018. Substituted “Chair” for “chairman” in accordance with 2013, No. 161 (Adj. Sess.), § 72.

§ 2508. Forest fire plan; aid to member—Article VIII.

It shall be the duty of each member state to formulate and put in effect a forest fire plan for that state and to take such measures as may be recommended by the Commission to integrate such forest fire plan with the regional forest fire plan.

Whenever the state forest fire control agency of a member state requests aid from the state forest fire control agency of any other member state in combatting, controlling or preventing forest fires, it shall be the duty of the state forest fire control agency of that state to render all possible aid to the requesting agency which is consonant with the maintenance of protection at home.

Each signatory state agrees to render aid to the forest service or other agencies of the government of the United States in combatting, controlling or preventing forest fires in areas under their jurisdiction located within the member state or a contiguous member state.

History

Source.

1949, No. 271 , § 1.

§ 2509. Status of persons rendering aid; liability; reimbursement; compensation and death benefits—Article IX.

Whenever the forces of any member state are rendering outside aid pursuant to the request of another member state under this compact, the employees of such state shall, under the direction of the officers of the state to which they are rendering aid, have the same powers (except the power of arrest), duties, rights, privileges and immunities as comparable employees of the state to which they are rendering aid.

No member state or its officers or employees rendering outside aid pursuant to this compact shall be liable on account of any act or omission on the part of such forces while so engaged, or on account of the maintenance or use of any equipment or supplies in connection therewith.

All liability that may arise either under the laws of the requesting state or under the laws of the aiding state or under the laws of a third state on account of or in connection with a request for aid, shall be assumed and borne by the requesting state.

Any member state rendering outside aid pursuant to this compact shall be reimbursed by the member state receiving such aid for any loss or damage to, or expense incurred in the operation of any equipment answering a request for aid, and for the cost of all materials, transportation, wages, salaries, and maintenance of employees and equipment incurred in connection with such request. Provided, that nothing herein contained shall prevent any assisting member state from assuming such loss, damage, expense or other cost or from loaning such equipment or from donating such services to the receiving member state without charge or cost.

Each member state shall provide for the payment of compensation and death benefits to injured employees and the representatives of deceased employees in case employees sustain injuries or are killed while rendering outside aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within such state.

For the purposes of this compact the term employee shall include any volunteer or auxiliary legally included within the forest fire fighting forces of the aiding state under the laws thereof.

The Commission shall formulate procedures for claims and reimbursement under the provisions of this article.

Aid by a member state to an area subject to federal jurisdiction beyond the borders of such state shall not be required under this compact unless substantially the same provisions of this article relative to powers, liabilities, losses and expenses in connection with such aid are embodied in federal laws.

History

Source.

1949, No. 271 , § 1.

§ 2510. Allocation of costs; budget; records; reports—Article X.

When appropriations for the support of this Commission or for the support of common services maintained by the Commission or a section thereof under the provisions of Article V are necessary, the Commission or section thereof shall allocate the costs among the states affected with consideration of the amounts of forested land in those states that will receive protection from the service to be rendered and the extent of the forest fire problem involved in each state, and shall submit its recommendations accordingly to the legislatures of the affected states.

The Commission shall submit to the governor of each state, at such time as he or she may request, a budget of its estimated expenditures for such period as may be required by the laws of such state for presentation to the legislature thereof.

The Commission shall keep accurate books of account, showing in full its receipts and disbursements, and said books of account shall be open at any reasonable time to the inspection of such representatives of the respective signatory states as may be duly constituted for that purpose.

On or before the first day of December of each year, the Commission shall submit to the respective governors of the signatory states a full and complete report of its activities for the preceding year.

History

Source.

1949, No. 271 , § 1.

§ 2511. Advisory committee—Article XI.

The representatives from any member state may appoint and consult with an advisory committee composed of persons interested in forest fire protection.

The Commission may appoint and consult with an advisory committee of representatives of all affected groups, private and governmental.

History

Source.

1949, No. 271 , § 1.

§ 2512. Donations, gifts, grants—Article XII.

The Commission may accept any and all donations, gifts and grants of money, equipment, supplies, materials and services from the federal or any local government, or any agency thereof and from any person, firm or corporation, for any of its purposes and functions under this compact, and may receive and utilize the same subject to the terms, conditions and regulations governing such donations, gifts and grants.

History

Source.

1949, No. 271 , § 1.

§ 2513. Limitation; responsibility of member; construction—Article XIII.

Nothing in this compact shall be construed to authorize or permit any member state to curtail or diminish its forest fire fighting forces, equipment, services or facilities, and it shall be the duty and responsibility of each member state to maintain adequate forest fire fighting forces and equipment to meet normal demands for forest fire protection within its borders.

Nothing in this compact shall be construed to limit or restrict the powers of any state ratifying the same to provide for the prevention, control and extinguishment of forest fires, or to prohibit the enactment or enforcement of state laws, rules or regulations intended to aid in such prevention, control and extinguishment in such state.

Nothing in this compact shall be construed to affect any existing or future cooperative relationship or arrangement between the U.S. Forest Service and a member state or states.

History

Source.

1949, No. 271 , § 1.

§ 2514. Duration—Article XIV.

This compact shall continue in force and remain binding on each state ratifying it until the legislature or the governor of such state takes action to withdraw therefrom. Such action shall not be effective until six months after notice thereof has been sent by the chief executive of the state desiring to withdraw to the chief executives of all states then parties to the compact.

History

Source.

1949, No. 271 , § 1.

§ 2515. Intercompact liability—Article XV.

The provisions of Article IX of this compact that relate to mutual aid in combating, controlling, or preventing forest fires shall be operative as between any state party to this compact and any other state that is party to a regional forest fire protection compact in another region provided that the legislature of such other state shall have given its assent to the mutual aid provisions of this compact.

HISTORY: Added 2015, No. 171 (Adj. Sess.), § 13.

Chapter 83. Department of Forests, Parks and Recreation

CROSS REFERENCES

Camel’s Hump State Park and Forest Reserve, see § 2351 et seq. of this title.

Conversion of trees or defacing marks on logs, see 13 V.S.A. § 3606 .

Floating lumber, see 25 V.S.A. § 201 et seq.

Laying out roads for removal of lumber, see 19 V.S.A. § 325 .

Log measure, see 9 V.S.A. § 2693 .

Maple products generally, see 6 V.S.A. § 481 et seq.

Northeastern Forest Fire Protection Compact, see § 2461 et seq. of this title.

Nursery inspection, see 6 V.S.A. § 4023 et seq.

Removal of timber in dam construction, see § 1086 of this title.

State land use and development planning generally, see § 6001 et seq. of this title.

History

Safety standards for forestry and forest products industries. 2007, No. 208 (Adj. Sess.), § 19 provides: “(a) The general assembly finds that workers’ compensation insurance rates for the forestry and forest products industries are significantly higher than rates for those industries in neighboring states and significantly higher than those of the vast majority of other industries within the state.

“(b) The general assembly encourages the forestry and forest products industry associations to take immediate and effective action to reduce safety and health risks and thereby reduce costs by the following:

“(1) In consultation with the departments of labor and of banking, insurance, securities and health care administration, providing education and awareness programs concerning workers’ compensation rates, experience modification, and steps that may be taken to reduce premium costs.

“(2) In consultation with existing department of labor programs like project worksafe, VOSHA, and project road safe, developing safety and health awareness forestry and forestry product industry programs that address compliance with existing safety and health standards and best work practices.”

Subchapter 1. General Provisions

§ 2600. Findings.

The General Assembly finds that:

  1. Private and public forestlands:
    1. constitute unique and irreplaceable resources, benefits, and values of statewide importance;
    2. contribute to the protection and conservation of wildlife habitat, air, water, and soil resources of the State;
    3. mitigate the effects of climate change; and
    4. benefit the general health and welfare of the people of the State.
  2. The forest products industry, including maple sap collection:
    1. is a major contributor to and is valuable to the State’s economy by providing jobs to its citizens;
    2. is essential to the manufacture of forest products that are used and enjoyed by the people of the State; and
    3. benefits the general welfare of the people of the State.
  3. Private and public forestlands are critical for and contribute significantly to the State’s outdoor recreation and tourism economies.
  4. Forestry operations are adversely affected by the encroachment of urban, commercial, and residential land uses throughout the State that result in forest fragmentation and conversion and erode the health and sustainability of remaining forests.
  5. As a result of encroachment on forests, conflicts have arisen between traditional forestry land uses, and urban, commercial, and residential land uses convert forestland permanently to other uses, resulting in an adverse impact to the economy and natural environment of the State.
  6. The encouragement, development, improvement, and preservation of forestry operations will result in a general benefit to the health and welfare of the people of the State and the State’s economy.
  7. The forest products industry, in order to survive, likely will need to change, adopt new technologies, and diversify into new products.

HISTORY: Added 2015, No. 171 (Adj. Sess.), § 1.

§ 2601. Policy and purposes.

  1. The conservation of the forests, timberlands, woodlands, and soil and recreational resources of the State are hereby declared to be in the public interest. It is the policy of the State to encourage economic management of its forests and woodlands, to sustain long-term forest health, integrity, and productivity, to maintain, conserve, and improve its soil resources, and to control forest pests to the end that forest benefits, including maple sugar production, are preserved for its people, floods and soil erosion are alleviated, hazards of forest fires are lessened, its natural beauty is preserved, its wildlife is protected, the development of its recreational interests is encouraged, the fertility and productivity of its soil are maintained, the impairment of its dams and reservoirs is prevented, its tax base is protected, and the health, safety, and general welfare of its people are sustained and promoted.
  2. The Department shall implement the policies of this chapter by assisting forestland owners and lumber operators in the cutting and marketing of forest growth, encouraging cooperation between forest owners, lumber operators, and the State of Vermont in the practice of conservation and management of forestlands, managing, promoting, and protecting the multiple use of publicly owned forestlands and park lands; planning, constructing, developing, operating, and maintaining the system of State parks; determining the necessity of repairs and replacements to all Department-owned buildings and causing urgent repairs and replacements to be accomplished, with the approval of the Secretary of Administration, if within the limits of specific appropriations or if approved by the Emergency Board; and providing advice and assistance to municipalities, other political subdivisions, State departments, and nongovernmental organizations in the development of wholesome and adequate community or institutional recreation programs.
  3. The Commissioner shall implement the policy established under this section when construing the provisions of this chapter related to the management of forestlands and the construction of chapters 85 and 87 of this title.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1; amended 1993, No. 233 (Adj. Sess.), § 44, eff. June 21, 1994; 2015, No. 171 (Adj. Sess.), § 2.

History

Amendments

—2015 (Adj. Sess.). Subsec. (a): Inserted “to sustain long-term forest health, integrity, and productivity,” following “forests and woodlands” in the second sentence.

Subsec. (b): Substituted “forestlands” for “forest lands” twice.

Subsec. (c): Added.

—1993 (Adj. Sess.). Designated the existing provisions of the first paragraph of the section as subsec. (a), designated the existing provisions of the second paragraph of the section as subsec. (b) and inserted “determining the necessity of repairs and replacements to all department-owned buildings and causing urgent repairs and replacements to be accomplished, with the approval of the secretary of administration, if within the limits of specific appropriations or if approved by the emergency board” preceding “and providing” in that subsection.

§ 2602. Definitions.

As used in this chapter:

  1. “Agency” means the Agency of Natural Resources as created by 3 V.S.A. chapter 51.
  2. “Department” means the Department of Forests, Parks and Recreation within the Agency of Natural Resources.
  3. “Commissioner” means the Commissioner of Forests, Parks and Recreation.
  4. “Secretary” means the Secretary of Natural Resources.
  5. “Forest product” mean logs; pulpwood; veneer; bolt wood; wood chips; stud wood; poles; pilings; biomass; fuel wood; maple sap; or bark.
  6. “Forestry operation” means activities related to the management of forests, including a timber harvest; pruning; planting; reforestation; pest, disease, and invasive species control; wildlife habitat management; and fertilization. “Forestry operation” includes the primary processing of forest products of commercial value on a parcel where the timber harvest occurs.
  7. “Timber” means trees, saplings, seedlings, bushes, shrubs, and sprouts from which trees may grow, of every size, nature, kind, and description.
  8. “Timber harvest” means a forestry operation involving the harvest of timber.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1; amended 1987, No. 76 , § 18; 2015, No. 171 (Adj. Sess.), § 3.

History

Amendments

—2015 (Adj. Sess.). Subdiv. (1): Substituted “3 V.S.A. chapter 51” for “chapter 51 of Title 3”.

Subdiv. (3): Substituted “Commissioner of Forests, Parks and Recreation” for “commissioner of the department of forests, parks and recreation”.

Subdiv. (4): Substituted “Secretary of Natural Resources” for “secretary of the agency of natural resources”.

Subdivs. (5)-(8): Added.

—1987. Substituted “agency of natural resources” for “agency of environmental conservation” in subdivs. (1), (2) and (4).

§ 2603. Powers and duties: Commissioner.

  1. The Department shall be under the direction and supervision of a Commissioner appointed by the Secretary as provided in 3 V.S.A. § 2851 . In addition to the duties and powers provided under this chapter, the Commissioner shall have the powers and duties specified in 3 V.S.A. § 2852 and such additional duties as may be assigned to the Commissioner by the Secretary under 3 V.S.A. § 2853 . The Commissioner shall implement the policy and purposes specified in section 2601 of this title where appropriate and to the extent that resources of the Department permit.
  2. The Commissioner shall manage and plan for the use of publicly owned forests and park lands in order to implement the policy and purposes of this chapter, promote and protect the natural, productive and recreational values of such lands, and provide for multiple uses of the lands in the public interest.  The Commissioner may sell forest products and other resources on public lands and shall administer the State park system and a community recreation program as is in the best interests of the State and is consistent with the purposes and policies of this chapter.
    1. The Commissioner, subject to the direction and approval of the Secretary, shall adopt and publish rules in the name of the Agency for the use of State forests, or park lands, including reasonable fees or charges for the use of the lands, roads, camping sites, buildings, and other facilities and for the harvesting of timber or removal of minerals or other resources from such lands, notwithstanding 32 V.S.A. § 603 . (c) (1) The Commissioner, subject to the direction and approval of the Secretary, shall adopt and publish rules in the name of the Agency for the use of State forests, or park lands, including reasonable fees or charges for the use of the lands, roads, camping sites, buildings, and other facilities and for the harvesting of timber or removal of minerals or other resources from such lands, notwithstanding 32 V.S.A. § 603 .
    2. The Commissioner of Forests, Parks and Recreation shall be permitted to temporarily (not to exceed one season per project) adjust fees and charges at any area for the purpose of bona fide scientific research.
    3. Notwithstanding subdivision (1) of this subsection, the Commissioner of Forests, Parks and Recreation shall be permitted to develop State park services, promotional programs, and vacation or special event packages and adjust rates and fees for those services and packages to promote the park system or increase campground occupancy.
    4. Fees charged under this section shall be reported in accordance with 32 V.S.A. § 605 .
  3. The Commissioner or designee shall be the State fire warden and may act as, and in place of, the fire warden of any municipality as provided under subchapter 4 of this chapter.
  4. The provisions of this section shall not be construed to allow the Commissioner to grant oil and gas leases.
  5. Associations of amateur radio operators licensed as such by the U.S. Federal Communications Commission shall not be required to pay a fee or other charge as provided by subsection (c) of this section, as a condition of either a lease or a sublease of State property executed under this title, for access to mountaintop electronic sites designated as such in conformance with policy of the Secretary of Natural Resources, except that each such association shall by January 1 annually pay a $ 25.00 access fee and submit to the Commissioner at that time a list of the association’s current membership.
  6. The Commissioner shall consult with and receive approval from the Commissioner of Buildings and General Services concerning proposed construction or renovation of individual projects involving capital improvements which are expected, either in phases or in total, to cost more than $200,000.00. The Department of Environmental Conservation shall manage all contracts for engineering services for capital improvements made by the Department of Forests, Parks and Recreation.
  7. All interest accrued from bonds deposited in the Agency Fund and forfeited bonds in the Agency Fund for the Department of Forests, Parks and Recreation’s timber management program may be transferred annually by the Commissioner, with the approval of the Commissioner of Finance and Management, to the Natural Resources Management Fund.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1; amended 1981, No. 240 (Adj. Sess.), § 3, eff. April 28, 1982; 1991, No. 83 ; 1999, No. 49 , § 157; 2001, No. 149 (Adj. Sess.), § 89, eff. June 27, 2002; 2009, No. 146 (Adj. Sess.), § B14; 2011, No. 63 , § E.704.1; 2015, No. 23 , § 99.

History

Amendments

—2015. Subdiv. (c)(1): Substituted “shall adopt and publish rules in” for “shall promulgate and publish regulations in”.

—2011. Subsec. (h): Added.

—2009 (Adj. Sess.) Subdiv. (c)(3): Substituted “Notwithstanding subdivision (1) of this subsection, the” for “The”; deleted “experimental” preceding “services”; inserted “and” preceding “vacation”; inserted “and fees” preceding “for”; and substituted “or” for “and” preceding “increase.”

—2001 (Adj. Sess.) Subsec. (g): Added.

—1999. Subsec. (c): Designated the existing text as subdiv. (1), added “notwithstanding section 603 of Title 32” at the end of newly designated subdiv. (1), and added subdivs. (2) through (4).

—1991. Subsec. (f): Added.

—1981 (Adj. Sess.). Subsec. (e): Added.

CROSS REFERENCES

Powers and duties of Department generally, see 3 V.S.A. § 2872 .

ANNOTATIONS

Power to regulate.

Although State had statutory power to regulate use of road in state forest land, State could not lawfully cut off abutting property owner’s right of access to road. Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 762 A.2d 1219, 2000 Vt. LEXIS 174 (2000).

Notes to Opinions

Authority to grant mineral permits.

Under former chapter 71 of this title, state forester had authority to grant permit for persons to prospect for minerals in state forest. 1932 Vt. Op. Att'y Gen. 162.

Authority to lease land.

Under former chapter 71 of this title, no administrative agency had authority to execute contract to lease state land that would obligate state to build ski trails on leased property nor to prohibit any other conveyance for uphill transportation of skiers in leased area in addition to those of lessee. 1940 Vt. Op. Att'y Gen. 186.

Employees.

For opinions discussing deputies and other employees of the department and their classification under former § 2003 of this title, see 1956 Vt. Op. Att'y Gen. 235; 1960-62 Vt. Op. Att'y Gen. 48.

Sale of foods, etc.

Under former law (V.S. 1947, § 7044) forestry department could sell ice cream, soda and candy within a state forest park as a convenience or benefit to those using the park. 1940 Vt. Op. Att'y Gen. 207.

§ 2604. Repealed. 2009, No. 135 (Adj. Sess.), § 26(4)(A).

History

Former § 2604. Former § 2604, relating to state board of forests, parks, and recreation, was derived from 1977, No. 253 (Adj. Sess.), § 1 and amended by 1979, No. 159 (Adj. Sess.), § 13.

§ 2605. Governor’s Council on Physical Fitness and Sports.

  1. The Governor’s Council on Physical Fitness and Sports is created within the Department of Forests, Parks and Recreation, to be composed of 20 members with appropriate interests and representing the various geographical areas of the State. The members shall be appointed by the Governor for staggered terms of two years expiring on March 31 in the appropriate year. The Governor may reappoint any person who has served or is serving as a member of the Council. The Governor shall appoint a member of the Council to serve as chair, and the Council shall elect other officers as needed. The Council shall meet annually and at the call of the Chair.
  2. In order to promote physical fitness, the Council shall have the responsibility to:
    1. develop, foster, and coordinate services and programs of physical fitness for the people of Vermont;
    2. sponsor physical fitness and sports workshops, clinics, conferences, and other similar activities;
    3. give recognition to outstanding developments and achievements in, and contributions to, physical fitness and sports;
    4. stimulate physical fitness research;
    5. collect and disseminate physical fitness and sports information and initiate advertising campaigns promoting physical fitness and sports;
    6. upon request assist schools to develop health and physical fitness programs for students;
    7. encourage local governments and communities to develop local physical fitness programs;
    8. encourage the private sector to develop programs for promotion of personal health and physical fitness;
    9. enlist the support of individuals, civic groups, amateur professional sports associations, and other organizations to promote and improve physical fitness and sports programs;
    10. promote the development of a program of statewide amateur athletic competition to be known as the Green Mountain State Games.  The Games shall be designed to encourage the participation of athletes representing a broad range of age groups, skill levels, and Vermont communities in a variety of activities.  Participants shall be residents of this State. Regional competitions shall be held throughout the State, and the top qualifiers in each sport shall proceed to the final competitions to be held at a site in the State with the necessary facilities and equipment for conducting the competitions.  The frequency of the Games shall be determined by the Council.
  3. The Council may accept grants, gifts, and bequests and enter into contracts to carry out the purposes of this section.

HISTORY: Added 1985, No. 173 (Adj. Sess.), § 1.

History

Editor’s note—

Reference to the “department of forests, parks and recreation” in the first sentence of subsec. (a) is obsolete in view of Executive Order No. 1-92, which transferred the council from the department of forests, parks and recreation to the department of health for administrative purposes. For the text of Executive Order No. 1-92, see chapter 14 of Title 3 Appendix.

§ 2606. Acceptance of gifts; exchange, purchase, or lease of lands.

  1. The Commissioner, with the approval of the Governor, may accept gifts of land or interests in land to the State, or may purchase land or interests in land in the name of the State to be held and administered as State forests, State parks, easement interests, or as interests supporting the management and use of such lands and interests.
  2. Notwithstanding 29 V.S.A. § 166 , with the approval of the General Assembly, which may be granted by resolution, the Commissioner may sell, convey, exchange, or lease lands, or interests in land, or may amend deeds, leases, and easement interests, under his or her jurisdiction when in his or her judgment it is advantageous to the State to do so in the highest orderly development and management of State forests, State parks, or other interests in land.
  3. The Commissioner, with the approval of the Governor, may lease mine, quarry, or other resource sites or rights as may be discovered on State forest or State park lands unconditionally owned by the State.
  4. The Commissioner, with the approval of the Governor, may lease for a term of years, or otherwise, such lands as he or she deems necessary for the protection of State forest or State park lands or for use by the State in connection therewith.
  5. The provisions of this section shall not be construed to allow the Commissioner to grant oil and gas leases.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1; amended 1981, No. 240 (Adj. Sess.), § 4, eff. April 28, 1982; 1997, No. 148 (Adj. Sess.), § 70, eff. April 29, 1998; 2017, No. 89 (Adj. Sess.), § 1, eff. Feb. 28, 2018.

History

Amendments

—2017 (Adj. Sess.). Section amended generally.

—1997 (Adj. Sess.). Subsec. (b): Added “which may be granted by resolution” and made a stylistic change.

—1981 (Adj. Sess.). Subsec. (e): Added.

Effect of 2017 (Adj. Sess.) amendment. 2017, No. 89 (Adj. Sess.), § 3 provides that nothing in Secs. 1 and 2 of this act [which amended this section and 29 V.S.A. § 166 ] shall be interpreted to affect any prior authorization for a land transaction under 10 V.S.A. § 2606(b) or any joint resolution of the General Assembly.

CROSS REFERENCES

Acquisition of interests in land by public agencies, see § 6301 et seq. of this title.

Mines and quarries on public lands other than State forests and parks, see 29 V.S.A. § 301 et seq.

Notes to Opinions

Authority to transfer and lease lands.

The authority to transfer and lease lands existed and always had existed in the office of commissioner of forests and parks. 1966-68 Vt. Op. Att'y Gen. 77. (Decided under former chapter.) .

Purchases.

Provisions requiring approval of state officers and selectmen of towns were applicable only to acquisition of land by state from federal government; therefore, purchase from a private corporation could be made by the state forester with approval of governor. 1946 Vt. Op. Att'y Gen. 132. (Decided under former chapter.) .

§ 2606a. Mountaintop use as communications sites.

  1. State policy.   It is hereby adopted as State policy to permit limited use of designated State-owned land under the jurisdiction of the Department for electronic communications broadcasting by both public and private entities. Use of the designated sites shall be in compliance with the policy set forth herein under the management of government and private users of the mountaintops. This policy implementation has the objectives of:
    1. protecting State-owned mountaintops from the development of new communications facilities that have a significant adverse environmental impact;
    2. protecting mountaintop communication signals from interference by existing or subsequent users; and
    3. maximizing use of limited mountaintop facilities through consolidation of equipment, efficient development and economic management of each site.
  2. Specific sites.
    1. Mountaintop designation.   The State-owned mountaintops to which this section shall apply are: Ascutney Mountain North Peak and Ascutney Mountain South Peak, Burke Mountain, Okemo Mountain, and Killington Mountain.
    2. -(5) [Repealed.]

HISTORY: Added 1993, No. 233 (Adj. Sess.), § 63, eff. June 21, 1994; amended 1995, No. 185 (Adj. Sess.), § 10d, eff. May 22, 1996; 2009, No. 135 (Adj. Sess.), § 4; 2009, No. 135 (Adj. Sess.), § 26(4)(B).

History

Amendments

—2009 (Adj. Sess.) Subdiv. (b)(1): Amended generally.

Subdivs. (b)(2)-(5): Repealed.

—1995 (Adj. Sess.) Subdiv. (b)(4): Substituted “by rule by the secretary of natural resources under chapter 25 of Title 3” for “by the general assembly” in the second sentence.

§ 2606b. License of forestlands for maple sugar production.

  1. The General Assembly finds and declares that:
    1. Maple sugaring is an important cultural tradition of Vermont life that should be maintained and encouraged.
    2. Maple sugaring is an important component of the agricultural and forest products economy in Vermont and is increasingly necessary for farmers that must diversify in order to continue to farm in Vermont.
    3. Maple sugaring is a sustainable use of forestland.
    4. State forestland should be managed and used for multiple uses, including maple sugar production.
  2. It is hereby adopted as State policy to permit limited use of designated State-owned land under the jurisdiction of the Department for maple sugar production.
  3. Pursuant to guidelines developed by the Department of Forests, Parks and Recreation, in consultation with the Vermont Maple Sugar Makers’ Association, the Department may issue licenses for the use of State forestland for the tapping of maple trees, the collection of maple sap, and the transportation of such sap to a processing site located off State forestland or to sites located on State forestland if approved by the Commissioner. All tapping of maple trees authorized under a license shall be conducted according to the guidelines for tapping maple trees established by the Department of Forests, Parks and Recreation, in consultation with the Vermont Maple Sugar Makers’ Association. Each person awarded a license under this section shall maintain and repair any road, water crossing, or work area according to requirements set by the Department in the license. Each license shall include such additional terms and conditions set by the Department as may be necessary to preserve forest health and to ensure compliance with the requirements of this chapter and applicable rules. A license shall be issued for a fixed term not to exceed five years and shall be renewable for two five-year terms subsequent to the initial license. Subsequent renewals shall be allowed where agreed upon by the Department and the licensee. The Department shall have power to terminate or modify a license for cause, including damage to forest health.
  4. The Commissioner may adopt rules to implement the requirements of this section.
  5. There is hereby established the Maple Advisory Board to provide the Commissioner of Forests, Parks and Recreation with guidance on licensing of State forestland for maple sugar production, including identification of potential sites on State lands for licensure. The Board shall be composed of:
    1. Three employees of the Department of Forests, Parks and Recreation, appointed by the Commissioner.
    2. Three sugar makers, at least one of which is an independent sugar maker unaffiliated with an association, appointed by the Secretary of Agriculture, Food and Markets.
    3. One member of the Vermont Forest Products Association designated by the Association.
    4. One member of either the University of Vermont Proctor Maple Research Center or the University of Vermont Agricultural Extension Service, appointed by the Commissioner.
  6. A per tap license charge shall be imposed on the taps installed in the license area. The Commissioner shall establish this per tap license charge at a reasonable rate that reflects current market rates. Charges collected under this section shall be deposited in the Lands and Facilities Trust Fund established under 3 V.S.A. § 2807 .
  7. [Repealed.]

HISTORY: Added 2009, No. 21 , § 1; amended 2015, No. 171 (Adj. Sess.), § 9.

History

Amendments

—2015 (Adj. Sess.). Substituted “forestlands” for “forest lands” in the section heading and “forestland” for “forest land” throughout the section and rewrote subsecs. (c) and (f).

§ 2607. Natural areas; designation.

  1. The Commissioner, with the approval of the Governor, may designate and set aside areas in the State forests and State parks as natural areas.
  2. “Natural areas” means limited areas of land that have retained their wilderness character, although not necessarily completely natural and undisturbed, or have rare or vanishing species of plant or animal life or similar features of interest that are worthy of preservation for the use of present and future residents of the State and may include unique ecological, geological, scenic, and contemplative recreational areas on State lands.
  3. Land uses and practices in natural areas shall be subject to regulations of the Department to carry out the purposes of this chapter to manage or maintain the areas for the preservation of their natural condition.  Areas so designated may be removed from such designation only by approval of the Governor following public notice and hearing.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

§ 2608. Enforcement; penalties; liability.

Enforcement of the provisions of this chapter or rules adopted hereunder shall be in accordance with chapter 201 or 211 of this title.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1; amended 2015, No. 171 (Adj. Sess.), § 4.

History

Amendments

—2015 (Adj. Sess.). Rewrote the section.

§ 2609. Forest Parks Revolving Fund.

There is hereby established in the State Treasury a fund to be known as the State Forest Parks Revolving Fund, to be administered by the Commissioner of Forests, Parks and Recreation from which payments may be made for the planning, design, development, operation, and maintenance of State parks.

There shall be deposited in said fund all monies that are received from State parks and forest recreational areas including those received from fees, leases, licenses, concessions, rentals, or sales, together with such sums as may be appropriated to said Fund by the Legislature. All balances in such Fund at the end of any fiscal year shall be carried forward and remain a part of such Fund.

HISTORY: Added 1979, No. 13 , § 45, retroactive to July 1, 1978.

§ 2609a. Income from lease of mountaintop communication sites.

Annually on or before February 15, the Agency of Natural Resources shall submit a report to the Senate Committee on Natural Resources and Energy and the House Committees on Energy and Technology and on Natural Resources, Fish, and Wildlife containing an itemization of the income generated through the end of the previous fiscal year from the use of sites for communication purposes.

HISTORY: Added 1995, No. 185 (Adj. Sess.), § 10b, eff. May 22, 1996; amended 2011, No. 139 (Adj. Sess.), § 8, eff. May 14, 2012; 2017, No. 113 (Adj. Sess.), § 44d.

History

Amendments

—2017 (Adj. Sess.). Inserted “or before” preceding “February”, substituted “Committee” for “and House Committees” following “Senate”, and inserted “and the House Committees on Energy and Technology and on Natural Resources, Fish, and Wildlife” preceding “containing”.

—2011 (Adj. Sess.). Substituted “house committees on natural resources and energy” for “house appropriations committees, the senate finance committee and the house ways and means committee”.

Report repeal delayed. 2015, No. 131 (Adj. Sess.), § 16 provides: “The reports set forth in this section shall not be subject to review under the provisions of 2 V.S.A. § 20(d) (expiration of required reports) until July 1, 2020”

§ 2610. Relocation assistance; when required.

  1. When the Department undertakes any project that results in the acquisition of real property subject to the provisions of the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. No. 91-646, 84 Stat. 1894 (1971), as amended, and as a result of that acquisition a person is displaced from his or her home, business, or farm, the Department shall provide relocation assistance and make relocation payments to the displaced person in compliance with the Federal Uniform Relocation Act.
  2. Payments made under this section shall not be deemed compensation for real property acquired or compensation for damages to remaining property.
  3. The Department may adopt rules necessary to administer the provisions of this section.  Such rules shall be consistent with the Federal Uniform Relocation Act and applicable federal regulations.

HISTORY: Added 1989, No. 5 , eff. April 1, 1989.

History

References in text.

The Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, referred to in subsec. (a) of this section, is codified as 42 U.S.C. § 4601 et seq.

CROSS REFERENCES

Procedure for adoption of administrative rules, see 3 V.S.A. part 1, chapter 25.

§ 2611. Vermont Youth Conservation Corps.

  1. The Secretary of Natural Resources in cooperation with the Commissioner of Labor is hereby directed to develop and implement a youth work, education, and community service program to improve, restore, maintain, and conserve public buildings, lands, waters, and parks.
  2. The Vermont Youth Conservation Corps program may be offered throughout the year. It shall be the purpose of the program to provide economic, vocational, community service, and educational opportunities for Vermont youths. At least half of the youths enrolled in the program shall be disadvantaged.
  3. To effectuate the purposes of this section, the Secretary may:
    1. Employ a Vermont Youth Conservation Corps director or coordinator and the support staff necessary to direct, supervise, and implement the program.
    2. Subject to the limitations of 32 V.S.A. § 5 , apply for and accept grants or contributions from funds from any public or private source.
    3. Purchase a policy of liability insurance for the benefit of the State, its employees, and enrollees while performing their official duties pursuant to the provisions of this section.
    4. Enter into an agreement with the Vermont Youth Conservation Corps, Inc. regarding the cooperative management and operation of the Youth Conservation Corps program.

HISTORY: Added 1993, No. 153 (Adj. Sess.), § 1, eff. May 11, 1994; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments

—2005 (Adj. Sess.). Subsec. (a): Substituted “commissioner of labor” for “commissioner of employment and training”.

§ 2612. Designation; Vermont Youth Conservation Corps, Inc.

  1. The Vermont Youth Conservation Corps, Inc. is designated the organization in the State to accept federal and State funds and private donations for the purpose of developing and maintaining the Vermont Youth Conservation Corps program.
  2. The Vermont Youth Conservation Corps, Inc. and the Department of Forests, Parks and Recreation shall enter into a management agreement for the purpose of managing and operating the program.
  3. [Repealed.]

HISTORY: Added 1993, No. 153 (Adj. Sess.), § 2, eff. May 11, 1994; amended 2011, No. 139 (Adj. Sess.), § 51, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.) Subsec. (c): Repealed.

§ 2613. Abenaki place names in State parks.

The Commissioner, before installing new signs or replacing existing signs in a State park, shall consult with the Vermont Commission on Native American Affairs to determine if there is an Abenaki name for any site within the park. If the Commission on Native American Affairs advises the Commissioner of an Abenaki name, the Abenaki name shall be displayed with the English name.

HISTORY: Added 2019, No. 174 (Adj. Sess.), § 1, eff. Jan. 1, 2021.

History

List of places with Abenaki names. 2019, No. 174 (Adj. Sess.), § 2 provides: “On or before March 15, 2021, the Vermont Commission on Native American Affairs shall prepare a list of places and landmarks with Abenaki names. If there are multiple names or spelling variations for a place, the Commission shall select a name or spelling to be used on signs in State parks. The Commission shall present the list to the Commissioner of Forests, Parks and Recreation in order to facilitate the construction of signs as required under 10 V.S.A. § 2613 . The Commission shall also determine if there are sites outside of State parks with Abenaki names for which new signs should be considered.”

Subchapter 2. Forest Conservation

§ 2621. Duties of owners.

It shall be the duty of a landowner or operator of forestland, whether public or private, to manage, operate, and harvest forest crops that promote conditions favorable for regrowth consistent with the policies of this chapter. All forestland on which a lumbering operation is conducted should be left by the owner or operator in a favorable condition for regrowth by preserving trees of commercial species sufficient under normal conditions to maintain continuous forest growth or restocking so as to ensure continuous or successive forest crops. So far as practicable, all desirable seedlings and saplings should be protected during logging operations. When necessary, reforestation practices should be employed to ensure renewed forest growth after harvesting of forest crops.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

§ 2622. Rules; harvesting timber; forests; acceptable management practices for maintaining water quality.

  1. Silvicultural practices.   The Commissioner shall adopt rules to establish methods by which the harvest and utilization of timber in private and public forestland will be consistent with continuous forest growth, including reforestation, will prevent wasteful and dangerous forestry practices, will regulate heavy cutting, will encourage good forestry management, will enable and assist landowners to practice good forestry management, and will conserve the natural resources consistent with the purposes and policies of this chapter, giving due consideration to the need to ensure continuous supplies of forest products and to the rights of the owner or operator of the land. The rules adopted under this subsection shall be advisory and not mandatory except that the rules adopted under section 2625 of this title for the regulation of heavy cutting shall be mandatory as shall other rules specifically authorized to be mandatory.
  2. Acceptable management practices.   On or before July 1, 2016, the Commissioner shall revise by rule the Acceptable Management Practices for Maintaining Water Quality on Logging Jobs in Vermont. The revised acceptable management practices shall ensure that all logging operations, on both public and private forestland, are designed to: prevent or minimize discharges of sediment, petroleum products, and woody debris (logging slash) from entering streams and other bodies of water; improve soil health of forestland; protect aquatic habitat and aquatic wildlife; and prevent erosion and maintain natural water temperature. The purpose of the acceptable management practices is to provide measures for loggers, foresters, and landowners to utilize, before, during, and after logging operations, to comply with the Vermont Water Quality Standards and minimize the potential for a discharge from logging operations in Vermont in accordance with section 1259 of this title. The rules adopted under this subsection shall be advisory and not mandatory.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1; amended 1997, No. 15 , § 1, eff. May 6, 1997; 2015, No. 64 , § 49.

History

Amendments

—2015. Section heading: Added “acceptable management practices for maintaining water quality” to the section heading.

Subsec. (a): Added the first sentence, substituted “the rules adopted under this subsection” for “such rules” at the beginning of the third sentence, and added “for the regulation of heavy cutting” preceding “shall be mandatory” near the end of the last sentence.

Subsec. (b): Added.

—1997. Section amended generally.

§ 2622a. Water Quality Assistance Program.

  1. Creation of program.   There is established the Water Quality Assistance Program under which the Commissioner of Forests, Parks and Recreation shall provide technical and financial assistance to timber harvesters and others for compliance with water quality requirements in the State. The Commissioner of Forests, Parks and Recreation shall coordinate with natural resources conservation districts in the implementation of the Program.
  2. Eligible assistance.   Under the Program, the Commissioner of Forests, Parks and Recreation is authorized to expend monies for the following activities in order to facilitate compliance with water quality requirements:
    1. Award financial assistance in the form of grants to timber harvesters and others to purchase or construct skidder bridges and other equipment.
    2. Purchase premade skidder bridges and other equipment to loan or lease to timber harvesters and others.
    3. Purchase available, premade skidder bridges and other equipment and provide those bridges or equipment to cooperating processing plants for sale to timber harvesters and others at cost, subject to storage and handling fees.
    4. If premade skidder bridges are not available on the commercial market, issue in a calendar year two requests for proposal for the construction of skidder bridges for delivery to cooperating processing plants for sale to timber harvesters and others at cost, subject to storage and handling fees. The Commissioner shall issue one request for proposal for the northern part of the State and one request for proposal for the southern part of the State.
  3. Financial assistance.   An applicant for a grant under this section shall pay at least 10 percent of the total cost of the equipment. The dollar amount of a State grant shall be equal to the total cost of the equipment, less 10 percent of the total as paid by the applicant. A grant awarded under this section shall be awarded in accordance with terms and conditions established by the Commissioner.
  4. Spill kit.   The Commissioner shall provide a person who purchases, constructs, or loans out a skidder bridge under subsection (b) of this section with a spill kit for containing or absorbing fluids released during timber harvesting activities.

HISTORY: Added 2017, No. 75 , § 14, eff. June 12, 2017.

§ 2622b. Accident prevention and safety training for logging contractors.

  1. Training Program.   The Commissioner of Forests, Parks and Recreation shall develop a logging operations accident prevention and safety training curriculum and supporting materials to assist logging safety instructors in providing logging safety instruction. In developing the logging operations accident prevention and safety training curriculum and supporting materials, the Commissioner shall consult with and seek the approval of the training curriculum by the Workers’ Compensation and Safety Division of the Department of Labor.
    1. The accident prevention and safety training curriculum and supporting materials shall consist of an accident prevention and safety course that addresses the following:
      1. safe performance of standard logging practices, whether mechanized or nonmechanized;
      2. safe use, operation, and maintenance of tools, machines, and vehicles typically utilized and operated in the logging industry; and
      3. recognition of health and safety hazards associated with logging practices.
    2. The Commissioner shall make the accident prevention and safety training curriculum and supporting materials available to persons, organizations, or groups for presentation to individuals being trained in forest operations and safety.
  2. Request for proposal.   The Commissioner shall prepare and issue a request for proposal to develop at least three course curriculums and associated training materials. The Commissioner may cooperate with any reputable association, organization, or agency to provide course curriculums and training required under this subsection.
  3. Certificate of completion.   The Commissioner, any logging safety instructor, or a logger safety certification organization shall issue a certificate of completion to each person who satisfactorily completes a logging operations accident prevention and safety training program based on the curriculum developed under this section.

HISTORY: Added 2019, No. 83 , § 10.

§ 2622c. Financial assistance; logger safety; master logger certification; cost-share.

  1. The Commissioner of Forests, Parks and Recreation annually shall award grants to the following entities in order to provide financial assistance to loggers for the purposes of improving logger safety and professionalism:
    1. to the Vermont Logger Education to Advance Professionalism (LEAP) program to provide financial assistance to logging contractors for the costs of logger safety training or continuing education in logger safety; and
    2. to the Trust to Conserve Northeast Forestlands for the purpose of annually paying for up to 50 percent, but not more than $1,500.00, of the costs of the initial certification of up to 10 logging contractors enrolled in the Master Logger Certification Program.
  2. The following costs to a logging contractor shall be eligible for assistance under the grants awarded under subsection (a) of this section:
    1. the costs of safety training, continuing education, or a loss prevention consultation;
    2. the costs of certification under the Master Logger Program administered by the Trust to Conserve Northeast Forestlands; or
    3. the costs of completion of a logging career technical education program.
  3. A grant awarded under this section shall pay up to 50 percent of the cost of an eligible activity.

HISTORY: Added 2019, No. 83 , § 10.

§ 2623. Reports, management plans, and licensing.

In order to implement the purpose and policies of this subchapter, the Commissioner may:

  1. Require the filing of an annual report by a mill operator covering timber products cut, lumber produced, and source of timber.  Such report shall be in conformity with reports required by other agencies.
  2. Accept a management plan presented by a forest owner or operator as alternative to compliance with any rules issued under this subchapter.  A plan, when approved by the Commissioner, shall be deemed to be in compliance with the regulations issued under this subchapter so long as the plan is complied with.
  3. Require the annual licensing and registration of portable sawmills, portable chip harvesters, and other similar portable forest product utilization systems.  The operator receiving a license shall comply with all requirements stipulated for the operation of such equipment.  Regulations relating to licensing requirements shall be adopted in accordance with 3 V.S.A. chapter 25.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

ANNOTATIONS

Cited.

Cited in Vermont Agency of Transportation v. Sumner, 142 Vt. 577, 460 A.2d 446, 1983 Vt. LEXIS 458 (1983).

§ 2624. Marked timber sales.

  1. The Department of Forests, Parks and Recreation may provide marked timber to Vermont citizens for personal use at a reasonable price to be determined by the Secretary of Natural Resources.
  2. The Commissioner of Forests, Parks and Recreation may establish a firewood-for-homes program. As part of this program, the Commissioner shall designate areas of State-owned lands, situated at various locations throughout the State, that will be available to members of the general public for harvesting firewood for purposes of heating their own homes.

HISTORY: Added 1979, No. 205 (Adj. Sess.), § 124, eff. May 9, 1980; amended 1987, No. 76 , § 18; 2007, No. 192 (Adj. Sess.), § 6.003.

History

Amendments

—2007 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a) and added subsec. (b).

—1987. Substituted “agency of natural resources” for “agency of environmental conservation” at the end of the section.

§ 2625. Regulation of heavy cutting.

  1. Definitions.   For purposes of this section, the following definitions shall apply:
    1. “Acceptable growing stock” means a stem having a diameter of 4.5 inches or greater at breast height that has the potential of producing a sawlog product of a commercial species of any grade, now or in the future.
    2. “Heavy cut” means a harvest leaving a residual stocking level of acceptable growing stock below the C-line, as defined by the U.S. Department of Agriculture silvicultural stocking guides for the applicable timber type.
      1. “Landowner” means a person or entity that owns or controls the land or the right to harvest timber or other wood products, including: (3) (A) “Landowner” means a person or entity that owns or controls the land or the right to harvest timber or other wood products, including:
        1. an individual, partnership, corporation, association, unincorporated organization, trust, or other legal or commercial entity, including a joint venture or affiliated ownership;
        2. a municipality or State agency;
        3. individuals and entities affiliated with each other for profit, consideration, or any other beneficial interest derived from the harvest of timber or other wood products;
        4. an individual’s parents, children, and spouse, unless the individual establishes that he or she will derive no profit or consideration, or acquire any other beneficial interest from the harvest of timber or other wood products by the parent, child, or spouse.
      2. The following individuals and entities shall be presumed not to be affiliated for the purpose of profit, consideration, or other beneficial interest within the meaning of this chapter, unless there is substantial evidence of an intent to evade the purposes of this chapter:
        1. a stockholder in a corporation shall be presumed not to be affiliated with others, solely on the basis of being a stockholder, if the stockholder and the stockholder’s spouse, parents, children, and siblings own, control, or have a beneficial interest in less than five percent of the outstanding shares in the corporation;
        2. an individual shall be presumed not to be affiliated with others, solely for actions taken as an agent of another within the normal scope of duties of a court appointed guardian, a licensed attorney, real estate broker, or salesperson, engineer, land surveyor, forester, or retail or wholesale vendor of wood products, unless the compensation received or beneficial interest obtained as a result of these duties indicates more than an agency relationship;
        3. a seller or chartered lending institution shall be presumed not to be affiliated with others, solely for financing all or a portion of the purchase price at rates not substantially higher than prevailing lending rates in the community, and subsequently granting a partial release of the security when the buyer harvests timber or other wood products;
        4. a logging contractor shall be presumed not to be affiliated with others solely for conducting a harvest of timber or other wood products, while subject to supervision and control of a landowner, unless the logging contractor holds an ownership interest in the land or standing timber or is affiliated with others holding an ownership interest in the land or standing timber.
  2. Notice of intent to cut.   The following landowners shall file a notice of intent to cut with a Department field forester at least 15 days before commencing a heavy cut:
    1. A landowner who intends to conduct a heavy cut of 40 acres, or more, on land owned or controlled by the landowner.
    2. A landowner who intends to conduct a heavy cut and has conducted heavy cuts on other lands owned or controlled by the landowner, within the five previous years:
      1. within a radius of 1,000 feet of the proposed harvest, so that the total acreage subjected to a heavy cut has exceeded or will exceed 40 acres; or
      2. within a radius of two miles of the proposed harvest, so that the acreage subjected to a heavy cut has exceeded or will exceed 80 acres.
  3. Exemptions.   Upon the filing of a notice of intent to cut, a Department field forester shall determine that the cut is exempt, and that no further review is necessary, if one of the following apply:
    1. The landowner has filed the notice of intent to cut for informational purposes, even though the proposed harvest is not subject to regulation as a heavy cut under the provisions of this section.
    2. The landowner certifies that the proposed heavy cut is intended to carry out an agricultural conversion plan, and that the conversion will be completed and the land will be in agricultural production within five years.
    3. The landowner certifies that the proposed heavy cut is intended to carry out a conversion that is subject to regulation by a district environmental commission under chapter 151 of this title or by the Public Utility Commission under Title 30.
    4. The landowner certifies that the proposed heavy cut is consistent with one of the following:
      1. A forest management plan currently in effect and approved by the Department under the current use assessment program.
      2. A chip harvesting plan currently in effect and approved by the Department of Fish and Wildlife under a permit issued under 30 V.S.A. § 248 .
      3. Another forest management plan currently in effect and approved by the Department under Department rules in effect at the time of approval of the plan.
  4. Authorization to proceed.   If an exemption does not apply and the applicable fee has been paid, a Department field forester shall review the proposed heavy cut. If the proposal is in conformance with the applicable rules adopted by the Department, a Department field forester shall issue authorization to proceed. If the proposed heavy cut is not in conformance with the rules, authorization to proceed shall be denied and the proposed heavy cut shall be prohibited.
  5. Processing of a notice of intent to cut.
    1. Within 15 days of the filing of a notice of intent to cut, a Department field forester shall notify a landowner if a notice of intent is incomplete and more information is required in order to determine whether or not an exemption applies.
    2. Within 15 days of the filing of a complete notice of intent, a Department field forester:
      1. shall determine whether or not a proposed heavy cut is exempt; and
      2. in case a proposed heavy cut is not exempt, shall determine whether authorization to proceed shall be issued or denied; and
      3. shall notify the landowner, and any town in which the cut is proposed, of that determination or those determinations.
    3. If, within the relevant 15-day period, a Department field forester fails to make a determination regarding exemption or fails to request additional required information from a landowner, the proposed heavy cut shall be deemed to be exempt from the review requirements of this section. This exemption shall not relieve the landowner from conforming with the requirements of the approved management or chip harvesting plan, the proposed harvest plan described in the notice of intent to cut, or any applicable rules adopted by the Department.
  6. Appeals.   If the exemption is denied or if authorization to proceed is denied, the landowner shall have 30 days in which to file an appeal with the Commissioner.
    1. Upon the filing of an appeal, the Commissioner may appoint a review team of natural resources professionals to visit the site, gather information about the proposed heavy cut, and make recommendations to the Commissioner. The Commissioner may also appoint a hearing officer to take sworn statements of the landowner, the review team, and other witnesses called by the landowner or the hearing officer, and make recommendations to the Commissioner.
    2. The Commissioner shall issue a decision in writing within 30 days of the receipt of an appeal.
    3. Appeals of the Commissioner’s decision shall be made in accordance with chapter 220 of this title.
  7. Rulemaking authority.   The Commissioner shall adopt rules relating to heavy cutting subject to the notice of intent to cut requirements established by this section. The rules shall establish:
    1. Silvicultural guidelines and forestry standards.
    2. Requirements with respect to soil productivity, water quality, wetlands, riparian zones, significant wildlife habitat areas, unique or fragile areas, regeneration, scenic quality, and unusual environmental events such as those causing severe damage from wind, ice, disease, or insect infestation.
    3. Procedures relating to the filing and processing of a notice of intent to cut.
  8. Fees.   There shall be a fee of $100.00 for filing a notice of intent to cut for a cut that is not exempt from review under the provisions of subsection (c) of this section and when a field review is required to assess the proposed cut. Fees paid for proposals that are later deemed to be entitled to an exemption shall be returned to the landowner. Fees shall be deposited into the environmental permit fund established under 3 V.S.A. § 2805 .
  9. Applicability to public lands.
    1. The provisions of this section shall apply to heavy cuts on public lands, except that no heavy cut may occur on certain lands owned by the Agency of Natural Resources, unless the proposed heavy cut is included in the State’s management plan that has been adopted subsequent to a public review process.
    2. Any heavy cut on public lands shall be conducted in accordance with applicable rules adopted by the Commissioner.
  10. Enforcement.   A violation of the provisions of this section or the rules adopted under this section, false certification under this section, and noncompliance with a harvesting plan or a management plan that constitutes an exemption to this section shall each constitute a violation as defined under chapter 201 of this title and shall be subject to enforcement under that chapter and under chapter 211 of this title.

HISTORY: Added 1997, No. 15 , § 3, eff. May 6, 1997; amended 2003, No. 115 (Adj. Sess.), § 45, eff. Jan. 31, 2005.

History

Revision note

—2017. In subdiv. (c)(3), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

Amendments

—2003 (Adj. Sess.). Subdiv. (c)(3): Deleted “and the environmental board” following “commission”, “10 V.S.A.” preceding “chapter 151” and inserted “of this title” following “chapter 151”.

Subdiv. (f)(3): Rewrote the subdiv.

Adoption and status report of emergency rules regulating heavy cutting; education program. 1997, No. 15 , § 5, eff. May 6, 1997, as amended by 1997, No. 59 , § 89c, eff. June 30, 1997, provided:

“(a) Notwithstanding provisions to the contrary located in chapter 25 of Title 3, rules required by section 2625(g) of Title 10 shall, by July 1, 1997, be adopted as emergency rules and in use to implement this act, and shall remain in effect until amended through the normal rulemaking process.

“(b) By July 1, 1997, the commissioner, in cooperation with the forest products industry, shall develop an educational program designed to provide information to landowners, loggers and other interested parties, concerning:

“(1) this act;

“(2) rules adopted pursuant to this act;

“(3) filling out a completed application; and

“(4) fostering a working knowledge for loggers and landowners of the meaning of a ‘heavy cut’, including a working knowledge of what constitutes a residual stocking level of acceptable growing stock below the C-line, as defined by the U.S. Department of Agriculture (USDA) silvicultural stocking guides for the applicable timber type.

“(c) Training sessions shall be offered at no charge for purposes of allowing landowners, logging contractors and other interested parties to be able to comply with the provisions of this act.

“(d) Informational material developed for purposes of this act shall be made available upon request.

“(e) It shall be a primary purpose of the education program required by this section to allow landowners, logging contractors and other interested persons to be able to comply with the provisions of this act.

“(f) In the event an application is deemed by the department to be incomplete, the application shall be returned within 48 hours of such determination to the applicant.”

1997, No. 15 , § 6, eff. May 6, 1997, provided: “The commissioner of forests, parks and recreation shall report to the legislature by January 15, 1999 on the status of the rulemaking process required under this act, and by January 15, 2002 on the impact of this act on the forest products industry and on the sustainability of Vermont’s forest resources.”

Subchapter 3. State Nurseries

§§ 2631, 2632. Repealed. 1993, No. 233 (Adj. Sess.), § 47(a), eff. July 1, 1995.

History

Former §§ 2631, 2632. Former §§ 2631, 2632, relating to state nurseries, were derived from 1977, No. 253 (Adj. Sess.), § 1.

Subchapter 4. Forest Fires and Fire Prevention

§ 2641. Town forest fire wardens; appointment and removal.

  1. Upon approval by the selectboard and acceptance by the appointee, the Commissioner shall appoint a town forest fire warden for a term of five years or until a successor is appointed. A town forest fire warden may be reappointed for successive five-year terms by the Commissioner or until a successor is approved by the selectboard and appointed by the Commissioner. The warden may be removed for cause at any time by the Commissioner with the approval of the selectboard. A warden shall comply with training requirements established by the Commissioner.
  2. The Commissioner may appoint a forest fire warden for an unorganized town or gore, who shall serve for a term of five years or until a successor is appointed. An appointed forest fire warden for an unorganized town or gore may be reappointed for successive five-year terms by the Commissioner until the Commissioner appoints and the unorganized town or gore approves a successor. The warden may be removed for cause at any time by the Commissioner with the approval of the unorganized town or gore. The forest fire warden of an unorganized town or gore shall have the same powers and duties as town forest fire wardens and shall be subject to the requirements of this subchapter.
  3. When there are woodlands within the limits of a city, the chief of the fire department of such city shall act as the city forest fire warden with all the powers and duties of town forest fire wardens.
  4. When the Commissioner deems it difficult in any municipality for one warden to take charge of protecting the entire municipality from forest fires, he or she may appoint one or more deputy forest fire wardens. Such wardens under the direction of the fire warden shall have the same powers, duties, and pay and make the same reports through the fire warden to the Commissioner as forest fire wardens.
  5. The Commissioner may appoint special forest fire wardens who shall hold office during the pleasure of the Commissioner. Such fire wardens shall have the same powers and duties throughout the State as town forest fire wardens, except that all expenses and charges incurred on account of their official acts shall be paid from the appropriations for the Department.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1; amended 1987, No. 107 , § 1; 2015, No. 171 (Adj. Sess.), § 11.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—1987. Subsec. (a): Amended generally.

Expiration of terms of office of fire wardens. 1987, No. 107 , § 4, provided: “The terms of office of incumbent town forest fire wardens shall expire in accordance with the provisions of this section. On July 1, 1988 and on July 1 of each of the following four years, the terms of office of approximately 20 percent of the town forest fire wardens in each county who were appointed prior to the effective date of this act [July 1, 1987] shall expire. Terms of office shall expire according to a schedule established by the commissioner. On or before January 15, 1988, the commissioner shall establish the schedule which shall list all town forest fire wardens and the date each warden’s previously appointed term shall expire.”

CROSS REFERENCES

Municipal fire departments, see 24 V.S.A. § 1951 et seq.

Northeastern Forest Fire Protection Compact, see § 2461 et seq. of this title.

Unorganized towns and gores generally, see 24 V.S.A. § 1401 et seq.

Unified towns and gores in Essex County, see 24 V.S.A. § 1351 et seq.

§ 2642. Salary and compensation of town forest fire wardens.

  1. The salary of a town forest fire warden shall be determined by the selectboard members for time spent in the performance of the duties of his or her office, which shall be paid by the town. In addition thereto, he or she shall receive from the Commissioner $30.00 annually for fulfilling the requirements of section 2645 of this title and keeping the required State records. He or she shall also receive from the Commissioner $30.00 per diem for attendance at each training required by the Commissioner. He or she shall also receive annually an amount of $10.00 for each fire report that is submitted by the forest fire warden under section 2644 of this title.
  2. , (c)[Repealed.]

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1; amended 1983, No. 195 (Adj. Sess.), § 5(b); 2015, No. 171 (Adj. Sess.), § 11.

History

Revision note—

Substituted “commissioner of finance and management” for “commissioner of finance and information support” near the end of subsec. (b) in light of Executive Order No. 35-87, which provided for the abolition of the department of finance and information support and the transfer of the duties, responsibilities and authority of the commissioner of that entity to the commissioner of the department of finance and management as established by the order. By its own terms, Executive Order No. 35-87 took effect on July 1, 1987, pursuant to section 2002 of Title 3. For the text of Executive Order No. 35-87, see chapter 1 of Title 3 Appendix.

In the fourth sentence of subsec. (c), substituted “a civil action” for “an action of contract” pursuant to V.R.C.P. 2 and 81(c) and 1971, No. 185 (Adj. Sess.), § 236(d), set out under § 219 of Title 4.

Amendments

—2015 (Adj. Sess.). Section heading: Inserted “town forest” preceding “fire wardens”.

Subsec. (a): Amended generally.

Subsecs. (b) and (c): Repealed.

—1983 (Adj. Sess.). Subsec. (b): Inserted “and information support” following “commissioner of finance”.

CROSS REFERENCES

Payment of game warden acting as forest fire warden, see § 4195 of this title.

§ 2643. Town’s liability for suppression of forest fires; State aid.

  1. A municipality in which a forest fire occurs shall pay the cost to suppress a forest fire that occurs on land that is not owned by the Agency of Natural Resources, including the costs of personnel and equipment. The Commissioner may, according to the Department fire suppression reimbursement policy, reimburse a municipality for all or a portion of the costs of suppressing a forest fire on land that is not owned by the Agency of Natural Resources.
  2. For the purpose of suppressing forest fires on lands owned by the Agency of Natural Resources, the State shall reimburse a town for all its forest fire suppression costs at a rate determined by the Commissioner according to the Department fire suppression reimbursement policy. If the total acreage of a forest fire is determined to be partially on land owned by the Agency of Natural Resources and partially on land owned by another party, the Commissioner shall, at a minimum, reimburse the town at a rate determined by the Commissioner according to the Department fire suppression reimbursement policy for costs incurred by the municipality on land owned by the Agency of Natural Resources.
  3. For any forest fire on lands owned by the Agency of Natural Resources to be considered eligible for reimbursement from the State, a town forest fire warden shall have reported the forest fire to the Commissioner within 14 days of extinguishment of the fire as required under section 2644 of this title. For reimbursement of fire suppression costs for forest fires on land owned by the Agency of Natural Resources, the town forest fire warden and the Commissioner or designee shall approve the costs before submission to the municipality for payment. The town forest fire warden may submit to the State on an annual basis a request for reimbursement of fire suppression costs on lands owned by the Agency of Natural Resources. The State shall reimburse a town for all applicable forest fire suppression costs when the reimbursement request is presented in a form approved by the Commissioner to the Commissioner by December 31 of each year.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1; amended 2015, No. 171 (Adj. Sess.), § 11.

History

Amendments

—2015 (Adj. Sess.). Rewrote the section.

§ 2644. Duties and powers of fire warden.

  1. When a forest fire or fire threatening a forest is discovered in his or her town, the town forest fire warden shall enter upon any premises and take measures for its prompt control, suppression, and extinguishment. The town forest fire warden may call upon any person for assistance. The town forest fire warden may choose to share or delegate command authority to a chief engineer of a responding fire department or, in the chief’s absence, the highest ranking assistant firefighter present during the fire.
  2. A town forest fire warden shall keep a record of his or her acts, the number of fires and causes, the areas burned over, and the character and amount of damages done in the warden’s jurisdiction. Within two weeks after the extinguishment of a fire, the town forest fire warden shall report the fire to the Commissioner, but the making of a report under this subsection shall not be a charge against the town.
  3. [Repealed.]

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1; amended 2015, No. 171 (Adj. Sess.), § 11.

History

Amendments

—2015 (Adj. Sess.). Subsecs. (a) and (b): Amended generally.

Subsec. (c): Repealed.

CROSS REFERENCES

Powers of game wardens as to forest fires, see § 4195 of this title.

§ 2645. Open burning; permits.

  1. Except as otherwise provided in this section, a person shall not kindle or authorize another person to kindle a fire in the open air for the purpose of burning natural wood, brush, weeds, or grass without first obtaining permission from the town forest fire warden or deputy forest fire warden, stating when and where such fire may be kindled. Wood, brush, weeds, or grass may not be burned if they have been altered in any way by surface applications or injection of paints, stains, preservatives, oils, glues, or pesticides. Whenever such permission is granted, the fire warden, within 12 hours, shall issue a written “Permit to Kindle” for record purposes stating when and where such fire may be kindled.
  2. [Repealed.]
  3. The provisions of this section will not apply to:
    1. the kindling of a fire in a location where there is snow surrounding the open burning site;
    2. fires built in stone arches, outdoor fireplaces, or existing fire rings at State recreational areas or fires built in stone arches, outdoor fireplaces, or fire rings on private property that are not located within woodland, timberland, or a field containing dry grass or other flammable plant material contiguous to woodland;
    3. the kindling of a fire in a location that is 200 feet or more from: any woodland, timberland, or field containing dry grass or other flammable plant material contiguous to woodland; or
    4. areas within cities maintaining a fire department.
    1. As used in this section, “natural wood” means: (d) (1) As used in this section, “natural wood” means:
      1. trees, including logs, boles, trunks, branches, limbs, and stumps;
      2. lumber, including timber, logs, or wood slabs, especially when dressed for use; and
      3. pallets that are used for the shipment of various materials, so long as such pallets are not chemically treated with any preservative, paint, or oil.
    2. “Natural wood” shall not mean other wood products such as sawdust, plywood, particle board, or press board.
  4. Nothing in this section shall be construed to limit the authority of the air pollution control officer to prohibit open burning in accordance with the rules adopted under chapter 23 of this title.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1; amended 2015, No. 171 (Adj. Sess.), § 11.

History

Amendments

—2015 (Adj. Sess.). Subsecs. (a) and (c): Amended generally.

Subsec. (b): Repealed.

Subsecs. (d) and (e): Added.

CROSS REFERENCES

Complaint and summons for violation of section, see § 2671 et seq. of this title.

Legislative branch of municipality may authorize the burning of natural wood, see § 565 of this title.

Notes to Opinions

Exemption from permit requirement.

Under exceptions in former section, town road commissioner was entirely within his lawful rights in kindling fire, without getting permit, within limits of a public highway, provided fire was kept at a distance of not less than two hundred feet from woodland and other areas containing inflammable material. 1944 Vt. Op. Att'y Gen. 190.

§ 2646. Proclamation by Governor prohibiting kindling of fires: Closing of woodlands.

  1. Whenever it appears to the Governor that there is excessive danger of forest fires, he or she may prohibit by proclamation the kindling of a fire in or adjoining forestland or close any or all sections of woodland, or brushland, in any town for such time as the Governor may designate, to all persons except the owner and his or her household, his or her tenants, servants, or agents and persons in the public employment engaged in abating such fire-hazardous condition.
  2. Proclamations shall be published in such newspapers of the State and posted in such places and in such manner as the Governor may order in writing.  A copy of such publication and order, attested by the Secretary of Civil and Military Affairs, shall be filed with the Secretary of State and a like copy shall be furnished to the Commissioner who shall attend to the publication and posting thereof.  The expenses of such publication and posting shall be paid by the Department. Notice of removal of restrictions imposed by proclamation shall be in the same manner.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

Notes to Opinions

Owner.

Owner of pipeline easement was an “owner” within the meaning of former section. 1942 Vt. Op. Att'y Gen. 120.

§ 2647. Fires in woods of another; permission.

No one shall build a fire in the woodlands of another without the permission of the owner, lessee, holder of right-of-way, or his or her authorized agent between April 1 and November 1. A person who builds a fire in or adjoining any woods shall totally extinguish such fire before leaving it.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

§ 2648. Slash removal.

  1. A person may cut or cause to be cut forest growth only if all slash adjoining the right-of-way of any public highway, or the boundary lines of woodlots owned by adjoining property owners, is treated as follows:
    1. All slash shall be removed for a distance of 50 feet from the right-of-way of any public highway or from the boundary lines of woodlots owned by adjoining property owners.
    2. All slash shall be removed for a distance of 100 feet from standing buildings on adjoining property.
  2. [Repealed.]
  3. If in the opinion of the town forest fire warden there is no fire hazard as a result of a cutting, the warden may issue, upon request, a statement relieving the operator of the conditions required in this section.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1; amended 1987, No. 107 , § 2; 2015, No. 171 (Adj. Sess.), § 11.

History

Amendments

—2015 (Adj. Sess.). Subsec. (b): Repealed.

—1987. Subsec. (a): Amended generally.

CROSS REFERENCES

Complaint and summons for violation of section, see § 2671 et seq. of this title.

Subchapter 5. Municipal Forests

§ 2651. Municipal forest; definition.

As used in this subchapter, “municipal forest” means a tract of land primarily devoted to producing wood products, maintaining wildlife habitat, protecting water supplies, providing forest recreation and conservation education. A municipal forest shall not be construed to include landscaped grounds and plantings around residential, industrial, institutional, municipal buildings or municipal areas devoted to off-street recreation.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

§ 2652. Municipal forests, State aid.

At any legal meeting, a municipality may vote sums of money for the purchase, management, and improvement of a municipal forest within or without the municipality. Any appropriation so voted shall qualify the municipality for such matching State and federal funds as may be available, provided that the suitability of such lands is approved by the Commissioner of Forests, Parks and Recreation. Any portion of such appropriated and matching funds not required for the purchase of land may be expended by the municipality, under the direction of the Commissioner of Forests, Parks and Recreation, in establishing multiple use and implementing a management program for such municipal forest.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

History

Revision note—

Reference to “commissioner of forests and parks” in the second and third sentences changed to “commissioner of forests, parks, and recreation” to conform reference to new title and reorganization of state government. See 3 V.S.A. § 2872 . See also § 2602 of this title.

CROSS REFERENCES

Inclusion of article as to municipal forests in warning to town meeting, see 24 V.S.A. § 2408 .

§ 2653. Designation of municipal forest.

A town owning a tract of land may have the same examined without cost by the Commissioner of Forests, Parks and Recreation for the purpose of determining whether the same is suitable for a municipal forest. If, upon such examination, he or she decides that it is suitable for such purposes, it shall be designated as municipal forest and he or she shall give advice as to the subsequent management thereof.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

History

Revision note—

Reference to “commissioner of forests and parks” in the first sentence changed to “commissioner of forests, parks, and recreation” to conform reference to new title and reorganization of state government. See 3 V.S.A. § 2872 . See also § 2602 of this title.

§ 2654. Management.

Municipal forests shall be managed under the direction of the Commissioner. The protection of such forests shall be under the town forest fire warden who shall be paid for his or her services in connection therewith by the town at the same rate as he or she is paid for fighting forest fires upon the approval of his or her account by the Commissioner.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

CROSS REFERENCES

Fire prevention generally, see § 2641 et seq. of this title.

§ 2655. Receipts.

All monies received for the sale of lumber, wood, or other products from a municipal forest shall be paid into the treasury of the municipality. In the event any of the lands held by a municipality for municipal forest purposes are sold, advances made by the State or federal government in the purchase thereof shall be repaid to the State by the municipality.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

Subchapter 6. Forest Pest Control

§ 2661. Surveys and investigations.

The Commissioner shall make surveys and investigations to determine the threat or presence of infestations and control of forest pests. For this purpose, duly designated representatives of the Commissioner may enter at reasonable times on public and private lands for the purpose of conducting such surveys, investigations, and controls.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

§ 2662. Control measures.

  1. Whenever the Commissioner finds that an area in the State is infested or threatened to be infested with forest pests, he or she shall determine whether measures of control are needed and are available and the area over which the control measures shall be applied.  The Commissioner shall prescribe a proposed zone of infestation covering the area in which control measures are to be applied, and shall publish notice of the proposal in one or more newspapers having a general circulation in the area in which control measures are to be undertaken.
  2. The notice shall include a brief description of the location of the proposed zone of infestation and the approximate time when control measures will be executed.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

§ 2663. Infestation control; agreements with owners.

The Commissioner under the provisions of 3 V.S.A. § 2853 may apply measures of infestation control on public and private forest and other lands anywhere in the State to any trees, timber, plants, or shrubs thereon harboring or which may harbor the forest pests. The Commissioner may enter into agreements with owners of such lands covering the control work on their lands, and fix the pro rata basis on which the cost of such work will be shared between the State and said owner, provided, that the failure of the Commissioner to offer an agreement to or execute an agreement with any owner shall not impair the right of representatives of the Commissioner to enter on the lands of said owner to conduct control operations.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

§ 2664. Cost prorated; agreements.

If in any area the owners of a majority of the acreage to be protected from pests execute agreements with the State, the Commissioner shall be authorized to carry out control work on other adjacent or interior holdings, that, if uncontrolled, would cause a re-infestation of the controlled area. The cost of control work on such areas may be prorated among the owners who have executed agreements on the same basis as for their own lands, if they agree thereto.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 1.

Subchapter 7. Uniform Fire Prevention Ticket

CROSS REFERENCES

Uniform fire prevention tickets, see A.O. No. 25, Administrative Orders of the Supreme Court.

§ 2671. Jurisdiction.

The Criminal Division of the Superior Court shall have exclusive jurisdiction over uniform fire prevention tickets issued under this subchapter.

HISTORY: Added 1987, No. 107 , § 3; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments

—2009 (Adj. Sess.) Substituted “criminal division of the superior court” for “district court.”

§ 2672. Complaint or information and summons.

  1. In any case involving a violation of subsection 2645(a) or 2648(a) of this title, the complaint or information and summons shall be in the form known as the Uniform Fire Prevention Ticket.  The Court Administrator shall prepare the form for the Uniform Fire Prevention Ticket.  The Court Administrator shall be responsible for all Uniform Fire Prevention Tickets issued to fire wardens, and shall prepare or cause to be prepared records and reports relating to Uniform Fire Prevention Tickets.  Any fire warden may void any Uniform Fire Prevention Ticket by so marking the ticket and returning it to the Court Administrator.  A prosecuting attorney may issue, amend or dismiss a fire prevention complaint.
  2. The Uniform Fire Prevention Ticket shall consist of four parts:
    1. the complaint or information, which shall include spaces for the signatures of the fire warden or other issuing officer, prosecuting attorney, and judge or clerk;
    2. the fire warden’s or issuing officer’s record, which shall be a copy of the complaint or information;
    3. the prosecutor’s record, which shall be a copy of the complaint or information; and
    4. the summons, which shall include a copy of the complaint or information, a waiver, and an explanation of rights.
  3. The reverse sides of the sheets shall be as set out in the form, with additions or deletions as are necessary to adapt the uniform fire prevention complaint to the court involved.
  4. The ticket shall contain the following two paragraphs that shall be prominently printed in boldfaced type:
    1. Failure to comply with the instructions on this ticket will result in a fine of up to $25.00 for each day of noncompliance.
    2. If you admit you have committed a fire prevention offense or are judged to have committed the offense you may be subject to a fine of up to $25.00 for each day of noncompliance.
  5. The Uniform Fire Prevention Ticket form shall be used in all cases involving violations of subsection 2645(a) or 2648(a) of this title, whether the case is prosecuted or the complaint issued by a fire warden or by any other person, or upon information or complaint issued by the State’s Attorney or other prosecuting officer.

HISTORY: Added 1987, No. 107 , § 3.

§ 2673. Procedure on failure to appear; notice; rules.

If a defendant fails to appear or answer a fire prevention ticket or summons served upon the defendant and upon which a complaint has been filed, the court shall mail a notice to the defendant at the address stated in the complaint notifying the defendant that failure to appear will result in a fine. The notice shall be in the form prescribed by the Court Administrator, and a copy of the notice shall be sent to the town fire warden together with a copy of the complaint.

HISTORY: Added 1987, No. 107 , § 3.

§ 2674. Answer to Uniform Fire Prevention Ticket.

  1. A person who is charged with committing a fire prevention offense may waive appearance and trial and plead guilty or nolo contendere or not guilty by a signed statement.  The person shall submit a fine in an amount as established by the court with the signed statement.  The court shall accept the signed statement accompanied by the fine assessed as a plea of guilty or nolo contendere as indicated on the signed statement and shall proceed accordingly.
  2. Fines shall be paid to, receipted by, and accounted for by the clerk as required by court rules.  Any fire warden or issuing officer who issues a complaint shall advise the defendant of the fines.
  3. If a defendant fails to answer or appear as directed on the fire prevention ticket or by the Criminal Division of the Superior Court judge, or fails to pay the fine imposed after judgment, the court may issue an appropriate order.

HISTORY: Added 1987, No. 107 , § 3; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments

—2009 (Adj. Sess.) Subsec. (c): Substituted “criminal division of the superior court” for “district court.”

§ 2675. Penalties.

A person who commits a violation under subsection 2645(a) or 2648(a) of this title shall be subject to a fine of not more than $75.00 per violation. In the case of a violation which continues after the issuance of a fire prevention complaint, each day’s continuance may be deemed a separate violation.

HISTORY: Added 1987, No. 107 , § 3; amended 2011, No. 155 (Adj. Sess.), § 1.

History

Amendments

—2011 (Adj. Sess.). Substituted “$75.00” for “$25.00” in the first sentence.

§ 2676. Supreme Court rules.

The Supreme Court is empowered to prescribe and amend rules governing this subchapter in accordance with 12 V.S.A. § 1 .

HISTORY: Added 1987, No. 107 , § 3.

Subchapter 8. Importation of Firewood

§ 2681. Importation of firewood; protection from invasive pests.

  1. Definitions.   As used in this section:
    1. “Commissioner” means the Commissioner of Forests, Parks and Recreation.
    2. “Department” means the Department of Forests, Parks and Recreation.
    3. “Firewood” means untreated or treated wood processed for residential, recreational, or commercial use in any wood-burning appliance or fireplace, either indoor or outdoor, that is cut to a length less than 48 inches, either split or unsplit. “Firewood” shall not mean wood chips, wood pellets, pulpwood, logs 48 inches or more in length, or other wood sold or transported for manufacturing purposes.
    4. “Invasive species” means:
      1. nonnative plant pests that are capable of spreading into the State and that threaten forest health; and
      2. native plant pests, designated by the Commissioner, that are present in the State, that are capable of spreading to new areas of the State, and that threaten forest health.
    5. “Plant pests” shall be defined as in 6 V.S.A. § 1030(12) .
    6. “Treated firewood” means firewood that has been processed and treated in a manner sufficient to prevent invasive species from surviving.
    7. “Untreated firewood” means firewood that is not treated firewood.
  2. Rulemaking.   On or before July 1, 2015, the Commissioner, after consultation with the Secretary of Agriculture, Food and Markets, shall adopt rules regulating the importation of untreated firewood into the State. The rules shall:
    1. address whether certain types of untreated firewood should be prohibited from importation due to the potential to spread invasive species;
    2. address whether a treatment certificate or some other form of approval shall be required to import firewood from one or more states;
    3. address whether persons who produce or sell firewood in the State shall be required to track purchases of untreated firewood from out of State in order to allow for identification of sources of invasive species;
    4. address whether the State should design and implement a voluntary certification for treated firewood;
    5. include a process under which the Commissioner may waive requirements or prohibitions under the rule related to the importation of firewood when the Commissioner determines that waiver is in the public interest and poses minimal threat to forest health; and
    6. address any other issue the Commissioner identifies as necessary for preventing the importation of invasive species into the State when importing firewood.
  3. Penalties.   Any person who violates a provision of this subchapter or the rules adopted under this subchapter shall be subject to a civil citation under section 8019 of this title.

HISTORY: Added 2013, No. 112 (Adj. Sess.), § 1.

Chapter 85. Value-Added Forestry and Forest Products

History

Legislative findings. 2007, No. 207 (Adj. Sess.), § 7 provides: “The general assembly finds that:

“(1) The forests of Vermont are integral to the economy, culture, beauty, and appeal of the state.

“(2) The annual contributions of forest-based manufacturing and forest-related recreation and tourism contribute $1.5 billion to the Vermont economy annually.

“(3) Revenues from forest-related recreation and tourism activities totaled $485 million in 2005.

“(4) Forest-based manufacturing contributes approximately 10 percent of Vermont’s total manufacturing sales.

“(5) The forest-based manufacturing industry provides employment for 6,379 people and generates a payroll of over $207.4 million.

“(6) Forest-based recreation and tourism provide employment for over 6,300 people and generate payrolls of $93.0 million.

“(7) Each 1,000 acres of forest land in Vermont supports 1.4 forest-based manufacturing, forestry, and logging jobs and 1.4 forest-related tourism and recreation jobs.

“(8) Wood provides the energy for approximately six percent of electrical and heating use in Vermont.

“(9) The forests of Vermont help maintain the environment and health of Vermont by aiding the filtering of clean water and clean air and by providing wildlife habitat to a diversity of animals.

“(10) Despite the significant, unparalleled contributions of the forests, forest-based manufacturing, and forest-related recreation and tourism to the state’s economy, jobs, energy, and environment, the forestry and forest products industries receive considerably less support and financial assistance than those afforded other Vermont industries, such as agriculture.”

Subchapter 1. General Provisions

§ 2701. Policy.

It is the policy of the State to encourage the sustainable management and use of its forests and woodlands; to preserve the natural beauty of the State’s forests and woodlands; to protect its wildlife; to preserve and protect the forest environment and health; and to promote, foster, and encourage the forestry and forest products industries of the State. To achieve these goals, the General Assembly declares it to be in the best interests of the State to promote opportunities and markets for value-added forest products. Fostering and enhancing the value-added forestry markets will help the State retain and expand the State’s forest products manufacturing sector, will retain manufacturing jobs within the State, and will protect the health and viability of the forest environment.

HISTORY: Added 2007, No. 207 (Adj. Sess.), § 8, eff. June 11, 2007.

§ 2702. Value-added forest products; financial assistance.

The Commissioner shall award grants of up to $10,000.00 to applicants engaged in adding value to forest products within the State. A grant awarded under this section may be used by the applicant to pay for expenses associated with State and local permit application costs, project consultation costs, engineering and siting costs, and expert witness analysis and testimony necessary for permitting.

HISTORY: Added 2019, No. 83 , § 11.

Subchapter 2. Forestry and Forest Products Viability Program

§ 2721. Vermont Forestry and Forest Products Viability Program.

  1. The Vermont Forestry and Forest Products Viability Program is a voluntary program established at the Department of Forests, Parks and Recreation to provide assistance to Vermont timber harvesters, foresters, and forest products manufacturers to enhance the financial success and long-term viability of the Vermont forest products industry. In administering the Program, the Commissioner shall:
    1. Collaborate with the Vermont Housing and Conservation Board, the members of the Vermont Wood Products Marketing Council, the Vermont Woodlands Association, the Vermont Loggers Association, State agencies, federal agencies, private entities, and service groups to develop, coordinate, and provide technical and financial assistance to Vermont timber harvesters, foresters, and forest products manufacturers.
    2. Include teams of experts to assist timber harvesters, foresters, and forest products manufacturers in areas such as assessing business resources and potential; researching, developing, and adopting new technologies; improving product quality; developing value-added products; finding and reaching new markets; improving and refining existing markets; and lowering costs of production for Vermont’s forest products sector.
    3. Encourage economic development through investing in improvements to essential infrastructure and the promotion of timber harvesters, foresters, and forest products manufacturers in Vermont.
    4. Enter into agreements with private organizations or individuals or with any agency or instrumentality of the United States or of this State and employ technical experts to carry out the purposes of this section.
    5. In consultation with the Vermont Housing and Conservation Board, other State agencies, foresters, harvesters, and forest products manufacturers, establish:
      1. enrollment criteria for the Forestry and Forest Products Viability Program created by this section;
      2. criteria for awarding grants from the Forestry and Forest Products Viability Program Special Fund created by subsection (b) of this section. The grant criteria shall include at least the following requirements:
        1. the grant recipients shall be enrolled in and committed to participating in the Forestry and Forest Products Viability Program;
        2. the grant application is developed in consultation with timber harvesters, foresters, or forest products manufacturers;
        3. the use of the funds will improve the economic viability of a timber harvester, forester, or forest products manufacturer;
      3. performance goals, performance measures that demonstrate Program results, and other criteria to implement and evaluate the effectiveness of the Forestry and Forest Products Viability Program.
    1. The Forestry and Forest Products Viability Program Special Fund is established in the State Treasury and shall be administered by the Commissioner of Forests, Parks and Recreation in accordance with the provisions of 32 V.S.A. chapter 7, subchapter 5, except that interest earned on the Fund shall be retained in the Fund. The Fund shall be used only for the purpose of implementing and effectuating the Forestry and Forest Products Viability Program established by this section. Any monies appropriated by the General Assembly or received by the Commissioner of Forests, Parks and Recreation for this Program from any other source, public or private, shall be deposited in the Fund. The Fund shall be used only for the purposes of: (b) (1) The Forestry and Forest Products Viability Program Special Fund is established in the State Treasury and shall be administered by the Commissioner of Forests, Parks and Recreation in accordance with the provisions of 32 V.S.A. chapter 7, subchapter 5, except that interest earned on the Fund shall be retained in the Fund. The Fund shall be used only for the purpose of implementing and effectuating the Forestry and Forest Products Viability Program established by this section. Any monies appropriated by the General Assembly or received by the Commissioner of Forests, Parks and Recreation for this Program from any other source, public or private, shall be deposited in the Fund. The Fund shall be used only for the purposes of:
      1. providing funds for the Forestry and Forest Products Viability Program as established in this section;
      2. providing funds to enrolled timber harvesters, foresters, or forest products manufacturers;
      3. providing funds to service providers for administrative expenses of the program; and
      4. leveraging other competitive public and private funds, grants, and contributions for the Forestry and Forest Products Viability Program.
    2. The Commissioner of Forests, Parks and Recreation may solicit federal funds, grants, and private contributions for the Forestry and Forest Products Viability Program.
  2. The Commissioner of Forests, Parks and Recreation shall report in writing to the Senate Committees on Agriculture and on Natural Resources and Energy and the House Committees on Agriculture and Forestry, on Energy and Technology, and on Natural Resources, Fish, and Wildlife on or before January 31 of each year on the activities and performance of the Forestry and Forest Products Viability Program. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection. At a minimum, the report shall include:
    1. an evaluation of the Program utilizing the performance goals and performance measures established pursuant to subdivision (a)(5)(C) of this section;
    2. a summary of the money received in the Fund and expended from the Fund;
    3. an estimate of the financial impact of the Vermont Forestry and Forest Products Viability Program on the forestry and forest products industries;
    4. an assessment of the potential demand for the Program over the succeeding three years; and
    5. a listing of individuals, trade associations, and other persons or entities consulted in preparation of the report.

HISTORY: Added 2007, No. 207 (Adj. Sess.), § 8, eff. June 11, 2008; amended 2013, No. 142 (Adj. Sess.), § 21; 2015, No. 11 , § 12; 2017, No. 113 (Adj. Sess.), § 44e.

History

Amendments

—2017 (Adj. Sess.). Subsec. (c): Rewrote the first sentence in the introductory paragraph.

—2015. Subdiv. (a)(5)(C): Substituted “performance” for “evaluative” preceding “measures” and inserted “that demonstrate Program results” thereafter.

Subdiv. (c)(1): Substituted “performance” for “evaluative” preceding “measures”.

—2013 (Adj. Sess.). Subsec. (c): Substituted “Senate Committee on Agriculture and the House Committee on Agriculture and Forest Products” for “senate and house committees on agriculture” following “in writing to the” and added the second sentence.

Chapter 87. Harvesting Guidelines and Procurement Standards

§ 2750. Harvesting guidelines and procurement standards.

  1. The Commissioner of Forests, Parks and Recreation (the Commissioner) shall develop voluntary harvesting guidelines that may be used by private landowners to help ensure long-term forest health and sustainability. The Commissioner may also recommend monitoring regimes as part of these guidelines. In developing these guidelines, the Commissioner shall:
    1. provide widespread public notice of the process to develop the guidelines;
    2. provide opportunities for potentially affected individuals, business organizations, and members of the public to submit recommendations on the specific content of the guidelines prior to their development and to comment on a draft of the guidelines once the draft is developed;
    3. hold one or more public meetings; and
    4. maintain a web page concerning the development of these guidelines that provides notice of all opportunities for public comment and all public meetings on the guidelines and posts relevant information and the documents submitted to and created by the Department of Forests, Parks and Recreation as part of the process.
  2. For contracts to harvest wood products on State lands, the Commissioner shall ensure all such harvests are consistent with the purpose of the guidelines developed under subsection (a) of this section, with the objective being long-term forest health and sustainability in addition to other management objectives.
  3. The Commissioner shall develop a procurement standard that shall be used by all State agencies and departments in procuring wood products from whole-tree harvests in Vermont. The procurement standard shall include specifications on the retention of live and dead trees.
  4. The procurement standard developed under this section shall be made available to Vermont educational institutions and other users of wood products for their voluntary use.
  5. Working with regional governmental organizations such as the New England Governors’ Conference, Inc. and the Coalition of Northeastern Governors, the Commissioner shall seek to develop and implement regional voluntary harvesting guidelines and a model procurement standard that can be implemented regionwide, consistent with the application of the guidelines and standards developed under this section.

HISTORY: Added 2011, No. 170 (Adj. Sess.), § 16a, eff. May 18, 2012; amended 2013, No. 24 , § 1, eff. May 13, 2013.

History

Amendments

—2013. Section amended generally.

§ 2751. Biomass renewability standards; RES.

  1. Definitions.   As used in this section:
    1. “Commissioner” means the Commissioner of Forests, Parks and Recreation.
    2. “Distributed renewable generation” shall have the same meaning as in 30 V.S.A. § 8005 .
    3. “Energy transformation project” shall have the same meaning as in 30 V.S.A. § 8002 .
    4. “Renewability” means capable of being replaced by natural ecological processes or sound management practices.
    5. “RES” shall have the same meaning as in 30 V.S.A. § 8002 .
  2. Rules.   The Commissioner shall adopt rules that set renewability standards for forest products used to generate energy by distributed renewable generation and energy transformation projects within the RES. The Commissioner shall design the standards to ensure long-term forest health and sustainability. These standards may include minimum efficiency requirements for wood boilers and requirements for harvesting and procurement. In developing these rules, the Commissioner shall consider differentiating the standards by type of forest product and scale of forest product consumption.

HISTORY: Added 2015, No. 56 , § 9.

History

Initial adoption. 2013, No. 56 , § 10 provides: “On or before July 1, 2016, the Commissioner of Forests, Parks and Recreation shall adopt initial rules under 10 V.S.A. § 2751 .”

Part 4. Fish and Wildlife Conservation

History

Redesignation of department and board of fish and game. 1983, No. 158 (Adj. Sess.), eff. April 13, 1984, provided for the redesignation of the department of fish and game as the department of fish and wildlife and the fish and game board as the fish and wildlife board.

ANNOTATIONS

Authority for laws.

Fish and game laws derive their authority from the police power. State v. Duranleau, 128 Vt. 206, 260 A.2d 383, 1969 Vt. LEXIS 227 (1969).

Chapter 101. Definitions

§ 4001. Definitions.

Words and phrases used in this part, unless otherwise provided, shall be construed to mean as follows:

  1. Closed season: that period of time during which fishing or hunting is prohibited.
  2. Open season: that period of time during which fishing or hunting is permitted.
  3. Legal day:
    1. Fishing: as provided by regulations of the Fish and Wildlife Board;
    2. Hunting: as provided by regulations of the Fish and Wildlife Board;
    3. [Repealed.]
    4. Hunting raccoon: as provided by regulations of the Fish and Wildlife Board.
  4. Angling: fishing by any of the following methods:
    1. By means of hook and line in hand or attached to a rod, in accordance with regulations of the Board.
    2. By casting or trolling artificial flies, lures, or baited hooks, in accordance with regulations of the Board.
  5. Black bass: large mouth bass or small mouth bass.
  6. Pickerel: the great northern pike, chain pickerel, or muskellunge.
  7. Pike perch: walleyed or yellow pike.
  8. Trout: brook, rainbow, and brown.
  9. Game: game birds or game quadrupeds, or both.
  10. Game birds: quail, partridge, woodcock, pheasant, plover of any kind, Wilson snipe, other shore birds, rail, coot, gallinule, wild ducks, wild geese, and wild turkey.
  11. Partridge: ruffed grouse.
  12. Game quadruped: caribou, elk, moose, deer, gray squirrel, rabbit, and black bear.
  13. Rabbit: to include wild hare.
  14. Fur-bearing animals: beaver, otter, marten, mink, raccoon, fisher, fox, skunk, coyote, bobcat, weasel, opossum, lynx, wolf, and muskrat.
  15. Wild animals or wildlife: all animals, including birds, fish, amphibians, and reptiles, other than domestic animals, domestic fowl, or domestic pets.
  16. Private preserves: lands or waters where the taking of fish or wild animals is prohibited as provided in sections 5204-5206 of this title.
  17. Propagation farms: lands or waters used for the propagation of fish or wild animals as provided in sections 5207-5209 of this title.
  18. Person: includes principal, agent, employee, firm, partnership, corporation, and association.
  19. Possession: actual or constructive possession or any control of things referred to.
  20. Resident: a person who has resided in this State for the six months immediately prior to the date of making application for a license and who has not during that period claimed a residence in any other state for any purpose.
  21. Nonresident: a person not a resident.
  22. Sell, sold, or sale: barter, exchange, and offering or exposing for sale; and possession with intent to sell.
  23. Take and taking: pursuing, shooting, hunting, killing, capturing, trapping, snaring, and netting fish, birds, and quadrupeds and all lesser acts, such as disturbing, harrying, worrying, or wounding or placing, setting, drawing, or using any net or other device commonly used to take fish or wild animals, whether they result in the taking or not; and shall include every attempt to take and every act of assistance to every other person in taking or attempting to take fish or wild animals, provided that when taking is allowed by law, reference is had to taking by lawful means and in a lawful manner.
  24. Transport and transportation: all carrying or moving or causing to be carried or moved.
  25. Whole to include part: every provision in this part relating to any fish or wild animal shall be deemed to apply to any part thereof with the same force and effect as it applies to the whole.
  26. Inclusion and exclusion of dates: except as herein otherwise specially provided, when a period is named during which an act is permitted or prohibited, the first date shall be included within and the last excluded from such period.
  27. Commissioner: Commissioner of Fish and Wildlife.
  28. Board: Fish and Wildlife Board.
  29. Bow in the phrase “bow and arrow”: hand-held bow, including a long bow, recurve bow, or compound bow.
  30. Person with paraplegia: a person who has permanent paralysis of the lower half of the body with involvement of both legs, or a person who is missing both lower extremities.
  31. Big game: deer, bear, moose, wild turkey, caribou, elk, and anadromous Atlantic salmon taken in the Connecticut River Basin.
  32. Field trials: a competitive event held by an organized club for the purpose of demonstrating the skill of hunting and retrieving dogs under hunting conditions.
    1. Muzzle loading firearm: a single-shot, single-barrel rifle, or smoothbore firearm, with a minimum barrel length of 20 inches, designed to be fired from the shoulder or a single-shot pistol with a minimum barrel length of 10 inches. Both rifle and pistol must be incapable of being loaded from the breach without the use of tools, and must have a minimum bore diameter of 0.43 inches and an ignition system of traditional or modern flintlock, caplock, matchlock, in line, or wheellock style. (33) (A) Muzzle loading firearm: a single-shot, single-barrel rifle, or smoothbore firearm, with a minimum barrel length of 20 inches, designed to be fired from the shoulder or a single-shot pistol with a minimum barrel length of 10 inches. Both rifle and pistol must be incapable of being loaded from the breach without the use of tools, and must have a minimum bore diameter of 0.43 inches and an ignition system of traditional or modern flintlock, caplock, matchlock, in line, or wheellock style.
    2. Ammunition: for purposes of this section black powder or other suitable nonsmokeless propellant, and a single ball or bullet shall be the sole ammunition permitted.
  33. Small game: game birds, except for turkeys; game quadrupeds, except for big game; furbearers; and other wild animals.
  34. Secretary: the Secretary of Natural Resources.
  35. Point-of-sale agent: an agent authorized by the Commissioner to sell licenses and provide replacement licenses electronically through the State’s point-of-sale license system.
  36. Mitigation: the acquisition of an interest in land, change in operation, or funds or other remuneration paid in order to compensate for the loss of habitat, plants, or animals required by a permitting or regulatory process.
  37. Captive hunt facility: any enclosure created by the use of fences, man-made structures, or natural barriers where animals are confined for the purpose of taking or attempting to take an animal by hunting. Captive hunt facility shall not mean activities covered by the Commissioner of Fish and Wildlife’s rules for the training of dogs or for the regulation of regulated shooting grounds.
  38. Enclosure: means a structure designed to restrict the free movement of animals and the area within that structure.
  39. Domestic pet: domesticated dogs, domesticated cats, domesticated ferrets, psittacine birds, or any domesticated animal.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1973, No. 178 (Adj. Sess.), § 9; 1975, No. 61 ; 1977, No. 103 , § 4, eff. May 6, 1977; 1981, No. 85 , § 1, eff. May 7, 1981; 1981, No. 119 (Adj. Sess.), § 1; 1983, No. 118 (Adj. Sess.); 1983, No. 157 (Adj. Sess.), § 4, eff. April 13, 1984; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1985, No. 92 , § 1; 1985, No. 120 (Adj. Sess.), § 3, eff. April 16, 1986; 1987, No. 158 (Adj. Sess.), § 1; 1989, No. 190 (Adj. Sess.), § 1, No. 205 (Adj. Sess.), § 1; 1991, No. 33 , § 1; 1991, No. 230 (Adj. Sess.), §§ 2, 29; 2005, No. 31 , § 1; 2009, No. 122 (Adj. Sess.), § 4; 2009, No. 146 (Adj. Sess.), § B10; 2011, No. 128 (Adj. Sess.), § 25; 2013, No. 96 (Adj. Sess.), § 36; 2013, No. 116 (Adj. Sess.), § 1, eff. Feb. 12, 2014; 2015, No. 61 , § 1, eff. June 17, 2015; 2017, No. 170 (Adj. Sess.), § 12, eff. Jan. 1, 2019.

History

Amendments

—2017 (Adj. Sess.). Subdiv. (15): Inserted “, domestic fowl, or domestic pets” to the end of the sentence.

Subdiv. (23): Substituted “harrying, worrying” for “harrying or worrying” and inserted “a” preceding “lawful manner” at the end of the sentence.

Subdiv. (40): Added.

—2015. Subdiv. (29): Deleted “does not include a cross bow” following “or compound bow”.

—2013 (Adj. Sess.). Subdiv. (30) amended by Act No. 96: Substituted “Person with paraplegia” for “Paraplegia”, “has” for “suffers from”, and “is missing” for “suffers from the loss of”.

—2013 (Adj. Sess.). Subdivs. (38) and (39): Added by Act No. 116.

—2011 (Adj. Sess.) Subdiv. (37): Added.

—2009 (Adj. Sess.) Subdiv. (14): Inserted “weasel, opossum, lynx, wolf” following “bobcat” by Act No. 122.

Subdiv. (36): Added by Act No. 146.

—2005. Subdiv. (15): Inserted “fish” preceding “amphibians” and made a minor change in punctuation.

—1991 (Adj. Sess.). Subdiv. (15): Inserted “or wildlife” following “wild animals”.

Subdiv. (35): Added.

—1991. Subdiv. (33)(A): Amended generally.

—1989 (Adj. Sess.). Subdiv. (34): Added by Act Nos. 190 and 205.

—1987 (Adj. Sess.). Subdiv. (29): Substituted “including” for “in which the bow string is not held or triggered mechanically and includes” preceding “a long”.

—1985 (Adj. Sess.). Subdiv. (33): Added.

—1985. Subdiv. (31): Added.

—1983 (Adj. Sess.). Subdiv. (3): Act No. 158 substituted “fish and wildlife” for “fish and game” in subdivs. (A), (B), and (D).

Subdiv. (28): Act No. 158 substituted “fish and wildlife” for “fish and game”.

Subdiv. (31): Repealed by Act No. 118.

Subdiv. (32): Added by Act No. 157.

—1981 (Adj. Sess.). Subdiv. (31): Added.

—1981. Subdiv. (14): Deleted “or fisher-cat” following “fisher” and inserted “coyote, bobcat” preceding “and muskrat”.

Subdiv. (15): Inserted “amphibians and reptiles” following “birds”.

—1977. Subdiv. (30): Added.

—1975. Subdiv. (29): Added.

—1973 (Adj. Sess.). Subdiv. (3)(C): Repealed.

Prior law.

10 V.S.A. § 2201 .

CROSS REFERENCES

Vermont Fish and Wildlife regulations, see appendix to this title.

ANNOTATIONS

Closed season.

“Closed season,” as used in former G.L. 6332, relating to definitions, meant that period of time when fishing was prohibited. State v. Waite, 105 Vt. 265, 166 A. 4, 1933 Vt. LEXIS 214 (1933). (Decided under prior law.)

Ownership of wild animals.

Animals ferae naturae at large in state belonged to people in their collective and sovereign capacity, and not in their individual and private capacity, except so far as private ownership might be acquired therein under constitution, subject always to such proper regulations as legislature might make, in conformity with which, but not otherwise, an inhabitant of the state had right to appropriate to his own use such of these animals as he might capture and retain, which qualified ownership the law recognized as private property. Bondi v. MacKay, 87 Vt. 271, 89 A. 228, 1913 Vt. LEXIS 200 (1913); Jones v. Metcalf, 96 Vt. 327, 119 A. 430, 1923 Vt. LEXIS 170 (1923). (Decided under prior law.)

Regulation of hunting.

Under ch. 1, art. 5, of constitution, legislature was authorized to enact statute, prohibiting hunting game without a license, and providing for the granting of hunting licenses to designated residents and nonresidents upon the payment of specified fees. Bondi v. MacKay, 87 Vt. 271, 89 A. 228, 1913 Vt. LEXIS 200 (1913). (Decided under prior law.)

Legislature could regulate right to take game in order to accomplish its decrease as well as its preservation and increase, if its development became injurious to other property rights. Bondi v. MacKay, 87 Vt. 271, 89 A. 228, 1913 Vt. LEXIS 200 (1913). (Decided under prior law.)

Taking.

This section’s definition of “taking” was not unconstitutionally vague, where it expressly delineated and prohibited the methods that would constitute a taking of animals. State v. Mobbs, 169 Vt. 645, 740 A.2d 1288, 1999 Vt. LEXIS 307 (1999) (mem.).

Where individual assisted in draining a pond for purpose of getting fish, fish dying when brook into which pond drained dried up were “taken” by individual within the provisions of P.L. 5590, subsec. 22. State v. Searles, 108 Vt. 236, 184 A. 701, 1936 Vt. LEXIS 180 (1936). (Decided under prior law.)

Cited.

Cited in State v. Letourneau, 146 Vt. 366, 503 A.2d 533, 503 A.2d 553, 1985 Vt. LEXIS 440 (1985).

Notes to Opinions

Resident.

If person who had resided in state for last six months and intended to reside here permanently requested a resident license, it should have been given to him, and fact that he operated motor vehicle registered in another state was not determinative. 1932 Vt. Op. Att'y Gen. 150. (Decided under prior law.)

Taking.

When a fish was caught, it was taken and the right of property attached to fish reduced to actual possession. 1940 Vt. Op. Att'y Gen. 180. (Decided under prior law.)

Chapter 103. Department of Fish and Wildlife

History

Amendments

—1983 (Adj. Sess.) 1983, No. 158 (Adj. Sess.), eff. April 13, 1984, substituted “Fish and Wildlife Department” for “Fish and Game Department” in the chapter heading.

Subchapter 1. Establishment

§ 4041. Department of Fish and Wildlife; Fish and Wildlife Board; members, term, chair.

  1. There is hereby established a Department of Fish and Wildlife that shall be administered by the Commissioner.
  2. There is hereby established a Fish and Wildlife Board. The Board shall consist of 14 members, one from each county, appointed by the Governor with the advice and consent of the Senate. The members of the Board shall be appointed for a term of six years, or unexpired portion thereof, and during their terms shall reside in the county from which they are appointed. In the event a member no longer resides in the county from which he or she was appointed, the Governor shall appoint a member from that county for the unexpired portion of the term. Appointments shall be made in such manner that either two or three terms shall expire each year. A member serving a full six-year term shall not be eligible for reappointment. The Governor shall biennially designate a chair.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1965, No. 22 , eff. April 8, 1965; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1985, No. 215 (Adj. Sess.), § 1, eff. June 2, 1986; 2003, No. 136 (Adj. Sess.), § 1; 2013, No. 161 (Adj. Sess.), § 72.

History

Revision note

—2014. Section heading: Substituted “chair” for “chairman” in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Amendments

—2003 (Adj. Sess.) Subsec. (b): Amended generally.

—1985 (Adj. Sess.). Section amended generally.

—1983 (Adj. Sess.). Substituted “fish and wildlife” for “fish and game” preceding “department” and “board” in the first sentence.

—1965. Substituted “seven” for “five” preceding “members” in the second sentence, substituted “two terms shall expire in two biennial years and three in each third biennial year” for “not more than two terms shall expire in the same biennium” in the third sentence, and added the fourth sentence.

Prior law.

10 V.S.A. § 2241 .

CROSS REFERENCES

Department of Fish and Wildlife within Agency of Natural Resources, see 3 V.S.A. §§ 2802 , 2871.

§ 4042. Commissioner; appointment.

The Commissioner shall be appointed pursuant to the provisions of 3 V.S.A. § 2851 . The Commissioner shall also be Executive Secretary of the Board.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1985, No. 215 (Adj. Sess.), § 2, eff. June 2, 1986.

History

Amendments

—1985 (Adj. Sess.). Section amended generally.

Prior law.

10 V.S.A. § 2242 .

§ 4043. Repealed. 1991, No. 230 (Adj. Sess.), § 1(1).

History

Former § 4043. Former § 4043, relating to powers and duties of the fish and wildlife board, was derived from 1961, No. 119 , § 1.

§ 4044. Repealed. 1991, No. 230 (Adj. Sess.), § 1(2).

History

Former § 4044. Former § 4044, relating to records and reports of fish and wildlife board, was derived from 1961, No. 119 , § 1.

§ 4045. Cooperative fisheries projects.

The State of Vermont hereby assents to the provisions of the act of Congress entitled “An act to provide that the United States shall aid the states in fish restoration and management projects, and for other purposes,” approved August 9, 1950 (Public Law 681-81st Congress) and the Department of Fish and Wildlife is hereby authorized, empowered, and directed to perform such acts as may be necessary to the conduct and establishment of cooperative fisheries restoration project, as defined in said act of Congress, in compliance with said act and with rules and regulations promulgated by the U.S. Secretary of the Interior thereunder. No funds accruing to the State of Vermont from fishing license fees shall be diverted for any other purpose than the administration of the Department of Fish and Wildlife.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 158 (Adj. Sess.), eff. April 13, 1984.

History

References in text.

Public Law 681-81st Congress, referred to in this section, is codified as 16 U.S.C. §§ 777-777k.

Amendments

—1983 (Adj. Sess.). Substituted “fish and wildlife department” for “fish and game department” preceding “is hereby authorized” in the first sentence and following “the administration of the” in the second sentence.

Prior law.

10 V.S.A. § 2246 .

§ 4046. Cooperative wildlife projects.

  1. The State of Vermont hereby assents to the provisions of the act of Congress entitled “An act to provide the United States shall aid the states in wildlife restoration projects, and for other purposes,” approved September 2, 1937 (Public Law, No. 415, 75th Congress), and the Secretary is hereby authorized, empowered, and directed to perform such acts as may be necessary to the conduct and establishment of cooperative wildlife restoration projects, as defined in said act of Congress, in compliance with said act and with rules and regulations promulgated by the U.S. Secretary of the Interior thereunder; and no funds accruing to the State of Vermont from license fees paid by hunters shall be diverted for any other purpose than the administration of the Department of Fish and Wildlife.
  2. The Secretary may form cooperative agreements with the U.S. Secretary of the Interior under section 6(c) of the Endangered Species Act of 1973, Public Law 93-205, 16 U.S.C. § 1535(c) , for the purpose of implementing chapter 123 of this title. Entry into any cooperative agreement shall not require the State to carry on any program in the event that federal funds are withdrawn or terminated.
  3. Any funds or in-kind services received by the State shall be administered by the Secretary.

HISTORY: Amended 1981, No. 188 (Adj. Sess.), § 3; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1991, No. 230 (Adj. Sess.), § 3.

History

Source.

1939, No. 142 .

References in text.

Public Law 415-75th Congress, referred to in subsec. (a), is codified as 16 U.S.C. §§ 669-669i.

Revision note—

Section was not included in 1961, No. 119 , which enacted Part 4 of this title.

Reference in subsec. (a) to “secretary of agriculture” was changed to “secretary of the interior” pursuant to federal 1939 Reorg. Plan No. II; 16 U.S.C. § 669 note.

Amendments

—1991 (Adj. Sess.). Subsec. (b): Added “of this title” following “chapter 123” in the first sentence.

—1983 (Adj. Sess.). Subsec. (a): Substituted “fish and wildlife department” for “fish and game department” following “the administration of the”.

—1981 (Adj. Sess.). Designated existing provisions of section as subsec. (a), substituted “secretary” for “fish and game department” preceding “is hereby authorized, empowered and directed to perform such acts”, and added subsecs. (b) and (c).

CROSS REFERENCES

Protection of endangered species, see chapter 123 of this title.

§ 4047. Department of Fish and Wildlife funds.

  1. The receipts of the Department of Fish and Wildlife shall not become a part of the General Fund of the State but shall be used solely for the Department of Fish and Wildlife. Interest on the cash balance of Department receipts shall likewise accrue to the Department.
  2. The State of Vermont assents to the provisions of the Pittman-Robertson Wildlife Restoration Act of September 2, 1937, as amended (16 U.S.C. §§ 669-669i) and the Dingell-Johnson Sport Fish Restoration Act of August 1950, as amended (16 U.S.C. §§ 777-777k) and diversion of license fees paid by hunters and anglers to purposes other than the administration of the Department of Fish and Wildlife is prohibited.
  3. Receipts for each fiscal year in excess of the amount appropriated for each fiscal year shall remain in the Fish and Wildlife Fund and be carried forward to the following year. If appropriations exceed receipts, the Commissioner of Finance and Management may anticipate receipts and issue warrants based thereon. With the approval of the Emergency Board, funds not to exceed $100,000.00 each fiscal year may be appropriated to the Department if needed for any emergency under the jurisdiction of the Board or Department that may occur during any fiscal year.
  4. With the approval of the Emergency Board, funds not to exceed $300,000.00 may be appropriated each fiscal year for the purpose of purchasing land to achieve the purposes of the Department. Such purchase(s) shall be in accordance with the provisions of this title. Each purchase shall be approved by the Emergency Board. These funds may be used in conjunction with funds provided by other State agencies, the federal government, or any provider or quasi-public entity.
  5. Receipts from tuition charged for attendance at Green Mountain Conservation Camps shall be deposited in the Fish and Wildlife Fund.
  6. A Species and Habitat Conservation Fund is created within the Fish and Wildlife Fund. The Commissioner may solicit federal funds, grants, and private contributions and may accept mitigation payments directed toward fish and wildlife species and habitat conservation. Such monies shall be deposited in the Species and Habitat Conservation Fund, and the Commissioner may make expenditures from the Fund for purposes of species and habitat conservation. Interest accrued on the Fund shall be credited to the Fund.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 95 , § 307; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1991, No. 230 (Adj. Sess.), § 4; 1993, No. 210 (Adj. Sess.), § 206; 1995, No. 5 , § 43, eff. March 3, 1995; 1995, No. 178 (Adj. Sess.), § 385, eff. May 22, 1996; 1995, No. 186 (Adj. Sess.), § 18, eff. May 22, 1996; 1997, No. 2 , § 73, eff. Feb. 12, 1997; 1997, No. 155 (Adj. Sess.), § 40, eff. Jan. 1, 1999; 2003, No. 70 (Adj. Sess.), § 26, eff. March 1, 2004; 2003, No. 163 (Adj. Sess.), § 46, eff. Aug. 20, 2004; 2007, No. 76 , § 26; 2011, No. 128 (Adj. Sess.), § 26.

History

Revision note—

Section was enacted as § 4046 but was renumbered as § 4047 to avoid conflict with present § 4046 which was formerly codified as § 4045a.

Amendments

—2011 (Adj. Sess.) Added subsecs. (b) and (f), and redesignated former subsecs. (b) through (d) as (c) through (e).

—2007. Subsec. (d): Deleted the last sentence.

—2003 (Adj. Sess.). Subsec. (d): Act No. 163 substituted “Conservation Camps” for “conservation camps” and “$175.00” for “$100.00”.

—1997 (Adj. Sess.). Subsec. (d): Substituted “charged” for “as prescribed by rule” in the first sentence and added the second sentence.

—1997. Substituted “appropriated” for “transferred” following “may be” in the third sentence of subsec. (b) and the first sentence of subsec. (c).

—1995 (Adj. Sess.) Subsec. (c): Act No. 178 substituted “each fiscal year” for “annually” following “transferred” in the first sentence.

Subsec. (d): Added by Act No. 186.

—1993 (Adj. Sess.) Subsec. (c): Inserted “annually” following “transferred” in the first sentence.

—1991 (Adj. Sess.) Designated the existing provisions of the section as subsec. (a) and substituted “cash” for “unallotted” preceding “balance” in the second sentence of that subsec., and added subsecs. (b) and (c).

—1983 (Adj. Sess.) Substituted “fish and wildlife department” for “fish and game department” following “the receipts of the” and “be used solely for the” in the first sentence.

—1983. Added the second sentence.

Prior law.

10 V.S.A. § 2325 .

§ 4047a. Raffles; Department authority.

  1. Notwithstanding the provisions of 13 V.S.A. chapter 51, the Department may organize and execute raffles to dispose of property, and a person may participate in raffles executed by the Department, provided that the proceeds of raffles executed under this section shall be used solely to fund actions fulfilling or consistent with the purposes of the Department.
  2. All monies received by the Department under this section shall be deposited in the Fish and Wildlife Fund to be used for the purposes of that Fund.

HISTORY: Added 2013, No. 78 , § 1.

§ 4048. Nongame Wildlife Account; expenditures.

  1. A Nongame Wildlife Account is created and shall consist of:
    1. funds appropriated by the General Assembly, subject to availability of funds generated pursuant to 32 V.S.A. § 5862a ;
    2. funds from public and private sources that the Commissioner accepts for the Fund;
    3. funds from federal government aid for State activities in nongame conservation; and
    4. interest on the cash balance of the account.
  2. For purposes of this section, nongame wildlife shall consist of members of nongame species that are native to this State, that are not classified as domesticated, and that are not commonly taken for sport or profit.
  3. Amounts in the account shall carry over from year to year.
  4. The Commissioner of Fish and Wildlife, according to the provisions of 3 V.S.A. chapter 25, shall adopt a rule establishing a plan for nongame wildlife.  The rule may be amended from time to time, and shall be reviewed, after public hearings, at least every five years.  The plan shall contain:
    1. strategies to manage, inventory, preserve, protect, perpetuate, and enhance all nongame wildlife in the State, including identification of wildlife species in need of protection and information on their population distributions, habitat requirements, limiting factors, and other pertinent biological and ecological data on nongame wildlife species in need of protection;
    2. estimates of resources available for these strategies; and
    3. plans for research and education in nongame wildlife.
  5. In accordance with the plan, the Commissioner of Fish and Wildlife may make expenditures from the Nongame Wildlife Account.  Expenditures shall be restricted to programs specified in the duly adopted plan.  Expenditures may be made under the terms of contracts with private organizations and groups, consistent with the purposes of the plan. Expenditures shall not exceed the monies available in the Account.
  6. The Commissioner of Fish and Wildlife may take appropriate actions to encourage taxpayers to make designations to the Account, including explaining the purposes of the Fund and the uses to which the Account has been or will be applied.

HISTORY: Added 1985, No. 191 (Adj. Sess.), § 3, eff. May 14, 1986; amended 1991, No. 230 (Adj. Sess.), § 5.

History

Amendments

—1991 (Adj. Sess.). Subdiv. (a)(2): Substituted “the commissioner” for “the secretary” preceding “accepts” and deleted “and” at the end of the subdiv.

Subdiv. (a)(3): Added “and” following “conservation”.

Subdiv. (a)(4): Added.

Legislative purpose and findings. 1985, No. 191 (Adj. Sess.), § 2, eff. May 14, 1986, provided:

“(a) It is the purpose of this bill [act, which added this section and section 5862a of Title 32] to create a separate funding mechanism for Vermont nongame wildlife programs.

“(b) The general assembly finds that revenues now derived from license sales, permit sales, and other sources pertaining to fishing, hunting and trapping are inadequate to finance necessary research and management of wildlife not commonly taken for sport or profit. All concerned citizens can assume an important role in protecting Vermont’s wildlife resources. This act provides citizens with a means of contributing monetarily to the state’s nongame wildlife programs.”

1985, No. 191 (Adj. Sess.), § 1, eff. May 14, 1986, provided: “This act [which added this section and section 5862a of Title 32] may be referred to as the Vermont Nongame Wildlife Resources Conservation Act of 1986.”

§ 4049. Fish and Wildlife Trust Fund.

  1. The General Assembly recognizes the importance to the people of Vermont of conserving Vermont’s fish and wildlife resources. Therefore, in order to provide the opportunity for Vermonters to invest in the future of its fish and wildlife resources, there is hereby created a Fish and Wildlife Trust Fund within the Fish and Wildlife Fund that shall consist of:
    1. receipts from sales of any lifetime licenses created pursuant to subsection 4279(f) of this title;
    2. any gifts, grants, or contributions made to the Trust Fund;
    3. funds that may be appropriated by the General Assembly.
  2. The Commissioner, after consultation with the Secretary of Natural Resources, the Secretary of Administration, and the State Treasurer, may determine whether the Trust Fund is to be managed by the State Treasurer or by a private firm contracted by the State Treasurer at the direction of the Commissioner.
  3. When the balance of the Trust Fund reaches $250,000.00, the Commissioner may withdraw interest as needed for operation of departmental programs. The principal shall remain in the Trust Fund in perpetuity, even should provisions of law regarding lifetime licenses be repealed.
  4. [Repealed.]

HISTORY: Added 1991, No. 205 (Adj. Sess.), § 1, eff. July 1, 1993; amended 1993, No. 191 (Adj. Sess.), §§ 2, 3; 1997, No. 155 (Adj. Sess.), § 41, eff. April 27, 1998; 1997, No. 155 (Adj. Sess.), § 41, eff. Jan. 1, 1999.

History

Amendments

—1997 (Adj. Sess.). Subdiv. (a)(1): Substituted “4279(f)” for “4255(g).”

—1993 (Adj. Sess.). Subsec. (c): Rewrote the first sentence.

Subsec. (d): Repealed.

§ 4049a. Green Mountain Conservation Camp Endowment Fund.

  1. There is established in the Agency of Natural Resources a fund to be known as the Green Mountain Conservation Camp Endowment Fund, to be managed by the Secretary and from which expenditures may be made by the Commissioner of Fish and Wildlife, after consultation with the Green Mountain Conservation Camp Fund Committee, for the purpose of supporting the maintenance of and enhancements to the Green Mountain Conservation Camps in Castleton and Woodbury and for the Camps’ ongoing expenses such as the purchase of recreation equipment. There shall be deposited into the Fund monies received by the Agency and designated for this purpose, including appropriations of the General Assembly, grants, and donations.
  2. Interest from the Fund shall be credited annually to the Fund, and the amount in the account shall carry forward from year to year.

HISTORY: Added 2003, No. 63 , § 64, eff. June 11, 2003; amended 2005, No. 93 (Adj. Sess.), § 86, eff. March 3, 2006.

History

Amendments

—2005 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a), and in that subsec., inserted “after consultation with the green mountain conservation camp fund committee” following “wildlife”, and substituted “enhancements” for “minor improvements” in the first sentence, and added subsec. (b).

§ 4049b. Green Mountain Conservation Camp Endowment Fund Committee.

  1. There is created a Green Mountain Conservation Camp Endowment Fund Committee comprising five members who shall serve for concurrent terms of four years. Members of the Committee shall be appointed by the Commissioner of Fish and Wildlife as follows: two members shall be chosen from the employees of the Department; the three other members shall be chosen on the basis of fundraising experience.
  2. The Committee shall promote and seek contributions to the Green Mountain Conservation Camp Endowment Fund established by section 4049a of this title. The Committee may use any technique, method, or service that is otherwise authorized by law to promote contributions to the Fund and may use a portion of the Endowment Fund for the purpose.
  3. [Repealed.]

HISTORY: Added 2003, No. 63 , § 65, eff. June 11, 2003; amended 2005, No. 93 (Adj. Sess.), § 87, eff. March 3, 2006; 2009, No. 33 , § 83(e)(4).

History

Amendments

—2009. Subsec. (c): Repealed.

—2005 (Adj. Sess.). Subsec. (a): Substituted “green mountain conservation camp” for “Green Mountain Conservation Camp” in the first sentence.

Subsec. (b): Added the second sentence.

Subsec. (c): Added.

§ 4050. Watershed Management Account.

  1. There is created a Watershed Management Account within the Fish and Wildlife Fund for the purpose of protecting the Lake Champlain, Lake Memphremagog, and Connecticut River and Hudson River watersheds. The Account shall consist of:
    1. receipts from sale of conservation motor vehicle registration plates pursuant to 23 V.S.A. § 304b ;
    2. any gifts, grants, or contributions made to the account;
    3. funds that may be appropriated by the General Assembly.
  2. Interest from the Account shall be credited annually to the Watershed Management Account and the amount in the Account shall carry over from year to year.
  3. The Commissioner may make expenditures from the Account in the form of grants to local or regional governments or governmental agencies, or nonprofit or citizen groups for the following purposes:
    1. protection of fish and wildlife habitats;
    2. improvement of water quality and protection of shorelines;
    3. provision of recreational access and trails within the watershed areas;
    4. identifying and protecting historic and cultural resources in the watershed areas;
    5. activities that educate people about watershed resources and protection and that encourage citizen participation in protecting watershed resources;
    6. monitoring of fish and wildlife populations of watershed resources and water quality.
  4. [Repealed.]

HISTORY: Added 1995, No. 189 (Adj. Sess.), § 15, eff. May 22, 1996; amended 2009, No. 33 , § 83(e)(5).

History

Amendments

—2009. Subsec. (d): Repealed.

Subchapter 2. Regulatory Powers over Fish and Wildlife

ANNOTATIONS

Authority for laws.

Fish and game laws derive their authority from the police power. State v. Duranleau, 128 Vt. 206, 260 A.2d 383, 1969 Vt. LEXIS 227 (1969).

Notes to Opinions

Generally.

This subchapter contains the specific authority as well as the procedure to be followed by the board in amending, revising, revoking and superseding the regulations originally established by the general assembly and for adopting additional regulations. 1966-68 Vt. Op. Att'y Gen. 67.

Trapping regulations.

If the procedure prescribed in this subchapter is followed, the board has the requisite authority to prohibit the trapping of bear by appropriate regulations. 1966-68 Vt. Op. Att'y Gen. 67.

§ 4081. Policy.

    1. As provided by Chapter II, § 67 of the Constitution of the State of Vermont, the fish and wildlife of Vermont are held in trust by the State for the benefit of the citizens of Vermont and shall not be reduced to private ownership. The State of Vermont, in its sovereign capacity as a trustee for the citizens of the State, shall have ownership, jurisdiction, and control of all of the fish and wildlife of Vermont. (a) (1) As provided by Chapter II, § 67 of the Constitution of the State of Vermont, the fish and wildlife of Vermont are held in trust by the State for the benefit of the citizens of Vermont and shall not be reduced to private ownership. The State of Vermont, in its sovereign capacity as a trustee for the citizens of the State, shall have ownership, jurisdiction, and control of all of the fish and wildlife of Vermont.
    2. The Commissioner of Fish and Wildlife shall manage and regulate the fish and wildlife of Vermont in accordance with the requirements of this part and the rules of the Fish and Wildlife Board. The protection, propagation control, management, and conservation of fish, wildlife, and fur-bearing animals in this State are in the interest of the public welfare. The State, through the Commissioner of Fish and Wildlife, shall safeguard the fish, wildlife, and fur-bearing animals of the State for the people of the State, and the State shall fulfill this duty with a constant and continual vigilance.
  1. Notwithstanding the provisions of 3 V.S.A. § 2803 , the Fish and Wildlife Board shall be the State agency charged with carrying out the purposes of this subchapter.
  2. An abundant, healthy deer herd is a primary goal of fish and wildlife management. The use of a limited unit open season on antlerless deer shall be implemented only after a scientific game management study by the Department of Fish and Wildlife supports such a season.
  3. Annually, the Department shall update a scientific management study of the State deer herd.  The study shall consider data provided by Department biologists and citizen testimony taken under subsection (f) of this section.
  4. Based on the results of the updated management study and citizen testimony, the Board shall decide whether an antlerless deer hunting season is necessary and if so how many permits are to be issued.  If the Board determines that an antlerless season is necessary, it shall adopt a rule creating one and the Department shall then administer an antlerless program.
  5. Annually, the Department shall hold regional public hearings to receive testimony and data from concerned citizens about their knowledge and concerns about the deer herd.  The Board shall identify the regions by rule.
  6. If the Board finds that an antlerless season is necessary to maintain the health and size of the herd, the Department shall administer an antlerless deer program. Annually, the Board shall determine how many antlerless permits to issue in each wildlife management unit. For a nonrefundable fee of $10.00 for residents and $25.00 for nonresidents, a person may apply for a permit.  Each person may submit only one application for a permit.  The Department shall allocate the permits in the following manner:
    1. A Vermont landowner, as defined in section 4253 of this title, who owns 25 or more contiguous acres and who applies shall receive a permit for antlerless hunting in the management unit on which the land is located before any are given to people eligible under subdivision (2) of this subsection. If the land is owned by more than one individual, corporation, or other entity, only one permit shall be issued. Landowners applying for antlerless permits under this subdivision shall not, at the time of application or thereafter during the regular hunting season, post their lands except under the provisions of section 4710 of this title. As used in this section, “post” means any signage that would lead a reasonable person to believe that hunting is restricted on the land. If the number of landowners who apply exceeds the number of permits for that district, the Department shall award all permits in that district to landowners by lottery.
    2. Permits remaining after allocation pursuant to subdivision (1) of this subsection shall be issued by lottery.
    3. Any permits remaining after permits have been allocated pursuant to subdivisions (1) and (2) of this subsection shall be issued by the Department for a $10.00 fee for residents. Ten percent of the remaining permits may be issued to nonresident applicants for a $25.00 fee.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1979, No. 68 , § 1, eff. May 8, 1979; 1979, No. 126 (Adj. Sess.); 1979, No. 189 (Adj. Sess.), § 3, eff. date, see note set out below; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1989, No. 140 (Adj. Sess.), § 1; 1989, No. 248 (Adj. Sess.); 1991, No. 16 ; 1991, No. 230 (Adj. Sess.), § 6; 1997, No. 99 (Adj. Sess.), § 1; 1997, No. 155 (Adj. Sess.), § 53a, eff. Jan. 1, 1999; 2003, No. 136 (Adj. Sess.), § 2; 2011, No. 54 , § 2; 2011, No. 54 , § 9, eff. May 31, 2011; 2013, No. 78 , § 2.

History

Revision note

—2013. 2003, No. 136 , § 2 amended subsecs. (c), (d), (f), and (g) related to management of the State deer herd. 2003, No. 136 , § 7(d) required repeal of the amendments to subsecs. (c), (d), (f), and (g) on June 30, 2009. However, 2011, No. 54 , § 3(b), repealed 2003, No. 136, § 7(d). Consequently, the amendments made by 2003, No. 136, § 2 to subsecs. (c), (d), (f), and (g) should not have been repealed. In 2011, the amendments to subsecs. (c), (d), (f), and (g) were incorrectly repealed. In 2013, subsecs. (c), (d), (f), and (g) were revised to reinstate the correct language.

—2011. 2011, No. 54 , § 9 amended subsec. (g) by adding the following as the next to last sentence in subdiv. (1): “As used in this section, ‘post’ means any signage that would lead a reasonable person to believe that hunting is prohibited on the land, except for signs erected pursuant to section 4710 of this title.” As set forth in 2011, No. 54 , § 15(a), the amendment to subsec. (g) was effective upon passage (May 31, 2011). However, 2011, No. 54, § 2 also amended this section, effective July 1, 2011. When 2011, No. 54, § 2 became effective, it superseded the 2011, No. 54, § 9 amendment to subsec. (g).

—1984. Subsec. (c): “Game” changed to “wildlife” in first sentence.

Amendments

—2013. Subsec. (g): Deleted “, except as provided in section 4086 of this title” following “title”.

Subdiv. (g)(1): Added the present fifth sentence.

—2011. Subsec. (a): Added the subdiv. (1) designation and rewrote the subsec.

Subdiv. (a)(2): Redesignated former subsec. (a) as subdiv. (2); added the present first sentence; substituted “are” for “is” following “state”; substituted “The state, through the commissioner of fish and wildlife, shall safeguard the fish, wildlife, and fur-bearing animals of the state” for “and that safeguarding of this valuable resource” following “welfare” and “and the state shall fulfill this duty” for “requires” following “state”.

Subsec. (b): Substituted “ 3 V.S.A. § 2803 ” for “section 2803 of Title 3”.

—2009. Subdiv. (g)(2): Amended generally.

Subdiv. (g)(3): Added.

—2003 (Adj. Sess.) Subsec. (c): Deleted the second sentence, in subsecs. (d) and (f) substituted “Annually,” for “After each fall hunting season held pursuant to section 4741 of this title”, in subsec. (g) deleted the second sentence, substituted “wildlife” for “deer”, substituted “unit” for “district” in the third sentence, in subdiv. (g)(1) substituted “this title” for “Title 10” in the first sentence.

—1997 (Adj. Sess.). Subsec. (g): Act No. 99, in the introductory language, added the exception at the end of the second sentence, and substituted “only one application for a permit” for “an unlimited number of applications. No person shall be issued more than one permit” in the next to the last sentence.

Subsec. (g): Act No. 155 substituted “$25.00” for “$15.00” in the fourth sentence.

—1991 (Adj. Sess.). Subsec. (b): Added “Notwithstanding the provisions of section 2803 of Title 3” preceding “the fish”.

—1991. Subsec. (g): Added the second sentence in the introductory paragraph.

—1989 (Adj. Sess.). Act No. 140 amended the section generally.

Act No. 248 rewrote subsec. (g).

—1983 (Adj. Sess.). Subsec. (b): Substituted “fish and wildlife board” for “fish and game board”.

Subsec. (c): Substituted “fish and wildlife department” for “fish and game department” preceding “supports such a season” in the third sentence.

—1979 (Adj. Sess.). Act No. 126 added subdiv. (d)(1)(A) and inserted “or those persons referred to in subdivision (A) of division (1) of this subsection” following “free antlerless permits” in the second undesignated paragraph after subdiv. (3).

Act No. 189 added second undesignated paragraph after subdiv. (3).

—1979. Subsec. (c): Added.

Subsec. (d): Added.

Repeal of prospective repeal. 2011, No. 54 § 3(b) repealed 2003, 136 (Adj. Sess.), § 7(d), as amended by 2007, No. 97 (Adj. Sess.), § 1, which provided for the repeal of the amendments made to this section by 2003, No. 136 (Adj. Sess.), § 2.

Prior law.

10 V.S.A. § 2261 .

Reports. 2003, No. 136 (Adj. Sess.), § 6 provided: “Annually, on or before January 15, the commissioner of fish and wildlife shall report to the house committee on fish, wildlife and water resources and the senate committee on natural resources and energy on the effects of the fish and wildlife board’s management of the deer herd pursuant to this act. At a minimum, the commissioner shall address the impacts on:

  1. the size of the deer population;
  2. the health of the deer population;
  3. the ratio of males to females;
  4. the age distribution;
  5. the advisability of redefining wildlife management district boundaries;
  6. the satisfaction of the hunting community; and
  7. the number of hunters choosing to hunt in specific wildlife management units”.

ANNOTATIONS

Cited.

Cited in State v. Curtis, 157 Vt. 629, 603 A.2d 356, 1991 Vt. LEXIS 226 (1991).

Law Reviews —

For note relating to legislative review of Vermont’s antlerless deer hunting regulation, see 11 Vt. L. Rev. 105 (1986).

§ 4082. Vermont Fish and Wildlife Regulations.

  1. The Board may adopt rules, under 3 V.S.A. chapter 25, to be known as the “Vermont Fish and Wildlife Regulations” for the regulation of fish and wild game and the taking thereof except as otherwise specifically provided by law.  The rules shall be designed to maintain the best health, population, and utilization levels of the regulated species and of other necessary or desirable species that are ecologically related to the regulated species.  The rules shall be supported by investigation and research conducted by the Department on behalf of the Board.
    1. Except as provided for under subdivision (2) of this subsection, the Board annually may adopt rules relating to the management of migratory game birds, and shall follow the procedures for rulemaking contained in 3 V.S.A. chapter 25. For each such rule, the Board shall conduct a hearing but, when necessary, may schedule the hearing for a day before the terms of the rule are expected to be determined. (b) (1) Except as provided for under subdivision (2) of this subsection, the Board annually may adopt rules relating to the management of migratory game birds, and shall follow the procedures for rulemaking contained in 3 V.S.A. chapter 25. For each such rule, the Board shall conduct a hearing but, when necessary, may schedule the hearing for a day before the terms of the rule are expected to be determined.
    2. Beginning with the 2015 hunting season, the Board may set by procedure the daily bag and possession limits of migratory game birds that may be harvested in each Waterfowl Hunting Zone annually without following the procedures for rulemaking contained in 3 V.S.A. chapter 25. The annual daily bag and possession limits of migratory game birds shall be consistent with federal requirements. Prior to setting the migratory game bird daily bag and possession limits, the Board shall provide a period of not less than 30 days of public notice and shall conduct at least two public informational hearings. The final migratory game bird daily bag and possession limits shall be enforceable by the Department under its enforcement authority in part 4 of this title.
  2. The Board may set by procedure the annual number of antlerless deer that can be harvested in each Wildlife Management Unit and the annual number of moose that can be harvested in each Wildlife Management Unit without following the procedures for rulemaking contained in 3 V.S.A. chapter 25. The annual numbers of antlerless deer and moose that can be harvested shall be supported by investigation and research conducted by the Department on behalf of the Board. Prior to setting the antlerless deer and moose permit numbers, the Board shall provide a period of not less than 30 days of public notice and shall conduct at least three public informational hearings. The public informational hearings may be conducted simultaneously with the regional antlerless deer meetings required by 10 V.S.A. App. § 2b. The final annual antlerless deer and moose harvest permit numbers shall be enforceable by the Department under its enforcement authority in part 4 of this title. The final annual antlerless deer and moose harvest permit numbers shall be reported to the House Committee on Natural Resources, Fish, and Wildlife as part of the annual deer report required under section 4084 of this title. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1979, No. 66 , § 1; 1979, No. 68 , § 2, eff. May 8, 1979; 1979, No. 148 (Adj. Sess.), §§ 3, 4, eff. April 24, 1980; 1985, No. 215 (Adj. Sess.), § 5, eff. June 2, 1986; 2013, No. 78 , § 3; 2013, No. 116 (Adj. Sess.), § 4; 2017, No. 154 (Adj. Sess.), §§ 1, 21, eff. May 21, 2018.

History

Amendments

—2017 (Adj. Sess.). Subdiv. (b)(2): Deleted the last sentence.

Subsec. (c): Substituted “Natural Resources, Fish, and Wildlife” for “Fish, Wildlife and Water Resources and the Senate Committee on Natural Resources and Energy” in the sixth sentence and added the last sentence.

—2013 (Adj. Sess.). Subdiv. (b)(1): Substituted “Except as provided for under subdivision (2) of this subsection, the” for “The” at the beginning and “migratory” for “migrating” following “management of”.

Subdiv. (b)(2): Added.

—2013. Subsec. (b): Inserted “annually” preceding “may”; deleted “annually” preceding “adopt” and “temporary” preceding “rules”; inserted “3 V.S.A.” preceding “chapter” and deleted “of Title 3 to the extent reasonably possible” following “chapter 25”.

Subsec. (c): Added.

—1985 (Adj. Sess.). Subsec. (a): Substituted “wildlife” for “game” preceding “regulations” in the first sentence.

—1979 (Adj. Sess.). Subsec. (a): Amended generally.

—1979. Act No. 66 added subsec. (b).

Act No. 68 amended subsec. (a) generally.

Repeal of 1979 amendment. 1979, No. 68 , § 2 was repealed by 1979, No. 148 (Adj. Sess.), § 4.

Prior law.

10 V.S.A. § 2262 .

Department of Fish and Wildlife; Fish and Wildlife Board; meeting requirements in the year 2020. 2019, No. 92 (Adj. Sess.), § 7 provides: “In the year 2020, the Department of Fish and Wildlife and the Fish and Wildlife Board shall not be required to hold the number of regional meetings as required by 10 V.S.A. §§ 4081(f) (deer) and 4082(b) and (c) (migratory bird and moose), but shall be required to hold not less than five meetings by electronic means to ensure adequate public involvement.”

CROSS REFERENCES

Vermont Fish and Wildlife Regulations, see appendix to this title.

Notes to Opinions

Affirmative prohibitory regulation.

Prohibition of bear trapping could not be accomplished simply by revocation of regulation requiring that certain precautions be taken in setting bear traps, as such action would leave the fundamental right to hunt guaranteed by the Constitution without any restriction except the seasonal limitation imposed by another regulation. 1966-68 Vt. Op. Att'y Gen. 67.

To prohibit bear trapping, board should promulgate affirmative prohibitory regulation in addition to revoking regulation which required precautions to be taken when setting bear traps. 1966-68 Vt. Op. Att'y Gen. 67.

ANNOTATIONS

Authentication of regulation.

Issue of authentication of regulation regarding deer tagging was not considered on appeal since defendant never properly put in issue whether the regulation was authentic, properly promulgated, or was within the power of the fish and wildlife board. State v. Sullivan, 154 Vt. 437, 578 A.2d 639, 1990 Vt. LEXIS 97 (1990).

Cited.

Cited in State v. Teachout, 142 Vt. 69, 451 A.2d 819, 1982 Vt. LEXIS 598 (1982); State v. Letourneau, 146 Vt. 366, 503 A.2d 533, 503 A.2d 553, 1985 Vt. LEXIS 440 (1985).

Law Reviews —

For note relating to legislative review of Vermont’s antlerless deer hunting regulation, see 11 Vt. L. Rev. 105 (1986).

§ 4083. Fish.

Any rule or amendment to a rule adopted pursuant to this subchapter that relates to fish may apply to all or any portion of the State and may address any or all of the following as to any species or varieties of fish:

  1. establish, extend, shorten, or abolish open seasons and closed seasons;
  2. establish, change, or abolish daily limits, season limits, possession limits, and size limits;
  3. establish and change territorial limits for the pursuit, taking, or killing of any species or varieties, and close or open lakes, streams, or parts thereof;
  4. prescribe the manner and the means of pursuing, taking, or killing any species or variety, including the prescribing of type or kinds of bait, lures, tackle, equipment, traps, or any other means or devices for taking such fish;
  5. prescribe such rules relating to transportation and exportation of fish as may be necessary for the enforcement of this part;
  6. establish rules regarding the purchase and sale of fish caught in Vermont, including prohibiting the sale of specified fish, seasons, limits, reporting requirements, and the manner and means of pursuing or taking fish, in accordance with the requirements of part 4 of this title.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 2015, No. 145 (Adj. Sess.), § 1, eff. Jan. 1, 2017; 2017, No. 113 (Adj. Sess.), § 44f.

History

Revision note

—2015. In subdiv. (4), deleted “, but not limited to,” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2017 (Adj. Sess.). Intro. paragraph: Substituted “rule” for “regulation” and “to a rule” for “thereto”.

—2015 (Adj. Sess.). Intro. paragraph: Substituted “subchapter that” for “subchapter which” and “may address any” for “may do any” in the first sentence.

Subdiv. (6): Added.

Prior law.

10 V.S.A. § 1063 .

CROSS REFERENCES

Connecticut River Atlantic Salmon Compact, see chapter 112 of this title.

Fish generally, see chapter 111 of this title.

§ 4084. Game.

  1. Rules concerning wild game may:
    1. establish open seasons; however, rules regarding taking of deer adopted under this subdivision shall, unless there is a scientific reason not to do so, make provision for a regular rifle hunting season of no fewer than 16 consecutive days, an archery season, and a muzzle loader season;
    2. establish daily, season, and possession limits;
    3. establish territorial limits for any rule under this subchapter;
    4. prescribe the manner and means of taking any species or variety, and including reporting and tagging of game;
    5. establish restrictions on taking based upon sex, maturity, or other physical distinction of the species or variety pursued; and
    6. designate Wildlife Management Units for various species or varieties.
    1. On or before July 1 of each year, the Commissioner shall publish a report showing all the Wildlife Management Units and proposed deer seasons. The reports shall include supporting data for the proposed actions. (b) (1) On or before July 1 of each year, the Commissioner shall publish a report showing all the Wildlife Management Units and proposed deer seasons. The reports shall include supporting data for the proposed actions.
    2. Each January, the Commissioner shall publish an annual deer report.
  2. The Board may alter the outer boundary of a Wildlife Management Unit no more frequently than every 10 years without approval of the General Assembly; however, the Board shall have authority to subdivide established Wildlife Management Units.
  3. , (e)[Repealed.]

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1979, No. 68 , § 3, eff. May 8, 1979; 1979, No. 148 (Adj. Sess.), § 1, eff. April 24, 1980; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1985, No. 29 , §§ 1, 2; 1985, No. 120 (Adj. Sess.), § 1, eff. April 16, 1986; 1987, No. 10 , § 1; 1989, No. 24 , § 2; 1991, No. 230 (Adj. Sess.), § 7; 1997, No. 99 (Adj. Sess.), § 2; 2003, No. 136 (Adj. Sess.), § 3; 2013, No. 78 , § 4; 2013, No. 116 (Adj. Sess.), § 5, eff. Jan. 1, 2015.

History

Amendments

—2013 (Adj. Sess.). Subdiv. (a)(1): Inserted “, unless there is a scientific reason not to do so,” following “subdivision shall”, substituted “of no fewer than 16 consecutive days;” for “pursuant to section 4741 of this title and for” following “hunting season”, and deleted “unless there is a scientific reason not to do so” at the end.

—2013. Subdiv. (a)(6): Substituted “designate wildlife” for “Designate” preceding “management” and “units” for “districts” following “management”.

Subdiv. (b)(1): Inserted “wildlife” preceding “management”.

Subdiv. (b)(2): Inserted “deer” following “annual” and deleted “showing the specific programs, plans, and operational goals of the department and shall include a progress report of each deer management district” following “report”.

Subsec. (c): Amended generally.

—2003 (Adj. Sess.) Subdiv. (a)(1): Amended generally.

—1997 (Adj. Sess.). In subdiv. (a)(1), added the exception, and in subsec. (c) added the last sentence.

—1991 (Adj. Sess.). Subsec. (b): Deleted “the board shall cause” preceding “commissioner” and substituted “shall” for “to” thereafter in the first sentence of the first paragraph and in the second paragraph, and deleted “to the department” following “annual report” in the second paragraph.

—1989. Subdiv. (a)(1): Amended generally.

—1987. Subdiv. (a)(1): Substituted “twenty-three” for “sixteen” preceding “day bow” and “firearm” for “weapon” following “muzzle loading”.

—1985 (Adj. Sess.). Subdiv. (a)(1): Deleted “and not more than” preceding “a sixteen day regular season” and inserted “a five day muzzle loading weapon season” thereafter.

—1985. Subsec. (c): Added “however, the board shall have authority to subdivide established districts” following “assembly”.

Subsec. (d): Repealed.

Subsec. (e): Repealed.

—1983 (Adj. Sess.). Subsec. (d): Substituted “fish and wildlife department” for “fish and game department” following “will register with the” in the first sentence.

—1979 (Adj. Sess.). Subdiv. (a)(1): Amended generally.

—1979. Section amended generally.

Repeal of prospective repeal. 2011, No. 54 , § 3(b) repealed 2003, No. 136 (Adj. Sess.), § 7(d), as amended by 2007, No. 97 (Adj. Sess.), § 1, which provided for the repeal of amendments made to this section by 2003, No. 136 (Adj. Sess.), § 3.

Prior law.

10 V.S.A. § 2273 .

CROSS REFERENCES

Game generally, see chapter 113, subchapter 1 of this title.

ANNOTATIONS

Cited.

Cited in State v. Teachout, 142 Vt. 69, 451 A.2d 819, 1982 Vt. LEXIS 598 (1982).

§ 4085. Repealed. 1991, No. 230 (Adj. Sess.), § 1(3).

History

Former § 4085. Former § 4085, relating to open season on propagated nonnative game birds, was derived from 1963, No. 131 , § 3, and amended by 1983, No. 158 (Adj. Sess.).

§ 4086. Repealed. 1997, No. 99 (Adj. Sess.), § 11, eff. July 1, 2003.

History

Former § 4086. Former § 4086, relating to deer management zone, was derived from 1997, No. 99 (Adj. Sess.), § 3.

Former § 4086, relating to petitions for regulation, was derived from 1961, No. 119 , § 1 and amended by 1967, No. 236 (Adj. Sess.), § 1 and was repealed by 1979, No. 66 , § 2(1).

§§ 4087-4091. Repealed. 1979, No. 66, § 2(1)-(6).

History

Former §§ 4087-4091. Former § 4087, relating to time and place of hearing, was derived from 1961, No. 119 , § 1 and amended by 1967, No. 236 (Adj. Sess.), § 2.

Former § 4088, relating to notice of hearing, was derived from 1961, No. 119 , § 1.

Former § 4089, relating to issuance of regulations, was derived from 1961, No. 119 , § 1.

Former § 4090, relating to emergency procedure, was derived from 1961, No. 119 , § 1.

Former § 4091, relating to publication of regulations, was derived from 1961, No. 119 , § 1.

§ 4092. Repealed. 1991, No. 230 (Adj. Sess.), § 1(4).

History

Former § 4092. Former § 4092, relating to regulations and orders entered in board records, was derived from 1961, No. 119 , § 1.

§§ 4093-4097. Repealed. 1979, No. 66, § 2(7)-(11).

History

Former §§ 4093-4097. Former §§ 4093-4097, relating to regulatory powers over fish and wildlife, were derived from 1961, No. 119 , § 1, eff. May 9, 1961.

Subchapter 3. Powers and Duties

§ 4131. Repealed. 1991, No. 230 (Adj. Sess.), § 1(5).

History

Former § 4131. Former § 4131, relating to delegated powers of the commissioner, was derived from 1961, No. 119 , § 1.

§ 4132. General duties of Commissioner.

  1. The Commissioner shall have charge of the enforcement of the provisions of this part.
  2. The Commissioner may publish such bulletins as he or she deems advisable for information and instruction concerning the work of the Department and shall keep an account of the business and proceedings of the Department. Any publication available to the general public that describes rules regarding boating and fishing shall include information about aquatic nuisances provided to the Commissioner.
  3. The Commissioner may confer with the fish and wildlife directors or commissioners of other states and Canada.
  4. The Commissioner of Fish and Wildlife may develop promotional programs to include the sale of promotional items at a reasonable profit, to promote hunting, fishing, and trapping and the use of wildlife management areas. Proceeds from the sale of promotional items shall be deposited in the Fish and Wildlife Fund.
  5. The Commissioner, subject to the direction and approval of the Secretary, shall adopt and publish rules in the name of the Agency for reasonable fees or charges for the use of the lands, roads, buildings, other property, and the use of and tuition for the Green Mountain Conservation Camps, notwithstanding 32 V.S.A. § 603 . Fees collected for the use of fish and wildlife lands and properties shall be deposited in the Fish and Wildlife Fund.
  6. The Commissioner may collect data, conduct scientific research, and contract with qualified consultants for the purposes of managing fish and wildlife in the State and achieving the requirements and policies of this part. The Commissioner may designate as confidential any records produced or acquired by Department staff or contractors in the conduct of a study of or research related to fish, wildlife, wild plants, or the habitat of fish, wildlife, or wild plants, if release of the records would present a threat of harm to a species or the habitat of a species. Records designated as confidential under this subsection shall be exempt from inspection and copying under the Public Records Act. Records of Department staff or contractors that are not designated as confidential under this subsection shall be available for inspection and copying under the Public Records Act.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1991, No. 230 (Adj. Sess.), § 8; 2003, No. 121 (Adj. Sess.), § 68, eff. June 8, 2004; 2003, No. 163 (Adj. Sess.), § 10, eff. Jan. 1, 2006; 2005, No. 72 , § 10; 2007, No. 76 , § 26a; 2015, No. 97 (Adj. Sess.), § 24; 2017, No. 170 (Adj. Sess.), § 1.

History

Revision note—

“Game” changed to “wildlife” in subsec. (c) pursuant to 1983, No. 158 (Adj. Sess.), § 1, eff. April 13, 1984.

Amendments

—2017 (Adj. Sess.). Subsec. (f): Added.

—2015 (Adj. Sess.). Subsec. (b): Deleted “pursuant to subdivision 921(b)(7) of this title” following “Commissioner”.

Subsec. (e): Substituted “rules” for “regulations” following “publish”.

—2007. Deleted “and” preceding “other property” and added “and the use of and tuition for the Green Mountain Conservation Camps” thereafter.

—2005. Subsecs. (d) and (e): Added.

—2003 (Adj. Sess.). Subsec. (b): Act No. 121 added the second sentence.

Subsecs. (d) and (e): Added by Act No. 163.

—1991 (Adj. Sess.). Subsec. (b): Substituted “the commissioner” for “he” preceding “may publish” and deleted “and shall biennially submit a report to the general assembly” following “proceedings of the department”.

Prior law.

10 V.S.A. §§ 2321-2323 , 2326.

Notes to Opinions

Jurisdiction.

The fish and game (now fish and wildlife) department had authority to enter the so-called “Artillery Range” area owned by the United States and enforce the fish and game laws since the state had not consented to the acquisition of the lands nor had it ceded exclusive jurisdiction in connection therewith to the United States. 1956-58 Vt. Op. Att'y Gen. 113. (Decided under prior law.)

§§ 4133, 4134. Repealed, 1966, No. 14, § 2.

History

Former §§ 4133, 4134. Former §§ 4133 and 4134, relating to deer herd management, were derived from 1966, No. 14 .

§ 4135. Finances, accounts.

  1. All monies received by the Commissioner shall be deposited into the State Treasury and credited to the Fish and Wildlife Fund.
  2. All payments by the Commissioner from the Fish and Wildlife Fund shall be disbursed from the State Treasury only upon warrants issued by the Commissioner of Finance and Management, after receipt of proper documentation regarding services rendered and expenses incurred.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 195 (Adj. Sess.), § 5(b); 1991, No. 230 (Adj. Sess.), § 9.

History

Amendments

—1991 (Adj. Sess.). Section amended generally.

—1983 (Adj. Sess.). Subsec. (b): Inserted “and information support” following “commissioner of finance” in the first and second sentences.

Prior law.

10 V.S.A. §§ 2324 , 2328.

§ 4136. Propagation and distribution of fish and wild animals.

The Commissioner shall have charge of the propagation and distribution of fish and wild animals, and shall provide for the construction, maintenance, and operation of fish culture facilities, fishways, screens, and weirs. The Commissioner may introduce fish into waters that are not private preserves. The Commissioner may take and transport fish and wild animals at such times and in such manner as she or he deems proper for the artificial propagation thereof, for scientific purposes, and for the proper management of lands owned by the State and controlled by the Department of Fish and Wildlife. The Commissioner may sell, exchange, or dispose at any time of such fish and wild animals as she or he deems for the best interest of the State.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 158 (Adj. Sess.); 1991, No. 230 (Adj. Sess.), § 10.

History

Amendments

—1991 (Adj. Sess.). In the first sentence, deleted “under the direction of the board” following “charge” and preceding “provide” and substituted “fish culture facilities” for “game farms, rearing stations, hatcheries” preceding “fishways”, rewrote the second sentence, inserted “she or” preceding “he deems” in the third and fourth sentences and deleted “with approval of the board” following “commissioner” in the fourth sentence.

—1983 (Adj. Sess.). In the third sentence, substituted “fish and wildlife department” for “fish and game department”.

Prior law.

10 V.S.A. §§ 2321 , 2322, 2327, 2333.

§ 4137. Taking by U.S. Armed Forces.

The Commissioner may, upon request of appropriate authorities, permit the taking of fish and wild animals in such manner as he or she shall specify by designated units of the U.S. Armed Forces while undergoing maneuvers of the type known as “survival tests.”

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2333 .

§ 4138. Control of fish, game; powers of Commissioner.

  1. The Commissioner may take, permit, or cause to be taken at any time from any waters, and in any manner, fish that hinder or prevent the propagation of game or food fish and may take, permit, or cause to be taken at any time wild animals that are doing damage. Such removal or taking and the possession and disposition of such fish or wild animals shall be under such regulations as the Commissioner may prescribe.
  2. The Commissioner may take necessary measures to control, in public waters, aquatic vegetation, insects, or aquatic life, for the purpose of improving such waters as a habitat.
  3. Any measures that involve temporary pollution of waters shall be carried out in accordance with the provisions of chapter 50, section 1455 of this title.
  4. The Commissioner shall cooperate with the Transportation Board in any proceeding brought under 19 V.S.A. § 37 to protect a highway, railroad, or public airport from impoundments of water created by beaver.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1981, No. 222 (Adj. Sess.), § 9; 1991, No. 134 (Adj. Sess.), § 1, eff. April 17, 1992; 1991, No. 230 (Adj. Sess.), § 11.

History

Revision note

—2011. In subsec. (c), substituted “1455 of chapter 50 of this title” for “1263a of chapter 47 of this title” for purposes of clarity. Section 1263a of chapter 47 of this title was repealed by 2009, No. 46 , § 4.

Amendments

—1991 (Adj. Sess.). Subsec. (a): Act No. 230 deleted “subject to the approval of the board” following “commissioner” in the first sentence.

Subsec. (b): Act No. 230 deleted “with approval of the board” following “commissioner”.

Subsec. (c): Act No. 230 inserted “section 1263a of” preceding “chapter 47”.

Subsec. (d): Added by Act No. 134.

—1981 (Adj. Sess.). Subsec. (c): Amended generally.

Prior law.

10 V.S.A. § 2333 .

CROSS REFERENCES

Aquatic Nuisance Control Program, see chapter 50 of this title.

Wild animals doing damage, see chapter 113, subchapter 4 of this title.

§ 4139. Closed waters by agreement with owners of land.

The Commissioner, by agreement with the owners of lands through which private waters flow or in which private waters lie, the same not being boatable waters, may close such waters, or parts thereof, against fishing, and such waters while closed shall be considered closed waters. In the name of the State, the Commissioner may receive from the owners of such lands such deeds or writings as are necessary for this purpose. Such waters shall not thereafter during the term for which they are closed be included in private preserves or propagation farms. Notice that such waters are closed shall be given by notices posted conspicuously upon the banks or shores of such waters.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2334(a) .

§ 4140. Closing waters during spawning.

Not less than 10 days prior to and continuing 10 days after the usual spawning periods of any species of game or food fish, the Commissioner may close portions of waters where such species congregate preparatory to or during the spawning season.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2334(b) .

CROSS REFERENCES

Spawning grounds for game fish, see 10 App. V.S.A. § 124.

Notes to Opinions

Agreement of abutting landowners.

The fish and game service (now fish and wildlife department) under the authority of section 5641 of the Public Laws could close stream temporarily during the breeding season of fish without agreement of landowners abutting the stream. 1936-38 Vt. Op. Att'y Gen. 208. (Decided under prior law.)

§ 4141. Public and private waters, powers as to; private preserve or propagation farm, filing notice of intent.

Waters, except closed waters, stocked by the Commissioner, thereafter shall be treated as public waters, but he or she may prohibit fishing therein for a period of not exceeding five years and notice thereof shall be given in the manner provided in section 4139 of this title. A person who might otherwise make the same a private preserve or propagation farm may do so at the expiration of five years from the date of filing with the Commissioner a written notice of such intent. Such notice shall contain a description of the waters, or part thereof, intended to be made a private preserve or propagation farm and shall be kept on file by the Commissioner.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2335 .

CROSS REFERENCES

Private preserves, see §§ 5201-5206 of this title.

Propagation farms, see §§ 5207-5211 of this title.

ANNOTATIONS

Constitutionality.

Former V.S. § 4568, which authorized commissioners, when they placed fish in pond or stream, to prohibit fishing therein for a period not exceeding three years, and former V.S. § 4567, which provided that waters when so stocked should be treated as public waters, subject to the right of landowner to make them a “private preserve” or “posted waters” at the end of five years after filing with the commissioners notice of his intention so to do, were not unconstitutional as taking private property for public use without compensation, but were a reasonable exercise of the police power of the state to preserve and increase the common property. State v. Theriault, 70 Vt. 617, 41 A. 1030, 1898 Vt. LEXIS 92 (1898). (Decided under prior law.)

Public waters.

Statutory definition of public waters apparently excluded from jurisdiction of state private preserves and posted waters, but this was not true, since both remain subject to the police power. State v. Theriault, 70 Vt. 617, 41 A. 1030, 1898 Vt. LEXIS 92 (1898). (Decided under prior law.)

Restocking.

When commissioners had stocked a pond or stream and prohibited fishing therein for three years, and the three years had elapsed, their power in respect to such waters was not exhausted, but they could restock it and again prohibit fishing therein. State v. Eldredge, 71 Vt. 374, 45 A. 753, 1899 Vt. LEXIS 197 (1899). (Decided under prior law.)

Trespass to reach public waters.

Statute which provided that crossing of uncultivated lands for purpose of fishing would not be actionable unless actual damage occurred was unconstitutional, since such a restriction amounted to a taking of private property for private use. New England Trout & Salmon Club v. Mather, 68 Vt. 338, 35 A. 323, 1895 Vt. LEXIS 38 (1895). (Decided under prior law.)

Notes to Opinions

Boundaries.

Grants of land bounding upon public waters passed title only to the water’s edge, or to low-water mark if there was definite low-water mark. 1938-40 Vt. Op. Att'y Gen. 173. (Decided under prior law.)

Declaration of intention.

Declaration of intention that waters be made into private waters referred to in former section [section 5642 of the Public Laws] was an appurtenance to property and could have been taken advantage of by a subsequent owner. 1942-44 Vt. Op. Att'y Gen. 196. (Decided under prior law.)

Notice filed pursuant to former section [section 5642 of the Public Laws] was merely a declaration of intention having no force so far as actual fishing in those waters was concerned until after the expiration of five-year period, and creation of private preserve at expiration of requisite time was then conditioned upon compliance with other provisions of law pertaining to private waters. 1942-44 Vt. Op. Att'y Gen. 196. (Decided under prior law.)

In order for private person to make a preserve out of his property it was not necessary that notice be filed with director pursuant to former section [section 5642 of the Public Laws] unless stream was stocked with knowledge of owner. 1942-44 Vt. Op. Att'y Gen. 196. (Decided under prior law.)

Prohibition by landowner.

Landowners could erect signs prohibiting fishing adjacent to brook stocked by state even though they had not made brook a private preserve. 1938-40 Vt. Op. Att'y Gen. 182. (Decided under prior law.)

Public waters.

Bed or soil of boatable lakes was held by people in their character as sovereign in trust for public uses for which they were adapted, such trust requiring the state to preserve the waters of such lakes for the common and public use of all. 1938-40 Vt. Op. Att'y Gen. 173. (Decided under prior law.)

Public waters were waters which were boatable in fact, that is, were of common passage as highways and navigable to some purpose useful to trade or agriculture. 1938-40 Vt. Op. Att'y Gen. 173. (Decided under prior law.)

Trespass to reach public waters.

If waters were boatable and therefore public, a person was liable in trespass for crossing another person’s land against his will to reach them for the purpose of taking fish therefrom. 1938-40 Vt. Op. Att'y Gen. 182. (Decided under prior law.)

By declaring that waters, except closed waters, should be public waters, legislature did not intend to make them open and free to the public, but only to leave them without the special protection of posted waters under former §§ 3501-3506 [now §§ 5201-5206] of this title and to leave the owners to their common law action of trespass against intruders. State v. Theriault, 70 Vt. 617, 41 A. 1030, 1898 Vt. LEXIS 92 (1898) (1898). (Decided under prior law.)

§ 4142. Test waters; notices.

  1. For the purpose of securing data relative to the propagation of fish, the Commissioner may designate as test waters streams and ponds within the State. He or she shall cause notices of the designation of any pond or stream as a test water to be published in a newspaper circulating in the vicinity thereof at least three times not more than 30 nor less than five days before the effective date of such designation and to be posted conspicuously on the banks or shores of such waters. Such notices shall state the dates between which such waters are designated as test waters and shall contain such portions of the laws relating to test waters as may be desirable to inform the public of the restrictions thereon.
  2. Fishing in such test waters shall be in accordance with regulations of the Commissioner.
  3. [Repealed.]

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1963, No. 14 , eff. March 19, 1963; 1991, No. 230 (Adj. Sess.), § 12.

History

Amendments

—1991 (Adj. Sess.). Subsec. (a): Deleted “with approval of the board” following “commissioner” in the first sentence and inserted “or she” preceding “shall cause” in the second sentence.

Subsec. (b): Deleted “approved by the board” following “commissioner”.

Subsec. (c): Repealed.

—1963. Subsec. (a): Substituted “propagation of fish” for “production of trout waters” in the first sentence.

Prior law.

10 V.S.A. §§ 2337-2340 .

§ 4143. Power to sell fish for stocking, other purposes.

  1. The Commissioner may sell fish fry, fingerlings, and adult trout to residents of this State for the purpose of stocking waters in the State and he or she may sell to residents fish reared by the State. Such fish shall be sold at a price sufficient to return the State a reasonable profit. The Commissioner shall keep an itemized account of such sales.
  2. A person shall not make other use of such fish fry or fingerlings than is represented in the application therefor or is prescribed by the Commissioner, or make a false statement in such application.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 2011, No. 139 (Adj. Sess.), § 9, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Subsec. (a): Added “or she” in the first sentence, and deleted “and include the same in his or her biennial report” from the end of the last sentence.

Prior law.

10 V.S.A. §§ 2343 , 2344.

CROSS REFERENCES

Affidavit of stocking of private preserve, see § 5202 of this title.

§ 4144. Acquisition of property by State, closed season.

  1. The Secretary with approval of the Governor may acquire for the use of the Department of Fish and Wildlife by gift, purchase, or lease any and all rights and interests in lands, ponds, or streams, and hunting and fishing rights and privileges in any lands or waters in the State, and the necessary rights of ingress or egress to and from such lands and waters. The Secretary’s authority to acquire property interests under this section shall include all of the interests that may be acquired under subsection 6303(a) of this title.
  2. The Board may regulate the taking of wild animals on such lands or of fish in such waters and close or open such waters or lands or any part thereof to the taking of fish or wild animals.
  3. Such regulations shall be posted in the areas affected.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1991, No. 230 (Adj. Sess.), § 13; 2017, No. 170 (Adj. Sess.), § 2.

History

Amendments

—2017 (Adj. Sess.). Subsec. (a): Substituted “Department of Fish and Wildlife” for “State” preceding “by gift”; “any and all rights and interests” for “in the name of the State,” following “lease”, and “and the” for “with” preceding “necessary” and added the second sentence.

—1991 (Adj. Sess.). Subsec. (a): Substituted “secretary” for “board” preceding “with approval”.

Prior law.

10 V.S.A. § 2336 .

CROSS REFERENCES

Acquisition of interests in land by public agencies, see chapter 155 of this title.

Use of motorboat registration fund for acquisition, improvement and expansion of boating access areas and facilities, see 23 V.S.A. § 3319 .

Notes to Opinions

Taxation of rights acquired.

Hunting rights acquired by the state under this section were not subject to taxation by a town within the provisions of former section 3657 of Title 32 or any other section. 1962-64 Vt. Op. Att'y Gen. 171.

Use of property by owner.

Owner of fee who has granted hunting and fishing rights to the state may use his property as he sees fit, provided there are no specific restrictions to the contrary and further provided he does not act in bad faith. 1962-64 Vt. Op. Att'y Gen. 171.

§ 4145. Access, landing area rules.

  1. The Board may adopt rules, under 3 V.S.A. chapter 25, to regulate the use by the public of access areas, landing areas, parking areas, or of other lands or waters acquired or maintained pursuant to section 4144 of this title. Such rules shall be posted in the areas affected and shall permit the launching of all vessels that have a Vermont registration certificate required by 23 V.S.A. chapter 29 and the parking of vehicles and boat trailers used by these vessels. The rules shall not preclude the authorization to launch vessels not registered in Vermont. These rules also shall permit the launching of all nonmotorized vessels not used for commercial purposes and the parking of vehicles and boat trailers used by these vessels.
  2. The Commissioner may enter into agreements with owners of land, which shall not involve payment to the landowner, in order to allow public access for launching of nonmotorized vessels in public waters. The Commissioner may agree to upgrade the land area in a minor way; for example, the Commissioner may agree to build a footpath to the water, build and maintain a small parking area, or perform minor grading to improve boat access. The Commissioner may not agree to major upgrading, such as building a launching ramp or paving a parking area. A landowner who enters into an agreement under this subsection shall be afforded the landowner liability protections of 12 V.S.A. § 5793 . The Commissioner shall post signs in these areas, inviting private contributions to the Fish and Wildlife Fund for the purpose of building and maintaining nonmotorized vessel access areas, and shall issue to any person contributing, a sticker that may be placed on a vessel and that identifies the person as a contributor to the nonmotorized vessel access area program.
  3. The Commissioner shall keep account of funds, including private donations and State appropriations, that are deposited into the Fish and Wildlife Fund for the purpose of building and maintaining access areas and shall annually, on or before January 15, report to the House Committee on Natural Resources, Fish, and Wildlife, the Senate Committee on Natural Resources and Energy, and the Senate and House Committees on Appropriations, concerning the use of those funds in the past year and plans for use of the funds for the coming year. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection.
  4. The Board shall allow the Commissioner of Environmental Conservation to post aquatic nuisance signs pursuant to subdivision 1453(b)(6) of this title.

HISTORY: Added 1961, No. 119 , § 1; amended 1991, No. 230 (Adj. Sess.), § 14; 1993, No. 52 , § 5; 1999, No. 76 (Adj. Sess.), § 1; 2003, No. 121 (Adj. Sess.), § 69, eff. June 8, 2004; 2013, No. 142 (Adj. Sess.), § 22.

History

Revision note

—2011. In subsec. (d), substituted “1453(b)(6)” for “921(b)(6)” for purposes of clarity. Section 921 was repealed by 2009, No. 46 , § 4.

Amendments

—2013 (Adj. Sess.). Subsec. (c): Added the second sentence.

—2003 (Adj. Sess.). Subsec. (d): Added.

—1999 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a) and added subsecs. (b) and (c).

—1993. Added “and shall permit the launching of all vessels which have a Vermont registration certificate required by chapter 29 of Title 23 and the parking of vehicles and boat trailers used by these vessels” following “affected” in the second sentence and added the third and fourth sentences.

—1991 (Adj. Sess.). Substituted “rules” for “regulations” following “area” in the section heading and in the second sentence and inserted “adopt rules, under chapter 25 of Title 3, to” preceding “regulate” in the first sentence.

CROSS REFERENCES

Use of State controlled fishing access areas, see 10 App. V.S.A. § 115.

§ 4146. Public shooting grounds; establishment.

The Commissioner may establish public shooting grounds on land acquired or controlled by and under the jurisdiction of the Department. The Commissioner may, for a specified period of time, prohibit or regulate the taking of wild animals in accordance with law on any part or parts of such lands. He or she may also make such regulations as may be necessary for the proper protection and management of such lands. At least 30 days before such a prohibition or regulation takes effect, she or he shall file a copy of same in the office of the town clerk of the town in which such lands lie, and shall cause the same to be published three times in a newspaper having general circulation in such area. Any part or parts of such shooting grounds which are closed against the taking of game shall be surrounded by suitable notices, as prescribed by the Commissioner, placed at conspicuous places along such boundaries.

HISTORY: Added 1961, No. 119 , § 1; amended 1991, No. 230 (Adj. Sess.), § 15.

History

Amendments

—1991 (Adj. Sess.). Section amended generally.

Prior law.

10 V.S.A. § 2345 .

§ 4147. Fish and wildlife lands.

  1. Notwithstanding the provisions of 29 V.S.A. § 166 , the Secretary with the approval of the Governor may convey, exchange, sell, or lease lands of the Department of Fish and Wildlife for one or more of the following purposes:
    1. resolving trespass issues and implementing boundary line adjustments and right-of-way and deed corrections, provided that the transfers are advantageous to the State;
    2. implementing the acquisition of new lands for conservation and public recreation when, in his or her judgment, it is advantageous to the State.
  2. The lease, sale, or exchange of lands under this section shall not include oil and gas leases and shall not be contrary to the terms of any contract that has been entered into by the State.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1981, No. 240 (Adj. Sess.), § 5, eff. April 28, 1982; 1983, No. 195 (Adj. Sess.), § 5(b); 1991, No. 230 (Adj. Sess.), § 16; 2017, No. 170 (Adj. Sess.), § 3.

History

Revision note

—2006. Changed “Section 104 of Title 29” to “section 166 of Title 29” to conform with redesignation of that section.

Amendments

—2017 (Adj. Sess.). Section amended generally.

—1991 (Adj. Sess.). Section amended generally.

—1983 (Adj. Sess.). Inserted “and information support” following “commissioner of finance” in the first sentence.

—1981 (Adj. Sess.). Substituted “its” for “their” preceding “judgment” in the first sentence and inserted “shall not include oil and gas leases and” preceding “shall not be contrary” in the second sentence.

Prior law.

10 V.S.A. § 2347 .

ANNOTATIONS

Cited.

Cited in 1970-72 Vt. Op. Att'y Gen. 175.

§ 4148. Trespass on State property.

A person shall not trespass, in violation of regulations, upon property under the jurisdiction of the Secretary.

HISTORY: Added 1961, No. 119 , § 1; amended 1991, No. 230 (Adj. Sess.), § 17.

History

Amendments

—1991 (Adj. Sess.). Substituted “secretary” for “board” following “jurisdiction of the”.

Prior law.

10 V.S.A. § 2566 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4149. State Ornithologist.

The Commissioner, by virtue of his or her office, shall be State Ornithologist and as such may employ, subject to the approval of the Governor, one or more assistants.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2329 .

§ 4150. Study of birds; dissemination of information.

The Ornithologist or his or her assistants shall investigate the distribution, food, and unity of the birds of the State, study regarding their relations to insects and other pests, and disseminate the information thus obtained for the benefit of the people of the State.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2330 .

§ 4151. Bulletins regarding birds; lectures.

The Ornithologist or his or her assistants may prepare bulletins regarding the birds of the State, means of protecting them, the methods of protecting crops from birds and other economic matters relating to birds, and the same may be published. The Ornithologist or his or her assistants may deliver public lectures and addresses; provided, however, that all necessary expenses incident thereto are met by those requesting such services.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2331 .

§ 4152. Permits for scientific and educational collections.

  1. The Commissioner may issue permits to a properly accredited person or educational institution permitting the holder thereof to collect birds, their nests and eggs, and fish and wild animals or parts thereof, for public scientific research or educational purposes of the institution.
  2. The Commissioner may issue a permit to an individual that allows the holder to collect fish and wild animals for the purpose of using them as subjects of art or photography.
  3. The Commissioner may issue a permit to a person that allows the holder to collect and possess a dead salvage bird or bird feathers for noncommercial cultural or ceremonial purposes, provided that the bird was legally acquired, transferred from an individual who acquired it legally, or found dead, and the permittee had no part in the intentional killing of the bird. A permit issued under this section shall comply with federal requirements regarding collection and possession of migratory birds.

HISTORY: Added 1961, No. 11 § 1, eff. May 9, 1961; amended 1987, No. 171 (Adj. Sess.); 1991, No. 230 (Adj. Sess.), § 30; 2013, No. 116 (Adj. Sess.), § 11.

History

Amendments

—2013 (Adj. Sess.). Added the subsecs. (a) and (b) designations, in subsec. (b) substituted “The Commissioner” for “In addition, the commissioner” at the beginning and “individual that” for “individual which” following “permit to an”, and added subsec. (c).

—1991 (Adj. Sess.). Rewrote the second sentence and deleted the third sentence.

—1987 (Adj. Sess.). Section amended generally.

Prior law.

10 V.S.A. § 2332 .

CROSS REFERENCES

Taking or destroying nests or eggs of wild birds, see § 4905 of this title.

§ 4153. Lifetime license; award.

  1. The Commissioner is authorized to hold an annual drawing of applications for prizes that the Department may have available such as lifetime or other licenses, time at a Fish and Wildlife Conservation Camp, and fish and wildlife publications. However, the Department shall not offer cash nor purchase or accept goods for the purpose of making them available through the drawing. Anyone who has reached the age of majority may enter the drawing by filling out an application provided by the Commissioner and paying a fee of $2.00. There is no limit to the number of applications a person may enter. Prizes shall be awarded by the random drawing of applications.
  2. The Commissioner shall establish procedures necessary to implement this section.
  3. The agent shall be reimbursed $0.25 per application.
  4. Fees collected under this section shall be deposited into the Fish and Wildlife Fund.
  5. Licenses awarded under this section shall be paid for from the fees collected under this section.

HISTORY: Added 1991, No. 96 ; amended 1993, No. 110 (Adj. Sess.), § 1.

History

Amendments

—1993 (Adj. Sess.). Substituted “lifetime” for “permanent” in the section heading.

Subsec. (a): Substituted “prizes that the department may have available such as lifetime or other licenses, time at a fish and wildlife conservation camp and fish and wildlife publications” for “a permanent fishing license or, if the applicant is eligible, a combination fishing and hunting license” following “applications for” in the first sentence, added the second sentence, and rewrote the fifth sentence.

Subsec. (c): Substituted “be reimbursed” for “retain a fee of” following “shall”.

Subsec. (e): Added.

Subchapter 4. Game Wardens

CROSS REFERENCES

Exemption of law enforcement officers from security guard licensure requirements, see 26 V.S.A. § 3174 .

§ 4191. Game wardens, number, record.

  1. The Commissioner, with the approval of the Governor, may employ a chief game warden and as many State game wardens as may be required for the proper enforcement of the fish and wildlife laws of the State. These officers shall be included in the classified service created in 3 V.S.A. chapter 13. These officers and deputy game wardens employed as herein provided shall be sworn to the faithful performance of their duties. The Commissioner may appoint and employ for a limited time as many deputy game wardens as deemed necessary. The number of game wardens shall be determined by the Commissioner with the approval of the Governor. A copy of the appointment and oath of office of each game warden and deputy shall be filed in the office of the Commissioner.
  2. While so employed, game wardens shall devote their entire time to the discharge of their duties and shall not be engaged in any other business without having first obtained permission to do so from the Commissioner.  The Commissioner may grant permission if it appears that the outside employment will not render the warden unavailable during an emergency, will not physically or mentally exhaust the warden to the point that performance of duties might be affected, and will not require that any special consideration be given to scheduling of regular duty hours.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1985, No. 101 (Adj. Sess.); 1991, No. 230 (Adj. Sess.), § 18.

History

Amendments

—1991 (Adj. Sess.). Subsec. (a): Rewrote the former first sentence as the first through third sentences, deleted “with the approval of the board” preceding “the commissioner” in the fourth sentence, and substituted “commissioner” for “board” following “determined by the” in the fifth sentence.

—1985 (Adj. Sess.). Section amended generally.

Prior law.

10 V.S.A. § 2381 .

Notes to Opinions

Appointment of game wardens.

The commissioner of fish and game (now fish and wildlife) may appoint state game wardens, the number of which must first be determined by the fish and game board (now fish and wildlife board) and thereafter approved by the governor, and he may appoint deputy wardens “for a limited time” which requires only the approval of the board and not that of the governor. 1968-70 Vt. Op. Att'y Gen. 108.

Wardens not to engage in other business.

It was the intent of the legislature, by stating that game wardens “shall devote their entire time to the discharge of their official duties and shall not be engaged in any other business”, that wardens although not “on duty” twenty-four hours a day, seven days a week, are to be available for duty on call at all times and other business, even during off duty hours, might interfere with instant availability. 1964-66 Vt. Op. Att'y Gen. 116.

§ 4192. Duties of deputy game wardens.

Deputy game wardens shall have authority to enforce all provisions of this part and all orders and rules adopted thereunder. They shall also have authority to enforce the provisions of chapter 47 of this title, 13 V.S.A. § 3705 , 24 V.S.A. § 2201 , Title 25, and 23 V.S.A. chapter 29.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1967, No. 96 , eff. April 13, 1967; 1971, No. 245 (Adj. Sess.), § 3, eff. April 6, 1972; 1991, No. 215 (Adj. Sess.), § 1.

History

Amendments

—1991 (Adj. Sess.). Section amended generally.

—1971 (Adj. Sess.). Section amended generally.

—1967. Added the fourth sentence.

Prior law.

10 V.S.A. § 2382 .

ANNOTATIONS

Cited.

Cited in State v. Rocheleau, 142 Vt. 61, 451 A.2d 1144, 1982 Vt. LEXIS 605 (1982); State v. Martel, 142 Vt. 210, 453 A.2d 1112, 1982 Vt. LEXIS 626 (1982).

§ 4193. Seizure; power to arrest.

  1. The Chief Game Warden and State and deputy game wardens shall seize fish or wild animals taken or held in violation of a provision of this part or regulations or orders authorized under this part.  They may arrest, without warrant and on view, in any part of the State, a person violating a provision of this part or regulations or orders authorized under this part and take such person before a magistrate having jurisdiction of the offense and detain such person in custody at the expense of the State until opportunity is had to notify a prosecuting officer, who shall forthwith prosecute such offender.
  2. While the State of New York shall have in effect a law similar to this subsection for the arrest and punishment of violations of the conservation or fish laws of this State or the State of New York, committed or attempted to be committed by any person fishing in that portion of Lake Champlain lying between such states, any game protector, game warden, sheriff, deputy sheriff or other person of either state, who is authorized to make arrests for violations of the conservation or fish laws of such states, shall have power and authority to make arrest on any part of such lake between such states or the shores thereof and to take the person so arrested for trial to the state in which the violation was committed and there to prosecute such person according to the laws of such state.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. §§ 2382 , 3696.

ANNOTATIONS

Disposition of seized animals.

Game wardens’ power to seize illegally possessed wild game is for evidentiary purposes only and is not a roving commission to unlawfully enter premises and seize game believed to have been illegally taken and dispose of the game according to wardens’ own dictates, as by selling it. Langle v. Bingham, 447 F. Supp. 934, 1978 U.S. Dist. LEXIS 18854 (D. Vt. 1978).

Where person set a bear trap contrary to law, the means taken to reduce the animal to possession having been unlawful, such unlawful capture would not give such a title as would enable such person to maintain action of tort against game warden who took possession of the animal for evidentiary purposes; and fact that bear was a noxious animal for destruction of which state offered a bounty did not affect the question. Jones v. Metcalf, 96 Vt. 327, 119 A. 430, 1923 Vt. LEXIS 170 (1923). (Decided under prior law.)

Seizure.

The authority of state wardens, under former section 2382 and former sections 2383, 3061 and 3062 of this title, to act without a warrant, was limited to those occasions when the culpability of the offender and his instruments of crime were demonstrated by the commission of the act or the possession of its product in the presence of the officer. State v. Aldrich, 122 Vt. 416, 175 A.2d 803, 1961 Vt. LEXIS 93 (1961). (Decided under prior law.)

Game warden had authority to seize without warrant, and detain for evidentiary purposes, a bear trap, found to have been used in violation of law. Jones v. Metcalf, 96 Vt. 327, 119 A. 430, 1923 Vt. LEXIS 170 (1923). (Decided under prior law.)

Cited.

Cited in State v. Rocheleau, 142 Vt. 61, 451 A.2d 1144, 1982 Vt. LEXIS 605 (1982); State v. Martel, 142 Vt. 210, 453 A.2d 1112, 1982 Vt. LEXIS 626 (1982).

Notes to Opinions

Arrest on view.

Arrest on view could have been made without a warrant. 1936-38 Vt. Op. Att'y Gen. 208. (Decided under prior law.)

Entry into camp.

Game wardens should have procured warrants before searching for property which they believed had been unlawfully held, when such search entailed entry into a hunting camp, if the hunting camp was in fact, a dwelling house. 1942-44 Vt. Op. Att'y Gen. 271. (Decided under prior law.)

Power to sign and serve warrant.

Fish and game wardens could make and sign a complaint in a warrant and serve the warrant on a person who had not been arrested on view. 1936-38 Vt. Op. Att'y Gen. 208. (Decided under prior law.)

§ 4194. Repealed. 1991, No. 215 (Adj. Sess.), § 4.

History

Former § 4194. Former § 4194, relating to game wardens’ power to search, was derived from 1961, No. 119 (Adj. Sess.), § 1.

§ 4195. Power as to forest fires; payment.

  1. While in and about the woods, the game wardens shall caution persons as to the danger of fires and shall extinguish a fire left burning.  When a fire is threatening to extend beyond his or her control, the game warden shall notify all parties interested and the forest fire warden of the town in which such fire occurs.  Until the arrival of such fire warden, he or she shall have all the powers of such fire warden.
  2. Such game wardens shall render a statement accompanied by proper vouchers for expense incurred in respect to such fire to the treasurer of the town in which the fire occurred and such town shall make payment therefor in the manner provided for the payment of forest fire wardens.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. §§ 2384 , 2385.

CROSS REFERENCES

Duties and powers of fire warden, see § 2644 of this title.

Salary and compensation of fire wardens, see § 2642 of this title.

§ 4196. Instructions and meetings.

The Chief Game Warden, with the advice and consent of the Commissioner, shall instruct and assist the game wardens in their duties and from time to time may call such wardens together at some time and place designated by the Commissioner for instruction in their duties.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2386 .

§ 4197. Records and reports.

A game warden shall keep a record of his or her official acts in the manner and form prescribed by the Commissioner. He or she shall submit such record and such reports to the Commissioner as he or she may require.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2387 .

§ 4198. Police powers; training; State game wardens; deputy game wardens.

Upon obtaining from the Vermont Criminal Justice Council Level II or Level III law enforcement officer certification as established in 20 V.S.A. § 2358 , State game wardens and deputy game wardens shall have the same law enforcement authority, duties, and powers as State Police, sheriffs, constables, and municipal police and shall have all immunities and defenses now or hereafter available to State Police, sheriffs, constables, and municipal police in a suit brought against them in consequence of acts done in the course of their employment. State game wardens and deputy game wardens shall receive their regular compensation during the time they are enrolled in the training program.

HISTORY: Added 1973, No. 200 (Adj. Sess.), amended 1979, No. 57 , § 11; 1991, No. 215 (Adj. Sess.), § 2; 1993, No. 236 (Adj. Sess.), § 4; 2013, No. 141 (Adj. Sess.), § 16, eff. July 1, 2015.

History

Revision note

—2020. Substituted “Vermont Criminal Justice Council” for “Vermont Criminal Justice Training Council” in accordance with 2019, No. 166 (Adj. Sess.), § 2(b).

Amendments

—2013 (Adj. Sess.). Substituted “Upon obtaining from the Vermont Criminal Justice Training Council Level II or Level III” for “Upon certification by the executive director of the criminal justice training council of the successful completion of the training program for” at the beginning and “officer certification” for “officers” preceding “as established in”.

—1993 (Adj. Sess.). Deleted the subsec. (a) designation at the beginning of the section and inserted “and deputy game wardens” following “state game wardens” in the first and second sentences and deleted former subsec. (b).

—1991 (Adj. Sess.). Added “state game wardens; deputy game wardens” following “training” in the section heading, designated the existing provisions of the section as subsec. (a), inserted “law enforcement authority” preceding “duties and powers” and deleted “have in their respective jurisdictions” preceding “and shall have all immunities” in the first sentence of that subsec. and added subsec. (b).

—1979. Section amended generally.

CROSS REFERENCES

Vermont Criminal Justice Training Council, see 20 V.S.A. chapter 151.

ANNOTATIONS

Cited.

Cited in State v. Rocheleau, 142 Vt. 61, 451 A.2d 1144, 1982 Vt. LEXIS 605 (1982).

§ 4199. Reciprocal assistance agreements.

  1. In this section, “officer” means a game warden, a conservation law enforcement officer, or a person in another state charged with enforcing the fish and wildlife laws of that state.
  2. The Commissioner may enter into a reciprocal assistance agreement with his or her counterpart in any other state. An agreement made under this section shall be for the purpose of cooperating and assisting each other in detecting and apprehending people violating the fish and wildlife or environmental laws of the State, subject to the limitations of section 4193 of this title.
  3. Pursuant to an agreement under this section, the Commissioner may send fish and wildlife wardens into another state for the purpose of assisting the officers of that state and may accept officers of another state into Vermont for the purpose of assisting Vermont wardens.
  4. Under an agreement pursuant to this section:
    1. When a Vermont game warden or an officer of one state enters another state for the purposes of assistance, he or she shall be under the operational control of the chief officer of the host state and shall have the same duties, rights, privileges, and immunities as officers of the host state. An officer of another state operating in Vermont under this section shall have the same powers as a Vermont game warden provided the officer is certified by the Executive Director of the Vermont Criminal Justice Council as meeting the standards established in 20 V.S.A. § 2358 for Vermont law enforcement officers. This subsection does not nullify subsection 4193(b) of this title.
    2. When an officer is serving in another state under this section, the host state shall assume liability to third persons for actions of that officer taken on account of or in connection with a request for assistance hereunder but only to the extent that the host state would be liable for actions of one of its own officers. The home state of the officer shall be responsible for payment of salary, expenses, and injury and death benefits of the officer while on duty in another state.
  5. A reciprocal assistance agreement shall be executed in writing, shall set forth the terms and conditions under which assistance may be requested or rendered and shall remain in full force and effect until terminated by mutual consent of the parties to the agreement, or until 10 days after one of the parties has given notification to another party of intention to terminate the agreement.

HISTORY: Added 1991, No. 171 (Adj. Sess.).

History

Revision note

—2020. In subdiv. (d)(1), substituted “Vermont Criminal Justice Council” for “Vermont Criminal Justice Training Council” in accordance with 2019, No. 166 (Adj. Sess.), § 2(b).

—2011. In subsec. (b), struck incorrect reference to “4192”, relating to deputy game wardens, and inserted “4193”, relating to seizure, power of arrest, and limitations on game wardens in order to affect the intent of the statute.

Chapter 105. Licenses

History

Revision note—

Chapter was enacted without subchapters. Subchapter 1 heading was added because of the addition of subchapter 2 by 1981, No. 214 (Adj. Sess.). Subchapter 2 was enacted as subchapter 1 but was renumbered to conform to V.S.A. style.

ANNOTATIONS

Generally.

Animals ferae naturae at large in state belonged to people of state in their collective and sovereign capacity, and not in their individual and private capacity, except so far as private ownership might be acquired therein under the constitution, subject always to such proper regulations as the legislature might make, in conformity with which, but not otherwise, an inhabitant of the state had right to appropriate to his own use such of these animals as he might capture and retain, which qualified ownership the law recognized as private property. Jones v. Metcalf, 96 Vt. 327, 119 A. 430, 1923 Vt. LEXIS 170 (1923). (Decided under prior law.)

Notes to Opinions

Discontinuance of rights under licenses.

The mere fact that a trapping license has been issued and paid for does not preclude the discontinuance of certain rights otherwise conferred by the license. 1966-68 Vt. Op. Att'y Gen. 67.

Licensing of military personnel.

No fishing or hunting license was required for soldiers or commissioned officers residing at Fort Ethan Allen to fish or hunt within the boundaries of that military reservation, which is in the exclusive jurisdiction of the United States. 1944-46 Vt. Op. Att'y Gen. 189. (Decided under prior law.)

Trapping fur-bearing animals.

Holder of a hunting license was not entitled to take fur-bearing animals with the use of traps. 1930-32 Vt. Op. Att'y Gen. 148. (Decided under prior law.)

Subchapter 1. Generally

§ 4251. Taking wild animals and fish; license.

  1. Except as provided in sections 4253 and 4254b of this title, a person shall not take wild animals or fish without first having procured a license therefor; provided, however, that a person under 15 years of age may take fish in accordance with this part and regulations of the Board, without first having procured a license therefor.
  2. The Commissioner of Fish and Wildlife may designate two days each calendar year as “free fishing days” for which no license shall be required. One day shall occur in the open water fishing season and one day shall occur during the ice fishing season.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1989, No. 27 ; 1989, No. 36 , § 4; 2013, No. 78 , § 5.

History

Amendments

—2013. Subsec. (a): Substituted “sections 4253 and 4254b” for “section 4253”.

Subsec. (b): Substituted “two days” for “one day” following “designate” and “days” for “day” following “fishing” and added the present second sentence.

—1989. Act No. 27 designated the existing provisions of the section as subsec. (a) and added subsec. (b).

Act No. 36 deleted “any may trap wild animals” preceding “in accordance” in subsec. (a).

Prior law.

10 V.S.A. § 2451 .

CROSS REFERENCES

Exemption of persons fishing at permitted fee fishing businesses from license requirements, see § 5228 of this title.

Rights of inhabitants to hunt, fowl and fish, see Vt. Const. ch. II, § 67.

Stamp required for hunting migratory waterfowl, see § 4277 of this title.

Notes to Opinions

Use of revenue.

The maintenance of capital improvements financed with funds derived from the federal bureau of outdoor recreation and funds derived from a state bond issue was well within the scope of normal activities of a fish and game department (now fish and wildlife department) and the maintenance cost could properly be paid from the license income of the department since the control of receipts of the department remained with the fish and game board (now fish and wildlife board). 1964-66 Vt. Op. Att'y Gen. 118.

ANNOTATIONS

Cited.

Cited in State v. Elliott, 159 Vt. 102, 616 A.2d 210, 1992 Vt. LEXIS 122 (1992).

Law Reviews —

For note relating to state jurisdiction over hunting and fishing rights of Abenaki Indians, see 10 Vt. L. Rev. 417 (1985).

§ 4252. Activities permitted under licenses.

  1. Subject to provisions of this part and rules of the Board:
    1. A fishing license shall entitle the holder to take fish.
    2. A hunting license shall entitle the holder to take wild animals, other than fish, except by trapping and for those species that require a separate big game license, and to shoot and spear pickerel.
    3. A trapping license shall entitle the holder to take animals other than fish with the use of traps.
    4. A combination fishing and hunting license shall entitle the holder to take fish and wild animals, except by trapping and for those species that require a separate big game license, and to shoot and spear pickerel.
    5. An archery license shall entitle the holder to take wild deer by bow and arrow or crossbow.
    6. A muzzle loader license shall entitle the holder to take deer with a muzzle loading firearm.
    7. A turkey license shall entitle the holder to take wild turkey.
    8. A small game license shall entitle the holder to take small game by any lawful means other than a trap.
    9. [Repealed.]
    10. [Repealed.]
    11. A moose license shall entitle the holder who has been issued a moose permit under the authority of the Fish and Wildlife Board under subsection 4081(b) and sections 4082 and 4084 of this title to take moose.
    12. A super sport license shall entitle the holder to take fish, shoot pickerel, take wild animals pursuant to chapter 113 of this title, take wild animals as allowed under a combination hunting and fishing license and the following big game licenses: archery, muzzle loader, and turkey. The Commissioner may establish procedures to encourage purchasers of a super sport license to make a stewardship donation of $10.00 to the Fish and Wildlife Fund for the purpose of habitat improvement.
    13. A mentored hunting license shall entitle the holder to the same privileges as permitted by the fully licensed accompanying hunter’s hunting license under subdivision (2) of this section.
    14. A free youth turkey hunting weekend license for persons aged 15 or under on youth turkey hunting weekend shall entitle the holder to take wild turkey.
    15. A free youth deer weekend license for persons aged 15 or under on youth deer hunting weekend shall entitle the holder to take deer.
    16. A youth hunting license for persons aged 17 and under on the date of the license purchase shall entitle the holder to take wild animals, other than fish, except by trapping and for those animals that require a separate big game license, and to shoot and spear pickerel.
    17. A youth fishing license, eligible for persons aged 15 to 17 on the date of the license purchase, shall entitle the holder to take fish.
    18. A youth combination fishing and hunting license, eligible for persons aged 15 to 17 on the date of the license purchase, shall entitle the holder to take fish and wild animals, except by trapping and for those animals that require a separate big game license, and to shoot and spear pickerel.
  2. In addition to the activities authorized under subsection (a) of this section and the rules authorized thereunder, the holder of an archery license or a super sport license may possess a handgun while archery hunting, provided that the license holder shall not take game by firearm while archery hunting. As used in this section, “handgun” means a pistol or revolver which will expel a projectile by the action of an explosive.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1989, No. 190 (Adj. Sess.), § 2; 1991, No. 199 (Adj. Sess.), § 1, eff. May 27, 1992; 1997, No. 99 (Adj. Sess.), § 4; 1999, No. 30 , § 1, eff. Jan. 1, 2000; 2003, No. 163 (Adj. Sess.), § 12; 2005, No. 72 , § 11; 2009, No. 120 (Adj. Sess.), § 2, eff. January 1, 2011; 2011, No. 128 (Adj. Sess.), § 27; 2013, No. 78 , § 6; 2015, No. 97 (Adj. Sess.), § 25; 2019, No. 50 , § 10.

History

Amendments

—2019. Subdiv. (a)(5): Substituted “wild” for “one” and added “or crossbow”.

Subdivs. (a)(9), (a)(10): Repealed.

—2015 (Adj. Sess.). Subsec. (a): Substituted “rules” for “regulations” following “part and”.

Subdiv. (a)(3): Substituted “trapping” for “trappers’ ” preceding “license”.

Subdiv. (a)(9): Deleted “pursuant to section 4743 of this title” following “firearm”.

Subdiv. (a)(10): Deleted “pursuant to section 4744 of this title” following “bow and arrow”.

—2013. Subdiv. (a)(5): Deleted “pursuant to section 4744 of this title” following “arrow”.

Subdiv. (a)(6): Deleted “pursuant to section 4743 of this title” following “firearm”.

Subdiv. (a)(12): Inserted “and turkey” following “loader” and deleted “second archery and second muzzle loader” following “turkey”.

Subsec. (b): Added.

—2011 (Adj. Sess.) Subdiv. (2): Substituted “other than fish, except by trapping and for those species that require a separate big game license, and to shoot and spear pickerel” for “except those that require a separate big game license, and to shoot pickerel”.

Subdiv. (3): Inserted “other than fish” following “to take animals”.

Subdiv. (4): Substituted “except by trapping and for those species that require a separate big game license, and to shoot and spear pickerel” for “except those species that require a separate big game license, and to shoot pickerel” at the end.

Subdivs. (14) through (18): Added.

—2009 (Adj. Sess.) Subdiv. (13): Added.

—2005. Subdiv. (12): Substituted “wild animals as allowed under a combination hunting and fishing license and the following big game licenses: archery, muzzle loader, turkey, second archery, and second muzzle loader” for “deer by bow and arrow pursuant to section 4744 of this title, take deer with a muzzle loading firearm pursuant to section 4743 of this title, and take wild turkey” in the first sentence, and added the second sentence.

—2003 (Adj. Sess.). Subdivs. (11), (12): Added.

—1999. Subdiv. (5): Inserted “one” preceding “deer”.

Subdiv. (10): Deleted “wild antlerless” preceding “deer” in the first sentence and deleted the second sentence.

—1997 (Adj. Sess.). Subdiv. (10): Inserted “antlerless” in the first sentence.

—1991 (Adj. Sess.). Added subdivs. (9) and (10).

—1989 (Adj. Sess.). Section amended generally.

Prior law.

10 V.S.A. § 2460 .

CROSS REFERENCES

Shooting pickerel, see 10 App. V.S.A. § 108.

§ 4253. Landowner; family; exception.

  1. A resident owner of lands, his or her spouse, and their minor children may, without procuring a license under this chapter, take fish from the waters therein, shoot pickerel, and take wild animals or wild birds therein subject to the provisions of this part.
  2. A nonresident owner of lands, his or her spouse, and their minor children, may without procuring a license under this chapter, take fish from the waters therein, shoot pickerel, and take wild animals or wild birds thereon subject to the provisions of this part, except if the lands are posted under provisions other than section 4710 of this title.
  3. As used in this section, “post” means any signage that would lead a reasonable person to believe that hunting is prohibited on the land.
  4. Nothing in this section shall be construed to:
    1. exempt a captive hunt facility from the permitting requirements adopted under the rules of the Fish and Wildlife Board; or
    2. without a permit from the Commissioner of Fish and Wildlife, allow any person, including a hunt club, hunting association, or multiple landowners, to transport, possess, or fence any animal for the purpose of taking or attempting to take the animal by hunting.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1969, No. 274 (Adj. Sess.); 1973, No. 178 (Adj. Sess.), § 1; 1981, No. 85 , § 2; 2011, No. 54 , § 10, eff. May 31, 2011; 2013, No. 116 (Adj. Sess.), § 2, eff. May 5, 2014.

History

Amendments

—2013 (Adj. Sess.). Subsec. (d): Added.

—2011. Subsec. (b): Inserted “or her” following “his”.

Subsec. (c): Added.

—1981. Subsec. (b): Substituted “if” for “under sections 4743 and 4744 of this title, or unless” following “except”.

—1973 (Adj. Sess.). Subsec. (a): Inserted “or her” preceding “spouse”, deleted “or a regular employee of a resident owner” following “children” and deleted “except under sections 4741b and 4742 of this title” following “provisions of this part”.

—1969 (Adj. Sess.). Designated existing provisions of section as subsec. (a), rewrote the subsec., and added subsec. (b).

Prior law.

10 V.S.A. § 2452 .

ANNOTATIONS

Taking without license.

Prosecution for taking fox without license should have been dismissed since defendant had killed the fox on his farm during season when such fur-bearing animals could be taken. State v. Comer, 102 Vt. 264, 147 A. 697, 1929 Vt. LEXIS 176 (1929). (Decided under prior law.)

Cited.

Cited in State v. Elliott, 159 Vt. 102, 616 A.2d 210, 1992 Vt. LEXIS 122 (1992).

Notes to Opinions

Sale of land.

The exemption from fishing and hunting license requirements enjoyed by a nonresident property owner and his immediate family may not be continued in the event he sells his land to the state. 1972-74 Vt. Op. Att'y Gen. 98.

§ 4254. Fishing and hunting licenses; eligibility, design, distribution, sale, and issue.

  1. Fishing licenses.   A fishing license may be issued to any person aged 15 or older.
  2. Hunting licenses.   A resident or nonresident hunting license, combination fishing and hunting license, or archery license may be issued to any person, provided that the applicant prior to issue first presents:
    1. a certificate of satisfactory completion of a Vermont hunter safety course, bow hunter education course as applicable, or an equivalent approved by the Commissioner; or
    2. a certificate of satisfactory completion of a hunter safety course, or bow hunter education course as applicable, in another state or a province of Canada which is approved by the Commissioner; or
    3. a hunting license, a combination hunting and fishing license, or archery license, if applicable, issued for this State or any other state or a province of Canada and valid for any license year; or
    4. other satisfactory proof that the applicant has previously held a hunting, or combination hunting and fishing license or archery license, if applicable. A hunting license or archery license may be issued to a person aged 15 or under only with the written consent of the applicant’s parent or legal guardian given in the presence of the agent issuing the license.
  3. Hunter Education.   The Commissioner shall provide for a course of basic instruction in the safe handling of firearms, survival training, and first aid training and a course in bow hunter education. For this purpose, the Commissioner may cooperate with any reputable association, organization, or agency, and he or she may designate any person found by him or her to be competent to give such instruction. A person satisfactorily completing the course of instruction shall receive from the instructor a certificate in evidence thereof. No fee shall be charged for a course of instruction provided under this subsection.
  4. Administration.   The Commissioner shall be responsible for the design of all licensing documents and forms, the sale of licenses, the reporting of sales, and the full return of all funds due the Department.
  5. Licenses.   The Commissioner shall establish:
    1. license agencies, for the sale and distribution of licenses or lottery applications for licenses, including any town clerk who desires to sell licenses or process lottery applications for licenses;
    2. the number, type, and location of license agencies, other than town clerk agencies;
    3. the qualifications of all agencies and agents except town clerks;
    4. controls for the inventory, safeguarding, issue, and recall of all licensing materials;
    5. the times and methods for reporting the sale and issuance of all licenses;
    6. procedures for accounting for and return of all monies and negotiable documents due the Department from agencies in accordance with the provisions of this title and Title 32 of the Vermont Statutes Annotated;
    7. procedures for the audit of all license programs and license agency transactions and the proper retention and inspection of all accounting and inventory records related to the sale or issuance of licenses;
    8. procedures for the suspension of any license agent or agency, including a town clerk agent, for noncompliance with the provisions of this title, any written agreement between the agent and the Department, or any licensing rule established by the Department;
    9. that for each license or lottery application, $1.50 of the fee is a filing fee that may be retained by the agent, except for the super sport license for which $5.00 of the fee is a filing fee that may be retained by the agent; and
    10. that for licenses, lottery applications, and tags issued where the Department does not receive any part of the fee, $1.50 may be charged as a filing fee and retained by the agent.
  6. License agency.   All persons or businesses who wish to serve as agents shall apply on forms provided by the Department. Except for the fee collected under subdivision (e)(9) of this section, all license fees collected by an agent are the property of the State of Vermont and shall be promptly paid to the State following the procedures established under subdivision (e)(6) of this section.
  7. [Repealed.]
  8. Lotteries.   If the Board decides to hold a lottery for the purpose of allocating permits to hunt or fish, except for a lottery held pursuant to section 4081 or 4153 of this title or for water fowl hunting permits for specific areas as defined by the Board by rule, the Department shall require that each resident entering the lottery shall submit a nonrefundable fee of $10.00 and each nonresident entering the lottery shall submit a nonrefundable fee of $25.00 with each application. Proceeds from the sale of applications shall be deposited into the Fish and Wildlife Fund.
  9. Moose hunting.
    1. If the Board establishes a moose hunting season, not more than 10 percent of the total number of annual moose permits authorized by the Board shall be set aside to be auctioned. The total number of annual moose permits set aside to be auctioned shall not exceed six. The moose permits, if any, set aside for auction shall be included in the total number of annual moose permits authorized by the Board. The Board shall adopt rules necessary for the Department to establish, implement, and run the auction process. The Commissioner annually may establish a minimum dollar amount of not less than $1,500.00 for any winning bid for a moose permit auctioned under this subdivision. Proceeds from the auction shall be deposited in the Fish and Wildlife Fund and used for conservation education programs run by the Department. Successful bidders must have a Vermont hunting or combination license in order to purchase a moose permit.
    2. If the Board establishes a moose hunting season, the Commissioner shall set aside not more than 10 percent of the total number of annual moose permits authorized by the Board for Vermont residents who have served on active duty in any branch of the U.S. Armed Forces provided that he or she has not received a dishonorable discharge. The total number of annual moose permits set aside for Vermont veterans shall not exceed six. Veterans awarded a moose permit under this subsection shall possess a valid Vermont hunting license or combination license in order to purchase a moose permit. The Department of Fish and Wildlife shall coordinate with the Office of Veterans Affairs to provide notice to eligible veterans of the moose permits set aside under this subsection.
    3. The Department of Fish and Wildlife shall adopt a procedure to implement the set-aside program for auction and for veterans, including a method to award applicants bonus points and a method by which auction participants and veterans who applied for but failed to receive a permit in one hunting season are awarded priority in the subsequent moose hunting season. The procedure adopted under this subdivision may include a provision for freezing bonus points in the event that the Board does not approve a moose hunting season or approves a small number of permits for the moose hunting season.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1963, No. 126 , § 1, eff. Jan. 1, 1964; 1967, No. 373 (Adj. Sess.), § 1, eff. March 27, 1968; 1973, No. 169 (Adj. Sess.), § 1; 1973, No. 173 (Adj. Sess.), § 1; 1977, No. 111 , § 2, eff. Jan. 1, 1978; 1977, No. 225 (Adj. Sess.), §§ 1, 2, 10, eff. April 12, 1978; 1989, No. 87 , § 1, eff. June 6, 1989; 1989, No. 190 (Adj. Sess.), § 3; 1993, No. 192 (Adj. Sess.), § 1; 1997, No. 59 , § 42, eff. June 30, 1997; 1997, No. 155 (Adj. Sess.), § 42, eff. Jan. 1, 1999; 1999, No. 30 , § 3, eff. Jan. 1, 2001; 2001, No. 65 , § 19, eff. Jan. 1, 2002; 2003, No. 163 (Adj. Sess.), § 13, eff. Nov. 1, 2004; 2005, No. 42 , § 1; No. 72, § 11a; 2007, No. 98 (Adj. Sess.), § 1; 2009, No. 146 (Adj. Sess.), § B11; 2011, No. 128 (Adj. Sess.), § 28; 2013, No. 78 , § 7; 2015, No. 61 , §§ 2, 14, eff. June 17, 2015; 2017, No. 170 (Adj. Sess.), § 4, eff. May 22, 2018; 2019, No. 14 , § 43, eff. April 30, 2019; 2019, No. 50 , § 5, eff. Jan. 1, 2020.

History

Revision note

—2015. In subdiv. (e)(6), inserted “of the Vermont Statutes Annotated” following “Title 32” for purposes of clarity.

Editor’s note

—2019. The text of this section is based on the harmonization of two amendments. During the 2019 session, this section was amended twice, by Act Nos. 14 and 50, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2019 session, the text of Act Nos. 14 and 50 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

Amendments

—2019. Subsec. (c): Act No. 14 added “Training.” to the beginning of the paragraph.

Subsec. (d): Act No. 14 added “Administration.” to the beginning of the paragraph.

Subsec. (e): Act No. 14 added “Licenses.” to the beginning of the paragraph.

Subsec. (f): Act No. 14 added “License agency.” to the beginning of the paragraph.

Subsec. (h): Act No. 14 added “Lotteries.” to the beginning of the paragraph.

Subsec. (i): Act No. 14 added “Moose hunting.” to the beginning of the paragraph.

Subdiv. (i)(1): Act No. 50 substituted “not more than 10 percent of the total number of annual moose permits authorized by the Board shall be set aside to be auctioned” for “up to five moose permits shall be set aside to be auctioned” in the first sentence, added the second sentence, in the third sentence, inserted “if any,” and substituted “included in the total” for “in addition to the”.

Subdiv. (i)(2): Act No. 50 substituted “the Commissioner shall” for “there shall be established a program”, substituted “not more than 10 percent of the total number of annual moose permits authorized by the Board” for “five moose permits,” and added the second, third, and fourth sentences.

Subdiv. (i)(3): Act No. 50 added the subdiv. (i)(3) designation, in the first sentence, inserted “auction and for”, substituted “bonus” for “preference”, and inserted “auction participants and”, and rewrote the second sentence.

—2017 (Adj. Sess.). Subsec. (e)(1): Inserted “or lottery applications for licenses” and “or process lottery applications for licenses”.

Subdiv. (e)(9): Inserted “or lottery application” in the beginning and inserted “and” at the end of the sentence.

Subdiv. (e)(10): Inserted “, or lottery applications,” in the beginning of the sentence.

—2015. Subsec. (f): Deleted former second sentence.

Subsec. (g): Repealed.

Subdiv. (i)(2): Amended generally.

—2013. Subdiv. (i)(1): Added the present second and fourth sentences and deleted the seventh sentence.

—2011 (Adj. Sess.) Subsec. (a): Substituted “aged 15 or older” for “15 years of age or older”.

Subdiv. (b)(4): Substituted “aged 15 or under” for “under 16 years of age” in the second sentence.

—2009 (Adj. Sess.) Subdiv. (e)(9): Inserted “for” preceding “each license” and deleted “shall clearly state that” thereafter, deleted “for that license” preceding “is a filing fee”, inserted “for” preceding “which” and deleted “shall state that” preceding “$5.00” and “super sport license” preceding “fee is a filing”.

Subdiv. (e)(10): Added.

Subsec. (g): Substituted “but not including” for “except”, deleted “or” preceding “other municipal”, and inserted “and point-of-sale agents” following “official duties” in the first sentence, and substituted “This fee” for “These fees” preceding “shall be used” in the second sentence.

—2007 (Adj. Sess.). Subsec. (i): Added the subdiv. (1) designation and added subdiv. (2).

—2005. Subdiv. (e)(9): Act No. 72 added “except for the super sport license which shall state that $5.00 of the super sport license fee is a filing fee that may be retained by the agent”.

Subsec. (f): Act No. 42 added the third sentence.

—2003 (Adj. Sess.). Subsec. (i): Added.

—2001. Subdiv. (e)(9): Inserted “and fifty cents” following “one dollar”.

—1999. Subsec. (b): Substituted “,” for “or” following “nonresident hunting license” and added “or archery license” following “and hunting license”.

Subdiv. (b)(1): Added “bow hunter education course as applicable” following “hunter safety course”.

Subdiv. (b)(2): Added “or bow hunter education course as applicable,” following “hunter safety course”.

Subdiv. (b)(3): Deleted “or” following “a hunting license” and added “or archery license, if applicable,” following “and fishing license”.

Subdiv. (b)(4): Added “or archery license, if applicable” following “and fishing license” in the first sentence and added “or archery license” following “a hunting license” in the second sentence.

Subsec. (c): Added “and a course in bow hunter education” following “first aid training and” in the first sentence.

—1997 (Adj. Sess.). Subsec. (h): Substituted “resident” for “person” and added “and each nonresident entering the lottery shall submit a nonrefundable fee of $25.00” in the first sentence.

—1997. Subsec. (h): Inserted “or for water fowl hunting permits for specific areas as defined by the board by rule” following “4153 of this title” in the first sentence.

—1993 (Adj. Sess.). Subsec. (h): Added.

—1989 (Adj. Sess.). Subsec. (e): Deleted “and” following “licenses” in subdiv. (7) and added subdiv. (9).

—1989. Section amended generally.

—1977 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Repealed.

Subdiv. (e)(4): Added.

—1977. Subsec. (d): Repealed.

—1973 (Adj. Sess.). Subsec. (a): Act No. 173 rewrote the fifth sentence.

Subsecs. (e) and (f): Added by Act No. 169.

—1967 (Adj. Sess.). Added a new subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d).

—1963. Subsec. (c): Added.

Effective date of amendments—

2019, No. 50 , § 14(b), provided that the amendment to this section by section 5 of the act is to take effect on January 1, 2020.

Prior law.

10 V.S.A. §§ 2453 , 2455.

Notes to Opinions

Issuance by town clerks.

Town clerks and their authorized agents should confine their activities in issuance of hunting and fishing licenses to geographical limits of towns which have placed them in office, and, more emphatically, should not go outside of Vermont to issue such licenses. 1952-54 Vt. Op. Att'y Gen. 171. (Decided under prior law.)

§ 4254a. Trapping licenses.

  1. A resident, resident youth aged 17 or under on the date of license purchase, or nonresident trapping license may be issued to any person, provided that the applicant prior to issue first presents:
    1. a certificate of satisfactory completion of a trapper education course or its equivalent approved by the Commissioner; or
    2. a certificate of satisfactory completion of a trapper education course in another state or a province of Canada that is approved by the Commissioner; or
    3. a trapping license issued for this State or any other state or province of Canada and valid for any license year; or
    4. other satisfactory proof that the applicant has previously held a valid trapping license.
  2. The Commissioner shall provide for a course of basic instruction in trapper education.  For this purpose, the Commissioner may cooperate with any reputable association, organization, or agency and may designate any person found by the Commissioner to be competent to give such instruction.  A person so designated shall give such instruction and upon the successful completion thereof shall issue to a person satisfactorily completing the course of instruction a certificate in evidence thereof.  No fee may be charged for taking a course of instruction provided for under this subsection.

HISTORY: Added 1989, No. 36 , § 3; amended 2011, No. 128 (Adj. Sess.), § 29.

History

Amendments

—2011 (Adj. Sess.) Subsec. (a): Inserted “resident youth aged 17 or under on the date of license purchase” following “a resident”.

Subsec. (c): Deleted.

§ 4254b. Therapeutic group fishing license.

  1. As used in this section:
    1. “Health care professional” means an individual licensed or certified or otherwise authorized by Vermont law to provide professional health services.
    2. “Health service” means any treatment or procedure delivered by a health care professional to maintain an individual’s physical or mental health or to diagnose or treat an individual’s physical or mental health condition, including services ordered by a health care professional, chronic care management, preventive care, wellness services, and medically necessary services to assist in activities of daily living.
    3. “Individual representing a long-term care facility” means an employee of a long-term care facility or a person recognized as an official volunteer by the long-term care facility.
    4. “Long-term care facility” means any facility required to be licensed under 33 V.S.A. chapter 71 or a psychiatric facility with a long-term care unit required to be licensed under 18 V.S.A. chapter 43.
  2. The Commissioner may issue an annual therapeutic group fishing license to a health care professional or an individual representing a long-term care facility. A therapeutic group fishing license shall allow up to four persons per day to fish at one time, provided that:
    1. the persons are under the care of a health care professional or are residing in a long-term care facility; and
    2. while fishing, the persons are supervised by the health care professional or the individual representing a long-term care facility who was issued the therapeutic group fishing license.
  3. A person fishing under a therapeutic group fishing license shall not be required to obtain a fishing license under section 4251 of this title but shall be required to comply with all other requirements of this chapter, chapter 111 of this title, and the rules of the Board. When a person or group of persons is fishing under a therapeutic group fishing license, the person or group shall be accompanied at all times by the health care professional or the individual representing a long-term care facility to which the license was issued. The health care professional or individual representing a long-term care facility may assist persons fishing under the license with all aspects of fishing activity. The health care professional or individual representing a long-term care facility shall carry the license at all times while a person is fishing under the license and shall produce the license on demand by any fish and wildlife warden.

HISTORY: Added 2013, No. 78 , § 8.

§ 4254c. Notice of trapping; dog or cat.

A person who incidentally traps a dog or cat shall notify a fish and wildlife warden or the Department within 24 hours after discovery of the trapped dog or cat. The Department shall maintain records of all reports of incidentally trapped dogs or cats submitted under this section, and the reports shall include the disposition of each incidentally trapped dog or cat.

HISTORY: Added 2017, No. 170 (Adj. Sess.), § 10, eff. Jan. 1, 2019.

§ 4255. License fees.

  1. Vermont residents may apply for licenses on forms provided by the Commissioner. Fees for each license shall be:
    1. Fishing license $28.00 (2) Hunting license $28.00 (3) Combination hunting and fishing license $47.00 (4) Big game licenses (all require a hunting license) (A) archery license $23.00 (B) muzzle loader license $23.00 (C) turkey license $23.00 (D) [Repealed.] (E) [Repealed.] (F) moose license $100.00 (G) bear tag $5.00 (H) additional deer archery tag $23.00 (5) Trapping license $23.00 (6) Hunting license for persons 17 years of age or under $8.00 (7) Trapping license for persons 17 years of age or under $10.00 (8) Fishing license for persons 15 through 17 years of age $8.00 (9) Super sport license $150.00 (10) Three-day fishing license $11.00 (11) Combination hunting and fishing license for persons 17 years of age or under $12.00 (12) Mentored hunting license $10.00

      Click to view

  2. Nonresidents may apply for licenses on forms provided by the Commissioner. Fees for each license shall be:
    1. Fishing license $54.00 (2) One-day fishing license $21.00 (3) [Repealed.] (4) Hunting license $102.00 (5) Combination hunting and fishing license $143.00 (6) Big game licenses (all require a hunting license) (A) archery license $38.00 (B) muzzle loader license $40.00 (C) turkey license $38.00 (D) [Repealed.] (E) [Repealed.] (F) moose license $350.00 (G) bear tag $15.00 (H) additional deer archery tag $38.00 (7) Small game licenses (A) all season $50.00 (B) [Repealed.] (8) Trapping license $305.00 (9) Hunting licenses for persons 17 years of age or under $25.00 (10) Three-day fishing license $23.00 (11) Seven-day fishing license $31.00 (12) Archery-only license (does not require hunting license) $75.00 (13) Fishing license for persons 15 through 17 years of age $15.00 (14) Super sport license $250.00 (15) Combination hunting and fishing license for persons 17 years of age or under $30.00 (16) Mentored hunting license $10.00

      Click to view

  3. A permanent or free license may be secured on application to the Department by a person qualifying as follows:
    1. A Vermont resident 66 years of age or older may receive one or all of the following licenses for $60.00:
      1. a permanent fishing license;
      2. if the person qualifies for a hunting license, a permanent combination fishing and hunting license, which shall include all big game licenses except for a moose license;
      3. if the person qualifies for a trapping license, a permanent trapping license; and
      4. if the person qualifies for an archery license, a permanent archery license.
    2. A person who is legally blind who is a Vermont resident may receive a free permanent fishing license upon submittal of proper proof of blindness as the Commissioner shall require. A person who is legally blind who is a resident in a state that provides a reciprocal privilege for Vermont residents may receive a free one-year fishing license.
    3. A Vermont resident with paraplegia as defined in subdivision 4001(30) of this title or a permanent, severe, physical mobility disability certified by a physician may receive a free permanent fishing license or, if the person qualifies for a hunting license, a free combination hunting and fishing license. A person with paraplegia or a person certified by a physician to have permanent, severe, physical mobility disability who is a resident of a state that provides a reciprocal privilege for Vermont residents may receive a free one-year fishing license or, if the person qualifies for a hunting license, a free one-year combination fishing and hunting license.
    4. A Vermont resident who is a veteran of the U.S. Armed Forces and who is, or ever has been, 60 percent disabled as a result of a service-connected disability may receive a free fishing, hunting, or combination hunting and fishing license that shall include all big game licenses, except for a moose license, upon presentation of a certificate issued by the veterans’ administration so certifying. A resident of a state that provides a reciprocal privilege for Vermont veterans and who would qualify for a free license under this subdivision if the person were a Vermont resident may receive a free one-year fishing, hunting, or combination hunting and fishing license.
    5. A person participating in a fishing tournament for Special Olympics may receive a free fishing license valid for that event.
    6. In each year a permanent license holder intends to hunt, trap, or fish, the permanent license holder shall notify the Department that he or she will exercise his or her hunting, trapping, or fishing privileges. Failure to notify the Department as required by this subdivision (c)(6) shall not result in the assessment of points under section 4502 of this title.
    7. A certified citizen of a Native American Indian tribe that has been recognized by the State pursuant to 1 V.S.A. chapter 23 may receive a free permanent fishing license or, if the person qualifies for a hunting license, a free permanent combination hunting and fishing license upon submission of a current and valid tribal identification card.
  4. A nonresident student who is otherwise qualified and who is enrolled in a program of secondary education or in a college or university within the State at which he or she has successfully completed two successive semesters shall be entitled to a resident fishing, hunting, or combination hunting and fishing license upon presentation of a document from a school that affirms his or her status and payment of the fees set forth in this section, provided the student applies for the license to an authorized license agent.
  5. The Commissioner shall issue honorary hunting and fishing licenses to the President and Vice President of the United States.  The Commissioner may, at his or her discretion, issue free licenses that are valid for one year or less.
  6. -(h) [Repealed.]

    (i) (1) The fee for a permit to trap hare and rabbits shall be $20.00.

    (2) The fee for a permit to transport minnows or bait fish shall be $50.00.

    (j) If the Board determines that a moose season will be held in accordance with the rules adopted under sections 4082 and 4084 of this title, the Commissioner annually may issue three no-cost moose licenses to a person who has a life-threatening disease or illness and who is sponsored by a qualified charitable organization, provided that at least one of the no-cost annual moose licenses awarded each year shall be awarded to a child or young adult 21 years of age or under who has a life-threatening illness. The child or adult shall comply with all other requirements of this chapter and the rules of the Board. Under this subsection, a person may receive only one no-cost moose license in his or her lifetime.

    (k) The Commissioner may issue multi-year hunting, fishing, trapping, or combination hunting and fishing licenses of up to five years’ duration. The cost of these licenses shall be the sum of the license fee established by this section for the first year, plus the cost of each additional year minus the filing fee established by subdivision 4254(e)(9) of this title for each year.

    ( l ) If the Board determines that it is in the interest of bear management, it may authorize the Department to issue bear tags in addition to those allowed by a hunting license issued under this chapter.

    (m) The fee for a therapeutic group fishing license issued under section 4254b of this title shall be $50.00 per year, provided that the Commissioner may waive the fee under this section if the applicant for a therapeutic group fishing license completes instructor certification under the Department’s Let’s Go Fishing Program. The Commissioner may, at his or her discretion, issue a free therapeutic fishing license to an applicant.

HISTORY: Added 1961, No. 59 , § 1, eff. April 4, 1961; amended 1963, No. 27 , § 1; 1967, No. 34 , § 1, eff. March 16, 1967; 1967, No. 373 (Adj. Sess.), § 2, eff. March 27, 1968; 1971, No. 224 (Adj. Sess.), § 1, eff. Jan. 1, 1973; 1973, No. 27 , eff. Jan. 1, 1974; 1973, No. 173 (Adj. Sess.), § 2; 1977, No. 103 , § 3, eff. May 6, 1977; 1979, No. 189 (Adj. Sess.), § 1; 1983, No. 68 , § 1; 1985, No. 215 (Adj. Sess.), § 3, eff. June 2, 1986; 1987, No. 118 , § 1, eff. Jan. 1, 1988; 1987, No. 170 (Adj. Sess.); 1989, No. 36 , § 5; 1989, No. 190 (Adj. Sess.), § 4; 1991, No. 11 , §§ 1-3; 1991, No. 30 ; 1991, No. 34 , § 2, eff. Jan. 1, 1992; 1991, No. 34 , § 3, eff. June 1, 1991; 1991, No. 199 (Adj. Sess.), §§ 2, 3, eff. May 27, 1992; 1991, No. 205 (Adj. Sess.), §§ 2, 3, eff. July 1, 1993; 1991, No. 230 (Adj. Sess.), § 19; 1991, No. 254 (Adj. Sess.); 1993, No. 191 (Adj. Sess.), § 3; 1997, No. 59 , § 43, eff. Jan. 1, 1998; 1997, No. 59 , § 43a, eff. June 30, 1997; 1997, No. 155 (Adj. Sess.), § 43, eff. Jan. 1, 1999; 2001, No. 65 , § 20, eff. Jan. 1, 2002; 2003, No. 61 , § 4; 2003, No. 163 (Adj. Sess.), § 14, eff. Jan. 1, 2005; 2005, No. 72 , § 11b; 2007, No. 76 , § 27, eff. Jan. 1, 2008; 2009, No. 33 , § 83(e)(6); 2009, No. 120 (Adj. Sess.), § 3, eff. Jan. 1, 2011; 2009, No. 134 (Adj. Sess.), § 29, eff. Jan. 1, 2011; 2011, No. 33 , § 11a; 2011, No. 128 (Adj. Sess.), § 35a; 2011, No. 128 (Adj. Sess.), § 30, eff. Jan. 1, 2014; 2013, No. 78 , § 9; 2013, No. 96 (Adj. Sess.), § 37; 2013, No. 116 (Adj. Sess.), § 3, eff. May 5, 2014; 2015, No. 57 , § 24, eff. Jan. 1, 2016; 2015, No. 61 , § 3, eff. Jan. 1, 2016; 2015, No. 61 , § 5, eff. June 17, 2015; 2015, No. 149 (Adj. Sess.), § 44; 2017, No. 33 , § 1, eff. Jan. 1, 2018; 2019, No. 50 , § 7, eff. Jan. 1, 2020; 2019, No. 70 , § 5, eff. Jan. 1, 2020; 2019, No. 143 (Adj. Sess.), § 1, eff. Jan. 1, 2021.

History

Editor’s note

—2013. 2013, No. 78 , § 9 amended subsec. (a) by repealing subdivs. (a)(4)(D) and (E) related to the fee for a second muzzle loader license or a second archery license and by amending subdiv. (a)(4)(G) to read “early season bear tag.” However, 2011, No. 128 , § 31 also amended subsec. (a), effective January 1, 2014. When 2011, No. 128 , § 31 became effective it superseded the 2013, No. 78 , § 9 amendments to subdiv. (a)(4)(D), (E), and (G).

Amendments

—2019 (Adj. Sess.). Subdiv. (c)(7): Added.

—2019. Subsec. (a): Act 70 substituted “$28.00” for “$26.00” in subdivs (a)(1) and (a)(2) and “$47.00” for “$42.00” in subdiv. (a)(3).

Subsec. (b): Act 70 substituted “$54.00” for “$52.00” in subdiv. (b)(1); “$102.00” for “$100.00” in subdiv. (b)(4); and “$143.00” for “$138.00” in subdiv. (b)(5).

Subsec. (j): Act 50 deleted the last sentence.

—2017. Subsec. (c): In subdiv. (1) substituted “66” for “70” preceding “years” and “for $60.00” for “at no cost” following “licenses”; in subdivs. (1)(B) and (C) inserted “permanent” preceding “combination” and “trapping”, respectively; and in subdiv. (1)(D) substituted “a permanent” for “an” preceding “archery”.

—2015 (Adj. Sess.). Subsec. (a): Raised the fee in subdiv. (3), repealed subdivs. (4)(D) and (E), and deleted “season” preceding “bear” in subdiv. (4)(G).

Subsec. (b): Raised the fees in subdivs. (1) and (5), deleted “early season” preceding “bear” in subdiv. (6)(G), substituted “persons 15 through 17 years of age” for “persons aged 15-17 in subdiv. (13), and “persons 17 years of age” for “persons aged 17” in subdiv. (15).

Subdiv. (c)(1): Amended generally.

—2015. Subsec. (a): Section 24 of Act No. 57, effective January 1, 2016, raised the fees in subdivs. (1) through (3), (5), and (10), and substituted “years of age” for “aged” throughout.

Subsec. (c): Amended generally by Act 61.

—2013 (Adj. Sess.). Subdiv. (c)(2) amended by Act No. 96: Inserted “person who is” twice, and deleted “person” twice preceding “legally blind”.

Subdiv. (c)(3) amended by Act No. 96: Deleted “paraplegic” twice following “A”, and inserted “with paraplegia” twice.

Subdiv. (c)(5) amended by Act No. 96: Substituted “person” for “special olympian”.

Subdiv. (c)(4) amended by Act No. 116: Substituted “U.S. Armed Forces” for “armed forces of the United States” following “veteran of the” and “60 percent” for “100 percent” preceding “disabled”.

—2013. Subdiv. (a)(4)(H): Added.

Subdivs. (b)(6)(D), (b)(6)(E): Repealed.

Subdiv. (b)(6)(G): Substituted “early season” for “additional” preceding “bear”.

Subdiv. (b)(6)(H): Added.

Subsec. (j): Amended generally.

Subsec. (m): Added.

—2011 (Adj. Sess.) Section 35a of Act No. 128, effective July 1, 2012, amended (a)(4)(G) by substituting “additional bear tag” for “second bear tag” and amends (a)(4)(L) by substituting “bear tags in addition to those” for “a second bear tag for the taking of bear in addition to that”.

Section 30 of Act No. 128, effective January 1, 2013, rewrote subsecs. (a)-(d).

Section 31 of Act No. 128, effective January 1, 2014, raised the fees in subdivs. (a)(2) through (a)(4)(B).

—2011. Subdiv. (a)(4)(G): Added.

Subdiv. (b)(6)(G): Added.

Subsec. ( l ): Added.

—2009 (Adj. Sess.). Subsec. (a): Act No. 134 raised the license fees in subdivs. (1) through (4)(C).

Subdiv. (a)(12): Added by Act No. 120.

Subsec. (b): Act No. 134 raised the license fees in subdivs. (1) through (6)(C), (7)(A), (10), and (12).

Subdiv. (b)(16): Added by Act No. 120.

Subsec. (j): Act No. 134 substituted “may issue three no-cost moose license to” for “may issue one no-cost moose license to” in the first sentence.

—2009. Subsec. (f): Repealed by Act No. 33.

—2007. Subsec. (a): Raised the license fees in subdivs. (2) and (3).

Subsec. (k): Added.

—2005. Subdiv. (a)(9): Substituted “$150.00” for “$100.00”.

Subdiv. (b)(14): Substituted “$250.00” for “$200.00”.

—2003 (Adj. Sess.). Subdiv. (a)(4)(F): Added.

Subdiv. (a)(9): Substituted “Super sport” for “Sporting”.

Subdiv. (b)(4): Substituted “$90.00” for “$85.00”.

Subdiv. (b)(5): Substituted “$120.00” for “$110.00”.

Subdiv. (b)(6)(F): Added.

Subdiv. (b)(6)(14): Substituted “Super sport” for “Sporting”.

Subdiv. (c)(1): Substituted “$36.00” for “the fee provided in subdivision (a)(2) of this section”.

Subsec. (j): Added.

—2003. Subsec. (h): Repealed.

—2001. Subsec. (a): Substituted “$16.00” for “$14.00” in subdiv. (2); “$29.00” for “$26.00” in subdiv. (3); “$17.00” for “$15.00” in subdivs. (4)(A)-(E); and added subdivs. (10) and (11).

Subsec. (b): Substituted “$41.00” for “$38.00” in subdiv. (1); “$15.00” for “$11.00” in subdiv. (2); “$85.00” for “$80.00” in subdiv. (4); “$110.00” for “$100.00” in subdiv. (5); “$25.00” for “$20.00” in subdivs. (6)(A)-(E); “$40.00” for “$35.00” in subdiv. (7)(A); “$20.00” for “$18.00” in subdiv. (10); “$30.00” for “$25.00” in subdiv. (11); “$60.00” for “$50.00” in subdiv. (12); and added subdiv. (15).

—1997 (Adj. Sess.). Subsec. (a): Increased several fees; increased the age in subdiv. (7) from 16; added subdivs. (8) and (9); and deleted an entry for bear licenses.

Subsec. (b): Increased several fees; deleted entries for five-day fishing and small game licenses; and added subdivs. (13) and (14).

Subsec. (i): Added.

—1997. Subdiv. (b)(1): Substituted “$38.00” for “$35.00”.

Subdiv. (b)(4): Substituted “$80.00” for “$75.00”.

Subdiv. (b)(5): Substituted “$100.00” for “$95.00”.

Subsec. (h): Added.

—1993 (Adj. Sess.). Subsec. (a): Repealed subdivs. (8)-(10).

Subsec. (g): Repealed.

—1991 (Adj. Sess.). Subdiv. (a)(4): Subdivs. (D) and (E) added by Act No. 199.

Subdiv. (a)(6): Added by Act No. 254.

Subdiv. (a)(7): Added by Act No. 254.

Subdiv. (a)(8): Added by Act No. 254.

Subdiv. (a)(9): Added by Act No. 254.

Subdiv. (a)(10): Added by Act No. 254.

Subdiv. (b)(6): Subdivs. (D) and (E) added by Act No. 199.

Subdiv. (c)(5): Act No. 230 deleted the second and third sentences.

Subsec. (g): Added by Act No. 205.

—1991. Subsec. (a): Act No. 34 substituted “$18.00” for “$13.00” in subdiv. (1) and “$26.00” for “$23.00” in subdiv. (3).

Subsec. (b): Act No. 30 added subdiv. (9).

Act No. 34 added subdivs. (9)-(11).

Subsec. (c): Act No. 11 inserted “or free” preceding “license” in the introductory clause, added the second sentence of subdivs. (2) through (4) and added subdiv. (5).

Subsec. (e): Added by Act No. 11.

Subsec. (f): Added by Act No. 11.

—1989 (Adj. Sess.). Section amended generally.

—1989. Subdiv. (a)(4): Deleted “for persons 18 years of age and older” following “license”.

—1987 (Adj. Sess.). Subsec. (b): Inserted “those who are 65 years of age or older, and not blind or paraplegic” following “require, and” in the third sentence and added the fourth sentence.

—1987. Subsec. (a): Substituted “the applicant” for “he” preceding “shall pay” at the end of the introductory paragraph, substituted “$10.00” for “$8.00” at the end of subdiv. (1), and rewrote subdivs. (2)-(4).

Subsec. (b): Amended generally.

—1985 (Adj. Sess.). Subsec. (d): Inserted “or a license agent” following “town clerk”.

—1983. Subsec. (a): Amended generally.

—1979 (Adj. Sess.). Section amended generally.

—1977. Subsec. (a): Deleted “and over 65 years of age” following “blind” in the third sentence, added fourth sentence, inserted “disability” following “proof of age” in the fifth sentence, and inserted “or bear” following “deer” in the seventh sentence.

—1973 (Adj. Sess.) Subsec. (a): Increased the fee for a fishing or trapping license from $2.50 to $8.00, increased the fee for a hunting license from $3.50 to $8.00, and increased the fee for a combination hunting and fishing license from $5.00 to $14.00.

Subsec. (b): Redesignated from former subsec. (c) and former subsec. (b) deleted.

Subsec. (c): Redesignated from former subsec. (d) and former subsec. (c) redesignated as subsec. (b).

Subsec. (d): Redesignated as subsec. (c).

—1973. Subsec. (c): Amended generally.

—1971 (Adj. Sess.). Subsec. (a): Substituted “65” for “seventy” preceding “years of age” in the third sentence.

—1967 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (d): Substituted “fifty” for “twenty-five” preceding “cents”.

—1967. Subsec. (a): Inserted, “hunting or combination” preceding “license” in the third sentence, and added the fifth sentence.

—1963. Subsec. (a): Added third and fourth sentences.

Effective date of amendments—

2019, No. 143 (Adj. Sess.), § 3, provides that the amendment to this section by 2019, No. 143 (Adj. Sess.), § 1 shall take effect on January 1, 2021.

2019, No. 50 , § 14, provided that the amendment to subsec. (j), by section 7 of the act, shall take effect on January 1, 2020.

2019, No. 70 , § 30 provided that the amendments to subdivs. (a)(1)-(a)(3), by section 5 of the act, shall take effect on January 1, 2020.

Legislative intent of 1991, No. 34 amendment. 1991, No. 34 , § 1, eff. Jan. 1, 1992, provided: “It is the intent of the legislature that resident fishing and combination hunting and fishing license fees be raised for the purpose of supporting Vermont fish hatcheries.”

Prior law.

10 V.S.A. § 2454 .

CROSS REFERENCES

Fishing tournament permit fee, see § 4613 of this title.

Hunting dog field trial permit fees, see §§ 5002 and 5004 of this title.

One-day shooting ground license fee, see § 5223 of this title.

Permit for handicapped person for taking game with crossbow, see § 4711 of this title.

Trapping tag fees, see § 4863 of this title.

ANNOTATIONS

Nonresidents.

Fee of $10.50 exacted of nonresidents for hunting license was not unreasonable. Bondi v. MacKay, 87 Vt. 271, 89 A. 228, 1913 Vt. LEXIS 200 (1913). (Decided under prior law.)

Notes to Opinions

Nonresidents.

Former section 5615 of the public laws, although imposing larger license fee on nonresidents than on residents of state, was not unconstitutional and was not a discrimination against the privileges of citizens of the several states within the meaning of article 4, § 2, pt. 1, of the constitution of the United States.. (Decided under prior law.) 1932-34 Vt. Op. Att'y Gen. 75.

§ 4256. Mentored hunting licenses.

  1. An individual who holds a mentored hunting license shall be entitled to hunt only when accompanied by an individual 21 years of age or older who holds a valid hunting license under subsection 4254(b) of this title. A resident or nonresident mentored hunting license may be issued to any person who has not taken a hunter safety course as required under subdivisions 4254(b)(1) and (2) of this title, provided that:
    1. A mentored hunting license shall only be issued twice to any one individual, and each license shall last until December 31 of the year for which the license was issued.
    2. A mentored hunting license shall not be issued to any individual who has held a valid hunting license under subsection 4254(b) of this title or an equivalent license in any other state.
    3. The mentored hunting license shall not be issued to a person under 16 years of age without the written consent of the applicant’s parent or legal guardian given in the presence of the agent issuing the license.
  2. Having held a valid mentored hunting license does not exempt an individual from meeting all the requirements for a hunting license under subsection 4254(b) of this title.
  3. At the time of licensing, the Department shall provide each mentored hunter a document to explain the details of the mentored hunting license program and to educate the mentored hunter about hunting safety and responsibility. The applicant shall certify, according to Department procedure, that he or she has read the document. The Department shall provide copies of this document to all locations authorized to sell licenses pursuant to subsection 4254(e) of this title.
  4. As used in this section, “accompany,” “accompanied,” or “accompanying” means that the mentored hunter is in the direct control and supervision of the licensed hunter and is within 15 feet of the licensed hunter. While hunting, an individual who holds a valid hunting license under subsection 4254(b) of this title shall accompany only one mentored hunter at a time.
  5. An individual who holds a mentored hunting license is not eligible to hunt moose pursuant to subsection 4254(b) of this title.
  6. An individual who holds a mentored hunting license shall be subject to the bag limit of the fully licensed accompanying hunter. When game is taken by a mentored hunter, it shall be deemed taken by the fully licensed accompanying hunter.
  7. Notwithstanding subdivision 5101(a)(1) of this title, after tagging and reporting game pursuant to fish and wildlife regulations, a person who holds a mentored hunting license may, unaccompanied by the fully licensed accompanying hunter, transport game the mentored hunter has taken.
  8. The scheduled amount of a fine under section 4555 of this title shall be doubled for a violation of this section, and the fine shall be assessed against the licensed adult accompanying the mentored hunter.
  9. On demand of a game warden or other officer authorized by law to make arrests, or of the owner of the land on which a person is hunting, the individual who holds a mentored hunting license shall exhibit the license.

HISTORY: Added 2009, No. 120 (Adj. Sess.), § 1, eff. Jan. 1, 2011; amended 2015, No. 61 , § 6, eff. Jan. 1, 2016.

History

Amendments

—2015. Subsec. (d): Substituted “As used in this section” for “For the purposes of this section” in the first sentence and deleted the third sentence.

§ 4257. Repealed. 1989, No. 190 (Adj. Sess.), § 5.

History

Former § 4257. Former § 4257, relating to veteran’s exemption, was derived from 1961, No. 119 , § 1 and amended by 1977, No. 225 (Adj. Sess.), § 3; and 1987, No. 115 . The subject matter is now covered by § 4255 of this title.

§ 4258. License; U.S. Armed Forces.

A license to hunt or fish shall be issued, upon payment of the resident license fee, to any member of the U.S. Armed Forces who is on active duty and stationed at some military, air, or naval post, station, or base within the State. The member of the U.S. Armed Forces desiring a hunting, fishing, or combination hunting and fishing license shall certify that he or she is eligible for such a license under this section. Holders of such licenses shall be subject to all the laws of the State and the rules and regulations of the Board regulating hunting and fishing; and for violations of said laws or rules and regulations, shall be subject to the penalties prescribed therefor, and such licenses shall be revoked in the same manner as provided in section 4502 of this title.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1977, No. 225 (Adj. Sess.), § 4, eff. April 12, 1978; 2011, No. 54 , § 7; 2011, No. 128 (Adj. Sess.), § 32.

History

Amendments

—2011 (Adj. Sess.) Substituted “The member of the armed forces, desiring a hunting, fishing, or combination hunting and fishing license” for “Said member of the armed forces, desiring a hunting or fishing license” in the second sentence.

—2011. Substituted “shall certify that he or she is eligible for such a license under this section” for “must present a certificate from the commander of said post, station or base, or his designated agent, that the person mentioned in the certification is stationed at or attached to said post, station or base” following “license”.

—1977 (Adj. Sess.). Deleted the former third sentence.

Prior law.

10 V.S.A. § 2457 .

§ 4259. Vermont residents; U.S. Armed Forces.

Any resident of the State of Vermont who is serving in the U.S. Armed Forces or is performing or under orders to perform any homeland defense or State-side contingency operation, or both, for a period of 120 consecutive days or more shall certify that he or she is eligible under this section to obtain at no cost a hunting or fishing license or a combination hunting and fishing license. This provision will apply only during the period he or she is serving in the U. S. Armed Forces, or as certified pursuant to this section. A person who obtains a license under this section may keep the license until it expires, whether or not the person continues to serve in the U.S. Armed Forces until the expiration date.

HISTORY: Added 1971, No. 224 (Adj. Sess.), § 2, eff. Jan. 1, 1973; amended 2001, No. 143 (Adj. Sess.), § 58a, eff. June 21, 2002; 2003, No. 10 , § 1; 2011, No. 54 , § 8.

History

Amendments

—2011. Substituted “shall certify that he or she is eligible under this section” for “as certified by the Adjutant General for the Vermont National Guard is eligible” following “more”.

—2003. Added the last sentence.

—2001 (Adj. Sess.) Section amended generally.

Notes to Opinions

Reservists.

Although reservists are in the “armed forces” within the meaning of this section, this section’s free license privilege extends to reservists only during their period of basic training. 1970-72 Vt. Op. Att'y Gen. 58.

§ 4260. Repealed. 1973, No. 178 (Adj. Sess.), § 9.

History

Former § 4260. Former § 4260, relating to issuance of a license, was derived from 1961, No. 119 , § 1, and amended by 1967, No. 5 .

§ 4261. Lost, replacement, or free license certificate.

  1. A person who has lost a license other than a lifetime license or permanent license may demand a lost license certificate from the agent of original issue. The fee shall be $5.00, which the agent may retain. If the agent of original issue is no longer selling licenses, the applicant may apply directly to the Department. If available, replacement and free licenses may be obtained from a point-of-sale agent or online at the State’s website. If requested from a point-of-sale agent, a $1.50 filing fee may be charged and retained by the agent.
  2. A person who has lost a lifetime license or permanent license may obtain a new license upon application to the Department, payment of a $5.00 fee, and submission of proof of identification. If available, replacement and free licenses may be obtained from a point-of-sale agent or online at the State’s website. If requested from a point-of-sale agent, a $1.50 filing fee may be charged and retained by the agent.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1967, No. 373 (Adj. Sess.), § 4, eff. March 27, 1968; 1971, No. 84 , § 4; 1977, No. 225 (Adj. Sess.), § 5, eff. April 12, 1978; 1989, No. 190 (Adj. Sess.), § 6; 1991, No. 205 (Adj. Sess.), § 4, eff. July 1, 1993; 1991, No. 230 (Adj. Sess.), § 20; 1997, No. 99 (Adj. Sess.), § 12; 2009, No. 146 (Adj. Sess.), § B12; 2011, No. 128 (Adj. Sess.), § 33.

History

Amendments

—2011 (Adj. Sess.) Subsecs. (a) and (b): Inserted “or permanent license” following “a lifetime license”.

—2009 (Adj. Sess.) Inserted “, replacement, or free” in the section heading, and added the last two sentences in subsecs. (a) and (b).

—1997 (Adj. Sess.). Deleted “or a permanent license” in the first sentence of subsec. (a), and deleted subsec. (c).

—1991 (Adj. Sess.). Act No. 230 designated the existing provisions of the section as subsec. (a) and substituted “a license other than a lifetime license or a permanent license” for “his or her license” preceding “may demand” in that subsec., and added subsecs. (b) and (c).

Act No. 205 purported to amend this section; however the changes had been previously made by Act No. 230.

—1989 (Adj. Sess.) Section amended generally.

—1977 (Adj. Sess.). Deleted “as provided in section 4259 of this title” following “issued to him” in the first sentence, and substituted “agent” for “clerk” in the first and second sentences and “agents” for “town clerks” in the fifth sentence.

—1971. Substituted “$1.00” for “fifty cents” following “a fee of” in the second sentence.

—1967 (Adj. Sess.). Substituted “who issued it” for “so issuing” following “clerk” in the first sentence, substituted “the” for “such” preceding “certificate” and “fifty” for “twenty-five” following “a fee of” in the second sentence, and substituted “the” for “such” wherever it appeared in the third and fourth sentences.

Prior law.

10 V.S.A. § 2459 .

§ 4262. Repealed. 1989, No. 190 (Adj. Sess.), § 5.

History

Former § 4262. Former § 4262, relating to license fee and certificate for taking by bow and arrow, was derived from 1961, No. 59 , § 3 and amended by 1967, No. 373 (Adj. Sess.), § 5; 1973, No. 173 (Adj. Sess.), § 4; 1977, No. 225 (Adj. Sess.), § 6; 1979, No. 189 (Adj. Sess.), § 4; 1985, No. 215 (Adj. Sess.), § 4; and 1987, No. 2 , § 1; No. 118, § 3. The subject matter is now covered by § 4255 of this title.

§ 4263. Expiration; nontransferability.

Licenses shall not be transferable and shall be dated when issued. Annual licenses shall be valid from January 1 of the calendar year for which they are issued or from the day of purchase and issue in that year as certified by the issuing agent. All annual licenses shall expire on December 31 of the year for which they were issued. Term licenses shall be valid only for the time period certified on the license form by the issuing agent. Any licenses may be sold prior to the date that they are to become effective.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1963, No. 27 , § 2; 1989, No. 190 (Adj. Sess.), § 9.

History

Amendments

—1989 (Adj. Sess.). Section amended generally.

—1963. Substituted “except for permanent fishing licenses” for “in any case” preceding “shall expire” in the third sentence.

Prior law.

10 V.S.A. § 2460 .

§§ 4264, 4265. Repealed. 1989, No. 87, § 2.

History

Former §§ 4264, 4265. Former § 4264, relating to reports of agents and license money, was derived from 1961, No. 119 , § 1; and amended by 1977, No. 225 (Adj. Sess.), § 7. The subject matter is now covered by § 4254 of this title.

Former § 4265, relating to license forms and settlement by agents, was derived from 1961, No. 119 , § 1; and amended by 1977, No. 225 (Adj. Sess.), § 8.

§ 4266. Carrying and exhibiting license.

A person who is required to have a license, as provided in section 4251 of this title, shall not take fish or wild animals, or transport fish, game, or fur-bearing animals, unless at the time of such taking and transporting he or she has such license on his or her person. On demand of a game warden or other officer authorized by law to make arrests, or of the owner of the land on which such person is fishing or hunting, the licensee shall exhibit such license.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2463 .

ANNOTATIONS

Cited.

Cited in State v. Elliott, 159 Vt. 102, 616 A.2d 210, 1992 Vt. LEXIS 122 (1992).

§ 4267. False statements; alterations; use by another; guide.

No person shall make a false statement in an application for a license to be issued under the provisions of this part or change or alter such a license or the coupon issued therewith or furnish to another or permit another to have or use such license or coupon issued to himself or herself or use such license or coupon issued to another or knowingly guide a hunter or angler who has not such a license.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2464 .

§ 4268. Fur buyer’s license.

The furs and skins of fur-bearing animals and skins of deer, legally taken, may be bought and sold at any time, subject to the provisions of section 4861 of this title, provided that any person wishing to engage in the business of buying the furs or skins of fur-bearing animals or skins of deer shall first secure a license from the Commissioner, as provided by law.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1981, No. 85 , § 3.

History

Amendments

—1981. Inserted “subject to the provisions of section 4861” following “sold at any time”.

Prior law.

10 V.S.A. § 2467 .

§ 4269. Fees for fur buyer’s license.

The Commissioner may issue a license to a person that shall authorize him or her to engage in the business of buying furs or skins throughout the State while it remains in force. A person so licensed shall pay to the Commissioner the following fees:

  1. a fee of $25.00 if the applicant is a bona fide resident of the State;
  2. a fee of $50.00 if the applicant is a nonresident.

HISTORY: Added 1961, No. 59 , § 4, eff. April 4, 1961; amended 1973, No. 173 (Adj. Sess.), § 5; 1979, No. 189 (Adj. Sess.), § 5; 1983, No. 68 , § 3.

History

Amendments

—1983. Subdiv. (1): Substituted “$25.00” for “$6.00” following “fee of”.

Subdiv. (2): Substituted “$50.00” for “$30.00” following “fee of”.

—1979 (Adj. Sess.). Subdiv. (1): Substituted “$6.00” for “$4.00” following “fee of”.

Subdiv. (2): Substituted “$30.00” for “$20.00” following “fee of”.

—1973 (Adj. Sess.). Subdiv. (1): Substituted “$4.00” for “$2.00” following “fee of”.

Subdiv. (2): Substituted “$20.00” for “$10.00” following “fee of”.

Prior law.

10 V.S.A. § 2468 .

§ 4270. Fur buyer’s records.

Licensed dealers shall keep such records as the Commissioner may require. Such records shall be open to inspection by the Commissioner or his or her agents, and such dealer shall, within 30 days after the expiration of his or her license and upon request of the Commissioner, file with the Commissioner a sworn statement of such record or such part thereof as the Commissioner may require.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2469 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4271. Fur buyer’s license year; expiration of license.

Such licenses shall be effective from July 1 to June 30 inclusive. A person while engaged in the business of buying furs and skins shall have upon his or her person a license as provided in section 4268 of this title and on demand of a game warden or other officer authorized by law to make arrests shall exhibit such license.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1981, No. 85 , § 4, eff. Jan. 1, 1982.

History

Amendments

—1981. Substituted “July 1 to June 30” for “January 1 to December 31” in the first sentence.

Prior law.

10 V.S.A. § 2470 .

§ 4272. Repealed. 2011, No. 128 (Adj. Sess.), § 40.

History

Former § 4272. Former § 4272, relating to lost fur buyer’s license and certificate, was derived from 1961, No. 119 , § 1.

§ 4273. False statement by fur buyer.

No person shall make a false statement in an application for a fur buyer’s license or change or alter such a license in any way nor permit another to have or use such license.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2472 .

§ 4274. Fur buyer’s license; definition of “person”.

The word “person” as used in sections 4268-4273 of this title shall mean only an individual.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2474 .

§ 4275. Repealed. 1989, No. 190 (Adj. Sess.), § 5.

History

Former § 4275. Former § 4275, relating to turkey hunting license, was derived from 1975, No. 6 , § 1 and amended by 1983, No. 133 (Adj. Sess.); No. 158 (Adj. Sess.); and No. 215 (Adj. Sess.), § 4. The subject matter is now covered by § 4255 of this title.

§ 4276. Repealed. 1991, No. 230 (Adj. Sess.), § 1(6).

History

Former § 4276. Former § 4276, relating to reciprocity of nonresident combination licenses for paraplegics, was derived from 1977, No. 103 , § 1. The subject matter is now covered by § 4255 of this title.

§ 4277. Migratory Waterfowl Stamp Program.

  1. Definitions.   As used in this section:
    1. “Migratory waterfowl” means all waterfowl species in the family anatidae, including wild ducks, geese, brant, and swans.
    2. “Stamp” means the State migratory waterfowl hunting stamp furnished by the Department of Fish and Wildlife as provided for in this section and the federal migratory waterfowl stamp furnished by the U.S. Department of the Interior.
  2. Waterfowl stamp required.   No person 16 years of age or older shall attempt to take or take any migratory waterfowl in this State without first obtaining a State and federal migratory waterfowl stamp for the current year in addition to a regular hunting license as provided by section 4251 of this title. A stamp shall not be transferable. The State stamp year shall run from January 1 to December 31.
  3. Waterfowl stamp design, production, and distribution.   The Commissioner of Fish and Wildlife shall be responsible for the design, production, procurement, distribution, and sale of the State stamp and all marketable stamp by-products such as posters, artwork, calendars, and other items.
  4. Fee.   State stamps shall be sold at the direction of the Commissioner for a fee of $7.50. The issuing agent may retain a fee of $1.00 for each stamp and shall remit $6.50 of each fee to the Department of Fish and Wildlife. The Commissioner shall establish a uniform sale price for all categories of by-products.
  5. Disposition of waterfowl receipts.   All State waterfowl stamp receipts and all receipts from the sale of State stamp by-products shall be deposited in the Fish and Wildlife Fund. All State stamp and by-products receipts shall be expended through the appropriation process for waterfowl acquisition and improvement projects.
  6. Advisory Committee.   There is hereby created the Migratory Waterfowl Advisory Committee which shall consist of five persons and up to three alternates appointed by and serving at the pleasure of the Commissioner of Fish and Wildlife. The Commissioner shall designate the Chair. The Committee shall be consulted with and may make recommendations to the Commissioner in regard to all projects and activities supported with the funds derived from the implementation of this section. The Commissioner shall make an annual financial and progress report to the Committee with regard to all activities authorized by this section.

HISTORY: Added 1985, No. 193 (Adj. Sess.), eff. May 14, 1986; amended 2007, No. 76 , § 28, eff. Jan. 1, 2008; 2009, No. 146 (Adj. Sess.), § F32; 2015, No. 61 , § 7, eff. June 17, 2015; 2017, No. 170 (Adj. Sess.), § 5.

History

Amendments

—2017 (Adj. Sess.). Subdiv. (a)(2): Inserted “and the federal migratory waterfowl stamp furnished by the U.S. Department of the Interior.”

Subsec. (b): Inserted “and federal” preceding “migratory waterfowl stamp” and inserted “State” in the last sentence.

Subsecs. (c)-(e): Inserted “State” preceding “Stamp” or similar once in (c) and (d) and three times in (e), and substituted “by-products” for “byproducts” wherever it appears.

Subsec. (f): Substituted “the Migratory” for “a Migratory” in the second sentence and “the Chair” for “a Chair” in the third sentence.

—2015. Subsec. (f): In the first sentence, inserted “up to three alternates” preceding “appointed by and serving at the pleasure of the Commissioner of” and deleted “the department of” thereafter.

—2009 (Adj. Sess.) Subsec. (b): Rewrote the second sentence and substituted “January 1 to December 31” for “July 1 to June 30” in the last sentence.

—2007. Subsec. (d): Substituted “$7.50” for “$5.00” at the end of the first sentence; “$6.50” for “$4.00” preceding “of each fee” in the second sentence, and “byproducts” for “by products” at the end of the third sentence.

§ 4278. Falconry license.

  1. In this section, “raptor” means species of the orders Strigiformes, Falconiformes, and Accipitriformes.
    1. A Vermont resident may obtain, sell, transport, possess, and train raptor species allowable under State and federal laws and regulations for hunting, provided the person has first obtained a State falconry license from the Commissioner. The Commissioner may issue a State falconry license, provided that the applicant: (b) (1) A Vermont resident may obtain, sell, transport, possess, and train raptor species allowable under State and federal laws and regulations for hunting, provided the person has first obtained a State falconry license from the Commissioner. The Commissioner may issue a State falconry license, provided that the applicant:
      1. pays an initial licensing fee of $250.00 for a license valid for three years, or a renewal fee of $50.00 for a license valid for each year thereafter, as appropriate, to the Department;
      2. meets the minimum age and experience requirements for each of apprentice, general, or master falconry licenses;
      3. has completed a supervised examination relating to basic biology, care, and handling of raptors, has correctly answered a minimum of 85 percent of the questions; and
      4. possesses raptor housing facilities and falconry equipment that meet State and federal standards.
    2. The Commissioner shall adopt rules pursuant to 3 V.S.A. chapter 25 that will establish requirements for ensuring that holders of falconry licenses will be properly qualified and that the birds will be legally acquired and appropriately cared for. Such rules shall further define required raptor housing facilities and falconry equipment, legal means of taking, lawful species, ages, and numbers of raptors to be taken and possessed, banding requirements, and any other further restrictions on taking and possession.
  2. A holder of a Vermont falconry license or a nonresident who possesses a valid falconry license from another state may use legally held raptors for hunting during an open season provided that the person holds a valid Vermont hunting or combination fishing and hunting license.  The Commissioner shall adopt rules pursuant to 3 V.S.A. chapter 25 that regulate the taking of game species by use of trained raptors.
  3. The Commissioner may revoke a falconry license and seize raptors held under that license if the Commissioner finds that the licensee:
    1. failed to properly and humanely care for the raptors held under the license;
    2. allowed raptors held under the license to become a public nuisance; or
    3. failed to comply with any of the terms or conditions of the falconry license.

HISTORY: Added 1989, No. 196 (Adj. Sess.), § 1; amended 2013, No. 78 , § 10, eff. Jan. 1, 2014.

History

Amendments

—2013. Subsec. (a): Substituted “Strigiformes, Falconiformes, and Accipitriformes” for “strigiformes and falconiformes” following “orders”.

Subdiv. (b)(1): Deleted the former second sentence; substituted “The Commissioner may issue” for “Applicants for” preceding “a state” and deleted “shall receive a license” following “license”.

Contingent effective date; rulemaking. 2013, No. 78 , § 21(b) provides: “Sec. 10 (falconry license) [which amended this section] of this act shall take effect on January 1, 2014, provided that the Commissioner of Fish and Wildlife may, prior to January 1, 2014, adopt rules to implement 10 V.S.A. § 4278 as effective on January 1, 2014.

CROSS REFERENCES

Falconry permits, see 10 App. V.S.A. § 11.

Point assessment for violations of section, see § 4502 of this title.

§ 4279. Lifetime licenses.

  1. A resident or nonresident lifetime fishing, hunting, or combination fishing and hunting license may be obtained upon application to the Department.
  2. In order to obtain a resident lifetime license, an applicant must be a resident or a dependent of a resident of Vermont at the time of application. In this subsection, a resident shall be a person who has resided in this State for the 12 months immediately prior to the date of application for the license and who has not during that period claimed residency in any other state or country for any purpose. A child born in this State shall be a resident if one or more of the child’s parents or the child’s legal guardian are domiciled in the State at the time of birth and have continued to reside in the State since the birth.
  3. A lifetime license shall entitle the holder to the privileges allowed under subdivision 4252(1), (2), or (4) of this title as long as the holder is alive, except that the holder shall not be entitled to hunting privileges until he or she has satisfied the criteria of subsection 4254(b) of this title.
  4. If the holder of a lifetime hunting license wishes to receive the privileges granted to holders of other hunting licenses, such as archery or turkey licenses, the holder must purchase the appropriate license. In this case, the holder shall pay the fee required in subsection 4255(a) or (b) of this title, depending on whether the holder is a resident or nonresident at the time of purchase.
  5. If the holder of a lifetime hunting or fishing license wishes to upgrade the license to a lifetime combination hunting and fishing license, the holder may do so by paying the difference between the fee for the combination license and the fee for the license held. In this subsection, fee means the fee at the time of the upgrade.
  6. Fees for lifetime licenses shall be the appropriate multiplication factor for the child’s or adult’s age multiplied by the fee for the appropriate license. Appropriate license fees are those in subdivisions 4255(a)(1), (2), and (3) of this title for residents and subdivisions 4255(b)(1), (4), and (5) of this title for nonresidents. Multiplication factors are as follows:
    1. for children under 1 year of age  8 (2) for children 1 through 15 years of age 16 (3) for adults 16 through 24 years of age 31 (4) for adults 25 through 64 years of age 26

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  7. In each year a lifetime license holder intends to hunt, trap, or fish, the lifetime license holder shall notify the Department that he or she will exercise his or her hunting, trapping, or fishing privileges. Failure to notify the Department as required by this subsection shall not result in the assessment of points under section 4502 of this title.

HISTORY: Added 1993, No. 191 (Adj. Sess.), § 1; amended 2011, No. 128 (Adj. Sess.), § 34, eff. Jan. 1, 2013; 2015, No. 61 , § 5a, eff. June 17, 2015; 2019, No. 70 , § 6, eff. Jan. 1, 2020.

History

Amendments

—2019. Subsec. (f)(1): Substituted “8” for “6.”

—2015. Subsec. (g): Added.

—2011 (Adj. Sess.) Subdiv. (f)(1): Substituted multiplication factor “6” for “5”.

Subdiv. (f)(2): Substituted multiplication factor “16” for “15”.

Subdiv. (f)(3): Substituted multiplication factor “31” for “30”.

Subdiv. (f)(4): Substituted multiplication factor “26” for “25”.

Effective date of amendments—

2019, No. 70 , § 30 provided that the amendment to subdiv. (f)(1) by section 6 of the act shall take effect on January 1, 2020.

§ 4280. Taking wildlife during a period of license suspension.

A person shall not hunt, fish, or trap while a license or right to obtain a license is under suspension, including those persons who could otherwise hunt, fish, or trap pursuant to section 4253 of this title.

HISTORY: Added 2005, No. 31 , § 2; amended 2013, No. 78 , § 11.

History

Amendments

—2013. Inserted “, including those persons who could otherwise hunt, fish, or trap pursuant to section 4253 of this title” following “suspension”.

Subchapter 2. Eel Fishing in Lake Champlain

§§ 4301-4308. Repealed. 2001, No. 113 (Adj. Sess.), § 1, eff. May 23, 2002.

History

Former §§ 4301-4308. Former subchapter 2, §§ 4301 through 4308, relating to eel fishing in Lake Champlain, were derived from 1981, No. 214 (Adj. Sess.), § 1, eff. April 26, 1982.

Former § 4301, relating to intent of the general assembly to permit commercial fishing of eels, was derived from 1981, No. 214 (Adj. Sess.), § 1, eff. April 26, 1982.

Former § 4302, relating to definitions, was derived from 1981, No. 214 (Adj. Sess.), § 1, eff. April 26, 1982.

Former § 4303, relating to methods permitted for eel fishing, was derived from 1981, No. 214 (Adj. Sess.), § 1, eff. April 26, 1982.

Former § 4304 relating to taking of fish other than eels was derived from 1981, No. 214 (Adj. Sess.), § 1, eff. April 26, 1982, and amended by 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; and 1991, No. 13 , § 2.

Former § 4305, relating to issuance and fees of licenses, was derived from 1981, No. 214 (Adj. Sess.), § 1, eff. April 26, 1982.

Former § 4306, relating to areas permitted for pot and electrofishing, was derived from 1981, No. 214 (Adj. Sess.), § 1, eff. April 26, 1982 and amended by 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; and 1985, No. 14 , § 1.

Former § 4307, relating to notification of locations to be fished, was derived from 1981, No. 214 (Adj. Sess.), § 1, eff. April 26, 1982 and amended by 1983, No. 158 (Adj. Sess.), eff. April 13, 1984.

Former § 4308, relating to reporting catch was derived from 1981, No. 214 (Adj. Sess.), § 1, eff. April 26, 1982 and amended by 1983, No. 158 (Adj. Sess.), eff. April 13, 1984.

§ 4309. Repealed. 1985, No. 14, § 2.

History

Former § 4309. Former § 4309, relating to expiration of this subchapter, was derived from 1981, No. 214 (Adj. Sess.) § 1.

Chapter 107. Suspension of Open Season

§ 4401. Suspension of open season by proclamation of Governor; exception.

  1. During an open season for the taking of game or fish, when it appears to the Governor that by reason of drought hunting, fishing, and trapping are likely to cause forest fires, he or she may by proclamation suspend hunting, fishing, and trapping and make it a closed season for such time as he or she may designate. In such proclamation, he or she may except from the provisions thereof localities not affected by drought and certain game birds, animals, and fish.
  2. When it appears to the Governor that the necessity therefor has ceased to exist, he or she shall remove by proclamation the suspension; except that in case such period of suspension includes the open season for taking deer, such open season shall not be reopened, but the Governor by proclamation shall fix some period of equal number of days in the same year as the open season for the taking of deer.
  3. , (d)[Repealed.]

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1967, No. 56 , §§ 1, 2.

History

Amendments

—1967. Subsec. (a): Substituted “hunting, fishing and trapping” for “hunting or fishing” and “suspend hunting, fishing and trapping” for “suspend such open season” in the first sentence.

Subsec. (b): Substituted “he shall remove by proclamation the suspension” for “he shall reopen by proclamation the season so closed”.

Subsec. (c): Repealed.

Subsec. (d): Repealed.

Prior law.

10 V.S.A. § 2551 .

Notes to Opinions

Extension of hunting season.

Governor had no authority to extend hunting season under former section 5631 of the Public Laws. 1940-42 Vt. Op. Att'y Gen. 218. (Decided under prior law.)

§ 4402. Recommendations of Secretary for closed season; proclamation; special season.

When in the opinion of the Secretary conditions exist that constitute an emergency calling for measures of protection for fish, wildlife, or fur-bearing animals additional to those provided by existing law, the Secretary shall certify the opinion to the Governor and attach therewith a statement of the measures of protection she or he recommends. Upon receipt of such certificate, the Governor by proclamation may suspend or close the open season in whole or in part with respect to any species of fish, wildlife, or fur-bearing animal either throughout the State or in any specified locality or localities or may impose restrictions additional to those already imposed by statute upon the number of any species of fish, wildlife, or fur-bearing animal to be taken.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1991, No. 230 (Adj. Sess.), § 21.

History

Amendments

—1991 (Adj. Sess.). In the first sentence, substituted “secretary” for “board” preceding “conditions”, “wildlife or fur-bearing animals” for “or game” preceding “additional”, “the secretary” for “such board, through the commissioner” preceding “shall certify”, “the” for “its” thereafter, and “she or he” for “it” preceding “recommends”; and, in the second sentence, substituted “wildlife” for “game” preceding “or fur-bearing” in two places.

Prior law.

10 V.S.A. § 2554 .

Notes to Opinions

Limitations on Governor’s authority.

Governor’s authority to impose additional protection under former section 2554 was limited to those cases in which legislature had already imposed some regulation. 1958-60 Vt. Op. Att'y Gen. 97. (Decided under prior law.)

Governor could not issue a proclamation imposing closed season on wild turkeys, nor could he impose any conditions or restrictions on the taking of such birds, where legislature had not provided any protection. 1958-60 Vt. Op. Att'y Gen. 97. (Decided under prior law.)

§ 4403. Suspension period.

A proclamation issued under section 4402 of this title shall continue in force until such date as is specified in the proclamation or until the Governor shall recall it or, if no expiration date is specified or recalling proclamation issued, until, but in no instance beyond, the convening of the next regular session of the General Assembly.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2555 .

§ 4404. Report of effect of closed season.

When the fishing or hunting season is wholly or partly closed by such proclamation, the Commissioner shall seasonably report to the Governor upon the effect of such action and the Governor may reopen or extend the season by proclamation for a period not to exceed that for which she or he had closed it.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1991, No. 230 (Adj. Sess.), § 22.

History

Amendments

—1991 (Adj. Sess.). Deleted “the board through” preceding “the commissioner” and inserted “she or” preceding “he had closed”.

Prior law.

10 V.S.A. § 2556 .

§ 4405. Publication.

  1. Proclamations made under the provisions of section 4401 or 4402 of this title shall be published in such newspapers of the State and posted in such places and in such manner as the Governor may order. A copy of such publication and order, attested by the Secretary of Civil and Military Affairs, shall be filed with the Secretary of State and a like copy shall be furnished to the Secretary who shall attend to the publication and posting thereof. The expenses of such publication and posting shall be paid by the Secretary and the Commissioner of Finance and Management shall issue his or her warrant therefor.
  2. The certificate of the Secretary that she or he has complied with the order of the Governor in respect to the publication shall be prima facie evidence of the promulgation of such proclamation.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 195 (Adj. Sess.), § 5(b); 1991, No. 230 (Adj. Sess.), § 23.

History

Amendments

—1991 (Adj. Sess.). Subsec. (a): In the second sentence substituted “secretary who” for “board which” following “furnished to the” and in the third sentence substituted “secretary” for “board” following “paid by the” and inserted “or her” preceding “warrant”.

Subsec. (b): Substituted “secretary that she or he” for “board that it” preceding “has complied”.

—1983 (Adj. Sess.). Subsec. (a): Inserted “and information support” following “commissioner of finance” in the third sentence.

Prior law.

10 V.S.A. §§ 2553 , 2557, 2558.

§ 4406. Violation of closed season; penalty.

During the time which shall be made a closed season as provided in section 4401 or 4402 of this title, the several provisions of law relating to closed seasons shall be in force and a person violating a provision thereof shall be subjected to the penalty provided for taking fish and wild animals in closed season.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2559 .

Chapter 108. Interstate Wildlife Violator Compact

§ 4451. Adoption of Compact.

The Wildlife Violator Compact is hereby enacted into law and entered into by the State of Vermont with any and all states legally joining therein in accordance with its terms. The Compact is substantially as follows:

ARTICLE I

Findings, Declaration of Policy and Purpose

  1. The party states find that:
    1. Wildlife resources are managed in trust by the respective states for the benefit of all residents and visitors.
    2. The protection of their respective wildlife resources can be materially affected by the degree of compliance with state statute or rule relating to the management of those resources.
    3. The preservation, protection, management, and restoration of wildlife contributes immeasurably to the aesthetic, recreational, and economic aspects of these natural resources.
    4. Wildlife resources are valuable without regard to political boundaries; therefore, all persons should be required to comply with wildlife preservation, protection, management, and restoration statutes, rules, and other law of all party states as a condition precedent to the continuance or issuance of any license to hunt, fish, trap, or possess wildlife.
    5. Violation of wildlife laws interferes with the management of wildlife resources and may endanger the safety of persons and property.
    6. The mobility of many wildlife law violators necessitates the maintenance of channels of communications among the various states.
    7. A person who is cited for a wildlife violation in a state other than the person’s home state:
      1. may be required to post collateral or bond to secure appearance for a trial at a later date;
      2. if unable to post collateral or bond, may be taken into custody until the collateral or bond is posted; or
      3. may be taken directly to court for an immediate appearance.
    8. The purpose of the enforcement practices described in subdivision (7) of this subsection is to ensure compliance with the terms of a wildlife citation by the person who, if permitted to continue on the person’s way after receiving the citation, could return to the person’s home state and disregard the person’s duty under the terms of the citation.
    9. A person receiving a wildlife citation in the person’s home state is permitted to accept the citation from the officer at the scene of the violation and to continue immediately on the person’s way after agreeing or being instructed to comply with the terms of the citation.
    10. The practice described in subdivision (7) of this subsection causes unnecessary inconvenience and, at times, a hardship for the person who is unable at the time to post collateral, furnish a bond, stand trial, or pay the fine, and thus is compelled to remain in custody until some alternative arrangement can be made.
    11. The enforcement practices described in subdivision (7) of this subsection consume an undue amount of law enforcement time.
  2. It is the policy of the party states to:
    1. Promote compliance with the statutes, rules, and other applicable law relating to management of wildlife resources in their respective states.
    2. Recognize the suspension of wildlife license privileges or rights of any person whose license privileges or rights have been suspended by a party state and treat this suspension as if it had occurred in the person’s home state.
    3. Allow violators to accept a wildlife citation, except as provided in subsection (b) of Article III of this Compact, and be released without delay whether or not the person is a resident in the state in which the citation was issued, provided that the violator’s home state is party to this Compact.
    4. Report to the appropriate party state any conviction that would subject a person to suspension and that is recorded against any person whose home state was not the issuing state.
    5. Allow the home state to recognize and treat a conviction that would subject a person to suspension and that is recorded for their residents and which occurred in another party state as if the conviction had occurred in the home state.
    6. Extend cooperation to its fullest extent among the party states for obtaining compliance with the terms of a wildlife citation issued in one party state to a resident of another party state.
    7. Maximize effective use of law enforcement personnel and information.
    8. Assist court systems in the efficient disposition of wildlife violations.
  3. The purpose of this Compact is to:
    1. Provide a means through which the party states may participate in a reciprocal program to effectuate policies enumerated in subsection (b) of this article in a uniform and orderly manner.
    2. Provide for the fair and impartial treatment of wildlife violators operating within party states in recognition of the person’s right of due process and the sovereign status of a party state.

      ARTICLE II

      Definitions

      The definitions in this article apply throughout this Compact and are intended only for the implementation of this Compact:

      (1) “Citation” means any summons, complaint, ticket, penalty assessment, or other official document issued by a wildlife officer or other peace officer for a wildlife violation containing an order which requires the person to respond.

      (2) “Collateral” means any cash or other security deposited to secure an appearance for trial in connection with the issuance by a wildlife officer or other peace officer of a citation for a wildlife violation.

    3. “Compliance” with respect to a citation means the act of answering the citation through appearance at a court, a tribunal, or payment of fines, costs, and surcharges, if any, or both such appearance and payment.
    4. “Conviction” means a conviction, including any court conviction, of any offense related to the preservation, protection, management, or restoration of wildlife which is prohibited by state statute, rule, or other relevant law, or a forfeiture of bail, bond, or other security deposited to secure the appearance by a person charged with having committed any such offense, or payment of a penalty assessment, or a plea of nolo contendere, or the imposition of a deferred or suspended sentence by the court.
    5. “Court” means a court of law.
    6. “Home state” means the state of primary residence of a person.
    7. “Issuing state” means the party state which issues a wildlife citation to the violator.
    8. “License” means any license, permit, or other public document that conveys to the person to whom it was issued the privilege of pursuing, possessing, or taking any wildlife regulated by statute, rule, or other relevant law of a party state.
    9. “Licensing authority” means the department within each party state authorized by law to issue or approve licenses or permits to hunt, fish, trap, or possess wildlife.
    10. “Party state” means any state which enacts legislation to become a member of this wildlife compact.
    11. “Personal recognizance” means an agreement by a person made at the time of issuance of the wildlife citation that the person will comply with the terms of that citation.
    12. “State” means any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, provinces of Canada, or other countries.
    13. “Suspension” means any revocation, denial, or withdrawal of any or all license privileges or rights, including the privilege or right to apply for, purchase, or exercise the benefits conferred by any license.
    14. “Terms of the citation” means those conditions and options expressly stated upon the citation.
    15. “Wildlife” means all species of animals, including but not necessarily limited to mammals, birds, fish, reptiles, amphibians, mollusks, and crustaceans, which are defined as “wildlife” and are protected or otherwise regulated by statute, rule, or other relevant law in a party state. “Wildlife” also means food fish and shellfish as defined by statute, rule, or other relevant law in a party state. Species included in the definition of “wildlife” vary from state to state and determination of whether a species is “wildlife” for the purposes of this Compact shall be based on state law.
    16. “Wildlife law” means any statute, law, regulation, ordinance, or administrative rule developed and enacted to manage wildlife resources and the use thereof.
    17. “Wildlife officer” means any individual authorized by a party state to issue a citation for a wildlife violation.
    18. “Wildlife violation” means any cited violation of a statute, rule, or other relevant law developed and enacted to manage wildlife resources and the use thereof.

      ARTICLE III

      Procedures for Issuing State

      (a) When issuing a citation for a wildlife violation, a wildlife officer shall issue a citation to any person whose primary residence is in a party state in the same manner as if the person were a resident of the home state and shall not require the person to post collateral to secure appearance, subject to the exceptions contained in subsection (b) of this article, if the officer receives the person’s personal recognizance that the person will comply with the terms of the citation.

      (b) Personal recognizance is acceptable:

      (1) If not prohibited by local law or the rules of the Department of Fish and Wildlife; and

      (2) If the violator provides adequate proof of the violator’s identification to the wildlife officer.

      (c) Upon conviction of a wildlife violation subject to suspension or upon failure of a person to comply with the terms of a wildlife citation, the appropriate official shall report the conviction or failure to comply to the licensing authority of the party state in which the wildlife citation was issued. The report shall be made in accordance with procedures specified by the issuing state.

      1. A citation of the authority by which the state is empowered to become a party to this Compact;
      2. Agreement to comply with the terms and provisions of the Compact; and
      3. That Compact entry is with all states then party to the Compact and with any state that legally becomes a party to the Compact.

        (3) The effective date of entry shall be specified by the applying state, but shall not be less than 60 days after notice has been given by the Chairperson of the Board of Compact Administrators or by the Secretariat of the Board of Compact Administrators to each party state that has received the resolution from the applying state.

        (c) A party state may withdraw from this Compact by official written notice to the other party states, but a withdrawal shall not take effect until 90 days after notice of withdrawal is given. The notice shall be directed to the Compact administrator of each member state. No withdrawal shall affect the validity of this Compact as to the remaining party states.

        ARTICLE IX

        Amendments to the Compact

        (a) This Compact may be amended from time to time. Amendments shall be presented in resolution form to the Chairperson of the Board of Compact Administrators and may be initiated by one or more party states.

        (b) Adoption of an amendment shall require endorsement by all party states and shall become effective 30 days after the date of the last endorsement.

        (c) Failure of a party state to respond to the Compact Chairperson within 120 days after receipt of the proposed amendment shall constitute endorsement.

        ARTICLE X

        Construction and Severability

        This Compact shall be liberally construed so as to effectuate the purposes stated herein. The provisions of this Compact shall be severable, and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the Constitution of any party state or of the United States, or the applicability thereof to any government, agency, individual, or circumstance is held invalid, the Compact shall not be affected thereby. If this Compact shall be held contrary to the constitution of any party state thereto, the Compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

        ARTICLE XI

        Compact Title

        This Compact shall be known as the Wildlife Violator Compact.

  4. Upon receipt of the report of conviction or noncompliance required by subsection (c) of this article, the licensing authority of the issuing state shall transmit to the licensing authority in the home state of the violator the information in a form and content specified by the Department of Fish and Wildlife in rule.

    ARTICLE IV

    Procedures for Home State

    (a) Upon receipt of a report of a failure to comply with the terms of a citation from the licensing authority of the issuing state, the licensing authority of the home state shall notify the violator, shall initiate a suspension action in accordance with the home state’s enforcement procedures, and shall suspend the violator’s license privileges or rights until satisfactory evidence of compliance with the terms of the wildlife citation has been furnished by the issuing state to the home state licensing authority. Due process safeguards will be accorded.

    (b) Upon receipt of a report of conviction of a wildlife violation subject to suspension from the licensing authority of the issuing state, the licensing authority of the home state shall enter such conviction in its records according to current procedure and shall treat such conviction as if it occurred in the home state for the purposes of the suspension of license privileges and for the purposes of the term of the suspension of privileges.

    (c) The licensing authority of the home state shall maintain a record of actions taken and make reports to issuing states as provided in rules adopted by the Department of Fish and Wildlife.

    ARTICLE V

    Reciprocal Recognition of Suspension

    All party states shall recognize the suspension of license privileges or rights of any person by any party state as if the violation on which the suspension is based had in fact occurred in the person’s home state and would have been the basis for suspension of license privileges or rights in his or her home state.

    ARTICLE VI

    Applicability of Other Laws

    Except as expressly required by provisions of this Compact, nothing herein shall be construed to affect the right of any party state to apply any of its laws relating to license privileges to any person or circumstance, or to invalidate or prevent any agreement or other cooperative arrangements between a party state and a nonparty state concerning wildlife law enforcement.

    ARTICLE VII

    Compact Administrator Procedures

    (a) For the purpose of administering the provisions of this Compact and to serve as a governing body for the resolution of all matters relating to the operation of this Compact, a Board of Compact Administrators is established. The Board of Compact Administrators shall be composed of one representative from each of the party states to be known as the compact administrator. The Compact administrator shall be appointed by the head of the licensing authority of each party state, except that in Vermont the Compact administrator shall be appointed according to 10 V.S.A. § 4452 , and will serve and be subject to removal in accordance with the laws of the state the administrator represents. A Compact administrator may provide for the discharge of the administrator’s duties and the performance of the administrator’s functions as a Board of Compact Administrators’ member by an alternate. An alternate may not be entitled to serve unless written notification of the alternate’s identity has been given to the Board of Compact Administrators.

    (b) Each member of the Board of Compact Administrators shall be entitled to one vote. No action of the Board of Compact Administrators shall be binding unless taken at a meeting at which a majority of the total number of votes on the Board of Compact Administrators are cast in favor thereof. Action by the Board of Compact Administrators shall be only at a meeting at which a majority of the party states are represented.

    (c) The Board of Compact Administrators shall elect annually, from its membership, a chairperson and vice chairperson.

    (d) The Board of Compact Administrators shall adopt bylaws, not inconsistent with the provisions of this Compact or the laws of a party state, for the conduct of its business and shall have the power to amend and rescind its bylaws.

  5. The Board of Compact Administrators may accept for any of its purposes and functions under this Compact all donations and grants of money, equipment, supplies, materials, and services, conditional or otherwise, from any state, the United States, or any governmental agency, and may receive, utilize, and dispose of the same.
  6. The Board of Compact Administrators may contract with or accept services or personnel from any governmental or intergovernmental agency, individual, firm, corporation, or any private nonprofit organization or institution.
  7. The Board of Compact Administrators shall formulate all necessary procedures and develop uniform forms and documents for administering the provisions of this Compact. All procedures and forms adopted pursuant to Board of Compact Administrators’ action shall be contained in the rules adopted by the Department of Fish and Wildlife.

    ARTICLE VIII

    Entry Into Compact and Withdrawal

    (a) This Compact shall become effective when it has been adopted by at least two states.

    (b) (1) Entry into the Compact shall be made by an act or resolution of ratification executed by the authorized officials of the applying state and submitted to the Chairperson of the Board of Compact Administrators.

    (2) The act or resolution shall include statements that in substance are as follows:

HISTORY: Added 2011, No. 108 (Adj. Sess.), § 1.

History

Revision note

—2012. Inserted “home” preceding “state” in subdiv. (b)(2) of Article I and in the paragraph following Article V and substituted “compact” for “contact” following “board of” in the second sentence of subsec. (g) of Article VII for purposes of clarity.

§ 4452. Compact Administrator.

The Compact Administrator for Vermont shall be the Commissioner of Fish and Wildlife or a designated representative of the Commissioner. The duties of the Compact Administrator shall be deemed a regular part of the duties of the office of the Commissioner of Fish and Wildlife.

HISTORY: Added 2011, No. 108 (Adj. Sess.), § 1.

§ 4453. Rulemaking.

The Department of Fish and Wildlife may adopt rules to carry out the purposes of this chapter.

HISTORY: Added 2011, No. 108 (Adj. Sess.), § 1.

§ 4454. Penalties.

  1. Notwithstanding section 4502 of this title, the Commissioner may suspend a Vermont hunting, fishing, or trapping license and privileges to obtain such licenses of a person convicted of a wildlife violation in a state party to the Compact, provided that the wildlife violation would have been the basis for suspension of license privileges in Vermont.
  2. No person whose license, privilege, or right to hunt, fish, trap, possess, or transport wildlife, having been suspended or revoked pursuant to this chapter, shall be permitted to obtain a license to hunt, fish, or trap in Vermont.
  3. A person shall be subject to the financial penalties as set forth under section 4518 of this title if he or she:
    1. hunts, fishes, traps, possesses, or transports wildlife in Vermont in violation of a suspension or revocation of a license under chapter 108 of this title; or
    2. purchases or possesses a license to hunt, fish, trap, possess, or transport wildlife in Vermont in violation of a suspension of revocation of a license under chapter 108 of this title.
    1. Prior to suspending a Vermont hunting, fishing, or trapping license of a resident of this State under subsection (a) of this section, the Commissioner shall notify the person in writing. A suspension shall be deemed effective: (d) (1) Prior to suspending a Vermont hunting, fishing, or trapping license of a resident of this State under subsection (a) of this section, the Commissioner shall notify the person in writing. A suspension shall be deemed effective:
      1. when given if notice is made in person; or
      2. three days after the deposit of notice in the U.S. mail, if notice is made in writing.
    2. A person receiving notice under subsection (a) of this section may, within 20 days of the date notice is given, request a hearing before the Commissioner on whether the requirements for suspension or penalty have been met. The requesting person may present evidence and arguments at the hearing only regarding whether:
      1. a participating state suspended the person’s privileges;
      2. there was a conviction in the participating state;
      3. the person failed to comply with the terms of a citation issued for a wildlife violation in a participating state; or
      4. a conviction in a participating state could have led to a license suspension or penalty in Vermont.
    3. At the hearing, the Commissioner or a hearing officer designated by the Commissioner may:
      1. administer oaths;
      2. issue subpoenas for the attendance of witnesses; and
      3. admit all relevant evidence and documents, including notifications from participating states.
    4. Following a hearing under this subsection, the Commissioner or a designated hearing officer may, based on the evidence, affirm, modify, or rescind the suspension of a license.
    5. A decision of the Commissioner or hearing officer under this section shall not be appealable.

HISTORY: Added 2011, No. 108 (Adj. Sess.), § 1.

§ 4455. Withdrawal from Compact.

Withdrawal of Vermont from the Compact, as authorized under Article VIII of the Compact, shall be by an act or resolution of the General Assembly.

HISTORY: Added 2011, No. 108 (Adj. Sess.), § 1.

Chapter 109. Penalties and Enforcement

History

Revision note—

Chapter was enacted without subchapters. Subchapter 1 heading was added in view of the enactment of subchapter 3 by 1977, No. 229 (Adj. Sess.).

Subchapter 1. General Provisions

§ 4501. Aiding in violations; sharing in proceeds.

A person who drives, transports, scouts, counsels, or otherwise aids another person in a violation of a provision of this part, or who knowingly possesses, consumes, or otherwise shares in the proceeds of such a violation by receiving or possessing fish or wild animals, or any parts thereof, shall be punished as a principal.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 2015, No. 145 (Adj. Sess.), § 4.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

Prior law.

10 V.S.A. § 2561 .

ANNOTATIONS

Possession.

Former section 2 of Laws 1912, No. 201 , applied, so far as related to possession, only to provisions of statute which related to manner of “taking” game and fish, and a person who came into possession of fish or game in violation of those provisions was innocent unless he “knew” of the violation of those provisions. State v. Harvey, 88 Vt. 358, 92 A. 452, 1914 Vt. LEXIS 230 (1914). (Decided under prior law.)

Principals.

Where respondent assisted in draining pond for purpose of getting fish, respondent was a principal under former section 5646 of the Public Laws. State v. Searles, 108 Vt. 236, 184 A. 701, 1936 Vt. LEXIS 180 (1936). (Decided under prior law.)

§ 4502. Uniform point system; revocation of license.

  1. A uniform point system that assigns points to those convicted of a violation of a provision of this part is established. The conviction report from the court shall be prima facie evidence of the points assessed. In addition to other penalties assessed for violation of fish and wildlife statutes, the Commissioner shall suspend licenses issued under this part that are held by a person who has accumulated 10 or more points in accordance with the provisions of subsection (c) of this section.
  2. A person violating provisions of this part shall receive points for convictions in accordance with the following schedule (all sections are in this title of the Vermont Statutes Annotated):
    1. Except for biological collection violations determined to be nonpoint violations under the rules of the Board, five points shall be assessed for any violation of statutes or rules adopted under this part except those listed in subdivisions (2) and (3) of this subsection.
    2. Ten points shall be assessed for:
      1. § 4148. Trespass on State property
      2. § 4270. Fur buyer’s records
      3. § 4517. Destruction of State property
      4. § 4605. Placing fish in waters
      5. § 4607. Obstructing streams
      6. § 4611. Sale of gamefish
      7. § 4704. Use of machine guns, autoloading rifles, and gun suppressors
      8. § 4705. Shooting from motor vehicles or aircraft
      9. § 4706. Snaring animals
      10. § 4707. Traps: notice
      11. § 4708. Interference with hunting, fishing, or trapping
      12. § 4709. Importation, stocking of wild animals
      13. § 4710. Safety zone
      14. § 4748. Dogs pursuing deer or moose
      15. [Repealed.]
      16. § 4864. Transporting beaver skins
      17. § 5101. Fish and wildlife; restrictions on transportation
      18. § 5204. Poaching; private preserves
      19. § 5205. Injuring notice of posted land
      20. § 5209. Special penalty; breeders
      21. § 5211. Poaching; propagation farms
      22. § 5213. Mansfield State Forest; game refuge
      23. § 5220. Birds released
      24. § 5226. Bomoseen State Game Refuge
      25. Appendix § 2; Appendix § 33, section 14.3. Reporting of big game
      26. Appendix § 2a. Big game tags
      27. Appendix § 3. Rabbit, squirrel; sale
      28. [Repealed.]
      29. [Repealed.]
      30. Appendix § 23(d)(1), (3)-(9). Waterfowl hunting methods
      31. Appendix § 23(h). Waterfowl, wanton waste
      32. [Repealed.]
      33. Appendix § 44. Trapping, except for violations of Appendix § 44, sections 4.3, 4.4, 4.6, 4.9, 4.10, 4.11, 4.12, 4.14(c), and 4.14(e)
      34. § 4827. Taking black bear doing damage
      35. Appendix § 37, as it applies to annual deer limits
      36. § 4742a. Youth deer hunting weekend. The points shall be assessed solely against the adult who is accompanying the youth hunter.
      37. § 4908. Youth turkey hunting weekend. The points assessed against the adult accompanying the youth hunter.
      38. § 4256. Mentored hunting license. The points shall be assessed against the licensed adult who is accompanying the individual holding the mentored hunting license.
      39. § 4827a. Feeding a black bear
      40. § 4826. Taking deer doing damage
      41. § 22a. Taking turkey doing damage
      42. § 35. Taking moose doing damage
      43. Appendix § 22, section 6.7; Appendix § 33, section 13.1(g); Appendix § 37, section 7.7. Possession or transport of a cocked crossbow in or on a motor vehicle, motorboat, airplane, snowmobile, or other motor-propelled vehicle
      44. Appendix § 7, section 6.3(b). Hunting bear with any dog not listed on the permit
      45. Appendix § 37, section 9.0. Feeding deer
      46. § 4716. Participating in a coyote-hunting competition.
    3. Twenty points shall be assessed for:
      1. § 4192. General powers and duties; failure to obey warden
      2. § 4278. Falconry license
      3. [Repealed.]
      4. § 4606. Taking fish by unlawful means, except for violations of subsection 4606(g) of this title
      5. § 4702. Use of light (firearm or bow involved)
      6. § 4703. Use of set guns
      7. [Repealed.]
      8. [Repealed.]
      9. § 4745. Taking deer out of season prohibited
      10. § 4747. Taking big game by illegal means
      11. § 4781. Big game possession
      12. § 4783. Purchase and sale of big game
      13. § 4784. Transportation of big game
      14. § 5403. Taking, possession, or transport of endangered or threatened species
      15. Appendix § 7, sections 4.2, 5.1, 5.2, 5.3, 6.1, 6.2, 6.3(d), 6.3(e), 6.4, 6.5(c), 6.5(d), 7.1, and 7.2. Bear, unauthorized taking
      16. Appendix § 22. Turkey season, excluding: requirements for youth turkey hunting season; section 6.2, size of shot used or possessed; and section 6.7, transport of cocked crossbow
      17. [Repealed.]
      18. Appendix § 31 (d), (e), and (f). Seasons, bag limits for caribou, elk, and moose
      19. Appendix § 116. Atlantic salmon in the Connecticut River
      20. § 4521. Failure to stop
      21. Appendix § 37, excluding: requirements for youth deer hunting weekend; limitations on feeding of deer; section 7.7, transport of cocked crossbow; and section 11.0, ban of urine and other natural lures
      22. § 4454. Interstate Wildlife Violator Compact
      23. § 4711. Crossbow hunting
      24. Appendix § 4. Hunting with a crossbow without a permit or license
      25. Appendix § 20. Aerial hunting
      26. Appendix § 44, section 4.6. Use of tooth jawed traps
      27. Appendix § 44, section 4.11. Taking furbearers with poison
      28. Appendix § 44, section 4.12. Taking furbearers from a den
      29. § 4716. Holding or conducting a coyote-hunting competition
    4. In addition to other points assessed under this subsection, a person shall be assessed one point for each fish, bird, animal, or pelt possessed, taken, transported, bought, or sold in excess of the limits established in statutes or rules adopted under this part.
  3. Licenses shall be suspended as follows:
    1. For 10 to 14 points accumulated in five years—a one-year suspension.
    2. For 15 to 19 points accumulated in five years—a two-year suspension.
    3. For 20 or more points accumulated in five years—a three-year suspension.
  4. The Commissioner shall establish a centralized registry of licensees and shall track all convictions and the point accumulations, if any, against licensees. The Commissioner shall provide adequate notice to licensees of their point accumulations, and suspensions, if any.
  5. When a person holding a license issued under this part has been convicted of a violation of 13 V.S.A. § 1023(a)(2) or has been convicted of manslaughter by the careless and negligent use of firearms, the Commissioner shall revoke the person’s hunting license, 20 points shall accumulate on the person’s license, and another license shall not be issued to the person within five years from the date of the revocation or within five years from the date of the conviction if the person had no license. The court before which such person is convicted shall certify the conviction to the Commissioner. A revocation shall be deemed effective when notice is given, when made in person, or three days after the deposit of the notice in the U.S. mail, if made in writing.
  6. The Commissioner shall not reinstate a license suspended pursuant to subdivisions (c)(2) and (3) of this section until the licensee has successfully completed a remedial course designed to teach hunters, trappers, and anglers correct legal and ethical behavior while hunting, trapping, and fishing in Vermont. The remedial course shall be approved by the Commissioner and conducted by the Department. The fee for the remedial course shall be $100.00. Funds collected for the course shall be deposited in the Fish and Wildlife Fund.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1981, No. 80 , § 1, eff. Jan. 1, 1982; 1991, No. 13 , § 1; 1991, No. 269 (Adj. Sess.), §§ 1, 2, eff. June 26, 1992; 1993, No. 236 (Adj. Sess.),§§ 1, 5; 1995, No. 91 (Adj. Sess.), § 1, eff. April 4, 1996; 2001, No. 65 , § 21; 2003, No. 99 (Adj. Sess.), § 2, eff. April 27, 2004; 2007, No. 65 , § 204a; 2007, No. 97 (Adj. Sess.), § 4; 2009, No. 120 (Adj. Sess.), § 4, eff. July 1, 2011; 2009, No. 122 (Adj. Sess.), § 3; 2011, No. 108 (Adj. Sess.), § 2; 2013, No. 78 , § 13; 2015, No. 61 , § 17, eff. July 2, 2015; 2015, No. 97 (Adj. Sess.), § 26; 2015, No. 145 (Adj. Sess.), § 5; 2017, No. 170 (Adj. Sess.), § 15, eff. Jan. 1, 2019.

History

References in text.

Section 4192, referred to in subdiv. (b)(3)(A), no longer relates to failure to obey a warden. The subject matter is now covered by § 4521 of this title.

Title 10, subchapter 2, chapter 105, cited in subdiv. (b)(3)(c), is codified as 10 V.S.A. §§ 4301-4309 .

Revision note

—2015. In subdiv. (b)(2)(N), added “or moose” following “deer” to describe the subject of 10 V.S.A. § 4748 , and in subdiv. (b)(2)(Q), substituted “Fish and wildlife” for “Fish and game” in accordance with 1983, No. 158 (adj. Sess.), § 1.

—2009 (Adj. Sess.) Subdivs. (b)(2)(II) and (JJ), as added by 2009, No. 122 (Adj. Sess.), § 3, were redesignated as subdivs. (b)(2)(II), (JJ), and (KK) to correct the reference numbers for violation of youth deer hunting and youth turkey hunting weekends. Subdiv. (b)(2)(JJ), as added by 2009, No. 120 (Adj. Sess.), § 4 was redesignated as subdiv. (b)(2)(LL) to avoid conflict with subdiv. (b)(2)(JJ) as added by 2009, No. 122 (Adj. Sess.), § 3 as revised.

—2006. Substituted “subdivisions” for “§” preceding “4502(c)(2) and (3)” in subsec. (f) to conform references to V.S.A. style.

Amendments

—2017 (Adj. Sess.). Subdivs. (b)(2)(TT), (b)(3)(CC): Added.

—2015 (Adj. Sess.). Subdivs. (b)(2)(O), (b)(2)(BB), (b)(2)(FF), (b)(3)(C), and (b)(3)(H): Repealed by Act No. 97.

Subdiv. (b)(3)(R): Deleted “(c)” following “§ 31” and “bear” preceding “caribou” by Act No. 97.

Section amended generally by Act No. 145.

—2015. Subsec. (a): Substituted “that” for “which” in the first sentence.

Subdiv. (b)(2)(G): Added “and gun suppressors” at the end.

—2013. Subdiv. (b)(2)(MM): Added.

Subdiv. (b)(3)(G): Repealed.

—2011 (Adj. Sess.) Subdiv. (b)(3)(V): Added.

—2009 (Adj. Sess.) Subdiv. (b)(2)(CC): Deleted by Act No. 120.

Subdiv. (b)(2)(II), as revised: Rewritten by Act No. 122.

Subdivs. (b)(2)(JJ) and (KK), as redesignated by statutory revision, added.

Subdiv. (b)(2)(LL), as revised, added.

Subdiv. (b)(3)(P): Act No. 122 added “excluding requirements for youth turkey hunting season”.

—2007 (Adj. Sess.). Subdiv. (b)(2)(II): Added.

Subdiv. (b)(3)(U): Added.

—2007. Subdiv. (b)(3)(D): Inserted “, except for violations of subsection 4606(g) of this title” following “means”.

—2003 (Adj. Sess.). Subdiv. (b)(2)(HH): Added.

—2001. Subsec. (f): Added the third and fourth sentences.

—1995 (Adj. Sess.) Subsec. (f): Added.

—1993 (Adj. Sess.). Subdiv. (b)(3)(Q): Repealed.

Subdiv. (b)(3)(T): Added.

—1991 (Adj. Sess.). Subdiv. (b)(3)(4): Substituted “§ 4744(a) and (b)” for “§ 4744”.

Subdiv. (b)(3)(Q): Inserted “subdivision (d)(2), and” following “excluding”.

—1991. Section amended generally.

—1981. Deleted the sixth sentence.

Effect of 1995 (Adj. Sess.) amendment on license suspensions. 1995, No. 91 (Adj. Sess.),§ 2 provided: “The fee for the remedial course shall be $100.00. Funds collected under this act [which amended this section] shall be deposited in the fish and wildlife fund.”

Effect of 1991 amendment on existing license suspensions. 1991, No. 13 ,§ 7, provided: “Any person who holds a license issued under part 4 of Title 10 which is suspended at the time of passage of this act [July 1, 1991] shall remain under suspension for the term specified at the time of conviction.”

Prior law.

10 V.S.A. §§ 2465 , 2982(c).

Notes to Opinions

Conviction.

Conviction of license holder in either a federal or state court was sufficient to warrant revocation of his license or his right to obtain a license under former section 5623 of the Public Laws. 1940-42 Vt. Op. Att'y Gen. 122. (Decided under prior law.)

Pardons.

Person unconditionally pardoned for offense of careless use of firearms was no longer subject to revocation of his hunting license, such pardon restoring him to all his civil rights. 1934-36 Vt. Op. Att'y Gen. 319. (Decided under prior law.)

Taking on own farm.

Even though a person’s license to hunt was revoked, he could lawfully hunt and take wild animals or wild birds on his own farm lands. 1934-36 Vt. Op. Att'y Gen. 311. (Decided under prior law.)

—Generally.

Director had to revoke license even though hunter did not violate law on purpose. 1930-32 Vt. Op. Att'y Gen. 157. (Decided under prior law.)

§ 4503. Unlawful equipment, vehicle, forfeiture.

A person convicted of violating the provisions of section 4745, 4781, 4783, 4784, 4705(a), 4280, 4747, or 4606 of this title relating to taking big game shall forfeit to the Department of Fish and Wildlife the firearms, jacks, artificial lights, motor vehicle, or any other device used in committing the violation. Forfeiture of a motor vehicle shall not apply to the illegal taking, possessing, or transporting of wild turkey, anadromous Atlantic salmon, section 4606, or to the person’s first conviction of the provisions of section 4745, 4781, 4783, or 4784 under this section. Proceeds from the sale of items or equipment forfeited under this section shall be deposited in the Fish and Wildlife Fund.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 234 (Adj. Sess.), § 1; 1985, No. 92 , § 2; 2015, No. 145 (Adj. Sess.), § 6.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—1985. Inserted “or 4606” following “4747” and “motor vehicle” following “lights” in the first sentence and substituted “big game” for “deer or moose” in two places in that sentence and added the second sentence.

—1983 (Adj. Sess.). Inserted “or moose” following “deer” in two places.

Prior law.

10 V.S.A. § 3060 .

Notes to Opinions

Taking.

Legislature intended to provide a forfeiture of weapons or other equipment named by it which were used illegally in taking of wild deer, within the statutory definition of “take and taking,” whether deer was actually secured by respondent or not. 1942-44 Vt. Op. Att'y Gen. 193. (Decided under prior law.)

§ 4504. Duties of prosecutor and warden.

  1. When firearms, jacks, artificial lights, motor vehicles, and any other devices used in the taking or transportation of big game are seized or taken by a game warden or other officer, with or without a warrant, the officer who makes the seizure shall forthwith give notice to the State’s Attorney of the county.
  2. The State’s Attorney shall attend and act in behalf of the State at the hearing against the devices so seized, and the officer making the seizure without a warrant shall be allowed the same fees as if he or she had acted under a warrant.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 234 (Adj. Sess.), § 2; 1985, No. 92 , § 3; 2017, No. 93 (Adj. Sess.), § 11.

History

Amendments

—2017 (Adj. Sess.). Added the subsec. designations and deleted “a grand juror of the town in which the seizure is made or to” following “notice to” in subsec. (a) and “grand juror or” preceding “State’s Attorney” in subsec. (b).

—1985. In the first sentence, substituted “big game” for “deer or moose” following “transportation of” and inserted “motor” preceding “vehicles” and, in the second sentence, inserted “or she” following “he”.

—1983 (Adj. Sess.). Inserted “or moose” following “deer” in the first sentence.

Prior law.

10 V.S.A. § 3061 .

ANNOTATIONS

Warrantless seizure.

The authority of state wardens, under former section 3061 and former sections 2382, 2383 and 3062 of this title, to act without a warrant, was confined to those occasions when the culpability of the offender and his instruments of crime were demonstrated by the commission of the act or the possession of its product in the presence of the officer. State v. Aldrich, 122 Vt. 416, 175 A.2d 803, 1961 Vt. LEXIS 93 (1961). (Decided under prior law.)

§ 4505. Hearing; forfeiture.

The game warden or other officer shall retain possession of firearms, jacks, lights, motor vehicles, and devices taken until final disposition of the charge against the owner, possessor, or person using the same in violation of the provisions of section 4745, 4781, 4783, 4784, 4705(a), 4280, 4747, or 4606 of this title, in accordance with the provisions of section 4503 of this title. When the owner, possessor, or person using firearms, jacks, lights, motor vehicles, and devices in violation of the section is convicted of the offense, the court where the conviction is had shall cause the owner, if known, and possessor and all persons having the custody of or exercising any control over the firearms, jacks, lights, motor vehicles, and devices seized, either as principal, clerk, servant, or agent and the respondent to appear and show cause, if any they have, why a forfeiture or condemnation order should not issue. The hearings may be held as a collateral proceeding to the trial of the respondent in the discretion of the court.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1985, No. 92 , § 4; 2017, No. 170 (Adj. Sess.), § 6.

History

Amendments

—2017 (Adj. Sess.). In the first sentence inserted “4745, 4781, 4783, 4784, 4705(a), 4280,” and “, in accordance with the provisions of section 4503 of this title”.

—1985. Inserted “motor” preceding “vehicles” throughout the section and “or 4606” following “4747” in the first sentence.

Prior law.

10 V.S.A. § 3062 .

§ 4506. Disposal order.

If, upon hearing, it appears that such firearm, jack, light, vehicle, and device was used or intended to be used contrary to law, it shall be adjudged forfeited and condemned, and shall be turned over to the game warden or other officer for the benefit of the State as the court shall direct. In the event such device is illegal, such officer shall destroy the same upon order of such court.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 3063 .

§ 4507. Costs of condemnation.

Upon condemnation of such firearm, jack, light, vehicle, or device, any and all persons before such court, pursuant to the provisions of sections 4505 and 4506 of this title, shall be liable to pay the costs of the condemnation proceedings, if, in the judgment of such court, any of them by themselves, clerks, servants, or agents, shall have been engaged in, aided in, assisted in, or abetted in the unlawful use of such firearm, jack, light, vehicle, or device in violation of the provisions hereof, or have been privy thereto, or have knowingly permitted the use of the same by them owned or controlled, for such unlawful purposes.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 3064 .

§ 4508. Sale of forfeited equipment.

Upon seizure of such firearm, jack, light, vehicle, or device without a warrant, a game warden or other officer shall forthwith make complaint, under oath, subscribed by him or her, to a court or magistrate having jurisdiction of offenses hereunder in whose jurisdiction the same was seized. In the event, under proceedings provided in sections 4503-4507 of this title, such device is ordered forfeited and is a device not illegal in itself, such firearm, jack, light, motor, or other vehicle or device, upon written order of such court shall be sold at public auction for the benefit of the State by the Commissioner.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 3065 .

§ 4509. Proceeds; accounting; liens.

The Commissioner shall make return in writing to the court issuing such order of sale and shall transmit to the court therewith from the proceeds of such sale all costs of condemnation proceedings not taxed against other persons as herein provided. The balance of proceeds remaining shall be credited to the General Fund of the Fish and Wildlife Department and deposited, held, and accounted for in the same manner as provided by law for the miscellaneous receipts by such Department, after paying all liens on such device, according to their validity and priority that are established by intervention or otherwise at the time of forfeiture being adjudged or in other proceedings brought for such purpose as being bona fide and having been created without knowledge by the holders thereof that such device was being or intended to be used contrary to the provisions hereof, such liens to be specified by the court in its order of sale or by order in writing of any other court having jurisdiction over such liens and devices.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 158 (Adj. Sess.), eff. April 13, 1984.

History

Amendments

—1983 (Adj. Sess.). Substituted “fish and wildlife department” for “fish and game department” in the second sentence.

Prior law.

10 V.S.A. § 3066 .

§ 4510. Rights of innocent owner.

Nothing contained in sections 4503-4509 of this title shall prejudice the rights of the bona fide owner of any such device upon affirmative proof by him or her that he or she had no express or implied knowledge that such forfeited property was being or intended to be used for the illegal purposes aforesaid and the owner shall be entitled to a return of the same if he or she appears before adjudication of forfeiture and establishes his or her right to such return in accord with the foregoing. If, upon hearing, the person in charge of such firearm, jack, light, vehicle, or device does not appear to be the owner thereof and no person shall claim the same, further hearing shall be continued to a date certain. The taking of such articles and the date, place, and purpose of adjourned hearing shall be advertised once a week for three consecutive weeks in some newspaper published in the town or county where such device was taken, and, if there is no newspaper published in such town or county where such property was taken, in a newspaper having circulation in such county once a week for three successive weeks. The court before whom such proceeding is held shall be allowed the necessary expense of such advertising by the Commissioner of Finance and Management and order entered by such court at such adjourned hearing.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 195 (Adj. Sess.), § 5(b).

History

Amendments

—1983 (Adj. Sess.). Inserted “and information support” following “commissioner of finance” in the fourth sentence.

Prior law.

10 V.S.A. § 3067 .

§ 4511. Reopening forfeiture proceedings; rehearing; jurisdiction of courts.

  1. At any time within one year after such property shall have been adjudged forfeited, and upon notice to the State’s Attorney of the county, a claimant, upon showing that he or she had no knowledge of the hearing, may apply to the court before whom former proceedings were had to have the cause reopened, provided he or she shall give security by way of recognizance to the State, with sufficient sureties, in such sum as the court directs, conditioned that the claimant will prosecute his or her claim to effect and pay the costs awarded against him or her. If, upon rehearing, such claimant establishes his or her claim, the court shall certify to the Commissioner of Finance and Management the amount of such claim, not exceeding the net amount actually realized by the State from the sale of such firearm, motor or other vehicle, or other device and the Commissioner of Finance and Management shall issue his or her warrant therefor.
  2. [Repealed.]

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974; 1983, No. 195 (Adj. Sess.), § 5(b).

History

Amendments

—1983 (Adj. Sess.). Subsec. (a): Inserted “and information support” following “commissioner of finance” in the second sentence.

—1973 (Adj. Sess.). Subsec. (b): Deleted.

—1965. Subsec. (b): Substituted “district” for “municipal” preceding “courts”.

Prior law.

10 V.S.A. § 3068 .

§ 4512. Appeal.

Appeals from the orders or judgments of a court or magistrate entered or made pursuant to the provisions of sections 4503-4511 of this title shall be allowed in the same manner and to the same extent as provided in criminal causes.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1965, No. 194 , § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 249 (Adj. Sess.), § 12, eff. April 9, 1974.

History

Amendments

—1973 (Adj. Sess.). Deleted former first sentence.

—1965. Substituted “district” for “municipal” preceding courts in the first sentence.

Prior law.

10 V.S.A. § 3069 .

§ 4513. Unlawful devices for taking fish or wild animals; confiscation; sale.

Fish, wild animals, and illegal devices for taking fish or wild animals found in the possession of a person in violation of a provision of this part, shall be seized and confiscated in the name of the State and the Commissioner may sell or otherwise dispose of the same as he or she deems for the best interests of the State and for that purpose may order the transportation of the same at any time.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2560 .

§ 4514. Possession of flesh of game; restitution.

  1. When legally taken, the flesh of a fish or wild animal may be possessed for food for a reasonable time thereafter and such flesh may be transported and stored in a public cold storage plant. Nothing in this section shall authorize the possession of game birds or carcasses or parts thereof contrary to regulations made pursuant to the Migratory Bird Treaty Act.
  2. Any person convicted of illegally taking, destroying, or possessing wild animals or threatened or endangered species shall, in addition to other penalties provided under this chapter, pay restitution in the following amounts into the Fish and Wildlife Fund for each animal taken, destroyed, or possessed:
    1. Big game no more than $2,000.00 and no less than $200.00 for the first offense and no less than $500.00 each for a second or subsequent offense (2) Endangered or threatened species no more than as defined in section 5401 of this $2,000.00 and no title less than $500.00 each (3) Small game no more than $500.00 and no less than $50.00 each (4) Fish no more than $50.00 and no less than $25.00 each

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  3. A person who damages or destroys a wildlife facsimile owned by the Department of Fish and Wildlife in violation of the requirements of part 4 of this title shall pay restitution for the replacement or repair of the decoy into the Fish and Wildlife Fund.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1989, No. 205 (Adj. Sess.), § 2; 2011, No. 14 , § 1, eff. July 1, 2012; 2015, No. 145 (Adj. Sess.), § 7.

History

References in text.

The Migratory Bird Treaty Act, cited in subsec. (a), is codified as 16 U.S.C. § 703 et seq.

Amendments

—2015 (Adj. Sess.). Section heading and section amended generally.

—2011. Subdiv. (b)(1): Substituted “$2,000.00” for “$1,000.00”.

Subdiv. (b)(2): Substituted “$2,000.00” for “$1,000.00”.

Subdiv. (b)(3): Substituted “$500.00” for “$250.00”.

Subdiv. (b)(4): Added “$” before “$25.00”.

—1989 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a) and added subsec. (b).

Prior law.

10 V.S.A. §§ 2563 , 2564.

§ 4515. General penalty.

Whoever violates or attempts to violate a provision of this part or an order or regulation of the Board or of the Commissioner for which no other penalty is provided shall be fined not more than $1,000.00.

HISTORY: Added 1961, No. 119 , § 1, May 9, 1961; amended 1985, No. 92 , § 11.

History

Amendments

—1985. Substituted “$1,000.00” for “$100.00”.

Prior law.

10 V.S.A. § 2565 .

§ 4516. Repealed. 1993, No. 236 (Adj. Sess.), § 5.

History

Former § 4516. Former § 4516, relating to hunting or fishing without a license, was derived from 1961, No. 119 , § 1.

§ 4517. Destruction of State property.

  1. Whoever intentionally or recklessly damages, injures, interferes with, or destroys any property, real or personal, belonging to or controlled by the State for fish, game, or wildlife purposes shall be fined not more than $2,500.00.
  2. A person convicted of intentionally or recklessly damaging, injuring, interfering with, or destroying property belonging to or controlled by the State for fish, game, or wildlife purposes shall, in addition to other penalties provided under this chapter, pay restitution into the Fish and Wildlife Fund to repair or replace the damaged property.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1985, No. 92 , § 12; 2015, No. 145 (Adj. Sess.), § 8.

History

Amendments

—2015 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a) and substituted “intentionally or recklessly” for “wilfully or carelessly” preceding “damages” in that subsec., and added subsec. (b).

—1985. Substituted “$2,500.00” for “$500.00 nor less than $10.00” following “not more than”.

Prior law.

10 V.S.A. § 2566 .

§ 4518. Section 4518 effective until January 1, 2022; see also section 4518 effective January 1, 2022 set out below. Big game violations; threatened and endangered species; suspension; violations.

Whoever violates a provision of this part or orders or rules of the Board relating to taking, possessing, transporting, buying, or selling of big game or relating to threatened or endangered species shall be fined not more than $1,000.00 nor less than $400.00 or imprisoned for not more than 60 days, or both. Upon a second and all subsequent convictions or any conviction while under license suspension related to the requirements of part 4 of this title, the violator shall be fined not more than $4,000.00 nor less than $2,000.00 or imprisoned for not more than 60 days, or both.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1963, No. 6 ; 1973, No. 4 ; 1981, No. 80 , § 2, eff. Jan. 1, 1982; 1983, No. 234 (Adj. Sess.), § 3; 1985, No. 92 , § 5; 1991, No. 13 , § 3; 2011, No. 14 , § 2, eff. July 1, 2012; 2015, No. 145 (Adj. Sess.), § 9; 2019, No. 169 (Adj. Sess.), § 2, eff. Jan. 1, 2022.

§ 4518. Section 4518 effective January 1, 2022; see also section 4518 effective until January 1, 2022 set out above. Big game violations; threatened and endangered species; suspension; violations.

Whoever violates a provision of this part or orders or rules of the Board relating to taking, possessing, transporting, buying, or selling of big game; relating to threatened or endangered species; or relating to the trade in covered animal parts or products shall be fined not more than $1,000.00 nor less than $400.00 or imprisoned for not more than 60 days, or both. Upon a second and all subsequent convictions or any conviction while under license suspension related to the requirements of part 4 of this title, the violator shall be fined not more than $4,000.00 nor less than $2,000.00 or imprisoned for not more than 60 days, or both.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1963, No. 6 ; 1973, No. 4 ; 1981, No. 80 , § 2, eff. Jan. 1, 1982; 1983, No. 234 (Adj. Sess.), § 3; 1985, No. 92 , § 5; 1991, No. 13 , § 3; 2011, No. 14 , § 2, eff. July 1, 2012; 2015, No. 145 (Adj. Sess.), § 9; 2019, No. 169 (Adj. Sess.), § 2, eff. Jan. 1, 2022.

History

Amendments

—2019 (Adj. Sess.). Inserted “or relating to the trade in covered animal parts or products” following “endangered species” in the first sentence.

—2015 (Adj. Sess.). Added “; threatened and endangered species; suspension; violations” in the section heading and inserted “or relating to threatened or endangered species” following “big game”, and “or any conviction while under license suspension related to the requirements of part 4 of this title” following “subsequent convictions”, and substituted “$4,000.00” for “$2,000.00,” and substituted “$2,000.00” for “$1,000.00”.

—2011. Substituted “$1,000.00” for “$500.00” and “$400.00” for “$200.00” in the first sentence and “$2000.00” for “$1,000.00” and “$1,000.00” for “$500.00” in the second sentence.

—1991. Deleted “and shall have his or her hunting, fishing, and trapping license revoked for at least one year” following “or both” in the first sentence and “and shall have his or her license revoked for at least three years” following “or both” in the second sentence.

—1985. Inserted “or her” following “his” in the first and second sentences and substituted “rules” for “regulations” following “orders or” in the first sentence and “big game” for “deer, elk, moose, caribou, wild turkey or black bear” following “selling of” in that sentence.

—1983 (Adj. Sess.). Deleted “illegally taken” preceding “deer” in the first sentence.

—1981. Inserted “illegally taken” preceding “deer”, substituted “$500.00” for “$300.00” following “not more than”, “$200.00” for “$100.00” following “nor less than”, and added “and shall have his hunting, fishing and trapping license revoked for at least one year” following “60 days, or both” in the first sentence and added the second sentence.

—1973. Inserted “wild turkey” following “caribou”.

—1963. Deleted “tagging” following “transporting”.

ANNOTATIONS

Construction.

In prosecution for taking moose in closed season, State was not required to prove that defendant had specific intent to shoot a moose, as defendant’s knowledge regarding whether animal was a moose or a deer was immaterial under statute. State v. Mobbs, 169 Vt. 645, 740 A.2d 1288, 1999 Vt. LEXIS 307 (1999) (mem.).

§ 4519. Assurance of discontinuance.

  1. As an alternative to judicial proceedings, the Commissioner may accept an assurance of discontinuance of any violation of this part. An assurance of discontinuance may include, but need not be limited to:
    1. specific actions to be taken;
    2. abatement or mitigation schedules;
    3. payment of a civil penalty and the costs of investigation;
    4. payment of an amount to be held in escrow pending the outcome of an action or as restitution to aggrieved persons.
  2. An assurance of discontinuance shall be in writing and signed by the respondent and shall specify the statute or regulation alleged to have been violated. An assurance of discontinuance shall be simultaneously filed with the Attorney General and the Civil Division of the Superior Court of the county in which the alleged violation occurred or the Civil Division of the Superior Court of Washington County. An assurance of discontinuance may, by its terms, become an order of the court. Evidence of a violation of an assurance of discontinuance shall be prima facie proof of the violation.
  3. Any violation of an assurance of discontinuance shall constitute a separate and distinct offense of the underlying statute or rule and shall be subject to an administrative penalty under section 4520 of this title, in addition to any other applicable penalties.

HISTORY: Added 2011, No. 54 , § 6.

History

Former § 4519. This section, relating to hearings on license revocation, was previously repealed by 1973, No. 169 (Adj. Sess.), § 2 and was derived from 1971, No. 152 (Adj. Sess.), § 2.

§ 4520. Administrative penalties.

  1. In addition to other penalties provided by law, the Commissioner may assess administrative penalties, not to exceed $1,000.00, for each violation of this part.
  2. In determining the amount of the penalty to be assessed under this section, the Commissioner may give consideration to one or more of the following:
    1. the degree of actual and potential impact on fish, game, public safety, or the environment resulting from the violation;
    2. the presence of mitigating or aggravating circumstances;
    3. whether the violator has been warned or found in violation of fish and wildlife law in the past;
    4. the economic benefit gained by the violation;
    5. the deterrent effect of the penalty;
    6. the financial condition of the violator.
  3. Each violation may be a separate and distinct offense and, in the case of a continuing violation, each day’s continuance may be deemed to be a separate and distinct offense. In no event shall the maximum amount of the penalty assessed under this section exceed $25,000.00.
  4. In addition to the administrative penalties authorized by this section, the Commissioner may recover the costs of investigation, which shall be credited to a special fund and shall be available to the Department to offset these costs.
  5. Any party aggrieved by a final decision of the Commissioner under this section may appeal de novo to the Civil Division of the Superior Court of the county in which the violation occurred or the Civil Division of the Superior Court of Washington County within 30 days of the final decision of the Commissioner.
  6. The Commissioner may enforce a final administrative penalty by filing a civil collection action in the Civil Division of the Superior Court of any county.
  7. The Commissioner may, subject to 3 V.S.A. chapter 25, suspend any license or permit issued pursuant to his or her authority under this part for failure to pay a penalty under this section more than 60 days after the penalty was issued.

HISTORY: Added 2011, No. 54 , § 6.

History

Revision note

—2015. In subdiv. (b)(3), substituted “fish and wildlife” for “fish and game” in accordance with 1983, No. 158 (Adj. Sess.), § 1.

Former § 4520. This section, relating to hearings on license revocation, was previously repealed by 1973, No. 169 (Adj. Sess.), § 2 and was derived from 1971, No. 152 (Adj. Sess.), § 2.

§ 4520a. Notice and hearing requirements.

  1. The Commissioner shall use the following procedures in assessing the penalty under section 4520 of this title: the Attorney General or an alleged violator shall be given an opportunity for a hearing after reasonable notice; and the notice shall be served by personal service or by certified mail, return receipt requested. The notice shall include:
    1. a statement of the legal authority and jurisdiction under which the hearing is to be held;
    2. a statement of the matter at issue, including reference to the particular statute allegedly violated and a factual description of the alleged violation;
    3. the amount of the proposed administrative penalty; and
    4. a warning that the decision shall become final and the penalty imposed if no hearing is requested within 15 days of receipt of the notice. The notice shall specify the requirements which shall be met in order to avoid being deemed to have waived the right to a hearing or the manner of payment if the person elects to pay the penalty and waive a hearing.
  2. Any person who receives notification pursuant to this section shall be deemed to have waived the right to a hearing unless, within 15 days of the receipt of the notice, the person requests a hearing in writing. If the person waives the right to a hearing, the Commissioner shall issue a final order finding the person in default and imposing the penalty. A copy of the final default order shall be sent to the violator by certified mail, return receipt requested.
  3. When an alleged violator requests a hearing in a timely fashion, the Commissioner shall hold the hearing pursuant to 3 V.S.A. chapter 25.

HISTORY: Added 2011, No. 54 , § 6.

§ 4521. Failure to stop.

  1. An operator of a motor vehicle or vessel shall bring the vehicle or vessel to a stop when signaled to do so by a warden or deputy warden wearing a uniform identifying him or her as such or operating a law enforcement vehicle or vessel sounding a siren and displaying a flashing blue or blue and white signal lamp. A person who violates this section shall be fined not more than   $500.00.
  2. A person who is traveling on foot who fails to stop when requested to do so by a warden or deputy warden wearing a uniform identifying him or her as a law enforcement officer shall be fined not more than $100.00.

HISTORY: Added 1991, No. 215 (Adj. Sess.), § 3.

§ 4522. Unclaimed evidence.

  1. Notwithstanding 27 V.S.A. chapter 14, upon final disposition of a charge relating to a violation of this part, a person shall reclaim and remove his or her property seized as evidence of the violation from the fish and wildlife warden or officer in possession of the property, or risk forfeiture of the property as provided in this section.
  2. At any time after the final disposition of a charge relating to a violation of this part, the Commissioner may serve notice upon the defendant, stating that the property shall be forfeited unless the defendant reclaims and removes the property within 60 days of receipt of written notice.
  3. Written notice may be delivered personally or by certified mail. If notice is provided by mail, notice shall be deemed received three days after mailing by the Department. Written notice that is mailed shall be sent to the defendant at the address indicated on the citation on which the seizure was based.
  4. Property unclaimed after 60 days from the date of receipt of notice shall be forfeited to the State and, at the discretion of the Commissioner, may be destroyed, sold, or donated to a governmental entity, nonprofit organization, or children’s camp.
  5. If the State has knowledge that the seized property is owned by a person other than the defendant and the State wishes to dispose of the property, the State shall make a reasonable attempt to identify the owner and provide notice to that person in accordance with subsections (b) and (c) of this section.
  6. A person claiming to be the bona fide owner of the seized property who is not the defendant may provide evidence of ownership to the fish and wildlife warden or officer in possession of the property, and, if satisfied that the person is the bona fide owner, the warden or officer shall release the property to such person.
  7. After final disposition of a charge related to the seizure of the property, if the owner of the seized property is unknown, the Commissioner may publish notice twice, 14 days apart, in a newspaper of general circulation in the county where the evidence was seized. The notice shall include a description of the property, and if known, the date when the property was seized and the place where the property was seized. The notice shall state that the property is in the possession of the Commissioner, and that claims should be directed to the Commissioner. If no person claims the property within 60 days of the date of the first publication of notice, the property shall be forfeited to the Commissioner. At the discretion of the Commissioner, the property may be destroyed, sold, or donated to a governmental entity, nonprofit organization, or children’s camp.
  8. This section shall not apply to property seized as evidence of a violation of section 4513, 4606, or 4747 of this title.
  9. Proceeds realized from property that the Commissioner has sold under this section shall be deposited in the Fish and Wildlife Fund.

HISTORY: Added 2001, No. 80 (Adj. Sess.), § 1, eff. April 17, 2002; amended 2015, No. 97 (Adj. Sess.), § 27.

History

Revision note

—2011. In subsec. (a), substituted “chapter 14 of Title 27” for “chapter 13 of Title 27” for purposes of clarity. Chapter 13 of Title 27, which was previously referred to in that subsec., was repealed by 1964, No. 35 (Sp. Sess.), § 31 (§§ 1201-1207) and by 1985, No. 240 (Adj. Sess.), § 13 (§§ 1212, 1236) and 2005, No. 161 (Adj. Sess.), § 2 (§§ 1208-1211 and 1237-1239).

Amendments

—2015 (Adj. Sess.). Subsec. (h): Deleted “4304” preceding “4513”.

Subchapter 3. Uniform Fish and Wildlife Information

History

Revision note—

Substituted “Fish and Wildlife” for “Fish and Game” in the subchapter heading pursuant to 1983, No. 158 (Adj. Sess), § 1, eff. April 13, 1984.

§ 4551. Fish and wildlife violation defined.

A violation of any provision of this part, other than a violation for which a term of imprisonment may be imposed or a minor violation as defined in section 4572 of this title, shall be a fish and wildlife violation.

HISTORY: Added 1977, No. 229 (Adj. Sess.); amended 1995, No. 181 (Adj. Sess.), § 9, eff. Sept. 1, 1996; 2017, No. 170 (Adj. Sess.), § 7.

History

Amendments

—2017 (Adj. Sess.). Substituted “imposed or a minor violation” for “imposed, a minor”, deleted “or a violation of a rule adopted under this part” following “section 4572 of this title,” and deleted “known as” preceding “a fish”.

—1995 (Adj. Sess.) Inserted “a minor violation as defined in section 4572 of this title” following “imposed”.

§ 4552. Jurisdiction; venue.

The Vermont Criminal Division of the Superior Court shall have exclusive jurisdiction over fish and wildlife violations. Venue for adjudicating fish and wildlife violations shall be the unit of the Criminal Division of the Superior Court having jurisdiction over the geographical area where the offense is stated to have occurred.

HISTORY: Added 1977, No. 229 (Adj. Sess.); amended 2009, No. 154 (Adj. Sess.), § 238.

History

Revision note—

Substituted “fish and wildlife” for “fish and game” throughout the section pursuant to 1983, No. 158 (Adj. Sess.), § 1, eff. April 13, 1984.

Amendments

—2009 (Adj. Sess.) Substituted “criminal division of the superior court” for “district court” in two places.

CROSS REFERENCES

Place of prosecution and trial, see V.R.Cr.P. 18.

§ 4553. Information and summons; form.

  1. In all fish and wildlife violations the information and summons may be in the form known as the “Uniform Fish and Wildlife Information.” The Court Administrator shall prepare the form for the uniform fish and wildlife information.  The Court Administrator shall be responsible for printing and issuing all uniform fish and wildlife informations to game wardens and other law enforcement officers and he may require them to keep records and make reports concerning the disposition of each uniform fish and wildlife information issued.  A game warden or law enforcement officer may void a uniform fish and wildlife information by so marking the information and returning it to the Court Administrator. A prosecuting attorney may dismiss a uniform fish and wildlife game information.
  2. The uniform fish and wildlife information shall consist of five sheets:
    1. the information and warrant, which shall include spaces for the signatures of the game warden or law enforcement officer, the prosecuting attorney, and judge or clerk;
    2. the abstract of the court record, which shall be forwarded to the Commissioner after conviction;
    3. the police record, which shall be a copy of the information;
    4. the prosecutor’s record, which shall be a copy of the information;
    5. the summons, which shall include a copy of the information, a waiver, and an explanation of rights.
  3. The reverse sides of the sheets shall contain such information as the court administrator considers necessary.
  4. The uniform fish and wildlife information shall contain the following two paragraphs:
    1. Failure to comply with the instructions contained on this information will result in the suspension of your hunting, fishing, and trapping license or your privilege to take wild animals in this State.
    2. If you admit you have committed a violation of a provision of part 4 of this title relating to the conservation of fish and wildlife you will be liable for a fine and, in addition, your license to hunt, fish, or trap or privilege to hunt, fish, or trap is subject to suspension or revocation as provided by law.
  5. The information form may be used in all cases involving violations of this part whether the case is prosecuted on the information as issued by a game warden, law enforcement officer, or by any other person.

HISTORY: Added 1977, No. 229 (Adj. Sess.); amended 1981, No. 85 , § 5, eff. May 7, 1981.

History

Amendments

—1981. Subsec. (a): Substituted “may” for “shall” preceding “be in the form” in the first sentence.

Subsec. (e): Substituted “may” for “shall” preceding “be used in all cases”.

§ 4554. Procedure on failure to appear; notice.

If a defendant fails to appear or answer an information or summons served upon him or her, the court shall immediately report the name of the defendant and other pertinent facts to the Commissioner. The Commissioner shall mail a notice to the defendant at the address stated in the information notifying the defendant that his or her failure to appear has resulted in the suspension or revocation of his or her hunting, fishing, and trapping license and his or her privilege to take wild animals in this State. Nothing in this subchapter shall prevent the court from issuing an arrest warrant or punishing the defendant for contempt.

HISTORY: Added 1977, No. 229 (Adj. Sess.); amended 1981, No. 85 , § 6, eff. May 7, 1981.

History

Amendments

—1981. Added the third sentence.

§ 4555. Answers to uniform fish and wildlife informations.

  1. A person who is charged with committing a violation of this part may waive appearance and trial with the consent of the prosecuting attorney and plead guilty or nolo contendere by a signed statement.  The person shall submit a fine in an amount as established under subsection (b) of this section with the signed statement.  The court shall accept the signed statement accompanied by the fine assessed as a plea of guilty or nolo contendere as indicated on the signed statement and shall proceed accordingly.
  2. Three Criminal Division of the Superior Court judges appointed by the Court Administrator shall establish schedules, within the limits prescribed by law, of the amount of fines to be imposed.  The fines shall be paid to, receipted by, and accounted for by the clerk in the same manner as other fines. A game warden or law enforcement officer who issues an information shall advise the defendant of the schedule of fines and show him or her a copy of that schedule.
  3. If a defendant fails to answer or appear as directed on the uniform fish and wildlife information or by the Criminal Division of the Superior Court judge or fails to pay the fine after judgment, the Commissioner shall suspend the hunting, fishing, and trapping license or the privilege of the defendant to take wild animals in this State until the defendant answers, appears, or pays the fine.

HISTORY: Added 1977, No. 229 (Adj. Sess.); amended 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments

—2009 (Adj. Sess.) Substituted “criminal division of the superior court” for “district court” in subsecs. (b) and (c).

CROSS REFERENCES

Pleas, see V.R.Cr.P. 11.

§ 4556. Repealed. 1993, No. 236 (Adj. Sess.), § 5.

History

Former § 4556. Former § 4556, relating to evidence presented at a trial, was derived from 1977, No. 229 (Adj. Sess.).

§ 4557. Supreme Court rules.

The Supreme Court may make and amend rules consistent with this subchapter governing proceedings under this subchapter. The rules shall be adopted under 12 V.S.A. § 1 .

HISTORY: Added 1977, No. 229 (Adj. Sess.).

CROSS REFERENCES

Uniform fish and wildlife information procedure, see Administrative Order No. 15, Administrative Orders of the Supreme Court.

Subchapter 4. Minor Fish and Wildlife Violations

History

Revision note—

Substituted “Wildlife” for “Game” in the subchapter heading pursuant to 1983, No. 158 (Adj. Sess.), § 1, eff. April 13, 1984.

§ 4571. Legislative findings; minor fish and wildlife violations defined.

The General Assembly recognizes that minor fish and wildlife violations must be dealt with fairly but do not require the full weight of the Criminal Justice System. Minor fish and wildlife violations do not involve terms of imprisonment or substantial monetary penalties and persons who commit minor fish and wildlife violations should not be treated as criminal offenders. The purpose of this subchapter is to treat minor fish and wildlife violations as civil violations, removing them from the criminal courts and removing the label of criminality from those who commit them.

HISTORY: Added 1995, No. 181 (Adj. Sess.), § 10, eff. Sept. 1, 1996.

History

Revision note

—2020. Substituted “this subchapter” for “this act” in third sentence for clarity.

§ 4572. Definitions.

  1. As used in this subchapter, a minor fish and wildlife violation means:
    1. a violation of 10 V.S.A. § 4145 (violation of access and landing area rules);
    2. a violation of 10 V.S.A. § 4251 (taking wild animals and fish without a license);
    3. a violation of 10 V.S.A. § 4266 (failure to carry a license on person or failure to exhibit license);
    4. a violation of 10 V.S.A. § 4267 (false statements in license application; altering license; transferring license to another person; using another person’s license; or guiding an unlicensed person);
    5. a violation of 10 V.S.A. § 4713 (tree or ground stands or blinds); or
    6. [Repealed.]
    7. a violation of a biological collection rule adopted by the Board under part 4 of this title.
  2. “Bureau” means the Judicial Bureau as created in 4 V.S.A. § 1102 .

HISTORY: Added 1995, No. 181 (Adj. Sess.), § 10, eff. Sept. 1, 1996; amended 1997, No. 99 (Adj. Sess.), § 5; 1997, No. 121 (Adj. Sess.), § 5; 2009, No. 130 (Adj. Sess.), § 2; 2015, No. 145 (Adj. Sess.), § 10.

History

Revision note

—2020. Substituted “this subchapter” for “this act” in the third sentence for clarity.

—2015. In subsec. (a), substituted “fish and wildlife” for “fish and game” in accordance with 1983, No. 158 (Adj. Sess.), § 1.

Amendments

—2015 (Adj. Sess.). Subdiv. (a)(6): Repealed.

Subdiv. (a)(7): Added.

—2009 (Adj. Sess.) Subdiv. (a)(6): Added.

—1997 (Adj. Sess.). Subsec. (a): Act No. 99 added subdiv. (5).

Subsec. (b): Act No. 121 substituted “judicial bureau as created in 4 V.S.A. § 1102” for “traffic and municipal ordinance bureau as provided for in 23 V.S.A. § 2301.”

§ 4573. Repealed. 1999, No. 160 (Adj. Sess.), § 11.

History

Former § 4573. Former § 4573, relating to summons and complaint, was derived from 1995, No. 181 (Adj. Sess.), § 10, eff. Sept. 1, 1996; and amended by 1997, No. 121 (Adj. Sess.), § 6.

§ 4574. Procedure.

Minor fish and wildlife violations shall be heard by the Bureau and the procedure shall be as provided in 4 V.S.A. chapter 29.

HISTORY: Added 1995, No. 181 (Adj. Sess.), § 10, eff. Sept. 1, 1996; amended 1997, No. 121 (Adj. Sess.), § 7.

History

Amendments

—1997 (Adj. Sess.). Substituted “as provided in chapter 29 of Title 4” for “the same as it is for a traffic violation under 23 V.S.A. §§ 2304-2306 .”

§ 4575. Suspension for failure to pay.

In the case of failure to pay a penalty, the Judicial Bureau shall mail a notice to the defendant at the address in the complaint notifying the defendant that failure to pay or otherwise satisfy the penalty within 20 days of the notice will result in suspension of the person’s fish and wildlife license until the penalty is paid or otherwise satisfied. A copy of the notice shall be sent to the Commissioner of Fish and Wildlife, who, after 20 days from the date of notice, shall suspend the person’s fish and wildlife license until the penalty is paid or otherwise satisfied.

HISTORY: Added 1995, No. 181 (Adj. Sess.), § 10, eff. Sept. 1, 1996; amended 1997, No. 121 (Adj. Sess.), § 8.

History

Amendments

—1997 (Adj. Sess.). Substituted “judicial bureau” for “traffic bureau” in the first sentence.

§ 4576. Violation report; assessment of points.

The Bureau shall send a report of each finding of a minor fish and wildlife violation to the Commissioner of the Fish and Wildlife Department. Such a finding shall be prima facie evidence of a violation and shall result in assessment of points and suspension or revocation of the person’s license pursuant to section 4502 of this title.

HISTORY: Added 1995, No. 181 (Adj. Sess.), § 10, eff. Sept. 1, 1996.

§ 4577. Reports.

The Court Administrator shall prepare audits, records, and reports relating to minor fish and wildlife complaints and violations. The Court Administrator shall also notify the Commissioner of Fish and Wildlife of any violations which are uncontested or admitted or which are determined after hearing to have been committed or in connection with which a default judgment has been entered. The Commissioner of Fish and Wildlife shall file and record information on violations received under this section.

HISTORY: Added 1995, No. 181 (Adj. Sess.), § 10, eff. Sept. 1, 1996.

History

Revision note

—2020. Substituted “Commissioner of Fish and Wildlife” for “Commissioner of the Fish and Wildlife Department” to conform with the V.S.A. style.

Chapter 111. Fish

§ 4601. Taking fish; possession.

A person shall not take fish, except in accordance with this part and regulations of the Board, or possess a fish taken in violation of this part or regulations of the Board.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2621 .

CROSS REFERENCES

Private ponds, see § 5210 of this title.

Private preserves, see chapter 119 of this title.

§ 4602. Unintentional taking; return to water.

When a fish is unintentionally taken contrary to a provision of this part or of regulations of the Board, such fish shall be immediately liberated and returned to the water from whence taken, without unnecessary injury. The person so returning such fish shall not be subject to the penalty for taking same.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2622 .

ANNOTATIONS

Purpose.

Purpose in enacting former V.S. 1947, section 6390 was to relieve a person who unintentionally caught a fish of less length than permitted by law. State v. Legacy, 116 Vt. 320, 75 A.2d 668, 1950 Vt. LEXIS 156 (1950). (Decided under prior law.)

§ 4603. Catch limit; exception.

When it is unlawful to take more than a specified number of pounds of any fish in one legal day, the taking of one fish additional by a person having less than the number of pounds specified when taken shall not be regarded as a violation of the provision fixing such limit.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2623 .

§ 4604. Ice fishing.

A person who holds a fishing license and a person who is allowed to take fish without such a license shall not take fish through the ice except in accordance with regulations of the Board.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2624 .

§ 4605. Placing fish in waters; fish importation permits.

  1. A person shall not introduce or attempt to introduce any fish into any waters except private ponds lacking access to other waters of the State without a permit issued by the Commissioner under this section or rules adopted by the Commissioner under subsection (c) of this section.
  2. A person shall not bring into the State for the purpose of planting or introducing, or to plant or introduce, into any of the inland or outlying waters of the State any live fish or the live spawn thereof, unless, upon application in writing therefor, the person obtains from the Commissioner a permit so to do.
  3. The Commissioner may, by rule:
    1. Require a permit to introduce or attempt to introduce specific fish species into a specific water of the State based on management purposes.
    2. Prohibit the introduction or attempt at introduction of fish to specific waters of the State based on management purposes, ecosystem considerations, or the health and safety of Vermont’s fish population.
    3. Adopt a list of fish that if introduced into Vermont waters, have the potential to cause harm to the fish population of the State. A person shall not possess or bring into the State any fish on the list unless the person has received a permit issued pursuant to this subsection. The Commissioner may issue a permit allowing importation and possession of a fish on the list, provided the fish is to be kept in a controlled situation and used for a public purpose such as research or education.
  4. Applicants shall pay a permit fee of $50.00. The Commissioner or duly authorized agents shall make such investigation and inspection of the fish as they may deem necessary, and then the importation permit may be granted pursuant to regulations that the Board shall prescribe. The Commissioner may waive the permit fee required under this subsection for organizations cooperating or partnering with the Department. The Commissioner or duly authorized agents shall make a determination on the permit within 10 days of receiving the application. The Department may dispose of unlawfully imported fish as it may judge best, and the State may collect damages from the violator of this subsection for all expenses incurred.
  5. Nothing in this section shall prohibit the Board, the Commissioner, or their duly authorized agents from bringing into the State for the purpose of planting, introducing, or stocking, or from planting, introducing, or stocking any fish in the State.
  6. In any permit issued under this section, the Commissioner may include conditions that ensure the health and safety of Vermont’s fish population.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1981, No. 85 , § 7; 1997, No. 155 (Adj. Sess.), § 44, eff. Jan. 1, 1999; 2005, No. 42 , § 2; 2015, No. 145 (Adj. Sess.), § 3, eff. Jan. 1, 2017.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—2005. Added “fish importation permits” in the section heading, rewrote subsec. (a), added the second sentence in subsec. (b), added new subsec. (c), and redesignated former subsecs. (c) and (d) as subsecs. (d) and (e), and made a minor change in punctuation in subsec. (e).

—1997 (Adj. Sess.). Subsec. (b): Added the second sentence and made language gender-neutral in two places.

—1981. Subsec. (b): Amended generally.

Subsec. (c): Added.

Prior law.

10 V.S.A. §§ 2633 , 2634.

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4606. Taking fish by unlawful means.

  1. A person shall not take fish by means of explosives, or use explosives in any waters, or have the same in his or her possession upon any waters, the shores thereof, or islands therein, except for mining or mechanical purposes.
  2. A person shall not place in any waters lime, creosote, coculus inducus, or other drug or poison destructive to fish.
  3. A person shall not take or kill fish by shutting or drawing off water.
  4. A person, except as otherwise provided, shall not use or have in his or her possession for use or furnish for another’s use, for taking fish, a pound net, trap net, seine, snare, gill net, set net, fyke net, set line, fishing otter, trawl or grapple, or similar device for killing fish or have in his or her possession such device on any waters or the shores thereof or the islands therein.  Such devices may be summarily seized and destroyed by a game warden. Nothing in this subsection shall prohibit the taking of fish with, or the possession of, a spear or artificial light or the taking of eels with eel pots in designated areas of Lake Champlain.
  5. In Lake Champlain pickerel, northern pike, carp, garfish, bowfin, mullet, shad, suckers, bullhead, and other cull fish may be taken from March 25 to May 25 by shooting and spearing in other than spawning areas designated under section 4140 of this title.  For the purposes of this subsection, Lake Champlain includes all connected waters at the same level.
  6. Except as authorized in chapter 105, subchapter 2 of this title and as utilized by the Department of Fish and Wildlife, electrofishing is prohibited in all waters of the State.
  7. A person shall not use a lead sinker for taking of fish in any State waters. In this section, “sinker” means any device that weighs one-half ounce or less and is attached to a fishing line for the purpose of sinking the line, and does not include other lead fishing-related items such as weighted fly line, lead-core fishing line, downrigger cannon balls, weighted flies, lures, spoons, or jig heads.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1969, No. 110 , eff. April 19, 1969; 1979, No. 148 (Adj. Sess.), § 5, eff. April 24, 1980; 1981, No. 214 (Adj. Sess.), §§ 2, 3, eff. April 26, 1982; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 2003, No. 137 (Adj. Sess.), § 1, eff. Jan. 1, 2007.

History

Revision note—

Reference in subsec. (f) to “10 V.S.A., chapter 105, subchapter 1” changed to “10 V.S.A., chapter 105, subchapter 2” to correct an error in the reference.

Amendments

—2003 (Adj. Sess.). Subsec. (g): Added.

—1983 (Adj. Sess.). Subsec. (f): Substituted “fish and wildlife department” for “fish and game department”.

—1981 (Adj. Sess.). Subsec. (d): Added “or the taking of eels with eel pots in designated areas of Lake Champlain” following “or artificial light” in the third sentence.

Subsec. (f): Added.

—1979 (Adj. Sess.). Subsec. (e): Added “by shooting and spearing in other than spawning areas designated under section 4140 of this title” following “May 25” in the first sentence, and added the second sentence.

—1969. Subsec. (d): Added third sentence.

Subsec. (e): Added.

Prior law.

10 V.S.A. §§ 2635-2638 .

CROSS REFERENCES

Forfeiture of devices used in illegal taking, see § 4503 of this title.

Point assessment for violations of section, see § 4502 of this title.

ANNOTATIONS

Constitutionality.

Former section 2, No. 117 , acts of 1882 was a proper regulation, not a prohibition, of fishing. Drew v. Hilliker, 56 Vt. 641, 1884 Vt. LEXIS 111 (1884). (Decided under prior law.)

Set line.

A common fishing line, with one hook attached, fastened to some object on shore, was not a set-line within the meaning of former V.S. § 4592. State v. Stevens, 69 Vt. 411, 38 A. 80, 1897 Vt. LEXIS 73 (1897). (Decided under prior law.)

Notes to Opinions

Ammonia.

It was the duty of state to prosecute anyone dumping ammonia, a poison destructive to fish, into any waters of the state. 1938-40 Vt. Op. Att'y Gen. 431. (Decided in prior law.) .

Artificial light.

Where the legislature has specifically prohibited the use of artificial light for the purpose of taking fish, it is not within the power of the board to grant request of citizens of Grand Isle county for an “except” to permit the use of artificial light for the purpose of spearing fish. 1966-68 Vt. Op. Att'y Gen. 72.

Spear fishing.

The effect of the 1969 amendment to this section was to remove the absolute prohibition against the use and possession of spears and, like other methods of taking fish, leave the areas where the use was permitted, seasons, etc., subject to regulation, in this case subsec. (e) of this section. 1968-70 Vt. Op. Att'y Gen. 124.

The enactment of subsec. (e) of this section in 1969, repealed by implication the regulations contained in 10 App. § 122 E1(b)(1) and G1(b). 1968-70 Vt. Op. Att'y Gen. 124.

§ 4607. Obstructing streams.

  1. A person shall not unless authorized by the Commissioner prevent the passing of fish in a stream or the outlet or inlet of a natural or artificial pond on a public stream, by means of a rack, screen, weir, or other obstruction, and shall comply with the terms of the notice provided in subsection (b) of this section.
  2. The Commissioner may order such an obstruction removed by the person erecting the same or by the owner of the land on which it is located, by serving on such person or owner a written notice requiring the removal of such obstruction within 10 days after service thereof.  When such person fails to remove any such obstruction within the time required in such notice, the Commissioner may remove the same and recover the expense thereof in a civil action on this section.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Revision note—

In the second sentence of subsec. (b), substituted “a civil action” for “an action of tort” to conform to Rule 2, Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note under § 219 of Title 4.

Prior law.

10 V.S.A. §§ 2639 , 2640.

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4608. Repealed. 1991, No. 230 (Adj. Sess.), § 1(7).

History

Former § 4608. Former § 4608, relating to sturgeon fishing licenses, was derived from 1961, No. 119 , § 1.

§ 4609. Connecticut River; Lake Champlain.

  1. Persons holding a New Hampshire fishing license may take fish from the Connecticut River, provided the State of New Hampshire grants the same right to persons holding a Vermont fishing license. Such taking shall be only in accordance with rules and regulations adopted by the State of New Hampshire relative to open and closed seasons, limits of catch, minimum sizes of fish caught, and methods of fishing and upon agreement between the Commissioner and the Director of Fish and Wildlife of the State of New Hampshire and the approval of the Secretary. Whereupon the laws of this State covering such matters shall be suspended as to the waters described in this subsection. Any violation of said provisions shall be punished as provided in section 4515 of this title.
  2. A person holding a New York fishing license may take fish from the Vermont portion of Lake Champlain provided the State of New York grants the right to fish in the New York portion of the lake to a person holding a Vermont fishing license. In this case, a person holding a New York license may take fish in the Vermont portion of the lake in accordance with rules adopted under this part and shall be fined pursuant to section 4515 of this title for violation of the rules while fishing in the Vermont portion of the lake. In this section, the Vermont portion of Lake Champlain means the portion of Lake Champlain which lies within Vermont waters up to the mouth of any tributary river or stream, and shall not include any waters on the east side of the railroad fills at Malletts Bay, the Gut, and Pelots Point.
  3. , (d)[Repealed.]

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1991, No. 230 (Adj. Sess.), § 24; 2003, No. 23 , § 1, eff. May 14, 2003; 2009, No. 33 , § 83(e)(7); 2009, No. 64 (Adj. Sess.), § 1, eff. Jan. 19, 2010.

History

Revision note

—2020. In subsec. (a), substituted “described in this subsection” for “above described” following “the waters” for clarity.

—2015. In subsec. (a), substituted “Director of Fish and Wildlife” for “director of fish and game” in accordance with 1983, No. 158 (adj. Sess.), § 1.

Amendments

—2009 (Adj. Sess.). Added the subsec. (a) designation, added present subsec. (b).

—2009. Subsec. (d): Repealed.

—2003. Subsec. (a): Added the subsec. designation.

Subsecs. (b)-(d): Added.

—1991 (Adj. Sess.). In the second sentence inserted “adopted by the state of New Hampshire” following “regulations”, substituted “and” for “agreed upon and promulgated by the commissioner of fish and wildlife, with the approval of the fish and wildlife board” preceding “upon agreement”, “between the commissioner and” for “with” thereafter, and added “and the approval of the secretary” at the end of the sentence.

—1983 (Adj. Sess.). Substituted “fish and wildlife board” for “fish and game board” in the second sentence.

Prior law.

10 V.S.A. § 2711 .

CROSS REFERENCES

Connecticut River Atlantic Salmon Compact, see chapter 112 of this title.

§ 4610. Repealed. 1991, No. 230 (Adj. Sess.), § 1(8).

History

Former § 4610. Former § 4610, relating to importation and sale of dead domesticated trout, was derived from 1961, No. 119 , § 1.

§ 4611. Sale of fish.

  1. A person shall not buy or sell a salmon, trout, lake trout, walleye, northern pike, muskellunge, black bass, or any other fish specified by rule by the Board taken in this State, or imported from another state or country where sale of such fish is prohibited, except such fish reared in licensed propagation farms within the State.
  2. A person shall not buy or sell fish caught in Vermont without a permit issued by the Commissioner, as required under the rules of the Board and the requirements of part 4 of this title. A propagation farm with a valid permit issued under 10 App. V.S.A. § 117 shall not be required to obtain a permit under this section.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1981, No. 85 , § 8; 2015, No. 145 (Adj. Sess.), § 2, eff. Jan. 1, 2017.

History

Amendments

—2015 (Adj. Sess.). Substituted “fish” for “salmon, trout, and black bass” in the section heading, added the subsec. (a) designation and inserted “or any other fish specified by rule by the Board” following “black bass,” in that subsec., and added subsec. (b).

—1981. Inserted “lake trout, walleye, northern pike, muskellunge” following “trout”.

Prior law.

10 V.S.A. §§ 2626 , 2627.

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4612. Fishing houses.

  1. The owner of a fishing house shall not place the fishing house or cause the same to be placed on the ice covering the waters of this State earlier than November 20 of any year, and then only if his or her name and residence address are permanently and legibly affixed, as by waterproof paint or rustproof tag in a clearly visible place near the entrance.  The owner shall remove his or her fishing house, together with its contents and any surrounding debris, before the ice loses its ability to support the fishing house out of the water, or on or before the last Sunday in March, whichever occurs first.  Under no circumstances shall a fishing house be allowed in the waters of this State.
  2. For the purposes of this section, “fishing house” means a bob-house, smelt shanty, or other structure designed to be placed on the ice of the waters of this State for use for fishing or to be occupied for other purposes.

HISTORY: Added 1969, No. 240 (Adj. Sess.); amended 1971, No. 14 , § 2, eff. March 11, 1971; 1981, No. 85 , § 9; 1983, No. 113 (Adj. Sess.).

History

Amendments

—1983 (Adj. Sess.). Subsec. (a): Substituted “on or before the last Sunday in March” for “before March 15” preceding “whichever” in the second sentence.

—1981. Subsec. (a): Added “in a clearly visible place near the entrance” following “rustproof tag” in the first sentence and substituted “March 15” for “April 15” in the second sentence.

—1971. Subsec. (a): Substituted “year” for “winter” following “November 20 of any” in the first sentence.

§ 4613. Fishing tournaments.

  1. No person or organization shall hold a fishing tournament on the waters of the State without first obtaining a permit from the Department of Fish and Wildlife.
  2. A fishing tournament means a contest in which anglers pay a fee to enter and in which the entrants compete for a prize based on the quality or size of the fish they catch. A tournament that limits the entrants to people below 15 years of age or a tournament held as part of a Special Olympics program shall be exempt from paying the fee required under subsection (d) of this section.
  3. The Commissioner shall adopt rules that establish the procedure for implementation of this section. The rules shall include a provision that an angler may not enter a fish that was caught and confined to an enclosed area prior to the beginning of the tournament.
  4. The Commissioner shall charge a fee of $50.00 for each permit issued under this section and shall deposit the fee collected into the Fish and Wildlife Fund.

HISTORY: Added 1991, No. 161 (Adj. Sess.), § 2; amended 2003, No. 129 (Adj. Sess.), § 1; 2003, No. 163 (Adj. Sess.), § 15.

History

Editor’s note—

The text of this section is based on the harmonization of two amendments. During the 2003 adjourned session, this section was amended twice, by Act Nos. 129 and 163, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2003 adjourned session, the text of Act Nos. 129 and 163 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

Amendments

—2003 (Adj. Sess.). Act 129 added the second sentence in subsec. (c).

Act 163 deleted “open to the general public” following “contest” in subsec. (b).

Act 163 substituted “$50.00” for “$10.00” in subsec. (d).

CROSS REFERENCES

Fishing licenses generally, see chapter 105, subchapter 1 of this title.

§ 4614. Largest fish; roster.

  1. The Commissioner may maintain a roster of names of people who have caught the largest of each species of Vermont fish. The roster may include the size and weight of the fish, date and place caught, and any other relevant information.
  2. No fish that was confined to an enclosed area by a person prior to that person or any other person catching the fish may be listed on the roster of largest fish. This subsection shall not apply to fish stocked under government authority.

HISTORY: Added 2003, No. 129 (Adj. Sess.), § 2.

§ 4615. Lead sinkers; sales prohibited.

It is unlawful to sell or offer for sale a lead sinker in the State of Vermont. In this section, “sinker” means any device which weighs one-half ounce or less and is attached to a fishing line for the purpose of sinking the line, and does not include other lead fishing-related items such as weighted fly line, lead-core fishing line, downrigger cannon balls, weighted flies, lures, spoons, or jig heads.

HISTORY: Added 2003, No. 137 (Adj. Sess.), § 2, eff. Jan. 1, 2006.

History

Revision note

—2003 (Adj. Sess.) This section was redesignated as section 4615 to avoid duplication with the section on fish rosters which was enacted in Act No. 129 of the 2003 (Adj. Sess.) and also designated as 4614 of Title 10.

§ 4616. Repealed. 2015, No. 145 (Adj. Sess.), § 11.

History

Former § 4616. Former § 4616, relating to felt-soled boots and waders; use prohibited, was derived from 2009, No. 130 (Adj. Sess.), § 1.

Chapter 112. Compact for State and Federal Membership in the Connecticut River Atlantic Salmon Commission

History

Revision note—

1979, No. 89 (Adj. Sess.), which enacted this chapter, did not assign the compact to a title of the annotated statutes, and the classification to this chapter as well as the addition of section numbers and headings were done to conform the compact to V.S.A. style.

Approval by Congress. The compact was approved by act of Congress Oct. 28, 1983, P.L. 98-138, 97 Stat. 866.

§ 4651. Authority.

The Governor is hereby authorized and directed to execute a Compact on behalf of the State of Vermont with the states of Connecticut, Massachusetts, and New Hampshire and with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service legally joining therein the form substantially as set forth herein.

HISTORY: Added 1979, No. 89 (Adj. Sess.).

§ 4652. Purposes—Article I.

The purpose of this Compact is to promote the restoration of Anadromous Atlantic salmon, hereinafter referred to as Atlantic salmon, in the Connecticut River basin by the development of a joint interstate program for stocking, protection, management, research, and regulation. It is the purpose of this Compact to restore Atlantic salmon to the Connecticut River in numbers as near as possible to their historical abundance.

HISTORY: Added 1979, No. 89 (Adj. Sess.).

§ 4653. Effective date—Article II.

This agreement shall become operative immediately whenever all of the states of Vermont, New Hampshire, Massachusetts, and Connecticut have executed it in a form that is in accordance with the laws of the executing state and the Congress has given its consent.

HISTORY: Added 1979, No. 89 (Adj. Sess.).

§ 4654. Connecticut River Atlantic Salmon Commission—Article III.

Each state joining herein shall appoint two representatives to a commission hereby constituted and designated as the Connecticut River Atlantic Salmon Commission. One shall be the executive officer of the administrative agency of such state charged with the management of the fisheries resources to which this Compact pertains or his or her designee. The second shall be a citizen who shall have a knowledge and interest in Atlantic salmon to be appointed by the Governor for a term of three years. The Director of the Northeast Region of the Fish and Wildlife Service, U.S. Department of the Interior or his designee and the Director of the Northeast Region of the National Marine Fisheries Service, U.S. Department of Commerce or his or her designee shall be members of said Commission. The Commission shall be a body corporate with the powers and duties set forth herein.

HISTORY: Added 1979, No. 89 (Adj. Sess.).

§ 4655. Duties; regulatory and enforcement powers; licenses—Article IV.

The duty of said Commission shall be to make inquiry and ascertain from time to time such methods, practices, circumstances, and conditions as may be disclosed for bringing about the restoration of Atlantic salmon in the Connecticut River and its tributaries.

To promote the restoration, preservation, and protection of Atlantic salmon in the Connecticut River Basin, the Commission may draft and recommend to the governors of the various signatory states legislation to accomplish this end. The Commission shall, more than 60 days prior to any regular meeting of the Legislature of any signatory state, present to the Governor of the state its recommendations relating to proposed enactments to be made by the Legislature of the state in furthering the intents and purposes of this Compact.

The Commission shall have the power to recommend to the states party hereto stocking programs, management procedures, and research projects and when two or more states party hereto shall jointly stock waters or undertake cooperative management or research the Commission shall act as the coordinating agency. The Commission, using all available means, shall encourage acquisition by the signatory states of river bank, river bed, and access thereto.

The Commission shall consult with and advise the pertinent administrative agencies in the signatory states with regard to other anadromous species and their potential impact or the potential impact of sport fisheries and commercial fisheries for other anadromous species on the restoration of Atlantic salmon to the Connecticut River Basin.

In the interest of developing a sound program of Atlantic salmon management, the Commission shall promulgate regulations governing Atlantic salmon fishing in the main stem of the Connecticut River in all four signatory states as hereinafter provided. Such regulations may: (1) establish the open and closed seasons for Atlantic salmon which may vary by river section, (2) establish hours, days of period during the open season when fishing for Atlantic salmon shall not be permitted in designated areas, (3) prescribe the legal methods of taking Atlantic salmon including the type of gear such as gaffs, landing nets or tailers which may be used to assist in landing such fish, (4) establish the minimum legal length for Atlantic salmon, (5) establish the daily creel limit, the season creel limit, and the possession limit for Atlantic salmon. The Commission shall recommend, review, and issue comments on such regulations as may be promulgated by the signatory states governing Atlantic salmon fishing in tributary streams. The states of Connecticut and Massachusetts agree to make available for brood stock, from fish taken in the fish passage facilities at the Rainbow Reservoir Dam and the Holyoke Power Company Dam, such numbers of adult Atlantic salmon as the Commission deems necessary to carry out the Atlantic Salmon Restoration Program.

The Commission shall have the power to issue a Connecticut River Basin Atlantic Salmon License and the sale of such licenses shall be handled by the individual signatory states or their authorized agents. The individual signatory states shall be accountable to the Commission for all such licenses and the monies received therefrom. The initial fee for such licenses shall be determined by majority vote of the Commission but shall not exceed the maximum resident angling license fee of the signatory states except that the Commission may upon a determination of need and with the unanimous approval of its membership increase such license and issuing fee. The individual signatory states or their issuing agent may retain a recording fee of up to fifty cents for each license issued. Forms for such license shall be provided to the signatory states by the Commission. Such license shall be a legal prerequisite for any person including minors fishing for or possessing Atlantic salmon in the waters or on the shores of the Connecticut River and all of its tributaries. In addition to said Connecticut River Basin Atlantic Salmon License, all persons, except those specifically exempted because of age, disability, or other limitations as determined by statute or regulations of the individual signatory states shall be required to possess a valid resident or nonresident sport fishing license issued by the state in which such person is fishing. The Commission shall recognize that in certain waters or sections of waters a daily rod permit may also be required, such daily rod permit to be issued by the state in which such waters or sections of waters are located; however, the signatory states shall not, by fee, distinguish between residents and nonresidents. The authority to limit the number of persons fishing for Atlantic salmon in certain tributaries or sections of certain tributaries shall remain the prerogative of the individual signatory states.

The respective police agencies of the signatory states shall have the authority to enforce all of the regulations and license requirements of the Commission any place in the Connecticut River Basin.

The Commission shall have the authority to accept gifts, state grants, and federal funds. The Commission shall have the authority to expend money from fees collected for Connecticut River Basin Atlantic Salmon Licenses or from such other funds available to the Commission to finance the cost of stocking, management, or research carried on by signatory states to further the purposes of this Compact. Such funds shall be in the form of direct grants to the agency of such state charged with the management of the fisheries resources and may be up to 100 percent of the cost of projects approved by a majority vote of the Commission.

HISTORY: Added 1979, No. 89 (Adj. Sess.).

§ 4656. Officers; office; and reimbursement for travel—Article V.

The Commission shall elect from its number a Chair and a Vice Chair and at its pleasure may remove such officers. Said Commission shall adopt rules and regulations for the conduct of its business. At such time as funds are available to the Commission, the Commission may establish and maintain an office for the transaction of its business. The Commission may meet at any time or place but must meet at least semiannually.

The Commission shall have the authority to expend money from available Commission funds to reimburse its membership for necessary travel expenses.

HISTORY: Added 1979, No. 89 (Adj. Sess.).

§ 4657. Employment and compensation of personnel—Article VI.

At such time as funds are available, the Commission may employ and discharge at its pleasure such personnel as may be required to carry out the provisions of this Compact and shall fix and determine their duties, qualifications and compensation.

HISTORY: Added 1979, No. 89 (Adj. Sess.).

§ 4658. Technical committee—Article VII.

There shall be established a Technical Committee to consist of one fishery biologist from each of the signatory states, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to act in an advisory capacity to the Commission. The Technical Committee shall have the authority to request employees of the signatory states, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service or others who have special fields of expertise to act as special advisors to the Committee. At such time as funds are available the Commission may reimburse Technical Committee members and special advisors for necessary travel expenses.

HISTORY: Added 1979, No. 89 (Adj. Sess.).

§ 4659. Majority vote—Article VIII.

No action shall be taken by the Commission in regard to its general affairs except by affirmative vote of a majority of members present at any meeting. No recommendation or allotment of grant funds shall be made by the Commission except by the affirmative vote of a majority of the members.

HISTORY: Added 1979, No. 89 (Adj. Sess.).

§ 4660. Absence of representation—Article IX.

Continued absence of representation or of any representative on the Commission from any party hereto shall be brought to the attention of the governor thereof.

HISTORY: Added 1979, No. 89 (Adj. Sess.).

§ 4661. Annual appropriation—Article X.

The states signatory hereto agree to make an annual appropriation to the initial support of the Commission in the amount of $1,000.00 from the Fish and Wildlife Fund for each of the first three years that this Compact is in effect.

HISTORY: Added 1979, No. 89 (Adj. Sess.).

History

Revision note

—2015. Substituted “Fish and Wildlife Fund” for “Fish and Game Fund” in accordance with 1983, No. 158 (Adj. Sess.), § 1.

§ 4662. Records; examination of accounts—Article XI.

The Commission shall keep accurate accounts of all receipts and disbursements and shall report to the governor and the legislature of each state party to this Compact on or before the tenth day of January of each year, setting forth in detail the transactions conducted by it during the 12 months preceding January first of that year. The Auditor of Accounts of the State of Vermont is hereby authorized and empowered from time to time to examine the accounts and books of the Commission, including its receipts, disbursements, grants and such other items referring to its financial standing as such Comptroller may deem proper and to report the results of such examination to the governor of said state.

HISTORY: Added 1979, No. 89 (Adj. Sess.).

Chapter 113. Game

Subchapter 1. General Provisions

§ 4701. Use of gun, bow and arrow, and crossbow; legal day; dogs.

  1. Unless otherwise provided by statute, a person shall not take game except with:
    1. a gun fired at arm’s length;
    2. a bow and arrow; or
    3. a crossbow as authorized by the rules of the Board.
  2. A person shall not take game between one-half hour after sunset and one-half hour before sunrise unless otherwise provided by statute or by the rules of the Board.
  3. A person may take game and fur-bearing animals during the open season therefor, with the aid of a dog, unless otherwise prohibited by statute or by the rules of the Board.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1997, No. 99 (Adj. Sess.), § 6; 2013, No. 78 , § 12; 2019, No. 50 , § 11.

History

Amendments

—2019. Subdiv. (a)(3): Deleted “authorized under section 4711 of this title or as” following “a crossbow as”.

—2013. Section heading: Inserted “, and crossbow” following “arrow”.

Subsec. (a): Added the subsec. designation and substituted “Unless otherwise provided by statute a” for “A” preceding “person”.

Subdiv. (a)(1): Deleted “or with” following “length”.

Subdiv. (a)(2): Deleted “unless otherwise provided” following “arrow” and added “; or”

Subdiv. (a)(3): Added.

Subsec. (b): Inserted “by statute or by the rules of the Board” following “provided”.

Subsec. (c): Inserted “by statute or by the rules of the Board” following “prohibited”.

—1997 (Adj. Sess.). Inserted “one-half hour after” and “one-half hour before” in the second sentence.

Prior law.

10 V.S.A. § 2981 .

§ 4702. Use of light.

A person shall not intentionally throw or cast the rays of a spotlight, jack, or other artificial light on any highway, or any field, woodland, or forest, in order to spot, locate, take, or attempt to take, spot, or locate any wild animal. However, a light may be used to take skunks and raccoons in accordance with rules of the Board.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1991, No. 230 (Adj. Sess.), § 31; 1993, No. 236 (Adj. Sess.), § 2; 1995, No. 8 , § 1, eff. March 28, 1995.

History

Amendments

—1995. Inserted “spot, locate” following “order to”, inserted “or” preceding “attempt to take” and substituted “spot or locate any” for “aid in the taking of or aid in the attempted taking of a” in the first sentence and deleted the second sentence.

—1993 (Adj. Sess.) Section amended generally.

—1991 (Adj. Sess.) Substituted “except” for “and provided further” following “animal” and “rules” for “regulations” preceding “of the board” in the first sentence and added the second sentence.

Prior law.

10 V.S.A. § 2982 .

CROSS REFERENCES

Hunting with a light, see 10 App. V.S.A. § 6.

Point assessment for violations of section, see § 4502 of this title.

ANNOTATIONS

Construction.

This section, making it an offense to use a light “for the purpose of spotting, locating, or taking any wild animal,” prohibits spotting alone, and locating alone, as well as taking, but there must be a specific intent to spot or locate. State v. Racine, 133 Vt. 111, 329 A.2d 651, 1974 Vt. LEXIS 296 (1974).

§ 4703. Use of set guns; recovery for damage.

A person shall not at any time set or use any device, the object of which is to discharge a firearm for the purpose of taking any wild animal. A person violating this section shall be liable for twice the amount of damage caused by his or her act to be recovered by a person damaged thereby, in a civil action on this section.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Revision note—

In the second sentence, substituted “a civil action” for “an action of tort” pursuant to V.R.C.P. 2 and 81(c) and 1971, No. 185 (Adj. Sess.), § 236(d), set out under § 219 of Title 4.

Prior law.

10 V.S.A. § 2983 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4704. Use of machine guns, autoloading rifles, and gun suppressors.

  1. A person engaged in hunting for wild animals shall not use, carry, or have in his or her possession:
    1. a machine gun of any kind or description;
    2. an autoloading rifle with a magazine capacity of over six cartridges, except a .22 caliber rifle using rim fire cartridges; or
    3. a gun suppressor.
  2. As used in this section, “gun suppressor” means any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a gun suppressor, and any part intended only for use in such assembly or fabrication.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 2015, No. 61 , § 16, eff. July 2, 2015.

History

Amendments

—2015. Added subdiv. (a)(3) and subsec. (b).

Prior law.

10 V.S.A. § 2984 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4705. Shooting from motor vehicles or aircraft; shooting from or across highway; permit.

  1. A person shall not take or attempt to take a wild animal by shooting from a motor vehicle, motorboat, airplane, snowmobile, or other motor-propelled craft or any vehicle drawn by a motor-propelled vehicle except as permitted under subsection (e) of this section.
  2. A person shall not carry or possess while in or on a vehicle propelled by mechanical power or drawn by a vehicle propelled by mechanical power within the right-of-way of a public highway a rifle or shotgun containing a loaded cartridge or shell in the chamber, mechanism, or in a magazine, or clip within a rifle or shotgun, or a muzzle-loading rifle or muzzle-loading shotgun that has been charged with powder and projectile and the ignition system of which has been enabled by having an affixed or attached percussion cap, primer, battery, or priming powder, except as permitted under subsections (d) and (e) of this section. A person who possesses a rifle, crossbow, or shotgun, including a muzzle-loading rifle or muzzle-loading shotgun, in or on a vehicle propelled by mechanical power, or drawn by a vehicle propelled by mechanical power within a right-of-way of a public highway shall upon demand of an enforcement officer exhibit the firearm for examination to determine compliance with this section.
  3. A person while on or within 25 feet of the traveled portion of a public highway, except a public highway designated Class 4 on a town highway map, shall not take or attempt to take any wild animal by shooting a firearm, a muzzle loader, a bow and arrow, or a crossbow. A person while on or within the traveled portion of a public highway designated Class 4 on a town highway map shall not take or attempt to take any wild animal by shooting a firearm, a muzzle loader, a bow and arrow, or a crossbow. A person shall not shoot a firearm, a muzzle loader, a bow and arrow, or a crossbow over or across the traveled portion of a public highway, except for a person shooting over or across the traveled portion of a public highway from a sport shooting range, as that term is defined in section 5227 of this title, provided that:
    1. the sport shooting range was established before January 1, 2014; and
    2. the operators of the sport shooting range post signage warning users of the public highway of the potential danger from the sport shooting range.
  4. This section shall not restrict the possession or use of a loaded firearm by an enforcement officer in performance of his or her duty.
  5. Subsections (a) and (c) of this section shall not apply to a licensed hunter with paraplegia or who is certified by a physician to be unable to pursue game because of permanent severe physical disability, if he or she obtains a permit as provided in this subsection. The Commissioner on receipt of satisfactory proof of the disability of an applicant may issue a permit under this subsection. This permit shall be attached to the license and shall remain in effect until the death of the holder, unless the Commissioner has reason to believe the permit is misused. The holder of the permit shall carry it at all times while hunting and shall produce it on demand for inspection by any game warden or other law enforcement officer authorized to make arrests. The holder of the permit may take game from a vehicle or boat but only if it is stationary and is not within 10 feet of the traveled portion of a public highway. In no event shall the holder of a permit shoot across the traveled portion of a public highway.
  6. The phrase “public highway,” as used in this section, means roads, including Class 4 roads, shown on the highway maps of the respective towns, made by the Agency of Transportation, but does not include foot trails or private roads.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1967, No. 279 (Adj. Sess.), § 1, eff. March 12, 1968; 1969, No. 35 ; 1973, No. 178 (Adj. Sess.), § 2; 1977, No. 103 , § 2, eff. May 6, 1977; 1977, No. 143 (Adj. Sess.); 1991, No. 13 , § 4; 1997, No. 99 (Adj. Sess.), § 7; 2003, No. 163 (Adj. Sess.), § 15a; 2007, No. 97 (Adj. Sess.), § 3; 2013, No. 78 , § 12a; 2013, No. 96 (Adj. Sess.), § 38; 2013, No. 116 (Adj. Sess.), § 8, eff. May 5, 2014; 2017, No. 170 (Adj. Sess.), § 8.

History

Editor’s note—

The text of this section is based on the harmonization of two amendments. During the 2013 adjourned session, this section was amended twice, by Act Nos. 96 and 116, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2013 adjourned session, the text of Act Nos. 96 and 116 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

Amendments

—2017 (Adj. Sess.). Subsec. (a): Deleted “,” following “take” twice and substituted “motor-propelled” for “motor propelled” twice.

Subsec. (b): Substituted “right-of-way” for “right of way” twice, inserted “muzzle-loading” preceding “shotgun that has been charged”, and substituted “rifle, crossbow, or shotgun, including a muzzle-loading rifle or muzzle loading shotgun,” for “rifle or shotgun” in the second sentence.

Subsec. (c): Inserted “a” preceding “public highway” in the second sentence and inserted “a” preceding “muzzle loader” in the third sentence.

—2013 (Adj. Sess.). Subsec. (c) amended generally by Act Nos. 96 and 116.

Subsec. (d) amended by Act No. 116: Inserted “or her” following “his”.

Subsec. (e) amended by Act Nos. 96 and 116: Act 96 substituted “with paraplegia” for “who is paraplegic”, and inserted “who” and “or she”. Act 116 substituted “Subsections (a) and (c)” for “Subsection (a)” at the beginning, inserted “or she” following “disability, if he”, and substituted “is not within 10 feet of the traveled portion” for “off” following “stationary and”.

Subsec. (f) amended by Act No. 116: Inserted “, including Class 4 roads,” following “means roads”.

—2013. Section heading: Inserted “shooting from or across highway” following “aircraft”.

Subsec. (c): Substituted “25” for “ten” preceding “feet”; deleted “with” following “shooting”; substituted “, a” for “or” preceding “bow”; inserted “, or a crossbow” following “arrow” and added the present second sentence.

—2007 (Adj. Sess.). Subsec. (b): Inserted “or a muzzle-loading rifle or shotgun that has been charged with powder and projectile and the ignition system of which has been enabled by having an affixed or attached percussion cap, primer, battery, or priming powder” in the first sentence.

—2003 (Adj. Sess.). Subsec. (g): Deleted.

—1997 (Adj. Sess.). Subsec. (c): Inserted “or within ten feet of”.

—1991. Subsec. (g): Deleted “and forfeits his right to hunt, fish or trap for a period of one year” following “$ 50.00”.

—1977 (Adj. Sess.). Subsec. (e): Inserted “or is certified by a physician to be unable to pursue game because of permanent severe physical disability” following “paraplegic” in the first sentence.

—1977. Subsec. (e): Deleted “or unable to walk without the assistance of a wheelchair or similar device” following “paraplegic” in the first sentence, deleted “which shall remain in effect until twelve o’clock midnight on December 31 next following the date of issuance” following “this subsection” in the second sentence, and added the third and sixth sentences.

—1973 (Adj. Sess.). Subsec. (e): Amended generally.

—1969. Subsec. (a): Inserted “snowmobile” following “airplane” and “or any vehicle drawn by a motor propelled vehicle” following “motor propelled craft”.

Subsec. (b): Amended generally.

Subsec. (c): Substituted “travelled portion of a public highway” for “right of way of a public highway”.

Subsec. (f): Redesignated as subsec. (g) and a new subsec. (f) added.

Subsec. (g): Redesignated from former subsec. (f).

—1967 (Adj. Sess.). Section amended generally.

Prior law.

10 V.S.A. § 2985 .

CROSS REFERENCES

Permit for handicapped person for taking game with crossbow, see § 4711 of this title.

Point assessment for violations of section, see § 4502 of this title.

Special season for taking by crossbow by a person who is impaired to the degree that he or she cannot operate a standard bow, see § 4711 of this title.

ANNOTATIONS

Constitutionality.

Provision in this section prohibiting the carrying of loaded rifles and shotguns in or on mechanically propelled vehicles on public highways is not such an infringement of the constitutional right to bear arms as to be invalid. State v. Duranleau, 128 Vt. 206, 260 A.2d 383, 1969 Vt. LEXIS 227 (1969).

The purpose of this section’s prohibition of the carrying of loaded rifles or shotguns in or on mechanically propelled vehicles on public highways must be assumed to be reasonable. State v. Duranleau, 128 Vt. 206, 260 A.2d 383, 1969 Vt. LEXIS 227 (1969).

Application.

The legislature clearly intended this section’s prohibition of the carrying of loaded rifles and shotguns in or on mechanically propelled vehicles on the public highways to be of general application and not applicable to hunters alone. State v. Duranleau, 128 Vt. 206, 260 A.2d 383, 1969 Vt. LEXIS 227 (1969).

Possession of firearm.

Defendant had actual possession of a loaded rifle while in a motor vehicle on a public highway in violation of subsec. (b) of this section where the rifle was lying on the floor in front of the rear seat of the vehicle, defendant acknowledged that the rifle was his, defendant was the only person in the rear seat when the arresting officer discovered it, and the gun lay within inches of defendant’s body and his hands and he needed only to reach out in order to grasp it. State v. Groth, 144 Vt. 585, 481 A.2d 26, 1984 Vt. LEXIS 521 (1984).

Process and procedure.

Complaint indicating it was brought under this section and setting forth all allegations essential to support a charge under subsection prohibiting carrying loaded rifles or shotguns in or on a mechanically propelled vehicle on a public highway was not fatally insufficient for failure to include the designation of the subsection. State v. Duranleau, 128 Vt. 206, 260 A.2d 383, 1969 Vt. LEXIS 227 (1969).

§ 4706. Snaring animals.

A person shall not take an animal by snaring nor shall he or she possess a snare with intent to use the same.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 2986 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4707. Traps; notice.

A person who intends to set a trap for any animal on the property of another shall, prior to setting the trap, notify the owner of the property of his or her intention to set the trap and of the prospective location of the trap. The owner of the property may, at any time, refuse to grant permission to set a trap or revoke the permission if previously granted.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1973, No. 178 (Adj. Sess.), § 3.

History

Amendments

—1973 (Adj. Sess.). Section amended generally.

Prior law.

10 V.S.A. § 2990 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4708. Interference with hunting, fishing, or trapping.

  1. A person shall not intentionally interfere with the lawful taking of fish or wild animals by:
    1. tampering with traps, nets, bait, firearms, or any other thing used for hunting, trapping, or fishing;
    2. placing himself or herself in a position, for the purpose of interfering, that hinders or prevents hunting, trapping, or fishing; or
    3. engaging in an activity, for the purpose of interfering, that drives, harasses, disturbs, or is likely to disturb wildlife or fish.
  2. Nothing in this subsection shall be construed to prohibit an incidental interference arising from lawful activity by landowners or users of land, including farmers and recreationists.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1981, No. 85 , § 10; 1981, No. 127 (Adj. Sess.); 2015, No. 145 (Adj. Sess.), § 12.

History

Amendments

—2015 (Adj. Sess.). Rewrote the section.

—1981 (Adj. Sess.). Subsec. (a): Added.

Subsec. (b): Existing provisions of section designated as subsec. (b) and subdiv. (b)(2) added.

—1981. Deleted “game” preceding “trap” and substituted “wild animals” for “game or fur-bearing animals”.

Prior law.

10 V.S.A. § 2993 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4709. Transport, importation, possession, and stocking of wild animals; possession of wild boar or feral swine.

  1. A person shall not bring into, transport into, transport within, transport through, or possess in the State any live wild bird or animal of any kind, including any manner of feral swine, without authorization from the Commissioner or his or her designee. The importation permit may be granted under such regulations therefor as the Commissioner shall prescribe and only after the Commissioner has made such investigation and inspection of the birds or animals as she or he may deem necessary. The Department may dispose of unlawfully possessed or imported wildlife as it may judge best, and the State may collect treble damages from the violator of this subsection for all expenses incurred.
  2. No person shall bring into the State from another country, state, or province wildlife illegally taken, transported, or possessed contrary to the laws governing the country, state, or province from which the wildlife originated.
  3. No person shall place a Vermont-issued tag on wildlife taken outside the State. No person shall report big game in Vermont when the wildlife is taken outside the State.
  4. Nothing in this section shall prohibit the Commissioner or duly authorized agents of the Department of Fish and Wildlife from bringing into the State for the purpose of planting, introducing, or stocking or from planting, introducing, or stocking in the State any wild bird or animal.
  5. Applicants shall pay a permit fee of $100.00.
    1. The Commissioner shall not issue a permit under this section for the importation or possession of the following live species, a hybrid or genetic variant of the following species, offspring of the following species, or offspring or a hybrid of a genetically engineered variant of the following species: feral swine, including wild boar, wild hog, wild swine, feral pig, feral hog, old world swine, razorback, Eurasian wild boar, or Russian wild boar (Sus scrofo Linnaeus). A feral swine is: (f) (1) The Commissioner shall not issue a permit under this section for the importation or possession of the following live species, a hybrid or genetic variant of the following species, offspring of the following species, or offspring or a hybrid of a genetically engineered variant of the following species: feral swine, including wild boar, wild hog, wild swine, feral pig, feral hog, old world swine, razorback, Eurasian wild boar, or Russian wild boar (Sus scrofo Linnaeus). A feral swine is:
      1. a domestic pig that is outside of an enclosure for more than 96 hours and is free roaming on public or private land;
      2. an animal that exhibits at least one of the following skeletal characteristics:
        1. skull characteristics of an elongated snout or sloping appearance with little or no stop at the eye line;
        2. a shoulder structure with a steep or predominate ridge along the back appearance, known as a razorback;

          (iv) visible tusks; or

      3. an animal that is genetically determined to be a Eurasian wild boar or Eurasian wild boar-domestic pig hybrid as characterized with an appropriate genome-wide molecular tool.
    2. The definition of feral swine under subdivision (1) of this subsection shall not include feral swine collared and used by State or federal wildlife damage management entities, such as the U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Wildlife Services, to determine the location of free-ranging feral swine.
    3. This subsection shall not restrict or limit the authority of the Secretary of Agriculture, Food and Markets to regulate the importation or possession of the domestic pig as livestock or as a domestic animal under Title 6 of the Vermont Statutes Annotated. At the request of the owner of a domestic pig that is outside of its enclosure, the Secretary of Agriculture, Food and Markets may assist the owner in capturing and confining the domestic pig. In providing assistance to the owner of a domestic pig under this subdivision (f)(3), the Secretary of Agriculture, Food and Markets may request support or guidance from the U.S. Department of Agriculture, Animal and Plant Health Inspection Service.
    4. Any feral swine may be removed or destroyed by the Department; the Agency of Agriculture, Food and Markets or a designee; or the U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Wildlife Services. The Department shall notify the Agency of Agriculture, Food and Markets prior to removal of or destruction of a feral swine as defined in subdivision (f)(1)(A) of this section.
    5. The Department shall notify the Agency of Agriculture, Food and Markets of the disposition of feral swine.
    6. Any person who kills a feral swine in Vermont shall report to a State game warden and shall present the carcass to the State game warden within 24 hours.
    7. The State or its designee shall not be liable for damages or claims associated with the removal or destruction of feral swine, provided that the actions of the State agents or designees are reasonable. The removal or destruction of feral swine shall be deemed reasonable where:
      1. the Department has acted in accordance with subdivision (4) of this subsection (f); and
      2. the Department determines that the swine:
        1. is a threat to public safety;
        2. has harmed or posed a threat to any person or domestic animal;
        3. has damaged private or public property; or
        4. has damaged or is damaging natural resources, including wetlands; vernal pools; wildlife and their habitats; rare and irreplaceable natural areas; or rare, threatened, or endangered species; or
        5. the Department determines that the swine constitutes or could establish a breeding feral swine population in Vermont.

          (iii) hindquarters proportionally smaller than the forequarters lacking natural muscling found in commercial species; or

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1967, No. 46 ; 1973, No. 178 (Adj. Sess.), § 4; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1991, No. 230 (Adj. Sess.), § 25; 1997, No. 99 (Adj. Sess.), § 13; 1997, No. 155 (Adj. Sess.), § 45, eff. Jan. 1, 1999; 2003, No. 163 (Adj. Sess.), § 16; 2013, No. 78 , § 15, eff. June 7, 2013; 2017, No. 170 (Adj. Sess.), § 9; 2019, No. 129 (Adj. Sess.), § 21.

History

Amendments

—2019 (Adj. Sess.). Section heading: Inserted “or feral swine” at the end.

Subsec. (a): Inserted “, including any manner of feral swine,” in the first sentence.

Subsec. (f): Rewrote the subsec.

—2017 (Adj. Sess.). Section amended generally.

—2013. Section heading: Inserted “; possession of wild boar” following “animals”.

Subsec. (d): Added.

—2003 (Adj. Sess.). Subsec. (c): Substituted “$100.00” for “$50.00”.

—1997 (Adj. Sess.). Subsec. (a): Act No. 99 inserted “or possess” and substituted “to do so” for “so to do” in the first sentence.

Subsec. (c): Added by Act No. 155.

—1991 (Adj. Sess.). Subsec. (a): in the first sentence substituted “commissioner” for “board” preceding “a permit” and in the second sentence substituted “commissioner” for “board, through its duly authorized agents” following “after the” and “she or he” for “it” following “animals as”.

Subsec. (b): Deleted “the board” preceding “the commissioner”.

—1983 (Adj. Sess.). Subsec. (b): Substituted “fish and wildlife department” for “fish and game department”.

—1973 (Adj. Sess.). Subsec. (a): Designated existing first paragraph as subsec. (a) and rewrote the first and second sentences.

Subsec. (b): Designated existing second paragraph as subsec. (b).

—1967. In the first paragraph inserted “in the wild” preceding “in the state” in the first sentence, and added the third sentence.

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4710. Safety zone; shooting prohibited.

  1. A person may on land owned or occupied by him or her and within 500 feet of any occupied dwelling house, residence, or other building or camp occupied by human beings, or any barn, stable, or other building used in connection therewith, maintain posters furnished by the Department of Fish and Wildlife not less than 12 inches wide and 18 inches high containing the words “safety zone, shooting prohibited.” An area bounded by such posters placed at each corner, and not more than 200 feet apart on the boundaries shall be considered enclosed land for the purpose of this section and is hereby defined as a “safety zone.” Without advance permission of the owner or occupant, a person shall not discharge a firearm within or take a wild animal that is within a “safety zone” as defined herein.
  2. Any person who violates a provision of this section shall be fined $50.00.

HISTORY: Added 1967, No. 40 ,§§ 1, 2, eff. March 16, 1967; amended 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1991, No. 13 , § 5.

History

Amendments

—1991. Subsec. (b): Deleted “and shall forfeit his right to hunt, fish and trap in the state of Vermont for a period of one year” following “$50.00”.

—1983 (Adj. Sess.). Subsec. (a): Substituted “fish and wildlife department” for “fish and game department” in the first sentence.

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4711. Repealed. 2019, No. 50, § 12.

History

Former § 4711. Former § 4711, relating to crossbow hunting and permits, was derived from 1987, No. 159 (Adj. Sess.), § 1 and amended by 1997, No. 155 (Adj. Sess.), § 46; 1999, No. 30 , § 4; and 2007, No. 76 , § 29.

CROSS REFERENCES

Season for taking deer by crossbow, see § 4711 of this title.

§ 4712. Tracking of injured wildlife.

  1. The Commissioner may certify an individual to use a dog on a leash to track injured wild animals. The certificate shall be valid for five years from date of issuance. The Commissioner shall establish the following by rule:
    1. procedures for issuing a certificate under this section;
    2. qualifications required for certification under this section;
    3. privileges granted to a person holding a certificate under this section.
  2. Fees to be charged to a person applying for certification under this section shall be:
    1. Application fee $ 25.00      (2) Initial certification—resident $100.00      (3) Initial certification—nonresident $200.00      (4) Renewal—resident $125.00      (5) Renewal—nonresident $225.00

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HISTORY: Added 1995, No. 65 (Adj. Sess.), § 1; amended 1997, No. 155 (Adj. Sess.), § 47, eff. Jan. 1, 1999.

History

Amendments

—1997 (Adj. Sess.). Subsec. (a): Added the subsec. designation, substituted “certify” for “certificate” in the first sentence, added the second sentence, deleted former subdiv. (3), which read “Fees to be charged to a person applying for certification under this section,” and renumbered former subdiv. (4) as (3).

Subsec. (b): Added.

§ 4713. Tree stands; ground blinds.

  1. No person shall build, erect, maintain, use, or occupy a permanent or portable tree stand or ground blind for any purpose on any private land in Vermont without landowner permission.
  2. A person building, erecting, or maintaining a tree stand or ground blind shall permanently mark the stand or blind with the owner’s name and address. Marking shall be legible and placed in a manner that enables a person to read it conveniently and easily. This subsection shall not apply to a landowner building, erecting, or maintaining a tree stand or ground blind on his or her own land.

HISTORY: Added 1997, No. 99 (Adj. Sess.), § 8; amended 1999, No. 30 , § 5.

History

Amendments

—1999. Subsec. (b): Inserted “read it” preceding “conveniently and easily” and deleted “read it” thereafter at the end of the first sentence and added the second sentence.

§ 4714. Importation and possession of animals for hunting.

  1. A person shall not import or possess any live animal for the purpose of taking by hunting unless the Commissioner has issued the person an importation and possession permit. The Fish and Wildlife Board shall adopt rules necessary to establish, implement, and enforce the permit and permit process.
  2. An application for a permit shall be accompanied by a certificate of veterinary inspection certifying that the animal has been inspected, is not showing signs of contagious diseases, and has been inventoried, registered, and tested in accordance with rules of the Secretary of Agriculture, Food and Markets. The Commissioner of Fish and Wildlife may inspect animals being imported under an importation and possession permit and may dispose of unlawfully imported or possessed animals. The State may collect treble damages for expenses incurred in enforcing a violation of this subsection.

HISTORY: Added 1999, No. 30 , § 6; amended 2003, No. 42 , § 2, eff. May 27, 2003; 2005, No. 12 , § 5, eff. May 2, 2005.

History

Amendments

—2004 (Adj. Sess.). Subsec. (b): Inserted “inventoried, registered, and” preceding “tested in accordance”.

—2003. Subsec. (b): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” in the first sentence.

Regulatory authority over captive cervidae facility. 2011, No. 54 , § 4 provides: “Sec. E.702.1 of No. 156 of the Acts of the 2009 Adj. Sess. (2010) (transfer of regulatory oversight over captive cervidae facility and the white-tailed deer or moose entrapped within it to the agency of agriculture, food and markets) is repealed.”

§ 4715. Remote-control hunting.

  1. As used in this section:
    1. “Captive animal” includes an animal that has been brought into and kept in captivity for the purpose of taking it, and any increase of such animal.
    2. “Remote-control hunting” means the use of a computer, any device that uses the Internet, or any other technology to control remotely the aiming and discharge of any device such as a firearm, bow, or spear to take a wild animal or captive animal.
  2. Except as provided in subsection (e) of this section, no person shall take a wild animal or captive animal using a remote-control hunting device. This subsection shall apply to any person who is in Vermont while using a remote-control hunting device regardless of the location of the animal taken.
  3. No person shall establish or operate a remote-control hunting site in Vermont.
  4. No person shall import, export, or possess a wild animal or captive animal, or part thereof, taken by a remote-control hunting device, except that a person operating under a permit pursuant to subsection (e) of this section may possess an animal carcass, or part thereof, taken by that person using a remote-control hunting device.
  5. A person who is physically disabled to the degree that he or she cannot operate a device allowed for taking of game under Vermont law may obtain a permit to take game in Vermont with a device that is in the immediate vicinity of the permittee and that the permittee operates using remote-control technology other than the Internet. A person applying for this permit shall personally appear before the Commissioner or the Commissioner’s designee and submit certification from a licensed physician describing the person’s limitations. The Commissioner may obtain a second medical opinion to verify the disability. Upon satisfactory proof of the disability, the Commissioner may issue a permit describing the device and method the person may use to take game. The Commissioner shall require that the permittee be accompanied while hunting by a person who is licensed to hunt in Vermont unless the permittee can demonstrate that he or she is able to track injured game and to retrieve and care for a carcass. If the permit is not intended to be a permanent permit, it shall state the date on which the permit expires. The permit shall be attached to the hunting license, and the holder shall carry it at all times while hunting and produce it on demand for inspection by any fish and wildlife warden or other law enforcement officer.

HISTORY: Added 2005, No. 47 , § 1, eff. June 7, 2005; amended 2013, No. 96 (Adj. Sess.), § 39.

History

Amendments

—2013 (Adj. Sess.). Subsec. (e): Substituted “disabled” for “impaired”.

§ 4716. Coyote-hunting competitions; prohibition.

  1. As used in this section, “coyote-hunting competition” means a contest in which people compete in the capturing or taking of coyotes for a prize.
  2. A person shall not hold or conduct a coyote-hunting competition in the State.
  3. A person shall not participate in a coyote-hunting competition in the State.
  4. A person who violates this section shall be fined not more than $1,000.00 nor less than $400.00 for a first offense. Upon a second and all subsequent convictions or any conviction while under license suspension related to the requirements of part 4 of this title, a person who violates this section shall be fined not more than $4,000.00 nor less than $2,000.00.

HISTORY: Added 2017, No. 170 (Adj. Sess.), § 14, eff. Jan. 1, 2019.

Subchapter 2. Deer

§ 4741. Repealed. 2013, No. 116 (Adj. Sess.), § 6, eff. January 1, 2015.

History

Former § 4741. Former § 4741, relating to regular deer season, was derived from 1961, No. 119 , § 1 and amended by 1971, No. 152 (Adj. Sess.), § 1; 1979, No. 148 (Adj. Sess.), § 2; and 2003, No. 136 (Adj. Sess.), § 4.

Prior law.

10 V.S.A. § 3021 .

Annotations From Former § 4741

Antlerless deer.

In a prosecution for illegally killing a deer, it was no defense that the respondent was ignorant of the fact that the animal was without horns. State v. Ward, 75 Vt. 438, 56 A. 85, 1903 Vt. LEXIS 157 (1903). (Decided under prior law.)

Law Reviews —

For note relating to legislative review of Vermont’s antlerless deer hunting regulation, see 11 Vt. L. Rev. 105 (1986).

§ 4742. Repealed. 2009, No. 11, § 1.

History

Former § 4742. Former § 4742, which related to a special season for taking deer, was derived from 1961, No. 161 , §§ 1-3, and amended by 1961, No. 191 and had expired pursuant to 1961, No. 161 , § 5.

Former § 4742, relating to youth hunting day, was derived from 1995, No. 104 (Adj. Sess.), § 1 and amended by 1997, No. 97 (Adj. Sess.), § 1; and 1999, No. 70 (Adj. Sess.), § 1.

§ 4742a. Youth deer hunting weekend.

  1. The Board shall designate by rule a youth deer hunting weekend prior to opening day of the regular deer season.
  2. A person who is 15 years of age or under on the weekend of the hunt and who has successfully completed a hunter safety course may take one wild deer during youth deer hunting weekend in accordance with the rules of the Board. In order to hunt under this section, a young person shall also hold a valid hunting license under section 4255 of this title, hold a youth deer hunting tag, and be accompanied by an unarmed adult who holds a valid Vermont hunting license and who is over 18 years of age. An adult accompanying a youth under this section shall accompany not more than two young people at one time.
  3. Each year, the Board shall determine whether antlerless deer may be taken under this section in any deer management unit or units. A determination under this subsection shall be made by rule, shall be based on the game management study conducted pursuant to section 4081 of this title, and, notwithstanding subsection (g) of that section, may allow taking of antlerless deer.
  4. No person shall hunt under this section on privately owned land without first obtaining the permission of the owner or occupant.
  5. Before the first youth deer hunting weekend and after each fall hunting season, the Department shall collect information on youth deer hunting weekend during the regional public hearings held pursuant to subsection 4081(f) of this title. Information relative to the public’s knowledge and concerns about the deer herd shall be gathered. The Board shall administer youth deer hunting weekend, by deer management unit, based on public input and scientific information.
  6. The scheduled amount of a fine under section 4555 of this title shall be doubled for a violation of this section, and the fine shall be assessed against the licensed adult who is accompanying the youth pursuant to subsection (b) of this section and who has the youth hunter in his or her charge.
  7. As used in this section, “accompany,” “accompanied,” or “accompanying” means direct control and supervision, including the ability to see and communicate with the youth hunter without the aid of artificial devices such as radios or binoculars, except for medically necessary devices such as hearing aids or eyeglasses. While hunting, an individual who holds a valid hunting license under subsection 4254(b) of this title shall accompany no more than two youth hunters at a time.

HISTORY: Added 2001, No. 4 , § 1, eff. April 4, 2001; amended 2009, No. 11 , § 2; 2009, No. 122 (Adj. Sess.), § 1; 2013, No. 116 (Adj. Sess.), § 7, eff. Jan. 1, 2015; 2019, No. 50 , § 13.

History

Revision note—

This section, which was originally enacted as § 4742 of this title, was redesignated since § 4742 had not clearly been repealed.

Amendments

—2019. Subsec. (a): Substituted “Board shall designate by rule a youth deer hunting weekend” for “Saturday and Sunday” and deleted “established by Board rule shall be youth deer hunting weekend” at the end.

Subsec. (b): Inserted “and” following “weekend of the hunt” in the first sentence.

—2013 (Adj. Sess.). Subsec. (a): Inserted “the” following “day of” and “established by Board rule” following “deer season”.

Subsec. (b): Substituted “15 years of age or” for “age 15 and” following “A person who is”.

Subsec. (g): Substituted “As used in” for “For the purposes of” at the beginning.

—2009 (Adj. Sess.) Subsec. (b): Inserted “on the weekend of the hunt” preceding “who has successfully” in the first sentence, and “hold a youth deer hunting tag” following “section 4255 of this title” in the second sentence.

Subsecs. (f) and (g): Added.

—2009. Subsec. (b): Deleted “who has at least one parent or a guardian who is a legal resident of Vermont, and” following “15 and under” in the first sentence, and inserted “Vermont” preceding “hunting license” in the second sentence.

Subsec. (d): Substituted “privately owned” for “privately-owned”.

§§ 4743, 4744. Repealed. 2011, No. 54, § 3.

History

Former §§ 4743, 4744. Former § 4743, relating to muzzle loader season, was derived from 1985, No. 120 (Adj. Sess.), § 5 and amended by 1987, No. 2 , § 2, eff. Feb. 20, 1987; 1989, No. 24 , § 1; 1989, No. 140 (Adj. Sess.), § 2; No. 190 (Adj. Sess.), § 7; 1991, No. 33 , § 2; and 1991, No. 199 (Adj. Sess.), § 4 and was also previously suspended by 2003, No. 136 (Adj. Sess.), § 5, as amended by 2007, No. 97 (Adj. Sess.), § 2.

Former § 4744, relating to bow and arrow season, was derived from 1961, No. 119 ; § 1 and amended by 1979, No. 17 . § 1; 1981, No. 85 , § 13, eff. Jan. 1, 1982; 1987, No. 10 , § 2; 1987, No. 159 (Adj. Sess.), § 2; 1989, No. 53 ; 1989, No. 190 (Adj. Sess.), § 8, 10; 1991, No. 199 (Adj. Sess.), § 5; 1997, No. 99 (Adj. Sess.), § 9; and 1999, No. 30 , § 2 and was also previously suspended by 2003, No. 136 (Adj. Sess.), § 5, as amended by 2007, No. 97 (Adj. Sess.), § 2.

§ 4745. Taking big game out of season prohibited; time.

A person shall not take big game except during the seasons provided by law under part 4 of this title or the rules of the Board, and then only between one-half hour before sunrise and one-half hour after sunset. However, this section shall not be construed to prohibit the taking of big game under section 4826 or 4827 of this title and provisions in the rules of the Board relating to wildlife doing damage.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1961, No. 161 , § 4, eff. June 8, 1961; 1967, No. 4 , eff. Feb. 17, 1967; 1967, No. 315 (Adj. Sess.), § 2; 1973, No. 178 (Adj. Sess.), § 5; 2015, No. 145 (Adj. Sess.), § 13.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—1973 (Adj. Sess.). Substituted “one-half hour before sunrise and one-half hour after sunset” for “six o’clock in the forenoon and five o’clock in the afternoon with firearms, and between seven o’clock in the forenoon and six o’clock in the afternoon with bow and arrow during the bow and arrow season” in the first sentence.

—1967 (Adj. Sess.). Deleted former second sentence.

—1967. Added “with firearm, and between seven o’clock in the forenoon and six o’clock in the afternoon with bow and arrow during bow and arrow season” following “five o’clock in the afternoon” in the first sentence.

—1961. Substituted “except specified wild deer during the seasons provided by law” for “except during the seasons provided by sections 4741 and 4742 of this title” in the first sentence.

Prior law.

10 V.S.A. § 3051 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

ANNOTATIONS

Attempt.

Defendant who shot a deer decoy and was charged with attempting to take a wild deer out of season could not claim defense of legal impossibility; where evidence showed that defendant possessed the specific intent to take a wild deer out of season, actual failure to take a live wild deer was of no consequence. State v. Curtis, 157 Vt. 629, 603 A.2d 356, 1991 Vt. LEXIS 226 (1991).

Argument was rejected that failure by fish and wildlife department to strictly conform to guidelines, by use of a deer decoy, invalidated conviction for attempting to take a wild deer out of season. State v. Curtis, 157 Vt. 629, 603 A.2d 356, 1991 Vt. LEXIS 226 (1991).

Cited.

Cited in State v. Taylor, 145 Vt. 437, 491 A.2d 1034, 1985 Vt. LEXIS 314 (1985).

§ 4746. Repealed. 1989, No. 190 (Adj. Sess.), § 5.

History

Former § 4746. Former § 4746, relating to carrying of crossbows or firearms while bow and arrow hunting, was derived from 1961, No. 119 , § 1 and amended by 1979, No. 17 , § 2.

§ 4747. Big game taken by illegal means.

A person shall not take or possess big game by the aid of a snare, trap, salt lick, jack, or other light or use these devices to entrap or ensnare big game. A person shall not use a dog of any breed or sex at any time for the purpose of hunting any big game except black bear and wild turkey as provided in fish and wildlife rules, nor shall he or she harbor or have in his or her possession a dog for this purpose. A person other than the owner or a person designated by the owner shall not take a confined fallow deer or a confined red deer.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 234 (Adj. Sess.), § 4; 1985, No. 92 , § 6; 1993, No. 236 (Adj. Sess.), § 3.

History

Amendments

—1993 (Adj. Sess.) Added the third sentence.

—1985. Section amended generally.

—1983 (Adj. Sess.). Inserted “or possess” following “take” in the first sentence and “or moose” following “deer” in three places in the first and second sentences.

Prior law.

10 V.S.A. §§ 3059 , 3072(a).

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

Prohibition against using artificial light to spot deer, see § 4702 of this title.

ANNOTATIONS

Procedure.

Where offender was charged with offense of taking a wild deer by artificial light, but, on basis of erroneous conclusionary finding, found guilty of offense of taking a deer in closed season, and adjudged guilty and fined upon original charge, conviction should be vacated. State v. Powers, 136 Vt. 167, 385 A.2d 1067, 1978 Vt. LEXIS 710 (1978).

Cited.

Cited in State v. Laflin, 160 Vt. 198, 627 A.2d 344, 1993 Vt. LEXIS 42 (1993).

§ 4748. Dogs pursuing deer or moose.

  1. A dog that has been found to hunt or pursue deer or moose and whose owner or keeper has had notice to that effect shall not run at large unaccompanied by the owner or keeper.
  2. A State game warden, deputy warden, sheriff, deputy sheriff, constable, police officer, or State Police may kill by shooting with firearms dogs, whether licensed or unlicensed, when in such close pursuit as to endanger the life of a deer or moose or found in the act of wounding, maiming, or killing deer or moose. Provisions of this section shall be subject to limitations set forth in section 4710 of this title. A warden or other person authorized under this subsection who does not kill a dog under the provisions of this subsection shall, if possible, locate the owner or keeper of the dog and shall issue a warning that the dog was in violation of this section and each future violation shall result in the owner or keeper being fined not more than $200.00 nor less than $50.00.
  3. When a licensed dog is killed pursuant to subsection (b) of this section, the game warden, deputy game warden, sheriff, deputy sheriff, constable, police officer, or State Police shall forthwith report the same to the owner of said licensed dog.
  4. No person shall have a cause of action against any of the designated wardens, sheriff, deputy sheriff, constable, police officer, or State Police exercising the authority herein granted.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1969, No. 163 (Adj. Sess.), eff. Feb. 4, 1970; 1977, No. 132 (Adj. Sess.); 1979, No. 163 (Adj. Sess.); 1981, No. 63 ; 1995, No. 1 , § 1.

History

Amendments

—1995. Inserted “or moose” following “deer” in the section heading and in subsec. (a) and in two places in the first sentence of subsec. (b).

—1981. Subsec. (a): Amended generally.

Subsec. (b): Added third sentence.

—1979 (Adj. Sess.) Subsec. (b): Deleted “during the period between December 1 and the following May 31, inclusive,” preceding “a state game warden” in the first sentence.

—1977 (Adj. Sess.) Subsec. (b): Deleted “or” preceding “deputy warden”, inserted “sheriff, deputy sheriff, constable, police officer or state police” thereafter, substituted “may” for “is hereby authorized to”, in the first sentence and added the second sentence.

Subsec. (c): Deleted “or” preceding “deputy game warden” and inserted “sheriff, deputy sheriff, constable, police officer or state police” thereafter.

Subsec. (d): Inserted “sheriff, deputy sheriff, constable, police officer or state police” following “wardens”.

—1969 (Adj. Sess.) Subsec. (b): Substituted “December 1 and the following May 31” for “February 1 and April 30” and inserted “or deputy warden” following “state game warden”.

Subsec. (c): Amended generally.

Prior law.

10 V.S.A. § 3072 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

ANNOTATIONS

Notice.

Although this section does not specify the manner in which the owner or keeper of a dog shall be notified that his dog has been found to hunt or pursue deer, verbal notice may be adequate under certain circumstances, and in such event written notice would be merely surplusage. State v. Rotax, 146 Vt. 32, 497 A.2d 378, 1985 Vt. LEXIS 422 (1985).

Written warning issued to dog owner in 1982 pursuant to subsec. (a) of this section was adequate even though it cited subsec. (a) prior to its amendment in 1981, where verbal notice was also given to defendant’s wife, and therefore state was in substantial compliance with subsec. (a) so far as actual notice to dog owner was required. State v. Rotax, 146 Vt. 32, 497 A.2d 378, 1985 Vt. LEXIS 422 (1985).

Notes to Opinions

State Police.

Section 1915 of Title 20 gives State Police certain powers conferred on game wardens but this does not include powers to execute game laws nor to kill dogs. 1962-64 Vt. Op. Att'y Gen. 283.

§ 4749. Injured deer, killing.

  1. Any game warden, deputy game warden, sheriff, deputy sheriff, constable, police officer, State Police, or selectboard member may kill a deer that has been so injured that its chance for recovery is remote.
  2. The official by whom such a deer is killed shall forthwith report the same to the Commissioner or a game warden and such deer shall be disposed of as provided in section 4513 of this title.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Revision note

—2015. In subsec (a), substituted “selectboard member” for “selectman” in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Prior law.

10 V.S.A. § 3073 .

Notes to Opinions

Disposition of carcass.

The legislature by making reference in former section 3073 to section 3154 (now section 4513) intended that mechanics and procedure for disposition of a carcass of a deer as set forth in such section should be followed to extent applicable in reporting of kill and disposition of carcass of a deer killed in accordance with former section 3073. 1948-50 Vt. Op. Att'y Gen. 119. (Decided under prior law.)

§ 4750. Repealed. 1973, No. 178 (Adj. Sess.), § 9.

History

Former § 4750. Former § 4750, relating to injured or wounded deer or animals, was derived from 1969, No. 157 (Adj. Sess.).

§ 4751. Swimming deer.

A person shall not take a deer that is swimming in any lake, pond, river, or other body of water.

HISTORY: Added 1973, No. 178 (Adj. Sess.), § 8.

§ 4752. Repealed. 1983, No. 118 (Adj. Sess.).

History

Former § 4752. Former § 4752, relating to the hunting and taking of white deer, was derived from 1981, No. 119 (Adj. Sess.), § 2.

§ 4753. Repealed. 2011, No. 54, § 3.

History

Former § 4753. Former § 4753, relating to annual deer limit, was derived from 1985, No. 120 (Adj. Sess.), § 4 and amended by 1991, No. 199 (Adj. Sess.), § 6 and was also previously suspended by 2003, No. 136 (Adj. Sess.), § 5, as amended by 2007, No. 97 (Adj. Sess.), § 2.

Subchapter 3. Possession, Transportation, and Sale of Big Game

History

Revision note—

In the subchapter heading, substituted “Big Game” for “Deer, Elk, Moose and Caribou” for purposes of conformity with the text of the sections contained in the subchapter, as amended.

§ 4781. Big game; possession.

A person shall not possess big game taken by unlawful means or methods or taken in a closed season in violation of any provision of part 4 of this title or rules of the Board. Unless otherwise prohibited, a person may possess lawfully taken game during the open season and for a reasonable time thereafter.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1985, No. 92 , § 7; 2015, No. 145 (Adj. Sess.), § 14.

History

Amendments

—2015 (Adj. Sess.). Rewrote the section.

—1985. Substituted “big game” for “a wild deer” following “possess” in the first and second sentences, for “wild deer” following “nor any” in the second sentence and for “Deer” in the section heading.

Prior law.

10 V.S.A. §§ 3051 , 3111.

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

ANNOTATIONS

Evidence.

In the case of defendant convicted of attempting to possess a deer taken in closed season where the evidence established that almost three and one-quarter hours after the close of deer season a farmer heard a gunshot from one of his fields, that the game warden who investigated the gunshot discovered a freshly killed deer in the field, the estimated time of death was the same as the time when the farmer heard the shot, at the end of a fresh trail leading from the deer the warden saw defendant hiding behind a tree and defendant ran when the warden shouted that he was under arrest, the evidence was sufficient to support the verdict. State v. Tenney, 143 Vt. 213, 464 A.2d 747, 1983 Vt. LEXIS 489 (1983).

Where witness testified that defendant killed a deer, the two of them split it up and defendant left with his share, the jury could convict defendant of illegal possession on the basis of believing the testimony other than that defendant killed the deer, since this section does not require the possessor to be the actual killer. State v. Connolly, 133 Vt. 565, 350 A.2d 364, 1975 Vt. LEXIS 458 (1975).

Evidence in prosecution for illegal possession of deer had capability of convincing responsible jurors that protected game had been unlawfully taken and was in joint possession of defendant and his companions and warranted submission to jury. State v. Ballou, 127 Vt. 1, 238 A.2d 658, 1968 Vt. LEXIS 163 (1968).

Jury instructions.

Where defendant was charged as a principal on theory there was a joint enterprise between him and passenger of auto defendant was driving at time they allegedly violated this section, there was no error regarding the instruction that the jury had to find that defendant had knowledge that a deer was to be taken illegally, or that defendant was aiding or assisting in any way and had knowledge that it was an illegal deer and that that was the purpose that they were in spot where deer was taken, the defendant need not personally have killed the deer or taken hold of it. State v. Trombley, 136 Vt. 333, 388 A.2d 433, 1978 Vt. LEXIS 624 (1978).

Possession.

In order to convict under provision of this section prohibiting possession of a deer taken in closed season, the state must prove beyond a reasonable doubt that defendant was intentionally in possession of a deer illegally taken in closed season. State v. Tenney, 143 Vt. 213, 464 A.2d 747, 1983 Vt. LEXIS 489 (1983).

Possession under this section does not necessarily mean on one’s own person but includes a conspirator’s possession. State v. Ballou, 127 Vt. 1, 238 A.2d 658, 1968 Vt. LEXIS 163 (1968).

Cited.

Cited in State v. Dezaine, 141 Vt. 335, 449 A.2d 913, 1982 Vt. LEXIS 523 (1982); State v. Byrne, 149 Vt. 224, 542 A.2d 276, 1988 Vt. LEXIS 18 (1988); State v. Laflin, 160 Vt. 198, 627 A.2d 344, 1993 Vt. LEXIS 42 (1993).

§ 4782. Possession in cold storage of big game.

Any part of the carcass of big game legally taken may be possessed at any time in cans or in a cold storage locker or home freezer.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1985, No. 92 , § 8.

History

Amendments

—1985. Substituted “big game” for “deer” preceding “legally” in the text of the section and added “of big game” following “storage” in the section heading.

Prior law.

10 V.S.A. § 3112 .

§ 4783. Purchase and sale of big game.

  1. A person shall not buy or sell big game or the meat of big game within the State except during the open season and for 20 days thereafter.
  2. Notwithstanding subsection (a) of this section, a person may buy or sell at any time:
    1. the head, hide, and hoofs of deer or moose legally taken; or
    2. the head, hide, paws, and internal organs of a black bear, legally taken.
  3. Neither anadromous Atlantic salmon taken in the Connecticut River Basin nor wild turkey shall be bought or sold at any time.  The meat of big game animals shall not be bought or sold for the purpose of being transported out of the State.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1985, No. 92 , § 9.

History

Amendments

—1985. Section amended generally.

Prior law.

10 V.S.A. §§ 3057b , 3113.

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

Transportation of fish and game, see chapter 117 of this title.

§ 4784. Transportation of big game.

A person shall not transport big game taken by unlawful means or methods or taken in a closed season in violation of any provision of part 4 of this title or rules of the Board.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1985, No. 92 , § 10; 2015, No. 145 (Adj. Sess.), § 15.

History

Amendments

—2015 (Adj. Sess.). Rewrote the section.

—1985. Substituted “big game” for “deer” in the section heading and for “a wild deer” following “transport” in the first sentence and deleted “of section 4744 or 4826” following “provisions of” in the second sentence.

Prior law.

10 V.S.A. § 3059 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

Transportation of fish and wildlife, see chapter 117 of this title.

ANNOTATIONS

Cited.

Cited in State v. Dezaine, 141 Vt. 335, 449 A.2d 913, 1982 Vt. LEXIS 523 (1982).

§ 4785. Repealed. 1991, No. 230 (Adj. Sess.), § 1(9).

History

Former § 4785. Former § 4785, relating to importation of deer, elk, moose or caribou, was derived from 1961, No. 119 , § 1.

§ 4786. Game suppers.

  1. Notwithstanding any provision of law to the contrary, game suppers may be held at any time by a church, volunteer fire department, rod and game club, or other nonprofit organization under permit issued by a fish and wildlife warden, the Commissioner, or a designee of the Commissioner.
  2. Wild animals and fish legally taken in this State, or another state or country, may be transported and sold as part of a game supper authorized by permit.  Big game provided by the Department may also be sold at such suppers.  Migratory waterfowl and anadromous salmon shall not be sold.
  3. The permit for a game supper required by this section shall state the name of the organization holding the supper, and the date and place of the supper.  The permit shall be applied for no later than 10 days before the date of the supper.

HISTORY: Added 1989, No. 57 .

Subchapter 4. Wild Animals Doing Damage

§§ 4821-4825. Repealed. 1969, No. 195 (Adj. Sess.), § 5.

History

Former §§ 4821-4825. Former § 4821, relating to damage to crops, was derived from 1961, No. 146 , § 1 and amended by 1967, No. 57 , § 1.

Former § 4821a, relating to appraisal, duties of selectmen, was derived from 10 V.S.A. § 3152 and amended by 1959, No. 329 (Adj. Sess.), § 23(c); 1961, No. 119 , § 4; and 1961, No. 7 , § 1.

Former § 4821b, relating to appeal by claimant, was derived from 10 V.S.A. § 3153 and amended by 1959, No. 328 (Adj. Sess.), § 8(a), (b); 1959, No. 329 (Adj. Sess.), § 23(c); 1961, No. 119 , § 4; and 1961, No. 7 , § 2.

Former § 4821c, relating to information on market value of crop, was derived from 1961, No. 7 , § 4.

Former § 4822, relating to black bear damage, was derived from 1961, No. 119 , § 1.

Former § 4823, relating to amount assessed, was derived from 1961, No. 119 , § 1.

Former § 4824, relating to appeal, was derived from 1961, No. 119 , § 1.

Former § 4825, relating to payment, damage claims, was derived from 1961, No. 119 , § 1.

Subject matter of repealed sections is now covered by §§ 4829-4832 of this title.

§ 4826. Taking deer damaging crops.

  1. A person, including an authorized member of the person’s family, an authorized regular on-premises employee, or an agent who holds a Vermont hunting license and who is designated by the person, may take, on land owned or occupied by the person, up to four deer per year that the person can prove were doing damage to the following:
    1. a tree that is being grown in a plantation or being cultivated for the purpose of harvesting an annual or perennial crop or producing any marketable item; or
    2. a crop-bearing plant; or
    3. a crop, except grass.
  2. A person by whom, or under whose direction, a deer is wounded or killed, shall report in writing signed by him or her within 12 hours all the facts relative to the act to a game warden. The report shall state the time and place of the wounding or killing.
  3. A person who kills a deer shall immediately properly dress the carcass and care for the meat.
  4. The game warden shall immediately investigate the case and if satisfied that the deer was taken as provided in this section, shall give the person a certificate of the finding in the matter. The certificate shall entitle the person to the ownership of the carcass, but the person shall not sell or give away the same. However, the head and the antlers, if any, shall be turned over to a warden. In addition, any carcass not needed for home consumption in the household of the certificate-holder shall be turned over to a game warden.
  5. When a game warden finds that a deer has been wounded or killed contrary to the provisions of this section, he or she shall dispose of the deer under the direction of the Commissioner, and any monies received therefor shall be paid to the Commissioner.
    1. “Person” includes all people who jointly own or lease the land. (f) (1) “Person” includes all people who jointly own or lease the land.
    2. “Post” means any signage that would lead a reasonable person to believe that hunting is prohibited on the land, except for signs erected pursuant to section 4710 of this title.
  6. The Commissioner may issue a permit to a person to take more than four deer under this section if:
    1. the land owned by the person is not posted against hunting;
    2. the person can prove that the property is sustaining additional and ongoing damage; and
    3. the person has taken reasonable measures to prevent the deer from continuing to damage the crop.
  7. The Commissioner is authorized to issue an order requiring any person to remove food or bait which has the effect of luring deer into the vicinity of the property sustaining damage. In this subsection, food does not include a crop or crop-bearing plant.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1967, No. 57 , § 2, eff. March 30, 1967; 1973, No. 242 (Adj. Sess.), eff. April 8, 1974; 2005, No. 24 , § 1; 2011, No. 54 , § 11, eff. May 31, 2011.

History

Amendments

—2011. Subdiv. (f)(1): Substituted “lease” for “occupy” and deleted the former last sentence.

Subdiv. (f)(2): Added.

—2005. Rewrote subsecs. (a) through (e), made gender neutral changes throughout section, and added subsecs. (f) through (h).

—1973 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Substituted “the” for “such” wherever it appeared.

Subsec. (c): Substituted “the” for “such” wherever it appeared.

Subsec. (d): Substituted “the” for “such” wherever it appeared.

—1967. Subsec. (a): Inserted “crop bearing plant” following “fruit tree”.

Prior law.

10 V.S.A. §§ 3154 , 3156.

Notes to Opinions

Employee.

Words “employed by him” in former section 5730 of the Public Laws were synonymous with “hired,” that is, a person who, for wages or salary, worked for and was under the control of the employer. 1938-40 Vt. Op. Att'y Gen. 187. (Decided under prior law.)

Use of carcass.

Section prohibited sale of skins, hides or pelts of deer which had been legally taken pursuant to former P.L. 5730. 1948-50 Vt. Op. Att'y Gen. 116. (Decided under prior law.)

Person who took deer as provided in former section 5730 of the Public Laws was not authorized to cook and can meat before certificate required by that section had been issued. 1940-42 Vt. Op. Att'y Gen. 105. (Decided under prior law.)

§ 4827. Black bear doing damage.

    1. Except as provided in subdivision (2) of this subsection and in subsection 4827a(b) of this title, a person, an authorized member of the person’s family, or the person’s authorized regular on-premise employee may, after attempting reasonable nonlethal measures to protect his or her property, take on land owned or occupied by the person a bear that he or she can prove was doing damage to the following: (a) (1) Except as provided in subdivision (2) of this subsection and in subsection 4827a(b) of this title, a person, an authorized member of the person’s family, or the person’s authorized regular on-premise employee may, after attempting reasonable nonlethal measures to protect his or her property, take on land owned or occupied by the person a bear that he or she can prove was doing damage to the following:
      1. livestock, a pet, or another domestic animal;
      2. bees or bee hives;
      3. a vehicle, building, shed, or any dwelling; or
      4. a crop or crop-bearing plant other than grass.
      1. The requirements of subdivision (1) of this subsection shall not apply in exigent circumstances. As used in this subdivision, “exigent circumstances” means the need for immediate protection of a person, livestock, pet, domestic animal, or occupied dwelling. (2) (A) The requirements of subdivision (1) of this subsection shall not apply in exigent circumstances. As used in this subdivision, “exigent circumstances” means the need for immediate protection of a person, livestock, pet, domestic animal, or occupied dwelling.
      2. Landowners or lessees subject to bear damage in unharvested cornfields shall be exempt from having to first use nonlethal control measures prior to taking a black bear doing damage under subdivision (a)(1) of this section.
  1. A person authorized to take a bear under subsection (a) of this section may designate one individual who holds a resident Vermont hunting license as an agent to take a bear doing damage on his or her behalf. The person may not offer or accept any form of payment to or from the agent under this subsection except as allowed in subsection (e) of this section.
  2. A person who wounds or kills a bear pursuant to this section shall immediately report the wounding or killing to a game warden. Within 12 hours of the wounding or killing, the person who performed the act shall submit a written, signed report relating the date, time, place, and reason for the wounding or killing to a game warden.
  3. A person who kills a bear under this section shall immediately properly dress the carcass and care for the meat.
  4. The game warden shall immediately investigate the case and if satisfied that the bear was taken as provided in this section, the warden shall give the person who owns or occupies the land a certificate of his or her finding in the matter. The certificate shall entitle the person who owns or occupies the land to the ownership of the carcass. However, the person may not sell or give away the carcass except to offer all or a portion of it to an agent designated under subsection (b) of this section as compensation for killing the bear. Any carcass not desired for home consumption in the household of the certificate holder or designated agent shall be turned over to a game warden.
  5. [Repealed.]
  6. The Commissioner is authorized to issue an order requiring a person to contain food which has the effect of luring a bear onto property owned or occupied by the person. In this subsection, food does not include a crop, a crop bearing plant, or livestock. The order shall include specific measures which would constitute containing the food and the date by which the food shall be contained. Containing food means to prevent a bear from having access to the food. Following issuance of an order under this subsection, a person who fails to contain the food may not shoot a bear causing damage pursuant to this section. However, if the person contains the food and a bear continues to do damage pursuant to subsection (a) of this section, 30 days or more after containment, the person may take the bear pursuant to this section.
  7. A person who shoots a bear in violation of subsection (g) of this section or subsection 4827a(b) of this title may be fined up to $2,000.00. A person who does not remove bait or contain food following an order issued under subsection (g) of this section or subsection 4827a(b) may be fined up to $1,000.00.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 2003, No. 99 (Adj. Sess.), § 1, eff. April 27, 2004; 2013, No. 78 , § 16.

History

Amendments

—2013. Subsec. (a): Amended generally.

Subsec. (f): Repealed.

Subsec. (h): Deleted “(f) or” following “subsection” in two places; inserted “or subsection 4827a(b) of this title” following “section”; substituted “$2,000.00” for “1,000.00” following “up to”; inserted “or subsection 4827a(b)” following “section” and substituted “$1,000.00” for “$500.00” following “up to”.

—2003 (Adj. Sess.). Rewrote the section.

Prior law.

10 V.S.A. § 3024(a) .

§ 4827a. Feeding bear; prohibition.

  1. A person shall not knowingly feed a bear and shall not knowingly give, place, expose, deposit, distribute, or scatter any bait, food, or other edible material in a manner intended to lure a bear to feed except:
    1. under a license or permit issued under section 4152 of this title by the Commissioner for bona fide scientific research, mitigation of wildlife damage, nuisance problems, or wildlife population reduction program;
    2. by planting, cultivating, or harvesting of crops directly associated with bona fide agricultural practices, including planted wildlife food plots; or
    3. by distribution of feed material for livestock directly associated with bona fide agricultural practices.
  2. A person who has intentionally placed bait, food, or other edible material, including placing food within a bird feeder, to lure wildlife, as that term is defined to include birds and other animals under subdivision 4001(15) of this title, onto the property within the past 30 days shall be prohibited from taking a bear doing damage under the authority set forth in section 4827 of this title. The Commissioner or his or her designee may issue an order requiring a person to remove or contain the bait, food, or edible material if the placing of bait or food results in the feeding of a bear.
  3. As used in this section, “bait, food, or other edible material” means fruit, grain, salt, grease, garbage, or other materials intended to feed or lure wildlife.

HISTORY: Added 2013, No. 78 , § 17.

§ 4828. Taking of rabbit or fur-bearing animals by landowner; selectboard; certificate; penalty.

    1. The provisions of law or rules of the Board relating to the taking of rabbits or fur-bearing animals shall not apply to: (a) (1) The provisions of law or rules of the Board relating to the taking of rabbits or fur-bearing animals shall not apply to:
      1. an owner, the owner’s employee, tenant, or caretaker of property protecting the property from damage by rabbits or fur-bearing animals; or
      2. a member of the selectboard of a town protecting public highways or bridges from such damage or submersion with the permission of the owner of lands affected.
    2. A person who for compensation sets a trap for rabbits or fur-bearing animals on the property of another in defense of that property shall possess a valid trapping license.
    3. if required by rule of the Board, an owner; the owner’s employee, tenant, or caretaker; a member of the selectboard; or a person who sets a trap for compensation who desires to possess during the closed season the skins of any fur-bearing animals taken in defense of property, highways, or bridges shall notify the Commissioner or the Commissioner’s representative within 84 hours after taking the animal, and shall hold the pelts for inspection by such authorized representatives.
  1. Before disposing of pelts taken under this section, if required by rule of the Board, the property owner; the owner’s employee, tenant, or caretaker; a member of the selectboard; or a person who sets a trap for compensation shall secure from the Commissioner or a designee a certificate describing the pelts, and showing that the pelts were legally taken during a closed season and in defense of property, highways, or bridges. In the event of storage, sale, or transfer, the certificates shall accompany the pelts.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 213 (Adj. Sess.), § 2; 1995, No. 93 (Adj. Sess.), § 1, eff. March 28, 1996; 2017, No. 170 (Adj. Sess.), § 11, eff. Jan. 1, 2020.

History

Amendments

—2017 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Deleted “such” preceding “pelts”; inserted “taken under this section,” following “pelts” and “; the owner’s” following “owner”; substituted “a member of the” preceding “selectboard”, “; or a person who sets a trap for compensation” following “selectboard”; substituted “the” for “such” preceding “certificates” and deleted “described therein” following “pelts”.

—1995 (Adj. Sess.) Subsec. (a): Amended generally.

Subsec. (b): Inserted “if required by rule of the board” preceding “the property owner”, substituted “selectboard” for “selectmen” following “caretaker or”, and inserted “or a designee” following “commissioner”.

—1983 (Adj. Sess.). Section heading: Inserted “raccoon” preceding “rabbit or” and “other” thereafter.

Subsec. (a): Inserted “with the exception of raccoon” preceding “hold”, “raccoon” preceding “rabbits or” and “other” thereafter throughout the subsec.

Subsec. (b): Inserted “except raccoon” preceding “the property owner” in the first sentence.

Prior law.

10 V.S.A. §§ 3026(d) , 3212.

Notes to Opinions

Delegation of authority.

It would not be unlawful for selectmen to delegate actual taking of beaver to peace officers of their community. 1954-56 Vt. Op. Att'y Gen. 141. (Decided under prior law.)

Protection of highways and bridges.

Selectmen acting in necessary defense of highways and bridges and with permission of owners of lands affected could both take beaver and disturb their dams. 1954-56 Vt. Op. Att'y Gen. 141. (Decided under prior law.)

Selectmen were only authorized to act when activities of beaver constituted an actual proximate threat to safety of highways and bridges. 1954-56 Vt. Op. Att'y Gen. 141. (Decided under prior law.)

§ 4829. Person suffering damage by deer or black bear.

  1. A person engaged in the business of farming who suffers damage by deer to the person’s crops, fruit trees, or crop-bearing plants on land not posted against the hunting of deer, or a person engaged in the business of farming who suffers damage by black bear to the person’s cattle, sheep, swine, poultry, or bees or bee hives on land not posted against hunting or trapping of black bear is entitled to reimbursement for the damage, and may apply to the Department of Fish and Wildlife within 72 hours of the occurrence of the damage for reimbursement for the damage. As used in this section, “post” means any signage that would lead a reasonable person to believe that hunting is prohibited on the land.
  2. As used in this section, a person is “engaged in the business of farming” if he or she earns at least one-half of the farmer’s annual gross income from the business of farming, as that term is defined in the Internal Revenue Code, 26 C.F.R. § 1.175-3.

HISTORY: Added 1969, No. 195 (Adj. Sess.), § 1; amended 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1997, No. 99 (Adj. Sess.), § 10; 2011, No. 54 , § 12, eff. May 31, 2011; 2013, No. 78 , § 18.

History

Amendments

—2013. Added the subsec. (a) designation; inserted “engaged in the business of farming” following “person” in two places and added subsec. (b).

—2011. Added the last sentence.

—1997 (Adj. Sess.). Deleted “or shrubbery” after “crop-bearing plants”.

—1983 (Adj. Sess.). Substituted “department of fish and wildlife” for “department of fish and game”.

Notes to Opinions

Crops.

The word “crop” as used in this section means the end product of annual planting, cultivation and harvesting, and does not contemplate “plants, trees, and shrubs” themselves, but applies only to fruit and products in the nature of fruits derived from such plants, trees and shrubs. 1966-68 Vt. Op. Att'y Gen. 66. (Decided under prior law.)

The word “crop” in this section does not contemplate a prospective crop, as the latter is entirely speculative and dependent on too many considerations such as weather and the skill and husbandry of the particular owner. 1966-68 Vt. Op. Att'y Gen. 66. (Decided under prior law.)

Plants.

Damages to strawberry and similar plants are compensable when suffered by deer. 1968-70 Vt. Op. Att'y Gen. 109. (Decided under prior law.)

§ 4830. Regulations.

The State Fish and Wildlife Board shall adopt rules and regulations relating to application for reimbursement, examination by State fish and wildlife wardens of damage, and reimbursement therefor.

HISTORY: Added 1969, No. 195 (Adj. Sess.), § 2; amended 1983, No. 158 (Adj. Sess.), eff. April 13, 1984.

History

Amendments

—1983 (Adj. Sess.). Substituted “fish and wildlife board” for “fish and game board”.

§ 4831. Reimbursement.

Reimbursement under this subchapter shall be made by the State Treasurer, on the voucher of the Commissioner of Fish and Wildlife, from money received by the State Treasurer under the provisions of this part.

HISTORY: Added 1969, No. 195 (Adj. Sess.), § 3.

§ 4832. Appeal.

A person who is denied reimbursement under this subchapter or who is dissatisfied with the amount of the reimbursement granted may appeal to the Superior Court of the county in which he or she resides.

HISTORY: Added 1969, No. 195 (Adj. Sess.), § 4; amended 1971, No. 185 (Adj. Sess.), § 25, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Amendments

—1973 (Adj. Sess.). Substituted “superior” for “county” preceding “court”.

—1971 (Adj. Sess.). Deleted “under and in accordance with the provisions of section 2381 through 2390 of Title 12” following “resides”.

§ 4833. Coyote Control Program.

The Commissioner shall develop a Coyote Control Program for implementation in those areas of the State where he or she has determined that predation by coyotes is posing a threat to domesticated animals, deer, and other wildlife. In no event shall the Program use poison.

HISTORY: Added 1985, No. 132 (Adj. Sess.).

Subchapter 5. Fur-Bearing Animals

CROSS REFERENCES

Fur-bearing animal defined, see § 4001 of this title.

§ 4861. Fur-bearing animals, taking, possession.

Fur-bearing animals shall not be taken except in accordance with the provisions of this part, and of rules of the Board. The fur or skins of fur-bearing animals may be possessed at any time unless otherwise provided by this part, rules of the Board, or orders of the Commissioner.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1991, No. 230 (Adj. Sess.), § 26.

History

Amendments

—1991 (Adj. Sess.). In the first sentence substituted “rules” for “regulations” preceding “of the board” and in the second sentence substituted “rules” for “or by regulations or orders” preceding “of the board” and added “or orders of the commissioner” thereafter.

Prior law.

10 V.S.A. § 3211 .

ANNOTATIONS

Taking fox on own land.

Prosecution for taking fox without license should have been dismissed where fox was chased by dog into rail pile on respondent’s farm where he killed it by using butt end of gun as club, during season when such fur-bearing animals could be taken. State v. Comer, 102 Vt. 264, 147 A. 697, 1929 Vt. LEXIS 176 (1929). (Decided under prior law.)

Notes to Opinions

Training dogs for fox hunt.

Director had no authority to issue permit allowing person to train dogs by hunting fox during closed season, even though no fox was actually taken. 1938-40 Vt. Op. Att'y Gen. 188. (Decided under prior law.)

§ 4862. Repealed. 1979, No. 66, § 2(12).

History

Former § 4862. Former § 4862, relating to beaver season, was derived from 1961, No. 119 , § 1.

§ 4863. Trapping tags; fees.

The Commissioner may fix a fee not to exceed $1.00 that shall be paid by the trapper to the game warden for each skin required to be tagged and marked by regulations of the Board and such fees shall be transmitted to the Commissioner who shall pay the same into the State Treasury.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 3215(c) .

CROSS REFERENCES

Regulations for tagging and marking otter skins, see 10 App. V.S.A. § 45.

§ 4864. Transporting beaver skins; confiscation.

Any beaver skins that may come into this State in the raw state from any other state or country shall have the official stamp, tag, or seal of the state or country in which such skins were taken. All beaver skins not tagged and marked as provided shall be seized and confiscated in the name of the State.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 3216 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 4865. Repealed. 2009, No. 122 (Adj. Sess.), § 5.

History

Former § 4865. Former § 4865, relating to muskrat shooting season, was derived from 1971, No. 26 .

Subchapter 6. Birds

§ 4901. Repealed. 1979, No. 66, § 2(13).

History

Former § 4901. Former § 4901, relating to migratory birds, was derived from 1961, No. 119 , § 1, and amended by 1963, No. 128 ; and 1967, No. 3 .

§ 4902. Wild birds generally; no open season; exception.

  1. Wild birds, other than pigeons, shall not be taken, possessed, bought, or sold, at any time, except as provided by this part, rules of the Board, or orders of the Commissioner.
  2. Harm or death of a migratory bird listed as protected in the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712 as of July 1, 2020, that results from human activity where the intent was not to harm or kill the bird, but where bird harm or death was a direct and foreseeable result of the activity, is prohibited. Nothing in this section shall require the Department to implement a new permitting program.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1963, No. 112 , § 1; 1967, No. 22 , § 1; 1981, No. 85 , § 11, eff. May 7, 1981; 1991, No. 230 (Adj. Sess.), § 27; 2019, No. 172 (Adj. Sess.), § 2, eff. Oct. 8, 2020.

History

Amendments

—2019 (Adj. Sess.). Rewrote section.

—1991 (Adj. Sess.). Deleted “the English sparrow, starling, or purple grackle” following “pigeons”, substituted “rules” for “or by orders and regulations” preceding “of the board”, and inserted “or orders of the commissioner” thereafter in the first sentence.

—1981. Deleted “crow” preceding “purple grackle” in the first sentence.

—1967. Deleted “kingfisher” following “purple grackle” in the first sentence.

—1963. Inserted “pigeons” preceding “the English sparrow” in the first sentence.

Prior law.

10 V.S.A. § 3267 .

CROSS REFERENCES

Regulations for birds, see 10 App. V.S.A. § 21.

Notes to Opinions

Generally.

General prohibition against taking of wild birds did not apply to those instances in which legislature had enacted specific legislation. 1958-60 Vt. Op. Att'y Gen. 97. (Decided under prior law.)

Sale of game birds.

Game birds could not be bought or sold in this state except under permit issued under provisions of former section 5771 of the Public Laws. 1938-40 Vt. Op. Att'y Gen. 180. (Decided under prior law.)

Sale of plumage.

Sale of plumage of birds, except those named in former section 5749 of the Public Laws, was prohibited as well as the sale of birds, except by a breeder with a permit. 1940-42 Vt. Op. Att'y Gen. 111. (Decided under prior law.)

§ 4903. Repealed. 1991, No. 230 (Adj. Sess.), § 1(10).

History

Former § 4903. Former § 4903, relating to destruction of birds damaging property, was derived from 1961, No. 119 , § 1.

§ 4904. Use of light, snares, traps.

A person shall not take a bird with the aid of a jack or other light. A person shall not take a wild bird by trapping, netting, or snaring, or possess such a bird so taken, or set, place, or use, where birds may be taken, a net, trap, or snare for taking birds. Such a net, trap, or snare is hereby declared to be a public nuisance and may be summarily abated and destroyed by any person, and game wardens shall seize and destroy such devices. The Commissioner, however, may authorize the taking of birds by nets or traps or other devices under such regulations as he or she may prescribe.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. §§ 2987 , 2988.

§ 4905. Birds’ nests and eggs; destroying or robbing.

A person shall not take or wilfully destroy the nests or eggs of wild birds, other than pigeons, the English sparrow, starling, or purple grackle, except when necessary to protect buildings or when taken as provided in section 4152 of this title.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1963, No. 112 , § 2; 1967, No. 22 , § 2; 1981, No. 85 , § 12, eff. May 7, 1981.

History

Amendments

—1981. Deleted “crow” following “starling”.

—1967. Deleted “kingfisher” following “purple grackle”.

—1963. Inserted “pigeons” preceding “the English sparrow”.

Prior law.

10 V.S.A. § 2989 .

§ 4906. Repealed. 1975, No. 39, § 4.

History

Former § 4906. Former § 4906, relating to use of poisons, was derived from 1963, No. 112 , § 3, and amended by 1967, No. 22 , § 3.

§ 4907. Waterfowl blinds.

  1. A person shall not place a waterfowl blind or cause the same to be placed on or in the waters of the State earlier than the first Saturday of September of any year, and then only if the person’s name and address are permanently and legibly affixed thereto, by waterproof paint or rustproof tag.  A person shall remove his or her waterfowl blind, together with its contents and any surrounding debris, located on or in any waters of the State except Lake Champlain on or before May 15 of the following year.  A waterfowl blind located on or in Lake Champlain shall be removed on or before February 15 of the following year.
  2. For the purposes of this section, “waterfowl blind” means any manufactured place of concealment or any boat, raft, or similar structure that has been designed to partially or completely conceal a person taking ducks or geese.
  3. Subsection (a) of this section shall not apply to State-owned and -operated blinds on lands owned or controlled by the State.

HISTORY: Added 1971, No. 223 (Adj. Sess.); amended 1987, No. 133 (Adj. Sess.), eff. April 4, 1988.

History

Amendments

—1987 (Adj. Sess.). Subsec. (a): Substituted “waterfowl” for “duck” preceding “blind” and “the person’s” for “his” preceding “name” in the first sentence, rewrote the second sentence, and added the third sentence.

§ 4908. Youth turkey hunting weekend.

  1. The Saturday and Sunday prior to opening day of spring turkey season shall be youth turkey hunting weekend.
  2. A person who is age 15 or under on the weekend of the hunt, who has successfully completed a hunter safety course, may take one wild turkey during youth turkey hunting weekend in accordance with the rules of the Board. In order to hunt under this section, a young person shall also hold valid hunting and turkey licenses under section 4255 of this title, hold a youth turkey hunting tag, and be accompanied by an unarmed adult who holds a valid Vermont hunting license and is over 18 years of age. An adult accompanying a youth under this section shall accompany no more than two young people at one time.
  3. No person shall hunt under this section on privately owned land without first obtaining the permission of the owner or occupant.
  4. The scheduled amount of a fine under section 4555 of this title shall be doubled for a violation of this section, and the fine shall be assessed against the licensed adult who is accompanying the youth pursuant to subsection (b) of this section and who has the youth hunter in his or her charge.
  5. For the purposes of this section, “accompany,” “accompanied,” or “accompanying” means direct control and supervision, including the ability to see and communicate with the youth hunter without the aid of artificial devices such as radios or binoculars, except for medically necessary devices such as hearing aids or eyeglasses. While hunting, an individual who holds a valid hunting license under subsection 4254(b) of this title shall accompany no more than two youth hunters at a time.

HISTORY: Added 2001, No. 4 , § 2, eff. April 4, 2001; amended 2009, No. 11 , § 3, eff. May 7, 2009; 2009, No. 122 (Adj. Sess.), § 2.

History

Amendments

—2009 (Adj. Sess.) Subsec. (b): Substituted “age 15 or under on the weekend of the hunt, who” for “age 15 and under, who” in the first sentence, and inserted “hold a youth turkey hunting tag” following “section 4255 of this title” in the second sentence.

Subsecs. (d) and (e): Added.

—2009. Subsec. (b): Deleted “who has at least one parent or a guardian who is a legal resident of Vermont, and” following “15 and under” in the first sentence, and inserted “Vermont” preceding “hunting license” in the second sentence.

Subsec. (c): Substituted “privately owned” for “privately-owned”.

§ 4909. Connecticut River zone.

A person holding a New Hampshire hunting license that allows taking of migratory waterfowl may take migratory waterfowl and coots from the Connecticut River zone, as defined by the Board, provided the State of New Hampshire grants the same right to a person holding a Vermont hunting license which allows taking of migratory waterfowl in the Connecticut River.

HISTORY: Added 2001, No. 79 (Adj. Sess.), § 1, eff. April 10, 2002.

§ 4910. Enforcement discretion.

For purposes of migratory bird protection in this title, the Commissioner has authority to exercise enforcement discretion, including refraining from taking any enforcement action for the incidental take of migratory birds. Enforcement, if any, shall focus on activities that have at least local population level impacts on migratory birds.

HISTORY: Added 2019, No. 172 (Adj. Sess.), § 3, eff. Oct. 8, 2020.

Chapter 115. Hunting Dogs

CROSS REFERENCES

Domestic pet or wolf-hybrid control, see 20 V.S.A. chapter 193.

§ 5001. Hunting dogs; field training.

  1. While accompanying the dog, a person may train a hunting dog to hunt and pursue:
    1. bear during the period from June 1 to September 15 and then only from sunrise to sunset;
    2. rabbits and game birds during the period from June 1 to the last Saturday in September and then only from sunrise to sunset;
    3. raccoon during the period from June 1 through any time of day or night on the day before the opening day of raccoon hunting season; and
    4. bobcat and fox during the period June 1 to March 15, except during regular deer season as prescribed in section 4741 of this title.
  2. The Commissioner may permit a person to train and condition a hunting dog between the second Monday in March and June 1. The Board may adopt rules as it considers necessary to control the training and conditioning of hunting dogs.
  3. A person training a hunting dog under this section may possess a handgun while training the hunting dog, provided that the person shall not take game by any method while training the hunting dog. As used in this section, “handgun” means a pistol or revolver that will expel a projectile by the action of an explosive.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1965, No. 48 , eff. May 7, 1965; 1973, No. 178 (Adj. Sess.), § 6; 1977, No. 137 (Adj. Sess.); 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1991, No. 230 (Adj. Sess.), § 28; 2013, No. 78 , § 19; 2013, No. 116 (Adj. Sess.), § 15, eff. May 5, 2014.

History

Amendments

—2013 (Adj. Sess.). Subdiv. (a)(3): Substituted “through any time of day or night on the day before the opening day of raccoon hunting season; and” for “to the last Saturday in September at any time of the day or night” following “June 1”.

—2013. Subsec. (a): Deleted “without a firearm” following “person”.

Subsec. (b): Deleted “without a gun” following “person”.

Subsec. (c): Added.

—1991 (Adj. Sess.). Subsec. (b): Amended generally.

—1983 (Adj. Sess.). Subsec. (b): Substituted “fish and wildlife board” for “fish and game board”.

—1977 (Adj. Sess.). Subdiv. (a)(1): Substituted “September 15” for “September 1”.

Subdiv. (a)(3): Substituted “the last Saturday in September” for “August 1”.

Subdiv. (a)(4): Added.

—1973 (Adj. Sess.). Subsec. (a): Amended generally.

—1965. Added subsec. (b).

Prior law.

10 V.S.A. § 3301 .

CROSS REFERENCES

Dogs pursuing deer or moose, see § 4748 of this title.

§ 5002. Hunting dogs; field trials; fee.

The Commissioner may issue permits to organized groups to hold field trials for hunting dogs. Persons seeking a permit shall submit an application to the Commissioner as prescribed by the Commissioner and shall pay a fee of $50.00.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 157 (Adj. Sess.), § 1, eff. April 13, 1984; 1997, No. 155 (Adj. Sess.), § 48, eff. Jan. 1, 1999.

History

Amendments

—1997 (Adj. Sess.). Substituted “$50.00” for “$15.00” at the end of the section.

—1983 (Adj. Sess.). Rewrote the first sentence and added the second sentence.

Prior law.

10 V.S.A. § 3302 .

§ 5003. Retrieving dogs; field trials.

The Commissioner may issue a license to any responsible person or field trial group to hold a field trial for retrieving dogs, or bird dogs, with game birds that have been propagated or legally acquired and released on the day of the trial on premises owned or controlled by the individual or group conducting the same, and shot for such purposes during daylight hours. Such trials shall be held under the supervision of the Department of Fish and Wildlife.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 158 (Adj. Sess.), eff. April 13, 1984.

History

Amendments

—1983 (Adj. Sess.). Substituted “fish and wildlife department” for “fish and game department” in the second sentence.

Prior law.

10 V.S.A. § 3303 .

§ 5004. Retriever field trials; fee.

The Commissioner may issue permits which shall authorize a holder or authorized designee to take all of the birds released by the holder of the permit or designee on the day the trial is in progress. Persons seeking a permit shall submit an application to the Commissioner as prescribed by the Commissioner, and shall pay a fee of $50.00.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 157 (Adj. Sess.), § 2, eff. April 13, 1984; 1997, No. 155 (Adj. Sess.), § 49, eff. Jan. 1, 1999.

History

Amendments

—1997 (Adj. Sess.). Substituted “$50.00” for “$15.00” at the end of the section.

—1983 (Adj. Sess.). Section amended generally.

Prior law.

10 V.S.A. § 3304 .

§ 5005. Repealed. 1983, No. 157 (Adj. Sess.), § 5.

History

Former § 5005. Former § 5005, relating to tags for birds killed, was derived from 1961, No. 119 , § 1.

§ 5006. Exemption; hunting license.

Any person who participates in a trial under the provisions of sections 5002-5004 of this title shall not be required to have a hunting license.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1983, No. 157 (Adj. Sess.), § 3, eff. April 13, 1984.

History

Amendments

—1983 (Adj. Sess.). Substituted “5002-5004” for “5003-5005” following “sections”.

Prior law.

10 V.S.A. § 3306 .

§ 5007. Hunting black bear with dogs.

  1. No person shall pursue black bear with the aid of dogs, either for training or taking purposes, without a permit issued by the Commissioner. The number of permits issued to nonresidents in any given year shall not exceed 10 percent of the number of permits issued to residents in the preceding year. The Commissioner shall establish a process for determining which nonresidents are to receive a permit if there are more nonresident applicants than nonresident permits. A nonresident may train dogs to hunt bear only while training season is in effect in the nonresident’s home state and subject to the laws and regulations of this State.
  2. Permits will be issued to residents for a fee of $50.00.
  3. Application fees for nonresidents shall be $10.00 with a permit fee of $200.00 for successful applicants.

HISTORY: Added 1989, No. 184 (Adj. Sess.); amended 1997, No. 155 (Adj. Sess.), § 50, eff. Jan. 1, 1999.

History

Amendments

—1997 (Adj. Sess.). Designated the first paragraph as subsec. (a) and added subsecs. (b) and (c).

Chapter 117. Transportation

§ 5101. Fish and wildlife; restrictions.

  1. A person shall not:
    1. Transport fish or wildlife taken by another except in the presence of the person who took that fish or wildlife.
    2. Transport fish or wildlife during the closed season for the taking of that fish or wildlife.
    3. Transport in one day more than the number or limit of fish or wildlife that may legally be taken in a day.  However, a person traveling on land between a temporary abode and the person’s domicile may transport in one day the number or limit of fish and wildlife that may legally be taken in two days. While on the waters of the State, a person may, in no case, transport more than the limit of fish that may be taken in one day unless the fish is frozen, processed, and packaged for storage.
  2. Quadrupeds lawfully taken in the protection of property may be transported at any time subject to the provisions of this chapter.
  3. Deer and bear may be transported during the first 20 days following the open season therefor, subject to the provisions of this chapter.
  4. Fish that have been sold at wholesale or retail may be transported at any time by any person.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1973, No. 178 (Adj. Sess.), § 7; 1989, No. 177 (Adj. Sess.).

History

Revision note

—2015. Substituted “wildlife” for “game” throughout the section in accordance with 1983, No. 158 (Adj. Sess.), § 1.

Amendments

—1989 (Adj. Sess.). Subdiv. (a)(3): Inserted “on land” following “travelling”, substituted “the person’s” for “his” preceding “domicile”, deleted “he” preceding “may legally” and substituted “be taken” for “take” thereafter in the second sentence and added the third sentence.

—1973 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Amended generally.

Subsec. (c): Added.

Subsec. (d): Added.

Prior law.

10 V.S.A. § 3401 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

Transport and transportation defined, see § 4001(24) of this title.

Transportation of big game, see § 4784 of this title.

§ 5102. Common carrier.

A person while engaged in the business of a common carrier shall not transport as owner fish or game, or receive for transportation or transport fish or game protected by law unless accompanied by the owner thereof and tagged or marked as provided by law, except as otherwise provided.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 3402 .

§ 5103. Marking for transportation.

Fish, wildlife, and fur-bearing animals, or a package containing the same, if placed in the custody of a common carrier, shall have affixed thereto a tag plainly marked with the name of the consignor and consignee, the kind and number of such game and fur-bearing animals and the kind and weight of such fish, the name of the station whence the shipment is made, and its destination, except as otherwise provided.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Revision note

—2015. Substituted “wildlife” for “game” in accordance with 1983, No. 158 (Adj. Sess.), § 1.

Prior law.

10 V.S.A. § 3403 .

§ 5104. Carcass of deer; fish and game imported from without United States or raised on propagation farms.

  1. The carcass of a deer taken by a resident or by a person as provided in sections 5201 and 5202 of this title, when open to view, may be transported during the time specified in section 5101 of this title by a common carrier without being tagged as provided in section 5102 of this title when accompanied by the owner thereof or, if so tagged, may be transported unaccompanied by the owner thereof.
  2. Fish and wildlife imported from without the United States, or raised on propagation farms as provided in this part, when so tagged, may be transported unaccompanied by the owner thereof in any number and quantity.  Fish and wildlife for propagation purposes and the head, hide, feet, and fur of quadrupeds and the plumage and skins of game birds legally taken and possessed may be transported without being so tagged when accompanied by the owner thereof.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

References in text.

In subsec. (a), changed “sections 5201-5203” to “sections 5201 and 5202” to conform with repeal of section 5203.

Revision note

—2015. In subsec. (b), substituted “Fish and wildlife” for “Fish and Game” in accordance with 1983, No. 158 (Adj. Sess.), § 1.

Prior law.

10 V.S.A. § 3404 .

CROSS REFERENCES

Transportation of big game, see § 4784 of this title.

§ 5105. Conditions precedent to acceptance for transportation.

A person required to have a license, as provided in section 4251 of this title, who takes fish or wild animals under such a license, if he or she places such fish or wild animals in the custody of a person acting as a common carrier, shall exhibit to such person such license and thereupon such person shall permit the transportation of such fish and wild animals as follows but not otherwise: a resident combination or hunting license, of as many wild animals as the holder may lawfully take in one season; a resident combination or fishing license, of as much fish as the holder thereof may lawfully take in two days; a nonresident combination license, of as much fish and as many wild animals as the holder thereof may lawfully take in one legal day; a nonresident fishing license, of as much fish as the holder thereof may lawfully take in one legal day; a nonresident hunting license, of as many wild animals as the holder thereof may lawfully take in one legal day.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 3406 .

CROSS REFERENCES

Wild animals defined, see § 4001(15) of this title.

§ 5106. Duties of carriers.

  1. A person acting as a common carrier so receiving fish or wild animals for shipment shall indorse in ink on the back of the license under which same is to be shipped the name of the station from which the shipment is made, the destination, and the number of each kind of wild animal or the weight of each kind of fish.  Such fish and wild animals shall have affixed thereto a tag plainly marked with the license number of the shipper thereof, and the kind and number of such game and the kind and weight of such fish.
  2. Such game and animals shall be open to view.
  3. If the license that is presented with consignment of fish or wild animals for transportation has an endorsement thereon showing that the number of such game or the weight of such fish, which may be lawfully taken by a nonresident in one legal day, or by a resident in two legal days, as the case may be, has already been shipped on such license, the person to whom the consignment is offered shall not accept it.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 3407 .

CROSS REFERENCES

Wild animals defined, see § 4001(15) of this title.

Chapter 119. Private Preserves, Propagation Farms, Private Ponds, Refuges, and Shooting Grounds

§ 5201. Notices; posting.

    1. An owner, or a person having the exclusive right to take game upon land or the waters thereon, who desires to protect his or her land or private pond or propagation farm over which he or she has exclusive control may maintain notices stating that: (a) (1) An owner, or a person having the exclusive right to take game upon land or the waters thereon, who desires to protect his or her land or private pond or propagation farm over which he or she has exclusive control may maintain notices stating that:
      1. the shooting, trapping, or taking of game or wild animals is prohibited or is by permission only;
      2. fishing or the taking of fish is prohibited or is by permission only;
      3. fishing, hunting, trapping, or taking of game is prohibited or is by permission only.
    2. “Permission only signs” authorized under this section shall contain the owner’s name and a method by which to contact the property owner or a person authorized to provide permission to hunt, fish, or trap on the property.
  1. Notices prohibiting the taking of game shall be erected upon or near the boundaries of lands to be affected with notices at each corner and not over 400 feet apart along the boundaries thereof. Legible signs must be maintained at all times and shall be dated each year. These signs shall be of a standard size and design as the Commissioner shall specify.
  2. The owner or person posting the lands shall record this posting annually in the town clerk’s office of the town in which the land is located. The recording form shall be furnished by the Commissioner and shall be filled out in triplicate, one copy to be retained by the town clerk, one copy to the Commissioner, and one copy to be retained by the person having the right to post the lands. The forms shall contain the information as to the approximate number of acres posted, location in town, date of posting, and signature of person so posting the lands. The town clerk shall file the record, and it shall be open to public inspection. The town clerk shall retain a fee of $5.00 for this recording.
  3. Land posted as provided in subsection (b) of this section shall be enclosed land for the purposes herein.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1967, No. 302 (Adj. Sess.), § 1, eff. March 20, 1968; 1979, No. 161 (Adj. Sess.), § 11; 2013, No. 78 , § 20; 2015, No. 145 (Adj. Sess.), § 16.

History

Amendments

—2015 (Adj. Sess.). Subdiv. (a)(1): Substituted “game” for “fish or wild animals” preceding “upon land” and “private pond or propagation farm” for “waters” in the introductory language, and rewrote subdiv. (C).

Subsec. (b): Substituted “game” for “wild animals” preceding “shall be erected” in the first sentence and deleted the former second sentence.

—2013. Section amended generally.

—1979 (Adj. Sess.). Subsec. (c): Substituted “$ 5.00” for “$ 2.00” following “a fee of” in the fifth sentence.

—1967 (Adj. Sess.). Subsec. (b): Amended generally.

Subsec. (c): Amended generally.

Subsec. (d): Added.

Prior law.

10 V.S.A. § 3501 .

CROSS REFERENCES

Filing notice of intent to make waters a private preserve or propagation farm, see § 4141 of this title.

Safety zones, see § 4710 of this title.

Notes to Opinions

Flooded areas.

Where land which owner posted against hunting became flooded each spring due to spring runoff of creek, hunters did not have the right to take muskrat on the land from boats on the theory that the waters were boatable, for the test for boatable waters is whether, in their ordinary condition, they are capable of carrying public transportation or commerce, and the flooded land was not boatable under such test. 1970-72 Vt. Op. Att'y Gen. 191.

Notices.

It was incumbent upon owner of land which had been stocked and posted to remove signs used as notices if waters on posted premises had not been stocked as provided by former section 5769 of the Public Laws. 1942-44 Vt. Op. Att'y Gen. 196. (Decided under prior law.)

Signs and notices prohibiting fishing should have shown date that stream was stocked or that fish were planted, even though failure to date the notices did not necessarily invalidate the stocking. 1926-28 Vt. Op. Att'y Gen. 38. (Decided under prior law.)

Power of state.

Public waters, private preserves and posted waters were all subject to police power of state. 1938-40 Vt. Op. Att'y Gen. 182. (Decided under prior law.)

Purpose.

Former section 5764 of the Public Laws, enacted for preservation of fish and game, was designed not so much to punish trespassers upon land merely for trespass committed, as to protect owner of lands within state in his exclusive right of catching fish, and of trapping, hunting, and killing game upon his own premises, provided he complied with the conditions therein prescribed as well as those of former section 5642 of the Public Laws. 1938-40 Vt. Op. Att'y Gen. 182. (Decided under prior law.)

Stocking.

Where owner who had lawfully established private fish preserve failed to stock waters as required by former section 5765 of the Public Laws, the fish and game service (now fish and wildlife department) could stock such waters without obtaining owner’s consent. 1942-44 Vt. Op. Att'y Gen. 196. (Decided under prior law.)

ANNOTATIONS

Owner.

One who owned the exclusive right to hunt, trap and fish upon lands of another was the “owner” of the land within the meaning of former section. Payne v. Sheets, 75 Vt. 335, 55 A. 656, 1903 Vt. LEXIS 138 (1903). (Decided under prior law.)

Power of state.

Because a union municipal district owned or leased all of the land within its boundaries, its management practices had the effect of banning hunting and trapping throughout those boundaries, but the Legislature has not prohibited the district from managing its land in that way. Thus, the district’s actions in posting its own land to ban hunting and trapping were not only affirmatively authorized by the Legislature, but also free of any statutory or constitutional prohibition. Hunters, Anglers & Trappers Association of Vermont, Inc. v. Winooski Valley Park District, 2006 VT 82, 181 Vt. 12, 913 A.2d 391, 2006 Vt. LEXIS 317 (2006).

Cited.

Cited in Cabot v. Thomas, 147 Vt. 207, 514 A.2d 1034, 1986 Vt. LEXIS 399 (1986); State v. Kirchoff, 156 Vt. 1, 587 A.2d 988, 1991 Vt. LEXIS 8 (1991); State v. Rogers, 161 Vt. 236, 638 A.2d 569, 1993 Vt. LEXIS 148 (1993).

Law Reviews —

Recreational rights in public water overlying private property, see 8 Vt. L. Rev. 301 (1983).

§ 5202. Private ponds, stocking.

The Commissioner may, at his or her discretion, stock a private pond that allows some charitable or nonprofit organizations to use the area at no charge. In that case, the owner may prohibit the taking of fish or game by the general public under section 5201 of this title.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1989, No. 223 (Adj. Sess.), § 1; 1991, No. 14 ; 2015, No. 145 (Adj. Sess.), § 17.

History

Amendments

—2015 (Adj. Sess.). Rewrote the section.

—1991. Subsec. (b): Added the second sentence.

—1989 (Adj. Sess.). Section amended generally.

Prior law.

10 V.S.A. § 3502 .

Notes to Opinions

Stocking by state.

Where owner who had lawfully established private fish preserve failed to stock waters as required by former section 5765 of the Public Laws, it was not necessary for fish and game service (now fish and wildlife department) to obtain owner’s consent before stocking waters involved. 1942-44 Vt. Op. Att'y Gen. 196. (Decided under prior law.)

§ 5203. Repealed. 1989, No. 223 (Adj. Sess.), § 2.

History

Former § 5203. Former § 5203, outlining the duties of town clerk, was derived from 1961, No. 119 , § 1.

§ 5204. Poaching; private preserves.

  1. A person who, without the written consent of the owner or person having the exclusive right to take fish or wild animals, takes fish, game, or other animals or carries or possesses a firearm, bow and arrow, or wild animal trap in private preserve as posted under section 5201 of this title or mutilates or defaces the notice called for in subsection 5201(b) of this title shall be fined not less than $25.00 nor more than $100.00.
  2. The owner or person in control of such private preserve may recover the actual damages sustained by him or her in a civil action on this statute.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1967, No. 302 (Adj. Sess.), § 2, eff. March 20, 1968; 1969, No. 16 , § 3, eff. March 11, 1969.

History

Revision note—

In subsec. (b), substituted “a civil action” for “an action of tort” pursuant to V.R.C.P. 2 and 81(c) and 1971, No. 185 (Adj. Sess.), § 236(d), set out under § 219 of Title 4.

Amendments

—1969. Subsec. (a): Inserted “who,” following “person”.

—1967 (Adj. Sess.). Subsec. (a): Amended generally.

Prior law.

10 V.S.A. § 3504 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

ANNOTATIONS

Cited.

Cited in State v. Thomas, 140 Vt. 403, 438 A.2d 400, 1981 Vt. LEXIS 621 (1981).

Law Reviews —

Recreational rights in public water overlying private property, see 8 Vt. L. Rev. 301 (1983).

§ 5205. Injuring notice.

A person shall not damage or remove a notice maintained under the provisions of section 5201 of this title.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 3505 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 5206. Maintaining notice one year.

A person shall not maintain a notice prohibiting fishing for more than one year after such waters were last stocked.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 3506 .

Notes to Opinions

Adjacent landowners.

Landowners adjacent to brook stocked by state could maintain signs prohibiting fishing although they had not complied with former section 5642 of the Public Laws to make water a private preserve. 1938-40 Vt. Op. Att'y Gen. 182. (Decided under prior law.)

No trespassing signs.

Owner could maintain “no trespassing” signs without incurring liability under former section 5769 of the Public Laws. 1942-44 Vt. Op. Att'y Gen. 196. (Decided under prior law.)

Removal of signs.

It was incumbent upon the owner of land which had been stocked and posted to remove the signs used as notices if the waters on the posted premises had not been stocked as provided by law. 1942-44 Vt. Op. Att'y Gen. 196. (Decided under prior law.)

§ 5207. Propagation farms.

  1. The Commissioner may issue a license to propagate fish and wild animals and shall make and publish regulations governing such industry. The application for such a breeder’s license shall be in writing, addressed to the Commissioner, shall be signed by the applicant, and shall describe the land or waters owned or leased by such breeder to be used for such purpose and shall contain such other facts as may be required by the Commissioner. When it appears that the application is made in good faith, the Commissioner may issue such a license, which shall continue in force for one year, upon the payment of a fee of $50.00 for a new application and $10.00 for a renewal of an application. Fees collected under this section shall be deposited into the Fish and Wildlife Fund.
  2. All health testing of cultured trout shall be provided to commercial trout farms through an aquaculture inspection program conducted jointly by the Agency of Agriculture, Food and Markets and the Department of Fish and Wildlife as provided by 6 V.S.A. § 1154a and part 4 of this title.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1991, No. 161 (Adj. Sess.), § 1; 1993, No. 202 (Adj. Sess.), § 1; 2003, No. 42 , § 2, eff. May 27, 2003.

History

Revision note—

In subsec. (b), substituted “part 4 of this title” for “chapter 4 of this title” to correct an error in the reference.

Amendments

—2003. Substituted “agency of agriculture, food and markets” for “department of agriculture, food and markets” in subsec. (b).

—1993 (Adj. Sess.) Designated the existing provisions of the section as subsec. (a) and added subsec. (b).

—1991 (Adj. Sess.). Deleted “he” preceding “shall” in the first sentence, substituted “$50.00 for a new application and $10.00 for a renewal of an application” for “$2.00 and fees for tagging which shall be fixed by the commissioner, which fees shall be paid by him into the state treasury” following “fee of” in the third sentence, and added the fourth sentence.

Prior law.

10 V.S.A. § 3541 .

CROSS REFERENCES

Filing notice of intent to make waters a private preserve or propagation farm, see § 4141 of this title.

Notes to Opinions

Construction with other laws.

Act relating to classification of certain fur-bearing animals as domestic animals, V.S. 1947, sections 4889-4892, 6 V.S.A. sections 3071-3073, was not inconsistent with former section 5770 of the Public Laws. 1938-40 Vt. Op. Att'y Gen. 188. (Decided under prior law.)

Sale of trout.

Any person who shipped trout into this state from another state or country whether for stocking or for food purposes and any person including the shipper who sold the same was required to have a propagation permit under former sections 5770 and 5771 of the Public Laws. 1938-40 Vt. Op. Att'y Gen. 180. (Decided under prior law.)

It was unlawful for any person to buy or sell brook trout in this state at any time unless they proceeded according to former section 6446 of the General Laws. 1930-32 Vt. Op. Att'y Gen. 158 (Decided under prior law.).

§ 5208. Repealed. 2015, No. 97 (Adj. Sess.), § 87(5).

History

Former § 5208. Former § 5208, relating to rights of breeders, was derived from 1961, No. 119 , § 1.

§ 5209. Special penalty.

A breeder selling game procured from lands other than lands covered by a license under section 5207 of this title, or who violates a provision of this part or a regulation issued under the provisions of sections 5207 and 5208 of this title, shall be fined not more than $100.00 and in addition thereto shall be punished as provided for such particular violation.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1991, No. 13 , § 6.

History

Amendments

—1991. Deleted “forfeit his license and” preceding “be fined” and made a minor change in punctuation.

Prior law.

10 V.S.A. § 3543 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 5210. Private ponds.

A person owning a natural pond of not more than 20 acres or an artificial pond entirely upon his or her premises, stocked at his or her own expense with fish artificially hatched or reared, may take fish from such pond at any time for the purpose of propagation or consumption as food on his or her premises, provided that the sources of water supply for such pond are entirely upon his or her premises or that fish do not have access to such pond from waters not under his or her control or from waters stocked at the expense of the State.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 3581 .

Notes to Opinions

Fishing license.

If private pond of less than 20 acres was so enclosed as to be absolutely within owner’s control and free passage of fish to and from it entirely and rightfully obstructed, a license to fish was not required. 1930-32 Vt. Op. Att'y Gen. 156. (Decided under prior law.)

Law Reviews —

Recreational rights in public water overlying private property, see 8 Vt. L. Rev. 301 (1983).

§ 5211. Poaching; propagation farms; injury; penalties.

A person shall not, without permission, enter upon the premises of a propagation farm and take fish, or wild animals, or upon a pond as defined in section 5210 of this title and take fish, or foul the waters of such farm or pond with a substance injurious to the life or growth of fish or break or destroy a dam, reservoir, or embankment, or divert the water, or wilfully damage such farm or pond. Such person shall be liable to the owner of such premises for damages in a civil action on this section.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Revision note—

In the second sentence, substituted “a civil action” for “an action of tort” pursuant to V.R.C.P. 2 and 81(c) and 1971, No. 185 (Adj. Sess.), § 236(d). See note under § 219 of Title 4.

Prior law.

10 V.S.A. § 3582 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 5212. Repealed. 1997, No. 110 (Adj. Sess.), § 3.

History

Former § 5212. Former § 5212, relating to landowner’s liability, was derived from 1967, No. 207 , § 2. The subject matter is now covered by chapter 203 of Title 12.

ANNOTATIONS

Annotations From Former § 5212

Cited.

Cited in State v. Kirchoff, 156 Vt. 1, 587 A.2d 988, 1991 Vt. LEXIS 8 (1991).

§ 5213. Mansfield State Forest; game refuge.

  1. A person shall not hunt, trap, take, or kill wild animals on that part of the Mansfield State Forest bounded by the Smugglers’ Notch road on the east, the road to the summit of Mt. Mansfield on the south and west, the summit of Mt. Mansfield on the west, and the present boundary of the State Forest on the north.
  2. The Commissioner may include in such game refuge private lands within the bounds mentioned in subsection (a) of this section as a part of such game refuge.
  3. The boundaries of such game refuge shall be marked by a suitable sign every one-half mile at conspicuous places along the roads and by cloth notices nailed on trees every 40 rods along the northerly boundary.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. §§ 3601-3603 .

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 5214. Vermin destruction.

Permits for the control and destruction of vermin upon a game refuge may be granted by the Commissioner to such person and at such times as he or she shall deem advisable.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

Prior law.

10 V.S.A. § 3604 .

§ 5215. Game refuges; how created; regulations.

  1. For a specified period of years, the Commissioner may prohibit or regulate the taking of wild animals upon public lands set aside with the approval of the Governor or upon private lands set aside with the consent of the owner thereof for game refuges.  At least 30 days before such a prohibition or regulation takes effect, he or she shall file a copy of the same in the office of the town clerk of the town in which such lands lie.  Notices reading “State Game Refuge; hunting is unlawful” shall be placed at conspicuous places on the boundaries of refuges.
  2. Upon receipt of a fee of $50.00, the Commissioner may issue a permit to a person, organization, or group for the purpose of rehabilitating sick or injured wild animals. For the purposes of this subsection, rehabilitation means treating the sick or injured wild animal back to a sufficient state of health so that the animal may be returned to the wild. The Commissioner shall adopt rules to implement this subsection.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961; amended 1985, No. 209 (Adj. Sess.), § 2, eff. June 2, 1986; 1997, No. 155 (Adj. Sess.), § 51, eff. Jan. 1, 1999.

History

Amendments

—1997 (Adj. Sess.). Subsec. (b): Added “Upon receipt of a fee of $50.00” at the beginning and substituted “adopt” for “promulgate” in the last sentence.

—1985 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a), rewrote the third sentence of that subsec., and added subsec. (b).

Prior law.

10 V.S.A. § 3605 .

§ 5216. Migratory bird reservations; consent of State; jurisdiction.

Consent of the State of Vermont is given to the acquisition by the United States by purchase, gift, devise, or lease of such land or water, or of land and water in Vermont, as the United States may deem necessary for the establishment of migratory bird reservations in accordance with the act of Congress, approved February 18, 1929, entitled, “Act to more effectively meet the obligations of the United States under the migratory bird treaty with Great Britain by lessening the dangers threatening migratory game birds from drainage and other causes by the acquisition of areas of land and of water to furnish perpetuity reservations for the adequate protection of such birds; and authorizing appropriations for the establishment of such areas, their maintenance and improvement and for other purposes,” reserving, however, to the State of Vermont full and complete jurisdiction and authority over all such areas not incompatible with the administration, maintenance, protection, and control thereof by the United States under the terms of the act of Congress.

HISTORY: Added 1961, No. 119 , § 1, eff. May 9, 1961.

History

References in text.

The act of Congress referred to in this section is codified as 16 U.S.C. §§ 715-715d, 715e, 715f-715k, 715n-715r.

Prior law.

10 V.S.A. § 3671 .

§ 5217. Permits to operate regulated shooting ground.

Upon receipt of a fee of $100.00, the Commissioner of Fish and Wildlife may issue a shooting grounds permit to operate a shooting ground upon which to propagate and release small game under regulations approved by the Commissioner and upon which to release small game when regularly propagated or purchased for shooting and other purposes.

HISTORY: Added 1961, No. 251 , § 1; amended 1963, No. 131 , § 1; 1983, No. 245 (Adj. Sess.), § 1; 1997, No. 72 (Adj. Sess.), § 1; 1997, No. 155 (Adj. Sess.), § 52, eff. Jan. 1, 1999.

History

Codification.

Prior to 1963 amendments, 1961, No. 251 , was not set out as sections of V.S.A. since it applied only to shooting grounds in Shoreham.

Amendments

—1997 (Adj. Sess.). Act No. 72 substituted the first occurrence of “small game” for “game birds, including, but limited to, pheasants, bobwhite quail and chukar partridges” and the second occurrence of “small game” for “game birds”.

Act No. 155 substituted “Upon receipt of a fee of $100.00, the” for “The”.

—1983 (Adj. Sess.). Substituted “fish and wildlife” for “fish and game” preceding “commissioner” and “including, but not limited to” for “namely” preceding “pheasants”, inserted “and” preceding “chukar partridges” and deleted “and turkeys” thereafter.

—1963. Deleted “or any parcel or parcels of land in the town of Shoreham, county of Addison” following “other purposes”.

§ 5218. Boundaries.

The boundary of the licensed premises shall be posted with printed notices not more than 100 yards apart and containing such words as the Commissioner may prescribe.

HISTORY: Added 1961, No. 251 , § 2; amended 1985, No. 209 (Adj. Sess.), § 3, eff. June 2, 1986.

History

Amendments

—1985 (Adj. Sess.). Substituted “the” for “said” preceding “licensed premises” and deleted “shall be marked by a single strand of wire or other fence and” thereafter.

§ 5219. Shooting regulations on regulated grounds.

Such permit shall entitle the holder or holders thereof, and their guests, to kill or take, by shooting or falconry, the small game propagated or purchased and released on the premises.

HISTORY: Added 1961, No. 251 , § 3; amended 1983, No. 245 (Adj. Sess.), § 2; 1995, No. 104 (Adj. Sess.), § 3; 1997, No. 72 (Adj. Sess.), § 2.

History

Amendments

—1997 (Adj. Sess.). Substituted “small game” for “pheasants, bobwhite quail, and chukar partridges and other game birds”.

—1995 (Adj. Sess.) Substituted “or falconry” for “only”.

—1983 (Adj. Sess.). Deleted “not to exceed seventy-five per cent of” following “shooting only”, and “each year, said propagation and release to be established to the satisfaction of the commissioner, on his request” following “the premises” and inserted “and” preceding “chukar partridges”.

§ 5220. Small game released.

All small game released on said regulated shooting grounds shall be fully able to care for themselves in a wild state.

HISTORY: Added 1961, No. 251 , § 4; amended 1983, No. 245 (Adj. Sess.), § 6; 1997, No. 72 (Adj. Sess.), § 3.

History

Amendments

—1997 (Adj. Sess.). Substituted “small game” for “birds” in the section heading and in the section text and deleted “fully winged and” preceding “fully able”.

—1983 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 5221. Period of taking released animals.

Such propagated or released small game may be taken without regard to sex, age, or bag limits. The period for taking small game on regulated shooting grounds shall be fixed by the Commissioner.

HISTORY: Added 1961, No. 251 , § 5; amended 1983, No. 245 (Adj. Sess.), § 3; 1997, No. 72 (Adj. Sess.), § 4.

History

Amendments

—1997 (Adj. Sess.). Substituted “animals” for “birds” in the section heading, and in the section text substituted “small game” for “birds” and “small game on” for “such game birds on such”.

—1983 (Adj. Sess.). Deleted “or” following “sex”, “daily or season” preceding “bag limits” and “so long as not more than the specified percentage herein enumerated are taken during the shooting period authorized” thereafter in the first sentence.

§ 5222. Other game.

All species of game, other than those specified or approved by the Commissioner for propagation and release found on the premises governed by such permit, may be taken on such premises only under the general provisions of the law governing the taking and possession of the same.

HISTORY: Added 1961, No. 251 , § 6.

§ 5223. Hunting license.

  1. Every person hunting on such regulated shooting grounds shall:
    1. be the holder of a resident or nonresident hunter’s license for the current year; or
    2. be the holder of a one-day shooting ground license issued by the owner of the shooting ground on forms prescribed by the Commissioner of Fish and Wildlife. Such shooting ground license shall be valid only on the shooting ground where issued and only for taking the small game designated by the Commissioner in the permit for that shooting ground.
  2. The fee for a one-day regulated shooting ground license shall be $5.00. At the end of each calendar quarter, the owner of a shooting ground shall forward to the Commissioner of Fish and Wildlife all revenues from one-day license sales and such records of sales as may be required by the Commissioner.

HISTORY: Added 1961, No. 251 , § 7; amended 1983, No. 245 (Adj. Sess.), § 4; 1997, No. 72 (Adj. Sess.), § 5.

History

Amendments

—1997 (Adj. Sess.). Subdiv. (a)(2): Substituted “small game” for “game birds”.

—1983 (Adj. Sess.). Section amended generally.

§ 5224. Repealed. 1983, No. 245 (Adj. Sess.), § 7.

History

Former § 5224. Former § 5224, relating to fees for hunting preserves, was derived from 1961, No. 251 , § 8.

§ 5225. Purpose.

The purpose of sections 5217-5225 of this title is to permit the orderly operation of regulated shooting grounds and to provide an additional option for sportsmen and sportswomen. Licensees shall furnish to the Commissioner whatever pertinent information he or she may request.

HISTORY: Added 1961, No. 251 , § 9; amended 1963, No. 131 , § 2; 1983, No. 245 (Adj. Sess.), § 5.

History

References in text.

In the phrase “sections 5217-5225 of this title”, section 5224 was repealed by 1983, No. 245 (Adj. Sess.), § 7.

Amendments

—1983 (Adj. Sess.). Rewrote the first sentence and deleted the third sentence.

—1963. Deleted “and distributed to the 1963 general assembly” following “department” in the third sentence.

§ 5226. Bomoseen State Game Refuge.

  1. A person shall not hunt, trap, take, or kill wild animals on the Bomoseen State Game Refuge.
  2. Notwithstanding the provisions of section 5215 of this title, the boundaries of the Refuge shall be conspicuously marked by paint or notices, or both, so as to give reasonable notice. The notices shall read “State Game Refuge: Hunting, Trapping, or Shooting Prohibited.”
  3. A person who enters this refuge to hunt, trap, take, or kill wild animals or carries or possesses a firearm, bow and arrow, or animal trap or who mutilates or defaces the notices marking the boundaries of the refuge shall be fined not less than $25.00 nor more than $100.00.
  4. This section shall not restrict the possession or use of firearms by a game warden or other law enforcement officer in the performance of his or her duties.

HISTORY: Added 1985, No. 209 (Adj. Sess.), § 1, eff. June 2, 1986.

History

Revision note

—2015. In subsec. (b), substituted “paint or notices, or both” for “paint and/or notices” to conform to V.S.A. style.

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 5227. Sport shooting ranges; municipal and State authority.

  1. “Sport shooting range” or “range” means an area designed and operated for the use of archery, rifles, shotguns, pistols, skeet, trap, black powder, or any other similar sport shooting.
  2. The owner or operator of a sport shooting range, and a person lawfully using the range, who is in substantial compliance with any noise use condition of any issued municipal or State land use permit otherwise required by law shall not be subject to any civil liability for damages or any injunctive relief resulting from noise or noise pollution, notwithstanding any provision of law to the contrary.
  3. If no municipal or State land use permit is otherwise required by law, then the owner or operator of the range and any person lawfully using the range shall not be subject to any civil liability for damages or any injunctive relief relating to noise or noise pollution.
  4. Nothing in this section shall prohibit or limit the authority of a municipality or the State to enforce any condition of a lawfully issued and otherwise required permit.
    1. In the event that the owner, operator, or user of a range is not afforded the protection set forth in subsection (b) or (c) of this section, this subsection shall apply. A nuisance claim against a range may only be brought by an owner of property abutting the range. The range shall have a rebuttable presumption that the range does not constitute any form of nuisance if the range meets the following conditions: (e) (1) In the event that the owner, operator, or user of a range is not afforded the protection set forth in subsection (b) or (c) of this section, this subsection shall apply. A nuisance claim against a range may only be brought by an owner of property abutting the range. The range shall have a rebuttable presumption that the range does not constitute any form of nuisance if the range meets the following conditions:
      1. the range was established prior to the acquisition of the property owned by the person bringing the nuisance claim; and
      2. the frequency of the shooting or other alleged nuisance activity at the range has not significantly increased since acquisition of the property owned by the person bringing the nuisance claim.
    2. The presumption that the range does not constitute a nuisance may be rebutted only by an abutting property owner showing that the activity has a noxious and significant interference with the use and enjoyment of the abutting property.
  5. Prior to use of a sport shooting range after dark for purposes of training conducted by a federal, state, county, or municipal law enforcement agency, the sport shooting range shall notify those homeowners and businesses with property abutting the range that have requested such notice from the range.
  6. If any subsection of this section is held invalid, the invalidity does not affect the other subsections of this section that can be given effect without the invalid subsection, and for this purpose, the subsections of this section are severable.

HISTORY: Added 1991, No. 20 ; amended 2001, No. 61 , § 71, eff. June 16, 2001; 2005, No. 173 (Adj. Sess.), § 1, eff. May 22, 2006.

History

Amendments

—2005 (Adj. Sess.). Subsecs. (e)-(g): Added.

—2001. Section amended generally.

ANNOTATIONS

Cited.

Cited in Wild v. Brooks, 2004 VT 74, 177 Vt. 171, 862 A.2d 225, 2004 Vt. LEXIS 252 (2004).

§ 5227a. Sport shooting range alternative dispute resolution.

Upon request of a homeowner or business that owns property abutting a sport shooting range, a range shall, at least once, attempt to resolve through mediation an issue or dispute that the homeowner or business has concerning operation of the range. The parties to such mediation may agree upon the use of a mediator to assist in the resolution of the agreed upon issue or dispute, and the parties shall share the cost of the mediator. If the parties to the mediation are unable to resolve the relevant issue or dispute through mediation, the parties may agree to submit the issue or dispute to binding arbitration pursuant to 12 V.S.A. chapter 192 and shall share the cost of the arbitration.

HISTORY: Added 2005, No. 173 (Adj. Sess.), § 2, eff. May 22, 2006.

§ 5228. A fee fishing business; permit.

  1. The Commissioner may issue a permit to operate a fee fishing business that shall entitle the holder and the holder’s clients to take fish from the holder’s private pond. The Commissioner may issue a permit that shall continue for one year upon the payment of a fee of $50.00. The permit may be renewed annually for $50.00 per year.
  2. Fish in the private pond shall come from a propagation farm permitted under section 5207 of this title or shall have been imported under a permit obtained pursuant to section 4605 of this title. No live fish shall be taken from the fee fishing premises.
  3. Fish taken under this section may be taken without regard to creel limits.
  4. A person fishing under the permit issued under this section is not required to hold a fishing license pursuant to chapter 105 of this title. The Commissioner may, in consultation with the industry, conduct surveys to assess the impact on fishing license sales. A person holding a permit issued under this section shall respond to questions asked in a survey conducted pursuant to this subsection.
  5. The Commissioner shall adopt rules governing operation of fee fishing businesses that are necessary to ensure that operators, growers, and fishery resources of the State are protected. The rules may include mandatory testing of fish health and imposition of a prohibition on the moving or harvesting of any fish from a fee fishing business found to contain fish that carry an infectious disease.

HISTORY: Added 1993, No. 63 , § 1; amended 2005, No. 42 , § 3.

History

Amendments

—2005. Subsec. (e): Added.

Chapter 121. Bounty on Noxious Animals

§§ 5301-5304. Repealed. 1971, No. 2, § 1.

History

Former §§ 5301-5304. Former §§ 5301-5304, relating to a bounty on noxious animals, were derived from 1961, No. 119 , § 1.

Chapter 123. Protection of Endangered Species

History

Legislative findings and statement of intent. 1981, No. 188 (Adj. Sess.), § 1, provided:

“(a) The state of Vermont recognizes the value, which plants, fish and wildlife in their natural environment have for public enjoyment, ecological balance, and scientific study. The state also recognizes the need for protection and preservation of these species and for encouragement of public understanding regarding the desirability of these protection and preservation efforts.

“(b) By passage of this act [which added this chapter, amended section 4046 of this title and repealed sections 3651-3653 of Title 13], the general assembly intends to declare as state policy: that species of wildlife and wild plants normally occurring within this state which may be found to be threatened or endangered within the state should be accorded protection as necessary to maintain and enhance their numbers; that the state should assist in the protection of species of wildlife and wild plants which are determined to be ‘threatened’ or ‘endangered’ elsewhere pursuant to the federal Endangered Species Act [16 U.S.C. § 1531 et seq.]; and that adequate federal funding for the conservation of threatened and endangered species may be made available to the agency of environmental conservation under Public Law 96-366 [16 U.S.C. § 2901 et seq.] and other laws.

“(c) The general assembly further intends to allow for the orderly development of the state without undue hardship being caused by the provisions of this act providing for the power of issuing variances.”

ANNOTATIONS

Cited.

Cited in Elliott v. United States Fish & Wildlife Service, 747 F. Supp. 1094, 1990 U.S. Dist. LEXIS 13528 (D. Vt. 1990).

§ 5401. Definitions.

As used in this chapter:

  1. “Accepted silvicultural practices” means the accepted silvicultural practices defined by the Commissioner of Forests, Parks and Recreation, including the Acceptable Management Practices for Maintaining Water Quality on Logging Jobs in Vermont adopted by the Commissioner of Forests, Parks and Recreation.
  2. “Agency” means the Agency of Natural Resources.
  3. “Conserve,” “conserving,” and “conservation” mean to use and the use of all methods and procedures for maintaining or increasing:
    1. the number of individuals within a population of a species;
    2. the number of populations of a species; and
    3. populations of wildlife or wild plants to the optimum carrying capacity of the habitat.
  4. “Critical habitat” for a threatened species or endangered species means:
    1. a delineated location within the geographical area occupied by the species that:
      1. has the physical or biological features that are identifiable, concentrated, and decisive to the survival of a population of the species; and
      2. is necessary for the conservation or recovery of the species; and
      3. may require special management considerations or protection; or
    2. a delineated location outside the geographical area occupied by a species at the time it is listed under section 5402 of this title that:
        1. was historically occupied by a species; or

        (II) contains habitat that is hydrologically connected or directly adjacent to occupied habitat; and

      1. contains habitat that is identifiable, concentrated, and decisive to the continued survival of a population of the species; and
      2. is necessary for the conservation or recovery of the species.
  5. “Destroy or adversely impact” means, with respect to critical habitat, a direct or indirect activity that negatively affects the value of critical habitat for the survival, conservation, or recovery of a listed threatened or endangered species.
  6. “Endangered species” means a species listed as endangered under this chapter or under the federal Endangered Species Act.
  7. “Endangered Species Act” and “federal Endangered Species Act” means the Endangered Species Act of 1973, Public Law 93-205, as amended.
  8. “Farming” shall have the same meaning as used in subdivision 6001(22) of this title.
  9. “Forestry operations” means activities related to the management of forests, including a timber harvest; pruning; planting; reforestation; pest, disease, and invasive species control; wildlife habitat management; and fertilization. “Forestry operations” include the primary processing of forest products of commercial value on a parcel where the timber harvest occurs.
  10. “Habitat” means the physical and biological environment in which a particular species of plant or animal lives.
  11. “Harming,” as used in the definition of “take” or “taking” under subdivision (14) of this section, means:
    1. an act that kills or injures a threatened or endangered species; or
    2. the destruction or imperilment of habitat that kills or injures a threatened or endangered species by significantly impairing continued survival or essential behavioral patterns, including reproduction, feeding, or sheltering.
  12. “Methods” and “procedures” means all activities associated with natural resources management, including scientific research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplanting. The terms also include the periodic or continuous protection of species or populations, where appropriate, and the regulated taking of individuals of the species or population in extraordinary cases where population pressures within a habitat cannot be otherwise relieved.
  13. “Optimum carrying capacity” for a species means a population level of that species that, in that habitat, can sustainably coexist with healthy populations of all wildlife and wild plant species normally present.
  14. “Plant” means any member of the plant kingdom, including seeds, roots, and other parts thereof. As used in this chapter, plants shall include fungi.
  15. “Possession” means holding, controlling, exporting, importing, processing, selling, offering to sell, delivering, carrying, transporting, or shipping by any means a member of a species.
  16. “Secretary” means the Secretary of Natural Resources.
  17. “Species” means wildlife or wild plants and any subspecies or other group of wildlife or wild plants of the same species, the members of which may interbreed when mature.
  18. “Take” or “taking”:
    1. With respect to wildlife designated a threatened or endangered species, means:
      1. pursuing, shooting, hunting, killing, capturing, trapping, harming, snaring, or netting wildlife;
      2. an act that creates a risk of injury to wildlife, whether or not the injury occurs, including harassing, wounding, or placing, setting, drawing, or using any net or other device used to take animals; or
      3. attempting to engage in or assisting another to engage in an act set forth under subdivision (i) or (ii) of this subdivision (18)(A).
    2. With respect to a wild plant designated a threatened or endangered species, means uprooting, transplanting, gathering seeds or fruit, cutting, injuring, harming, or killing or any attempt to do the same or assisting another who is doing or is attempting to do the same.
  19. “Threatened species” means a species listed as a threatened species under this chapter or determined to be a “threatened species” under the federal Endangered Species Act.
  20. “Wildlife” means any member of a nondomesticated species of the animal kingdom, whether reared in captivity or not, including any mammal, fish, bird, amphibian, reptile, mollusk, crustacean, arthropod, or other invertebrate and also including any part, product, egg, offspring, dead body, or part of the dead body of any such wildlife.

HISTORY: Added 1981, No. 188 (Adj. Sess.), § 2; amended 1985, No. 192 (Adj. Sess.), § 1; 1987, No. 76 , § 18; 2015, No. 145 (Adj. Sess.), § 19.

History

References in text.

The Endangered Species Act of 1973, Public Law 93-205, referred to in subdiv. (8), is codified principally as 16 U.S.C. § 1531 et seq.

Revision note

—2020. In subsec. (20), deleted “, without limitation,” following “including” in accordance with 2013, No. 5 , § 4.

—2017. In subdiv. (18)(A)(iii), substituted “this subdivision (18)(A)” for “this subdivision (14)(A)” in order to correct the reference.

Amendments

—2015 (Adj. Sess.). Section amended generally.

—1987. Subdiv. (1): Substituted “agency of natural resources” for “agency of environmental conservation”.

—1985 (Adj. Sess.). Subdiv. (5): Amended generally.

Statutory revision. 2015, No. 145 (Adj. Sess.), § 29 provides: “The Office of Legislative Council, in its statutory revision capacity, is directed to renumber the subdivisions of 10 V.S.A. § 5401 in numerical and alphabetical order and to correct any cross-references in statute to 10 V.S.A. § 5401 to reflect the renumbered subdivisions.”

§ 5402. Endangered and threatened species lists.

  1. The Secretary shall adopt by rule a State endangered species list and a State threatened species list. The listing for any species may apply to the whole State or to any part of the State and shall identify the species by its most recently accepted genus and species names and, if available, the common name.
  2. The Secretary shall determine a species to be endangered if it normally occurs in the State and its continued existence as a sustainable component of the State’s wildlife or wild plants is in jeopardy.
  3. The Secretary shall determine a species to be threatened if:
    1. it is a sustainable component of the State’s wildlife or wild plants;
    2. it is reasonable to conclude based on available information that its numbers are declining; and
    3. unless protected, it will become an endangered species.
  4. In determining whether a species is threatened or endangered, the Secretary shall consider:
    1. the present or threatened destruction, degradation, fragmentation, modification, or curtailment of the range or habitat of the species;
    2. any killing, harming, or over-utilization of the species for commercial, sporting, scientific, educational, or other purposes;
    3. disease or predation affecting the species;
    4. the adequacy of existing regulation;
    5. actions relating to the species carried out or about to be carried out by any governmental agency or any other person who may affect the species;
    6. competition with other species, including nonnative invasive species;
    7. the decline in the population;
    8. cumulative impacts; and
    9. other natural or human-made factors affecting the continued existence of the species.
  5. In determining whether a species is threatened or endangered or whether to delist a species, the Secretary shall:
    1. use the best scientific, commercial, and other data available;
    2. at least 30 days prior to commencement of rulemaking, notify and consult with appropriate officials in Canada, appropriate State and federal agencies, other states having a common interest in the species, affected landowners, and any interested persons; and
    3. notify the appropriate officials and agencies of Quebec or any state contiguous to Vermont in which the species affected is known to occur.

HISTORY: Added 1981, No. 188 (Adj. Sess.), § 2; amended 2015, No. 145 (Adj. Sess.), § 20.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Listing of endangered and threatened plants and animals, see 10 App. V.S.A. § 10.

§ 5402a. Critical habitat; listing.

  1. Except as provided for under subsection (f) of this section, the Secretary may, after the consultation required under subsection 5408(e) of this section, adopt or amend by rule a critical habitat designation list for threatened or endangered species. Critical habitat may be designated in any part of the State. The Secretary shall not be required to designate critical habitat for every State-listed threatened or endangered species. When the Secretary designates critical habitat, the Secretary shall identify the species for which the designation is made, including its most recently accepted genus and species names and, if available, its common name.
  2. The Secretary shall designate only critical habitat that meets the definition of “critical habitat” under this chapter. In determining whether and where to designate critical habitat for a State-listed threatened or endangered species, the Secretary shall, after consultation with and consideration of recommendations of the Secretary of Agriculture, Food and Markets, the Secretary of Transportation, the Secretary of Commerce and Community Development, and the Commissioner of Forests, Parks and Recreation, consider the following:
    1. the current or historic use of the habitat by the listed species;
    2. the extent to which the habitat is decisive to the survival and recovery of the listed species at any stage of its life cycle;
    3. the space necessary for individual and population growth of the listed species;
    4. food, water, air, light, minerals, or other nutritional or physiological requirements of the listed species;
    5. cover or shelter for the listed species;
    6. sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; migration corridors; and overwintering;
    7. the present or threatened destruction, degradation, fragmentation, modification, or curtailment of the range or habitat of the listed species;
    8. the adequacy of existing regulation;
    9. actions relating to the listed species carried out or about to be carried out by any governmental agency or any other person that may affect the listed species;
    10. cumulative impacts; and
    11. natural or human-made factors affecting the continued existence of the listed species.
  3. In determining whether to designate critical habitat for a State-listed threatened or endangered species, the Secretary shall:
    1. use the best scientific, commercial, and other data available;
    2. notify and consult with appropriate officials in Canada, appropriate State and federal agencies, other states having a common interest in the species, affected landowners, any municipality where the proposed designation is located, and any interested persons at least 60 days prior to commencement of rulemaking;
    3. notify the appropriate officials and agencies of Quebec and any state contiguous to Vermont in which the species affected is known to occur; and
    4. if a critical habitat designation is proposed in a growth center, new town center, or neighborhood development area designated under 24 V.S.A. chapter 76A, notify the Secretary of Commerce and Community Development and any municipality in which the designation is proposed.
  4. Prior to initiating rulemaking under this section to designate critical habitat, the Secretary shall notify the owner of record of any land on which critical habitat is proposed for designation. The Secretary shall make all reasonable efforts to work cooperatively with affected landowners.
  5. Where appropriate, the Secretary shall include well-established mitigation practices and best management practices in the critical habitat designation rule.
  6. The Secretary shall not designate critical habitat in a designated downtown or village center, designated under 24 V.S.A. chapter 76A.

HISTORY: Added 2015, No. 145 (Adj. Sess.), § 21.

§ 5403. Protection of endangered and threatened species.

  1. Except as authorized under this chapter, a person shall not:
    1. take, possess, or transport wildlife or wild plants that are members of a threatened or endangered species; or
    2. destroy or adversely impact critical habitat.
  2. Any person who takes a threatened or endangered species shall report the taking to the Secretary.
  3. The Secretary may, with advice of the Endangered Species Committee and after the consultation required under subsection 5408(e) of this section, adopt rules for the protection, conservation, or recovery of endangered and threatened species. The rules may establish application requirements for an individual permit or general permits issued under this section, including requirements that differ from the requirements of subsection 5408(h) of this title.
  4. The Secretary may bring an environmental enforcement action against any person who violates subsection (a) or (b) of this section or rules adopted under this chapter in accordance with chapters 201 and 211 of this title.
  5. Instead of bringing an environmental enforcement action for a violation of this chapter or rules adopted under this chapter, the Secretary may refer violations of this chapter to the Commissioner of Fish and Wildlife for criminal enforcement.
  6. In a criminal enforcement action, a person who knowingly violates a requirement of this chapter or a rule of the Secretary adopted under subsection (c) of this section related to taking, possessing, transporting, buying, or selling a threatened or endangered species shall be fined in accordance with section 4518 of this title, and the person shall pay restitution under section 4514 of this title.
  7. Any person who violates subsection (a) or (b) of this section by knowingly injuring a member of a threatened or endangered species or knowingly destroying or adversely impacting critical habitat and who is subject to criminal prosecution may be required by the court to pay restitution for:
    1. actual costs and related expenses incurred in treating and caring for the injured plant or animal to the person incurring these expenses, including the costs of veterinarian services and Agency of Natural Resources staff time; or
    2. reasonable mitigation and restoration costs such as species restoration plans; habitat protection; and enhancement, transplanting, cultivation, and propagation.

HISTORY: Added 1981, No. 188 (Adj. Sess.), § 2; amended 1985, No. 192 (Adj. Sess.), § 2; 1987, No. 216 (Adj. Sess.); 2015, No. 61 , § 8, eff. June 17, 2015; 2015, No. 145 (Adj. Sess.), § 22.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—2015. Amended subsecs. (c), (d), and (f) generally.

—1987 (Adj. Sess.). Subsec. (d): Added “on the first offense” following “$500.00” at the end of the first sentence and added the second sentence.

Subsec. (f): Added.

—1985 (Adj. Sess.). Subsec. (a): Amended generally.

CROSS REFERENCES

Point assessment for violations of section, see § 4502 of this title.

§ 5404. Endangered Species Committee.

  1. A committee on endangered species is created to be known as the Endangered Species Committee and shall consist of nine members, including the Secretary of Agriculture, Food and Markets, the Commissioner of Fish and Wildlife, the Commissioner of Forests, Parks and Recreation, and six members appointed by the Governor from the public at large. Of the six public members, two shall be actively engaged in agricultural or silvicultural activities, two shall be knowledgeable concerning flora, and two shall be knowledgeable concerning fauna. Members appointed by the Governor shall be entitled to reimbursement for expenses incurred in the attendance of meetings, as approved by the Chair. The Chair of the Committee shall be elected from among and by the members each year. Members who are not employees of the State shall serve terms of three years, except that the Governor may make appointments for a lesser term in order to prevent more than two terms from expiring in any year.
  2. The Endangered Species Committee shall advise the Secretary on all matters relating to endangered and threatened species, including whether to alter the lists of endangered and threatened species, how to protect those species, and whether and where to designate critical habitat.
  3. The Agency of Natural Resources shall provide the Endangered Species Committee with necessary staff services.

HISTORY: Added 1981, No. 188 (Adj. Sess.), § 2; amended 1987, No. 76 , § 18; 2003, No. 42 , § 2, eff. May 27, 2003; 2015, No. 145 (Adj. Sess.), § 23.

History

Revision note

—2015. In subsec. (a), substituted “Chair” for “chairman” in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Amendments

—2015 (Adj. Sess.). Subsec. (a): Inserted “or silvicultural” following “engaged in agricultural” in the second sentence, and “who are not employees of the State” following “Members” in the fifth sentence.

Subsec. (b): Inserted “and whether and where to designate critical habitat” at the end.

—2003. Subsec. (a): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” in the first sentence.

—1987. Subsec. (c): Substituted “agency of natural resources” for “agency of environmental conservation”.

§ 5405. Conservation programs.

The Secretary, with the advice of the Endangered Species Committee, may establish conservation programs and establish recovery plans for the conservation or recovery of threatened or endangered species of wildlife or plants or for the conservation or recovery of critical habitat. The programs may include the purchase of land or aquatic habitat and the formation of contracts for the purpose of management of wildlife or wild plant refuge areas or for other purposes.

HISTORY: Added 1981, No. 188 (Adj. Sess.), § 2; amended 2015, No. 145 (Adj. Sess.), § 24.

History

Amendments

—2015 (Adj. Sess.). Substituted “programs and establish recovery plans for the conservation or recovery of threatened or endangered species of wildlife or plants or for the conservation or recovery of critical habitat” for “programs for the conservation of threatened or endangered species of wildlife or plants”.

§ 5406. Cooperation by other agencies.

All agencies of this State shall review programs administered by them that may relate to this chapter and shall, in consultation with the Secretary, utilize their authorities only in a manner that does not jeopardize the threatened or endangered species, critical habitat, or the outcomes of conservation or recovery programs established by this chapter or by the Secretary under his or her authority.

HISTORY: Added 1981, No. 188 (Adj. Sess.), § 2; amended 2015, No. 145 (Adj. Sess.), § 25.

History

Amendments

—2015 (Adj. Sess.). Substituted “threatened or endangered species, critical habitat, or the outcomes of conservation or recovery programs” for “conservation programs”, and “his or her” for “its”.

§ 5407. Authority to seize threatened or endangered species.

In addition to other methods of enforcement authorized by law, the Secretary may direct under this section that wildlife or wild plants that were seized because of violation of this chapter be rehabilitated, released, replanted, or transferred to a zoological, botanical, educational, or scientific institution, and that the costs of the transfer and staff time related to a violation may be charged to the violator. The Secretary, with the advice of the Endangered Species Committee, may adopt rules for the implementation of this section.

HISTORY: Added 1981, No. 188 (Adj. Sess.), § 2; amended 2015, No. 145 (Adj. Sess.), § 26.

History

Amendments

—2015 (Adj. Sess.). Substituted “Authority to seize threatened or endangered species” for “Enforcement” in the section heading and substituted “that were seized” for “which were seized” following “plants”; inserted “rehabilitated, released, replanted, or” preceding “transferred”; and “and staff time related to a violation” following “the transfer”.

§ 5408. Authorized takings; incidental takings; destruction of critical habitat.

  1. Authorized taking.   Notwithstanding any provision of this chapter, after obtaining the advice of the Endangered Species Committee, the Secretary may permit, under such terms and conditions as the Secretary may require as necessary to carry out the purposes of this chapter, the taking of a threatened or endangered species, the destruction of or adverse impact on critical habitat, or any act otherwise prohibited by this chapter if done for any of the following purposes:
    1. scientific purposes;
    2. to enhance the propagation or survival of a threatened or endangered species;
    3. zoological exhibition;
    4. educational purposes;
    5. noncommercial cultural or ceremonial purposes; or
    6. special purposes consistent with the purposes of the federal Endangered Species Act.
  2. Incidental taking.   After obtaining the advice of the Endangered Species Committee, the Secretary may permit, under such terms and conditions as necessary to carry out the purposes of this chapter, the incidental taking of a threatened or endangered species or the destruction of or adverse impact on critical habitat if:
    1. the taking is necessary to conduct an otherwise lawful activity;
    2. the taking is attendant or secondary to, and not the purpose of, the lawful activity;
    3. the impact of the permitted incidental take is minimized; and
    4. the incidental taking will not impair the conservation or recovery of any endangered species or threatened species.
  3. Transport through State.   Nothing in this chapter shall prevent a person who holds a proper permit from the federal government or any other state from transporting a member of a threatened or endangered species from a point outside this State through the State.
  4. Possession.   Nothing in this chapter shall prevent a person from possessing in this State wildlife or wild plants that are not determined to be “endangered” or “threatened” under the federal Endangered Species Act where the possessor is able to produce substantial evidence that the wildlife or wild plant was first taken or obtained in a place without violating the law of that place, provided that an importation permit may be required under section 4714 of this title or the rules of the Department of Fish and Wildlife.
  5. Interference with agricultural or silvicultural practices.   No rule adopted under this chapter shall cause undue interference with farming, forestry operations, or accepted silvicultural practices. This section shall not be construed to exempt any person from the provisions of the requirements of this chapter. The Secretary shall not adopt rules that affect farming, forestry operations, or accepted silvicultural practices without first consulting the Secretary of Agriculture, Food and Markets and the Commissioner of Forests, Parks and Recreation.
  6. Consistency with State law.   Nothing in this chapter shall be interpreted to limit or amend the definitions and applications of necessary habitat in chapter 151 of this title or in 30 V.S.A. chapter 5.
  7. Effect on federal law.   Nothing in this section permits a person to violate any provision of federal law concerning federally protected threatened or endangered species.
  8. Permit application.   An applicant for a permit under this section shall submit an application to the Secretary that includes the following information:
    1. a description of the activities that could lead to a taking of a listed threatened or endangered species or the destruction of or adverse impact on critical habitat;
    2. the steps that the applicant has or will take to avoid, minimize, and mitigate the impact to the relevant threatened or endangered species or critical habitat;
    3. a plan for ensuring that funding is available to conduct any required monitoring and mitigation, if applicable;
    4. a summary of the alternative actions to the taking or destruction of critical habitat that the applicant considered and the reasons that these alternatives were not selected, if applicable;
    5. the name or names and obligations and responsibilities of the person or persons that will be involved in the proposed taking or destruction of critical habitat; and
    6. any additional information that the Secretary may require.
  9. Permit fees.
    1. Fees to be charged to a person applying to take a threatened or endangered species under this section shall be:
      1. to take for scientific purposes, to enhance the propagation or survival of the species, noncommercial cultural or ceremonial purposes, or for educational purposes or special purposes consistent with the federal Endangered Species Act, $50.00;
      2. to take for a zoological or botanical exhibition, $250.00 for each listed wildlife or wild plant taken up to a maximum of $25,000.00; and
      3. for an incidental taking, $250.00 for each listed wildlife or wild plant taken up to a maximum of $25,000.00.
    2. The Secretary may require the implementation of mitigation strategies and may collect mitigation funds, in addition to the permit fees, in order to mitigate the impacts of a taking or the destruction of or adverse impact on critical habitat. Mitigation may include:
      1. a requirement to rectify the taking or adverse impact or to reduce the adverse impact over time;
      2. a requirement to manage or restore land within the area of the proposed activity or in an area outside the proposed area as habitat for the threatened or endangered species; or
      3. compensation, including payment into the Threatened and Endangered Species Fund for the uses of that Fund, provided that any payment is commensurate with the taking or adverse impact proposed.
    3. Fees and mitigation payments collected under this subsection and interest on fees and mitigation payments shall be deposited in the Threatened and Endangered Species Fund and shall be used solely for expenditures of the Department of Fish and Wildlife related to threatened and endangered species. Expenditures may be made for monitoring, restoration, conservation, recovery, and the acquisition of property interests and other purposes consistent with this chapter. Where practical, the fees collected for takings shall be devoted to the conservation or recovery of the taken species or its habitat. Interest accrued on the Fund shall be credited to the Fund.
  10. Permit term.   A permit issued under this section shall be valid for the period of time specified in the permit, not to exceed five years. A permit issued under this section may be renewed upon application to the Secretary.
  11. Public notice.   Prior to issuing a permit for an incidental taking and prior to the initial issuance or amendment of a general permit under this section, the Secretary shall provide for public notice of no fewer than 30 days, opportunity for written comment, and opportunity to request a public informational hearing. The Secretary shall post permit applications, permit decisions, and the initial or amended general permits on the website of the Agency of Natural Resources. The Secretary also shall provide notice to interested persons who request notice of permit applications, permit decisions, and proposed general permits or proposed amendments to general permits.
  12. General permits.
    1. The Secretary may issue general permits for activities that will not affect the continued survival or recovery of a threatened or endangered species.
    2. A general permit issued under this chapter shall contain those terms and conditions necessary to ensure compliance with the provisions of this statute.
    3. These terms and conditions may include the implementation of best management practices and the adoption of specific mitigation measures and required surveying, monitoring, and reporting.
    4. The Secretary may issue a general permit to take a threatened or endangered species or destroy or adversely impact critical habitat only if an activity or class of activities satisfies one or more of the following criteria:
      1. the taking of a threatened or endangered species or the destruction of or adverse impact on critical habitat is necessary to address an imminent risk to human health;
      2. a proposed taking of a threatened or endangered species or the destruction of or adverse impact on critical habitat would enhance the overall long-term survival of the species; or
      3. the Secretary has approved best management practices that are designed, when applied, to minimize to the greatest extent possible the taking of a threatened or endangered species or the destruction of or adverse impact on critical habitat.
    5. On or before September 1, 2017, the Secretary shall issue a general permit for vegetation management and operational and maintenance activities conducted by a utility. The general permit shall have a five-year term. A one-time application for coverage by a utility shall be made for activities authorized by the general permit, and coverage under the general permit shall be for the term of the general permit. Until the general permit has been issued, no critical habitat designation for wild plants shall be made in a utility right-of-way. As used in this subdivision (5), “utility” means an electric company, telecommunication company, pipeline operator, or railroad company.
    6. Prior to issuing an initial or amended general permit under this subsection, the Secretary shall:
      1. post a draft of the general permit on the Agency website;
      2. provide public notice of at least 30 days; and
      3. provide for written comments or a public hearing, or both.
    7. For applications for coverage under the terms of an issued general permit, the applicant shall provide notice on a form provided by the Secretary. The Secretary shall post notice of the application on the Agency website and shall provide an opportunity for written comment, regarding whether the application complies with the terms and conditions of the general permit, for ten days following receipt of the application.
    8. The Secretary may require any applicant for coverage under a general permit to submit additional information that the Secretary considers necessary and may refuse to approve coverage under the terms of a general permit until the information is furnished and evaluated.
    9. The Secretary may require any applicant for coverage under a general permit to seek an individual permit under this section if the applicant does not qualify for coverage.
    10. The Secretary may require a person operating under a general permit issued under this section to obtain an individual permit under this section if the person proposes to destroy or adversely impact critical habitat that was designated under section 5402a of this title after issuance of the general permit, unless existing best management practices approved under the general permit adequately protect the critical habitat or have been amended to do so prior to the critical habitat designation pursuant to section 5402a of this title.

HISTORY: Added 1981, No. 188 (Adj. Sess.), § 2; amended 1985, No. 192 (Adj. Sess.), §§ 3, 4; 2003, No. 163 (Adj. Sess.), § 17; 2011, No. 128 (Adj. Sess.), § 35; 2013, No. 116 (Adj. Sess.), § 12; 2015, No. 145 (Adj. Sess.), § 27.

History

References in text.

The federal Endangered Species Act, cited in subsecs. (a), (c), and (d), is codified principally as to 16 U.S.C. § 1531 et seq.

Amendments

—2015 (Adj. Sess.). Rewrote the section.

—2013 (Adj. Sess.). Subsec. (a): Inserted “noncommercial cultural or ceremonial purposes;” following “educational purposes;”.

Subsec. (g): Added.

—2011 (Adj. Sess.) Subsec. (f): Rewrote subdivs. (1)(B) and (2).

—2003 (Adj. Sess.). Subsec. (f): Added.

—1985 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (d): Amended generally.

Fee recommendation; permit to destroy or adversely impact critical habitat. 2015, No. 145 (Adj. Sess.), § 30 provides: “The consolidated Executive Branch fee report and request to be submitted on or before the third Tuesday of January 2018 pursuant to 32 V.S.A. § 605 shall include a recommendation from the Agency of Natural Resources of a fee for a permit under 10 V.S.A. § 5408 to destroy or adversely impact critical habitat of a State-listed threatened or endangered species. The recommendation shall include whether the owner of property where critical habitat is designated under 10 V.S.A. § 5402a should be required to pay a fee for a permit to destroy or adversely impact critical habitat on his or her property.”

§ 5409. Repealed. 1985, No. 192 (Adj. Sess.), § 5.

History

Former § 5409. Former § 5409, relating to variance procedure for permission to avoid strict compliance with statutes protecting endangered species, was derived from 1981, No. 188 (Adj. Sess.), § 2.

§ 5410. Location confidential.

  1. The Secretary shall not disclose information regarding the specific location of threatened or endangered species sites except that the Secretary shall disclose information regarding the location of the threatened or endangered species to:
    1. the owner of land upon which the species is located;
    2. a potential buyer of land upon which the species is located who has a bona fide contract to buy the land and applies to the Secretary for disclosure of threatened or endangered species information; or
    3. qualified individuals or organizations, public agencies, and nonprofit organizations for scientific research or for preservation and planning purposes when the Secretary determines that the preservation of the species is not further endangered by the disclosure.
  2. When the Secretary issues a permit under this chapter to take a threatened or endangered species or destroy or adversely impact critical habitat and when the Secretary designates critical habitat by rule under section 5402a of this title, the Secretary shall disclose only the municipality and general location where the threatened or endangered species or designated critical habitat is located. When the Secretary designates critical habitat under section 5402a of this title, the Secretary shall notify the municipality in which the critical habitat is located and shall disclose the general location of the designated critical habitat.

HISTORY: Added 1995, No. 159 (Adj. Sess.), § 3; amended 2015, No. 145 (Adj. Sess.), § 28.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

Chapter 124. Trade in Covered Animal Parts or Products

§ 5501. Section 5501 effective January 1, 2022. Definitions.

As used in this chapter:

  1. “Bona fide educational or scientific institution” means an institution that establishes through documentation that it is a tax-exempt institution under the Internal Revenue Service’s educational or scientific tax exemption.
  2. “Covered animal” means any species of:
    1. Cheetah (Acinonyx jubatus);
    2. Elephant (family Elephantidae);
    3. Giraffe (Giraffa camelopardalis);
    4. Hippopotamus (family Hippopotamidae);
    5. Jaguar (Panthera onca);
    6. Leopard (Panthera pardus);
    7. Lion (Panthera leo);
    8. Mammoth (genus Mammuthus);
    9. Mastodon (genus Mammut);
    10. Pangolin (family Manidae);
    11. Endangered ray, as listed by the Convention on International Trade in Endangered Species of Wild Fauna and Flora;
    12. Rhinoceros (family Rhinocerotidae);
    13. Sea turtle (family Chelonioidea);
    14. Endangered shark, as listed by the Convention on International Trade in Endangered Species of Wild Fauna and Flora;
    15. Tiger (Panthera tigris);
    16. Whale (families Balaenidae, Balaenopteridae, Cetotheriidae, Eschrichtiidae, Monodontidae, Physeteridae, Kogiidae, and Ziphiidae); or
    17. The following primates: gorillas, bonobos, orangutans, gibbons, or chimpanzees.
  3. “Commissioner” means the Commissioner of Fish and Wildlife.
  4. “Covered animal part or product” means any item that contains, or is wholly or partially made from, a covered animal, including the meat or flesh of a covered animal sold as food.
  5. “Firearm” has the same meaning as in 13 V.S.A. § 4016(a)(3) .
  6. “Sale” or “sell” means any act of selling, trading, or bartering for monetary or nonmonetary consideration and includes any transfer of ownership that occurs in the course of a commercial transaction. “Sale” or “sell” shall not include a nonmonetary transfer of ownership by way of gift, donation, or bequest.
  7. “Secretary” means the Secretary of Natural Resources.
  8. “Total value” means either the fair market value or the actual price paid for a covered animal part or product, whichever is greater.

HISTORY: Added 2019, No. 169 (Adj. Sess.), § 1, eff. Jan. 1, 2022.

§ 5502. Section 5502 effective January 1, 2022. Prohibition.

Except as provided in this chapter, notwithstanding any other provision of law to the contrary, a person shall not purchase, sell, offer for sale, or possess with intent to sell any item that the person knows or should know is a covered animal part or product.

HISTORY: Added 2019, No. 169 (Adj. Sess.), § 1, eff. Jan. 1, 2022.

§ 5503. Section 5503 effective January 1, 2022. Exceptions.

  1. The prohibition on the purchase, sale, offer for sale, or possession with intent to sell set forth in section 5502 of this title shall not apply:
    1. to employees or agents of the federal or State government undertaking any law enforcement activities pursuant to federal or State law or any mandatory duties required by federal or State law;
    2. when the activity is expressly authorized by federal law;
    3. when the covered animal part or product is a fixed component of an antique that is not made wholly or partially from the covered animal part or product, provided that:
      1. the antique status is established by the owner or seller of the covered animal part or product with documentation providing evidence of the provenance of the covered animal part or product and showing the covered animal part or product to be not less than 100 years old; and
      2. the total weight of the covered animal part or product is less than 200 grams;
    4. when the covered animal part or product is a fixed component of a firearm; knife; or musical instrument, including string instruments and bows, wind and percussion instruments, and pianos, provided that the covered animal part or product was legally acquired and provided that the total weight of the covered animal part or product is less than 200 grams; or
    5. the activity is authorized under section 5504 of this title.
  2. Documentation evidencing reasonable provenance or the age of a covered animal part or product that may be purchased, sold, offered for sale, or possessed under subsection (a) of this section may include receipts of purchase, invoices, bills of sale, prior appraisals, auction catalogues, museum or art gallery exhibit catalogues, and the signed certification of an antique appraiser to the age of the covered animal part. The issuance of a false or fraudulent certification of the age of a covered animal part or product shall be subject to penalty under section 5506 of this title.

HISTORY: Added 2019, No. 169 (Adj. Sess.), § 1, eff. Jan. 1, 2022.

§ 5504. Section 5504 effective January 1, 2022. Educational or scientific use.

The Secretary may permit, under terms and conditions as the Secretary may require, the purchase, sale, offer for sale, or possession with intent to sell of any covered animal part or product for educational or scientific purposes by a bona fide educational or scientific institution, unless the activity is prohibited by federal law and provided that the covered animal part or product was legally acquired.

HISTORY: Added 2019, No. 169 (Adj. Sess.), § 1, eff. Jan. 1, 2022.

§ 5505. Section 5505 effective January 1, 2022. Presumption of possession with intent to sell.

There shall be a rebuttable presumption that a person possesses a covered animal part or product with intent to sell when the part or product is possessed by a retail or wholesale establishment or other forum engaged in the business of buying or selling similar items. This rebuttable presumption shall not preclude a court from finding intent to sell a covered animal part or product based on any other evidence that may serve to independently establish intent.

HISTORY: Added 2019, No. 169 (Adj. Sess.), § 1, eff. Jan. 1, 2022.

§ 5506. Section 5506 effective January 1, 2022. Administrative penalties; referral for criminal enforcement.

  1. The Secretary may assess the following administrative penalties for a violation of a provision of this chapter:
    1. For a first offense, a person shall be assessed an administrative penalty of not more than $1,000.00 nor less than $400.00.
    2. For a second offense or subsequent offense, a person shall be assessed an administrative penalty of not more than $4,000.00 nor less than $2,000.00.
  2. Instead of bringing an environmental enforcement action for a violation of this chapter or rules adopted under this chapter, the Secretary may refer a violation of this chapter to the Commissioner of Fish and Wildlife for criminal enforcement under section 4518 of this title.

HISTORY: Added 2019, No. 169 (Adj. Sess.), § 1, eff. Jan. 1, 2022.

§ 5507. Section 5507 effective January 1, 2022. Seizure.

A person convicted of violating a provision of this chapter shall forfeit to the Secretary the covered animal part or product that is the subject of the violation. The Secretary may:

  1. authorize that the covered animal part or product be maintained for educational or training purposes;
  2. authorize that the covered animal part or product be donated to a bona fide educational or scientific institution; or
  3. require that the covered animal part or product be destroyed.

HISTORY: Added 2019, No. 169 (Adj. Sess.), § 1, eff. Jan. 1, 2022.

§ 5508. Section 5508 effective January 1, 2022. Rules.

The Secretary may adopt rules necessary to implement the requirements of this chapter.

HISTORY: Added 2019, No. 169 (Adj. Sess.), § 1, eff. Jan. 1, 2022.

Part 5. Land Use and Development

History

Statutory Revision. 2013, No. 11 , § 25(1) provides that the Office of the Legislative Council, in its statutory revision authority under 2 V.S.A. § 424 , is directed to replace the terms “Land Use Panel of the Natural Resources Board” with references to the “Natural Resources Board.” For example, the Office of Legislative Council shall, as appropriate, replace ‘land use panel’ with ‘Natural Resources Board’ or ‘Board.”’

Chapter 151. State Land Use and Development Plans

History

1969, No. 250 (Adj. Sess.), § 33, provided: “If any provision of this act [chapter], or the application of such provision to any person or circumstances, shall be held invalid, the remainder of this act, or the application of that provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.”

Findings and declaration of intent. 1969, No. 250 (Adj. Sess.), § 1, eff. April 4, 1970, provided:

“Whereas, the unplanned, uncoordinated and uncontrolled use of the lands and the environment of the state of Vermont has resulted in usages of the lands and the environment which may be destructive to the environment and which are not suitable to the demands and needs of the people of the state of Vermont; and

“Whereas, a comprehensive state capability and development plan and land use plan are necessary to provide guidelines for utilization of the lands and environment of the state of Vermont and to define the goals to be achieved through land environmental use, planning and control; and

“Whereas, it is necessary to establish an environmental board and district environmental commissions and vest them with the authority to regulate the use of the lands and the environment of the state according to the guidelines and goals set forth in the state comprehensive capability and development plan and to give these commissions the authority to enforce the regulations and controls; and

“Whereas, it is necessary to regulate and control the utilization and usages of lands and the environment to insure that, hereafter, the only usages which will be permitted are not unduly detrimental to the environment, will promote the general welfare through orderly growth and development and are suitable to the demands and needs of the people of this state;

“Now, therefore, the legislature declares that in order to protect and conserve the lands and the environment of the state and to insure that these lands and environment are devoted to uses which are not detrimental to the public welfare and interests, the state shall, in the interest of the public health, safety and welfare, exercise its power by creating a state environmental board and district environmental commissions conferring upon them the power to regulate the use of lands and to establish comprehensive state capability, development and land use plans as hereinafter provided.”

CROSS REFERENCES

Acquisition of interests in land by public agencies, see chapter 155 of this title.

Enforcement of environmental laws generally, see part 6 of this title.

Local Act 250 review of municipal impacts, see 24 V.S.A. § 4420 .

Mobile home parks, see chapter 153 of this title.

Municipal and regional planning and development, see 24 V.S.A. chapter 117.

Scenery preservation, see chapter 19 of this title.

State planning process, see 3 V.S.A. chapter 67.

Tourist information services, see chapter 21 of this title.

ANNOTATIONS

Construction with other laws.

On appeal, Supreme Court will defer to Environmental Board’s interpretation of this chapter and the Board’s rules. In re Gerald Costello Garage, 158 Vt. 655, 614 A.2d 389, 1992 Vt. LEXIS 93 (1992) (mem.).

Environmental Board interpretations of land use law and of its own rules are given high level of deference by Supreme Court, and absent compelling indications of error, will be sustained on appeal. Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 617 A.2d 143, 1992 Vt. LEXIS 135 (1992).

This chapter and the Administrative Procedure Act are in pari materia and must thus be construed with reference to each other as parts of one system. In re Preseault, 130 Vt. 343, 292 A.2d 832, 1972 Vt. LEXIS 281 (1972).

Federal preemption.

State approval, pursuant to the Act 250 process, of project for construction and operation of hydroelectric generating facilities was unnecessary because authorization of project was within the exclusive jurisdiction of the Federal Energy Regulatory Commission under the Federal Power Act. Town of Springfield v. State of Vermont Environmental Board, 521 F. Supp. 243, 1981 U.S. Dist. LEXIS 9786 (D. Vt. 1981).

Order of Vermont Environmental Board barring applicants for federal license to construct and operate hydroelectric generating facilities from proceeding with road relocation and recreational improvement required in connection with the project until the applicants secured an Act 250 permit was improper and void under the Federal Power Act and the doctrine of federal preemption. Town of Springfield v. State of Vermont Environmental Board, 521 F. Supp. 243, 1981 U.S. Dist. LEXIS 9786 (D. Vt. 1981).

Jurisdiction.

Assuming trial court discretion to dismiss landfill use permit case, court did not abuse that discretion by deferring legal questions to Environmental Board, since questions were actually mix of law and fact, questions were so intertwined with environmental law that primary jurisdiction suggested that board, not court, interpret them, and plaintiff challenged application, not validity, of statute. C.V. Landfill, Inc. v. Environmental Board, 158 Vt. 386, 610 A.2d 145, 1992 Vt. LEXIS 63 (1992).

Land use permit process action was properly dismissed under doctrine of primary jurisdiction, since Environmental Board was more appropriate forum for controversy and trial court had authority and charge to consider whether another is better suited to resolve issues; to find otherwise would frustrate legislative scheme placing administrative decision-making where subject-matter expertise resides. C.V. Landfill, Inc. v. Environmental Board, 158 Vt. 386, 610 A.2d 145, 1992 Vt. LEXIS 63 (1992).

This chapter was never meant to establish Environmental Board jurisdiction over historic sites, scenic areas, wildlife, water, air, soil or schools and highways per se; rather, Environmental Board jurisdiction extends only over the impact of large scale development on them, and the difference is significant. In re Agency of Administration, 141 Vt. 68, 444 A.2d 1349, 1982 Vt. LEXIS 479 (1982).

Legislative intent.

The Legislature intended this chapter to protect Vermont’s environmental resources, with an eye towards maintaining existing recreational uses of the land and preserving lands that have special values to the public. Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992), cert. denied, 507 U.S. 987, 113 S. Ct. 1586, 123 L. Ed. 2d 153, 1993 U.S. LEXIS 2199 (1993).

In recognition of the importance of economic growth, the focus of this chapter is not on barring development but on molding it to minimize its environmental impact. Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992), cert. denied, 507 U.S. 987, 113 S. Ct. 1586, 123 L. Ed. 2d 153, 1993 U.S. LEXIS 2199 (1993).

One purpose of this chapter is to insure that lands and environment are devoted to uses which are not detrimental to the public welfare and interests. In re Pilgrim Partnership, 153 Vt. 594, 572 A.2d 909, 1990 Vt. LEXIS 36 (1990).

This chapter was a philosophic compromise between a desire to protect and control all the lands and environment of the State of Vermont, and the need to avoid an administrative nightmare. In re Agency of Administration, 141 Vt. 68, 444 A.2d 1349, 1982 Vt. LEXIS 479 (1982).

The Legislature in passing this chapter did not purport to reach all land use changes within the state, nor to impose the substantial administrative and financial burdens of the chapter, or interfere with local control of land use decisions, except where values of State concern are implicated through large scale changes in land utilization. In re Agency of Administration, 141 Vt. 68, 444 A.2d 1349, 1982 Vt. LEXIS 479 (1982).

Careful reading of whole of this chapter shows legislative intent to involve the State in land use decisions in cases where a permanent mechanism exists for their review at the municipal level only where activity on a very major scale is planned. Committee to Save the Bishop's House, Inc. v. Medical Center Hospital of Vermont, Inc., 137 Vt. 142, 400 A.2d 1015, 1979 Vt. LEXIS 945 (1979).

Notice and hearing.

Right of landowner to notice of and participation in hearings if adjoining property is the subject of a construction permit under this chapter is not a “liberty” or “property” entitlement protected by the Fourteenth Amendment. In re Great Waters of America, Inc., 140 Vt. 105, 435 A.2d 956, 1981 Vt. LEXIS 566 (1981).

Survival of claims.

In order to effectuate purposes of remedial legislation, claims under Act 250 and the Consumer Fraud Act do not abate on death of seller of lots subject to permit. State v. Therrien, 161 Vt. 26, 633 A.2d 272, 1993 Vt. LEXIS 99 (1993).

Cited.

Cited in In re Pyramid Co., 141 Vt. 294, 449 A.2d 915, 1982 Vt. LEXIS 543 (1982); Argast v. State Environmental Board, 143 Vt. 84, 463 A.2d 214, 1983 Vt. LEXIS 470 (1983); In re Trail's End Lodge, Inc., 54 B.R. 898, 1985 Bankr. LEXIS 4950 (Bankr. D. Vt. 1985); City of Rutland v. McDonald's Corp., 146 Vt. 324, 503 A.2d 1138, 1985 Vt. LEXIS 432 (1985); Sugarline Assocs. v. Alpen Assocs., 155 Vt. 437, 586 A.2d 1115, 1990 Vt. LEXIS 250 (1990); Nichols v. Agency of Environmental Conservation, 160 Vt. 620, 627 A.2d 858, 1993 Vt. LEXIS 40 (1993); In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993); In re BHL Corp., 161 Vt. 487, 641 A.2d 771, 1994 Vt. LEXIS 42 (1994); In re Rusin, 162 Vt. 185, 643 A.2d 1209, 1994 Vt. LEXIS 54 (1994) (mem.).

Law Reviews —

For article, “Wal-Mart in Vermont-The Case Against Sprawl,” see 22 Vt. L. Rev. 755 (1998).

Leaving the Scene: Aesthetic Considerations in Act 250, see 4 Vt. L. Rev. 163 (1979).

The effect of Act 250 on prime farmland, see 6 Vt. L. Rev. (1981).

For note regarding formal enforcement of Act 250, see 10 Vt. L. Rev. 469 (1985).

For note relating to preservation of farmlands, see 11 Vt. L. Rev. 603 (1986).

Hear No Evil, See No Evil: In re Spencer and the Twilight of Judicial Scrutiny in Vermont, see 14 Vt. L. Rev. 501 (1990).

Note, A Proposal for Improving Vermont’s Statutory Requirement for Planned Unit Development, see 14 Vt. L. Rev. 591 (1990).

For note, “In re Quechee Lakes Corporation: Mitigating Aesthetic Environmental Damage or an Eyesore on Act 250 Land Use Protections?,” see 16 Vt. L. Rev. 541 (1992).

For note, “Large Development Meets Vermont’s Act 250: Does Phasing Make A Monster Or Tame It?,” see 23 Vt. L. Rev. 393 (1998).

Subchapter 1. General Provisions

History

Legislative findings and purpose. 2007, No. 176 (Adj. Sess.), § 1a provides: “(a) Act 250 was enacted as a land use law in 1970 by a general assembly concerned about large scale, unregulated development in Vermont. At that time, few towns had planning and zoning, and for the ones that did, there was limited staffing to enforce those rudimentary municipal laws. Revisions were made to Act 250 in 1973, including the addition of 11 new subcriteria to criterion nine, relating to matters such as agricultural soils, energy conservation, earth resources and development affecting public investments, but the focus of the law remained to review large scale developments as those developments were defined. As a result, a large number of developments around the state have been designed to avoid Act 250 jurisdiction, resulting in no or limited review of the cumulative impact of incremental development of nine or fewer lots in scattered locations.

“(b) Some argued in the 1970s that Act 250 regulatory review should be based on a comprehensive land use plan that would delineate all the lands of the state by use classifications, but provided for refinements based on more detailed studies at the regional and local levels. Others disagreed, arguing that the regulatory review process under Act 250 was sufficient. In the end, no such measure was ever approved. The requirement that there be an Act 250 state land use plan was deleted from the law in 1984.

“(c) Since that time, the general assembly incrementally has enacted legislation to plan land uses and encourage municipalities to approve compact residential neighborhoods in and around traditional villages and downtowns and in planned growth centers in accordance with smart growth principles. This planning act furthers that goal.

“(d) Among the strategies to expedite the development of housing in these locations is to exempt certain residential development from Act 250, where it is demonstrated that such proposed state land use review is redundant with municipal land use review, and, through the careful targeting of eligible locations to impacted areas served by infrastructure, the potential for unplanned impact to natural resources and environmental quality is negligible.

“(e) Targeting limited state incentives to smart growth locations must be balanced with careful planned development in the surrounding countryside. To this end, strategies for improving certain Act 250 criteria to better manage scattered residential development and to curb strip development along the state’s highways should be studied and recommendations brought back before the general assembly for review and consideration.

“(f) Through the use of higher Act 250 thresholds, coupled with strengthening criteria related to scattered development, rural growth areas, transportation and settlement patterns, Vermont can better achieve the state’s planning and development goal of maintaining Vermont’s historic settlement pattern of compact village and urban centers separated by rural countryside.

“(g) Regarding affordability, housing units actually developed under this act could very well have a greater degree of affordability than that required by law.

“(1) An important component of this act is the creation of a homeownership affordable housing tax credit, that by itself, creates an important incentive that will leverage private capital, reducing the cost of development and the eventual cost of a unit.

“(2) Because of location and density requirements established in the Vermont neighborhood program, housing options to be created under the program may be expected to encourage construction of rental property or condominiums, or a mix of the two, as well as stand-alone, stick-built homes. This affects affordability because, statewide, the median price of a condominium is approximately $10,000.00 less than that of a stick-build home.

“(3) Since many projects will be developed with housing tax credits allocated by the Vermont housing finance agency, those projects will be subject to the agency’s qualified allocation plan, which itself considers the degree of affordability, both regarding the percentage of the units, and regarding the income level at which they are aimed.

“(4) Housing developed in Vermont neighborhoods by the land trusts or by Housing Vermont will have significant affordability, and in the case of the land trusts, that affordability will be permanent.

“(5) Downpayment assistance for low and moderate income homebuyers by raising the property transfer tax exemption from $100,000.00 to $110,000.00 for Vermont housing finance agency borrowers, resulting in a 25 percent increase in the maximum consumer benefit, from $500.00 to $625.00. Downpayment and closing costs are a major obstacle to many potential homebuyers.

“(6) The state’s financial support for the programs of the Vermont housing finance agency will result in lower borrowing costs to consumers, making mortgages more affordable. Specifically:

“(A) The state treasurer is authorized to provide up to $50 million in short-term credit to the Vermont housing finance agency for interim financing for its mortgage program.

“(B) The Vermont pension investment committee shall consider investing up to $17.5 million with the Vermont housing finance agency to assist with the mobile home financing program and the cash assistance program, which provides cash assistance with downpayments and closing costs, both particularly important for low and moderate income Vermonters.

“(C) The state will increase its moral obligation to enhance bonds and notes issued by the Vermont housing finance agency to $155 million. These bonds and notes are used to finance VHFA programs for low and moderate income Vermonters.

“(7) The affordability standard for rental housing development established in this act is stricter than that in current law. It is expected that rental units will be developed in Vermont neighborhoods, especially given the slow-down in the homeownership market. More middle income Vermonters are turning to rental housing as their most appropriate housing option, especially as it has gotten more difficult to meet stricter underwriting standards and as foreclosure rates are increasing.

“(8) Housing affordability will be supported through funding for the Vermont housing and conservation board. This year alone, $15 million is appropriated in state funds to provide financial support for housing and conservation programs.

“(h) As of May 1, 2008, there are 23 designated downtowns and 76 village centers, but not all of the designated downtown or village centers have zoning bylaws or subdivision regulations, reducing the number of Vermont Neighborhood eligible village centers to 24 and designated downtowns to 22. There is one designated growth center. Therefore, the regulatory relief and municipal revenue incentive provided by this act will initially apply to those 46 communities.

“(i) The regulatory relief and the municipal revenue incentive for these 46 municipalities may encourage other municipalities to undertake the task of seeking designation as a downtown, village center or town growth center, enacting zoning bylaws and subdivision regulations, and then proceeding to obtain designation as a Vermont neighborhood.”

§ 6001. Definitions.

As used in this chapter:

  1. “Board” means the Natural Resources Board.
  2. “Capability and Development Plan” means the Plan prepared pursuant to section 6042 of this title.
    1. “Development” means each of the following: (3) (A) “Development” means each of the following:
      1. The construction of improvements on a tract or tracts of land, owned or controlled by a person, involving more than 10 acres of land within a radius of five miles of any point on any involved land, for commercial or industrial purposes in a municipality that has adopted permanent zoning and subdivision bylaws.
      2. The construction of improvements for commercial or industrial purposes on more than one acre of land within a municipality that has not adopted permanent zoning and subdivision bylaws.
      3. The construction of improvements for commercial or industrial purposes on a tract or tracts of land, owned or controlled by a person, involving more than one acre of land within a municipality that has adopted permanent zoning and subdivision bylaws, if the municipality in which the proposed project is located has elected by ordinance, adopted under 24 V.S.A. chapter 59, to have this jurisdiction apply.
      4. The construction of housing projects such as cooperatives, condominiums, or dwellings, or construction or maintenance of mobile homes or mobile home parks, with 10 or more units, constructed or maintained on a tract or tracts of land, owned or controlled by a person, within a radius of five miles of any point on any involved land and within any continuous period of five years. However:
        1. A priority housing project shall constitute a development under this subdivision (iv) only if the number of housing units in the project is:
          1. [Repealed.]
          2. [Repealed.]
          3. 75 or more, in a municipality with a population of 6,000 or more but less than 10,000.
          4. 50 or more, in a municipality with a population of 3,000 or more but less than 6,000.
          5. 25 or more, in a municipality with a population of less than 3,000.
          6. Notwithstanding subdivisions (cc) through (ee) of this subdivision (3)(A)(iv)(I), 10 or more if the construction involves the demolition of one or more buildings that are listed on or eligible to be listed on the State or National Register of Historic Places. However, demolition shall not be considered to create jurisdiction under this subdivision (ff) if the Division for Historic Preservation has determined that the proposed demolition will have no adverse effect, will have no adverse effect if specified conditions are met, or will have an adverse effect that will be adequately mitigated. Any imposed conditions shall be enforceable through a grant condition, deed covenant, or other legally binding document.
        2. The determination of jurisdiction over a priority housing project shall count only the housing units included in that discrete project.
        3. Housing units in a priority housing project shall not count toward determining jurisdiction over any other project.
      5. The construction of improvements on a tract of land involving more than 10 acres that is to be used for municipal, county, or State purposes. In computing the amount of land involved, land shall be included that is incident to the use, such as lawns, parking areas, roadways, leaching fields, and accessory buildings.
      6. The construction of improvements for commercial, industrial or residential use above the elevation of 2,500 feet.
      7. Exploration for fissionable source materials beyond the reconnaissance phase or the extraction or processing of fissionable source material.
      8. The drilling of an oil and gas well.
      9. Any support structure proposed for construction that is primarily for communication or broadcast purposes and that will extend vertically 20 feet or more above the highest point of an attached existing structure, or 50 feet or more above ground level in the case of a proposed new support structure, in order to transmit or receive communication signals for commercial, industrial, municipal, county, or State purposes, independently of the acreage involved.
        1. Under this subdivision (ix):
          1. the word “development” shall also include the construction of improvements ancillary to the support structure, including buildings, broadcast or communication equipment, foundation pads, cables, wires, antennas or hardware, and all means of ingress and egress to the support structure; and
          2. the word “development” shall not include future improvements that are not ancillary to the support structure and do not involve an additional support structure, unless they would otherwise be considered a development under this subdivision (3).
          3. Railroad projects.   In the case of a project undertaken by a railroad, no portion of a railroad line or railroad right-of-way that will not be physically altered as part of the project shall be included in computing the amount of land involved. In the case of a project undertaken by a person to construct a rail line or rail siding to connect to a railroad’s line or right-of-way, only the land used for the rail line or rail siding that will be physically altered as part of the project shall be included in computing the amount of land involved.

            (v) Permanently affordable housing. Notwithstanding subdivisions (3)(A)(iv) and (19) of this section, jurisdiction shall be determined exclusively by counting affordable housing units, as defined by this section, that are subject to housing subsidy covenants as defined in 27 V.S.A. § 610 that preserve their affordability for a period of 99 years or longer, provided the affordable housing units are located in a discrete project on a single tract or multiple contiguous tracts of land, regardless of whether located within an area designated under 24 V.S.A. chapter 76A.

        2. The criteria and procedures for obtaining a permit for a development under this subdivision (ix) shall be the same as for any other development;
      10. Any withdrawal of more than 340,000 gallons of groundwater per day from any well or spring on a single tract of land or at a place of business, independently of the acreage of the tract of land or place of business, if the withdrawal requires a permit under section 1418 of this title or is by a bottled water facility regulated under chapter 56 of this title.
    2. [Repealed.]
    3. For the purposes of determining jurisdiction under subdivision (3)(A) of this section, the following shall apply:
      1. -(iii) [Repealed.]
    4. The word “development” does not include:
      1. The construction of improvements for farming, logging, or forestry purposes below the elevation of 2,500 feet.
      2. The construction of improvements for an electric generation, energy storage, or transmission facility that requires a certificate of public good under 30 V.S.A. § 248 or is subject to regulation under 30 V.S.A. § 8011 ; a natural gas facility as defined in 30 V.S.A. § 248 (a)(3); or a telecommunications facility issued a certificate of public good under 30 V.S.A. § 248a .
      3. [Repealed.]
      4. The construction of improvements for agricultural fairs that are registered with the Agency of Agriculture, Food and Markets and that are open to the public for 60 days per year or fewer, provided that, if the improvement is a building, the building was constructed prior to January 1, 2011 and is used solely for the purposes of the agricultural fair.
      5. The construction of improvements for the exhibition or showing of equines at events that are open to the public for 60 days per year or fewer, provided that any improvements constructed do not include one or more buildings.
      6. The construction of improvements for any one of the actions or abatements authorized in subdivision (I) of this subdivision (vi):
          1. a remedial or removal action for which the Secretary of Natural Resources has authorized disbursement under section 1283 of this title; (I) (aa) a remedial or removal action for which the Secretary of Natural Resources has authorized disbursement under section 1283 of this title;
          2. abating a release or threatened release, as directed by the Secretary of Natural Resources under section 6615 of this title;
          3. a remedial or removal action directed by the Secretary of Natural Resources under section 6615 of this title;
          4. a corrective action authorized in a corrective action plan approved by the Secretary of Natural Resources under section 6615b of this title;
          5. a corrective action authorized in a corrective action plan approved by the Secretary of Natural Resources under chapter 159, subchapter 3 of this title;
          6. the management of “development soils,” as that term is defined in 10 V.S.A. § 6602(39) , under a plan approved by the Secretary of Natural Resources under section 6604c of this title.
        1. The exemption provided by this subdivision (3)(D)(vi) shall not apply to subsequent development.
      7. The construction of improvements below the elevation of 2,500 feet for the on-site storage, preparation, and sale of compost, provided that one of the following applies:
        1. The compost is produced from no more than 100 cubic yards of material per year.
        2. The compost is principally produced from inputs grown or produced on the farm.
        3. The compost is principally used on the farm where it was produced.
        4. The compost is produced on a farm primarily used for the raising, feeding, or management of livestock, only from:
          1. manure produced on the farm; and
          2. unlimited clean, dry, high-carbon bulking agents from any source.
        5. The compost is produced on a farm primarily used for the raising, feeding, or management of livestock, only from:
          1. manure produced on the farm;
          2. up to 2,000 cubic yards per year of organic inputs allowed under the Agency of Natural Resources’ acceptable management practices, including food residuals or manure from off the farm, or both; and
          3. unlimited clean, dry, high-carbon bulking agents from any source.
        6. The compost is produced on a farm primarily used for the cultivation or growing of food, fiber, horticultural, or orchard crops, that complies with the Agency of Natural Resources’ solid waste management rules, only from up to 5,000 cubic yards per year of total organic inputs allowed under the Agency of Natural Resources’ acceptable management practices, including up to 2,000 cubic yards per year of food residuals.
        1. The construction of a priority housing project in a municipality with a population of 10,000 or more.

        (II) If the construction of a priority housing project in this subdivision (3)(D)(viii) involves demolition of one or more buildings that are listed or eligible to be listed on the State or National Register of Historic Places, this exemption shall not apply unless the Division for Historic Preservation has made the determination described in subdivision (A)(iv)(I)(ff) of this subdivision (3) and any imposed conditions are enforceable in the manner set forth in that subdivision.

    5. When development is proposed to occur on a parcel or tract of land that is devoted to farming activity as defined in subdivision (22) of this section, only those portions of the parcel or the tract that support the development shall be subject to regulation under this chapter. Permits issued under this chapter shall not impose conditions on other portions of the parcel or tract of land that do not support the development and that restrict or conflict with required agricultural practices adopted by the Secretary of Agriculture, Food and Markets. Any portion of the tract that is used to produce compost ingredients for a composting facility located elsewhere on the tract shall not constitute land that supports the development unless it is also used for some other purpose that supports the development.
  3. “District Commission” means the District Environmental Commission.
  4. “Endangered species” means those species the taking of which is prohibited under rules adopted under chapter 123 of this title.
  5. “Floodway” means the channel of a watercourse that is expected to flood on an average of at least once every 100 years and the adjacent land areas that are required to carry and discharge the flood of the watercourse, as determined by the Secretary of Natural Resources with full consideration given to upstream impoundments and flood control projects.
  6. “Floodway fringe” means an area that is outside a floodway and is flooded with an average frequency of once or more in each 100 years, as determined by the Secretary of Natural Resources with full consideration given to upstream impoundments and flood control projects.
  7. “Productive forest soils” means those soils that are not primary agricultural soils but that have a reasonable potential for commercial forestry and that have not been developed. In order to qualify as productive forest soils, the land containing such soils shall be of a size and location, relative to adjoining land uses, natural condition, and ownership patterns, so that those soils will be capable of supporting or contributing to a commercial forestry operation. Land use on those soils may include commercial timber harvesting and specialized forest uses, such as maple sugar or Christmas tree production.
  8. “Historic site” means any site, structure, district, or archeological landmark that has been officially included in the National Register of Historic Places or the State Register of Historic Places, or both, or that is established by testimony of the Vermont Advisory Council on Historic Preservation as being historically significant.
  9. “Land use plan” means the plan prepared pursuant to section 6043 of this title.
  10. “Lot” means any undivided interest in land, whether freehold or leasehold, including interests created by trusts, partnerships, corporations, cotenancies, and contracts.
  11. “Necessary wildlife habitat” means concentrated habitat that is identifiable and is demonstrated as being decisive to the survival of a species of wildlife at any period in its life, including breeding and migratory periods.
  12. “Plat” means a map or chart of a subdivision with surveyed lot lines and dimensions.
    1. “Person”: (14) (A) “Person”:
      1. shall mean an individual, partnership, corporation, association, unincorporated organization, trust, or other legal or commercial entity, including a joint venture or affiliated ownership;
      2. means a municipality or State agency;
      3. includes individuals and entities affiliated with each other for profit, consideration, or any other beneficial interest derived from the partition or division of land;
      4. includes an individual’s parents and children, natural and adoptive, and spouse, unless the individual establishes that he or she will derive no profit or consideration, or acquire any other beneficial interest from the partition or division of land by the parent, child, or spouse.
    2. The following individuals and entities shall be presumed not to be affiliated for the purpose of profit, consideration, or other beneficial interest within the meaning of this chapter, unless there is substantial evidence of an intent to evade the purposes of this chapter:
      1. a stockholder in a corporation shall be presumed not to be affiliated with others, solely on the basis of being a stockholder, if the stockholder and the stockholder’s spouse, and natural or adoptive parents, children, and siblings own, control, or have a beneficial interest in less than five percent of the outstanding shares in the corporation;
      2. an individual shall be presumed not to be affiliated with others, solely for actions taken as an agent of another within the normal scope of duties of a court-appointed guardian, a licensed attorney, real estate broker or salesperson, engineer, or land surveyor, unless the compensation received or beneficial interest obtained as a result of these duties indicates more than an agency relationship;
      3. a seller or chartered lending institution shall be presumed not to be affiliated with others, solely for financing all or a portion of the purchase price at rates not substantially higher than prevailing lending rates in the community, and subsequently granting a partial release of the security when the buyer partitions or divides the land.
  13. “Primary agricultural soils” means each of the following:
    1. An important farmland soils map unit that the Natural Resources Conservation Service of the U.S. Department of Agriculture (NRCS) has identified and determined to have a rating of prime, statewide, or local importance, unless the District Commission determines that the soils within the unit have lost their agricultural potential. In determining that soils within an important farmland soils map unit have lost their agricultural potential, the Commission shall consider:
      1. impacts to the soils relevant to the agricultural potential of the soil from previously constructed improvements;
      2. the presence on the soils of a Class I or Class II wetland under chapter 37 of this title;
      3. the existence of topographic or physical barriers that reduce the accessibility of the rated soils so as to cause their isolation and that cannot reasonably be overcome; and
      4. other factors relevant to the agricultural potential of the soils, on a site-specific basis, as found by the Commission after considering the recommendation, if any, of the Secretary of Agriculture, Food and Markets.
    2. Soils on the project tract that the District Commission finds to be of agricultural importance, due to their present or recent use for agricultural activities and that have not been identified by the NRCS as important farmland soil map units.
    1. “Existing settlement” means an area that constitutes one of the following: (16) (A) “Existing settlement” means an area that constitutes one of the following:
      1. a designated center; or
      2. an existing center that is compact in form and size; that contains a mixture of uses that include a substantial residential component and that are within walking distance of each other; that has significantly higher densities than densities that occur outside the center; and that is typically served by municipal infrastructure such as water, wastewater, sidewalks, paths, transit, parking areas, and public parks or greens.
    2. Strip development outside an area described in subdivision (A)(i) or (ii) of this subdivision (16) shall not constitute an existing settlement.
  14. “Shoreline” means the land adjacent to the waters of lakes, ponds, reservoirs, and rivers.  Shorelines shall include the land between the mean high water mark and the mean low water mark of such surface waters.
  15. “Stream” means a current of water that is above an elevation of 1,500 feet above sea level or that flows at any time at a rate of less than 1.5 cubic feet per second.
    1. “Subdivision” means each of the following: (19) (A) “Subdivision” means each of the following:
      1. A tract or tracts of land, owned or controlled by a person, that the person has partitioned or divided for the purpose of resale into 10 or more lots within a radius of five miles of any point on any lot, or within the jurisdictional area of the same District Commission, within any continuous period of five years. In determining the number of lots, a lot shall be counted if any portion is within five miles or within the jurisdictional area of the same District Commission.
      2. A tract or tracts of land, owned or controlled by a person, that the person has partitioned or divided for the purpose of resale into six or more lots, within a continuous period of five years, in a municipality that does not have duly adopted permanent zoning and subdivision bylaws.
      3. A tract or tracts of land, owned or controlled by a person, that have been partitioned or divided for the purpose of resale into five or more separate parcels of any size within a radius of five miles of any point on any such parcel, and within any period of ten years, by public auction.
        1. In this subdivision (iii), “public auction” means any auction advertised or publicized in any manner or to which more than ten persons have been invited.
        2. If sales described under this subdivision (iii) are of interests that, when sold by means other than public auction, are exempt from the provisions of this chapter under the provisions of subsection 6081(b) of this title, the fact that these interests are sold by means of a public auction shall not, in itself, create a requirement for a permit under this chapter.
    2. The word “subdivision” shall not include each of the following:
      1. a lot or lots created for the purpose of conveyance to the State or to a qualified organization, as defined under section 6301a of this title, if the land to be transferred includes and will preserve a segment of the Long Trail;
      2. a lot or lots created for the purpose of conveyance to the State or to a “qualified holder” of “conservation rights and interest,” as defined in section 821 of this title.
  16. “Fissionable source material” means mineral ore that:
    1. is extracted or processed with the intention of permitting the product to become or to be further processed into fuel for nuclear fission reactors or weapons; or
    2. contains uranium or thorium in concentrations that might reasonably be expected to permit economically profitable conversion or processing into fuel for nuclear reactors or weapons.
  17. “Reconnaissance” means:
    1. a geologic and mineral resource appraisal of a region by searching and analyzing published literature, aerial photography, and geologic maps; or
    2. use of geophysical, geochemical, and remote sensing techniques that do not involve road building, land clearing, the use of explosives, or the introduction of chemicals to a land or water area; or
    3. surface geologic, topographic, or other mapping and property surveying; or
    4. sample collections that do not involve excavation or drilling equipment, the use of explosives, or the introduction of chemicals to the land or water area.
  18. “Farming” means:
    1. the cultivation or other use of land for growing food, fiber, Christmas trees, maple sap, or horticultural and orchard crops; or
    2. the raising, feeding, or management of livestock, poultry, fish, or bees; or
    3. the operation of greenhouses; or
    4. the production of maple syrup; or
    5. the on-site storage, preparation, and sale of agricultural products principally produced on the farm; or
    6. the on-site storage, preparation, production, and sale of fuel or power from agricultural products or wastes principally produced on the farm; or
    7. the raising, feeding, or management of four or more equines owned or boarded by the farmer, including training, showing, and providing instruction and lessons in riding, training, and the management of equines; or
    8. the importation of 2,000 cubic yards per year or less of food residuals or food processing residuals onto a farm for the production of compost, provided that:
      1. the compost is principally used on the farm where it is produced; or
      2. the compost is produced on a small farm that raises or manages poultry.
  19. “Adjoining property owner” means a person who owns land in fee simple, if that land:
    1. shares a property boundary with a tract of land where a proposed or actual development or subdivision is located; or
    2. is adjacent to a tract of land where a proposed or actual development or subdivision is located and the two properties are separated only by a river, stream, or public highway.
  20. “Solid waste management district” means a solid waste management district formed pursuant to 24 V.S.A. § 2202a and chapter 121, or by charter adopted by the General Assembly.
  21. “Slate quarry” means a quarry pit or hole from which slate has been extracted or removed for the purpose of commercial production of building material, roofing, tile, or other dimensional stone products. “Dimensional stone” refers to slate that is processed into regularly shaped blocks, according to specifications. The words “slate quarry” shall not include pits or holes from which slate is extracted primarily for purposes of crushed stone products, unless, as of June 1, 1970, slate had been extracted from those pits or holes primarily for those purposes.
  22. “Telecommunications facility” means a support structure that is primarily for communication or broadcast purposes and that will extend vertically 20 feet or more above the highest point of an attached existing structure, or 50 feet or more above ground level in the case of a proposed new support structure, in order to transmit or receive communication signals for commercial, industrial, municipal, county, or State purposes.
  23. “Mixed income housing” means a housing project in which the following apply:
    1. Owner-occupied housing. At the option of the applicant, owner-occupied housing may be characterized by either of the following:
      1. at least 15 percent of the housing units have a purchase price that at the time of first sale does not exceed 85 percent of the new construction, targeted area purchase price limits established and published annually by the Vermont Housing Finance Agency; or
      2. at least 20 percent of the housing units have a purchase price that at the time of first sale does not exceed 90 percent of the new construction, targeted area purchase price limits established and published annually by the Vermont Housing Finance Agency.
    2. Rental housing. At least 20 percent of the housing units that are rented constitute affordable housing and have a duration of affordability of not less than 15 years.
  24. “Mixed use” means construction of both mixed income housing and construction of space for any combination of retail, office, services, artisan, and recreational and community facilities, provided at least 40 percent of the gross floor area of the buildings involved is mixed income housing. “Mixed use” does not include industrial use.
  25. “Affordable housing” means either of the following:
    1. Owner-occupied housing for which the total annual cost of ownership, including principal, interest, taxes, insurance, and condominium association fees, does not exceed 30 percent of the gross annual income of a household at 120 percent of the highest of the following:
      1. the county median income, as defined by the U.S. Department of Housing and Urban Development;
      2. the standard metropolitan statistical area median income if the municipality is located in such an area, as defined by the U.S. Department of Housing and Urban Development; or
      3. the statewide median income, as defined by the U.S. Department of Housing and Urban Development.
    2. Rental housing for which the total annual cost of renting, including rent, utilities, and condominium association fees, does not exceed 30 percent of the gross annual income of a household at 80 percent of the highest of the following:
      1. the county median income, as defined by the U.S. Department of Housing and Urban Development;
      2. the standard metropolitan statistical area median income if the municipality is located in such an area, as defined by the U.S. Department of Housing and Urban Development; or
      3. the statewide median income, as defined by the U.S. Department of Housing and Urban Development.
  26. “Designated center” means a downtown development district, village center, new town center, growth center, Vermont neighborhood, or neighborhood development area designated under 24 V.S.A. chapter 76A.
  27. “Farm,” for purposes of subdivisions (3)(D)(vii)(V) and (VI) of this section, means a parcel of land devoted primarily to farming, as farming is defined in subdivision (22)(A) or (B) of this section, and:
    1. from which parcel, annual gross income from farming, as defined in subdivision (22) of this section, exceeds the annual gross income from a composting operation on that parcel. For purposes of this subdivision, a federal, State, or municipal highway or road shall not be determined to divide tracts of land that are otherwise physically contiguous;
    2. for purposes of subdivision (3)(D)(vii)(V) of this section, uses no more than 10 acres or 10 percent of the parcel, whichever is smaller, for commercial compost management, not including land used for liquid nutrients management;
    3. for purposes of subdivision (3)(D)(vii)(VI) of this section, uses no more than four acres or 10 percent of the parcel, whichever is smaller, for commercial compost management, not including land used for liquid nutrients management.
  28. “Livestock” means cattle, sheep, goats, equines, fallow deer, red deer, American bison, swine, water buffalo, poultry, pheasant, chukar partridge, courtnix quail, camelids, ratites (ostriches, rheas, and emus), llamas, alpacas, yaks, rabbits, cultured trout propagated by commercial trout farmers, or other animal types designated by the Secretary of Agriculture, Food and Markets by procedure.
  29. “Compost” means a stable humus-like material produced by the controlled biological decomposition of organic matter through active management, but shall not mean sewage, septage, or materials derived from sewage or septage.
  30. “Agricultural fair” means an event or activity that is intended to promote farming by:
    1. exhibiting a variety of livestock and agricultural products;
    2. exhibiting arts, equipment, and implements related to farming; or
    3. conducting contests, displays, and demonstrations designed to advance farming, advance the local food economy, or train or educate farmers, youth, or the public regarding agriculture.
  31. “Priority housing project” means a discrete project located on a single tract or multiple contiguous tracts of land that consists exclusively of:
    1. mixed income housing or mixed use, or any combination thereof, and is located entirely within a designated downtown development district, designated new town center, designated growth center, or designated village center that is also a designated neighborhood development area under 24 V.S.A. chapter 76A; or
    2. mixed income housing and is located entirely within a designated Vermont neighborhood or designated neighborhood development area under 24 V.S.A. chapter 76A.
  32. “Strip development” means linear commercial development along a public highway that includes three or more of the following characteristics: broad road frontage, predominance of single-story buildings, limited reliance on shared highway access, lack of connection to any existing settlement except by highway, lack of connection to surrounding land uses except by highway, lack of coordination with surrounding land uses, and limited accessibility for pedestrians. In determining whether a proposed development or subdivision constitutes strip development, the District Commission shall consider the topographic constraints in the area in which the development or subdivision is to be located.
  33. “Industrial park” means an area of land permitted under this chapter that is planned, designed, and zoned as a location for one or more industrial buildings; that includes adequate access roads, utilities, water, sewer, and other services necessary for the uses of the industrial buildings; and includes no retail use except that which is incidental to an industrial use and no office use except that which is incidental or secondary to an industrial use.
  34. “Farm” means, for the purposes of subdivision (22)(H) of this section, a parcel or parcels of land owned, leased, or managed by a person and devoted primarily to farming that meets the threshold criteria as established under the Required Agricultural Practices.
  35. “Food processing residuals” means the remaining organic material from a food processing plant and may include whey and other dairy, cheese making, and ice cream residuals or residuals from any food manufacturing process excluding livestock or poultry slaughtering and rendering operations. “Food processing residuals” does not include food residuals from markets, groceries, or restaurants.
  36. “Food residuals” has the same meaning as in section 6602 of this title.
  37. “Principally used” means, for the purposes of subdivisions (3)(D)(vii)(III) and (22)(H) of this section, that more than 50 percent, either by volume or weight, of the compost produced on the farm is physically and permanently incorporated into the native soils on the farm as a soil enhancement and is not removed or sold at any time thereafter.
  38. “Small farm” has the same meaning as in 6 V.S.A. § 4871 .

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 2, eff. April 4, 1970; amended 1973, No. 85 , § 8; 1979, No. 123 (Adj. Sess.), §§ 1-3, eff. April 14, 1980; 1981, No. 240 (Adj. Sess.), § 6, eff. April 28, 1982; 1983, No. 114 (Adj. Sess.), § 1; 1985, No. 64 ; 1987, No. 64 , § 2; 1987, No. 273 (Adj. Sess.), § 2, eff. June 21, 1988; 1989, No. 154 (Adj. Sess.); 1989, No. 231 (Adj. Sess.), § 1, eff. July 1, 1991; 1989, No. 234 (Adj. Sess.), § 4; 1993, No. 200 (Adj. Sess.), § 1; 1993, No. 232 (Adj. Sess.), § 24, eff. March 15, 1995; 1995, No. 10 , § 1; 1995, No. 30 , § 1, eff. April 13, 1995; 1997, No. 48 , § 1; 1997, No. 94 (Adj. Sess.), § 5, eff. April 15, 1998; 2001, No. 40 , § 1; 2001, No. 114 (Adj. Sess.), §§ 6, 7, eff. May 28, 2002; 2003, No. 66 , § 217c; 2003, No. 115 (Adj. Sess.), § 46, eff. Jan. 31, 2005; 2003, No. 121 (Adj. Sess.), §§ 75, 76, eff. June 8, 2004; 2005, No. 183 (Adj. Sess.), § 6; 2007, No. 79 , § 13, eff. June 9, 2007; 2007, No. 92 (Adj. Sess.), § 4; 2007, No. 176 (Adj. Sess.), §§ 6, 7; 2009, No. 54 , § 52, eff. June 1, 2009; 2009, No. 141 (Adj. Sess.), §§ 1a-3, eff. June 1, 2010; 2011, No. 18 , §§ 1, 2, eff. May 11, 2011; 2013, No. 11 , § 1; 2013, No. 59 , § 11; 2013, No. 147 (Adj. Sess.), § 1, eff. June 1, 2014; 2013, No. 159 (Adj. Sess.), § 16b; 2013, No. 199 (Adj. Sess.), § 37; 2015, No. 52 , § 4, eff. June 5, 2015; 2015, No. 64 , § 13; 2017, No. 69 , § H.3, eff. June 28, 2017; 2021, No. 41 , § 1, eff. May 20, 2021; 2021, No. 54 , § 3.

History

References in text.

The U.S. Department of Housing and Urban Development, referred to in this section, is established pursuant to 42 U.S.C. § 3532.

Section 42(g) of the Internal Revenue Code, referred to in subdiv. (27)(B), is codified at 26 U.S.C. § 42(g) .

Section 6043 of this title, referred to in subdiv. (10), was repealed by 1983, No. 114 (Adj. Sess.), § 5.

Revision note

—2020. In subdiv. (3)(A)(iv)(I)(ff), added “(ff)” following “subdivision” in the second sentence for purposes of clarity.

—2015. In subdiv. (3)(E), substituted “required agricultural practices” for “accepted agricultural practices” preceding “adopted” in accordance with 2015, No. 64 , § 13.

In subdiv. (9), substituted “the National Register of Historic Places or the State Register of Historic Places, or both” for “the National Register and/or the State Register of Historic Places” to conform to V.S.A. style.

—2013. In subdiv. (11), deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

—2006. Reference to “chapter 70 of Title 13” in subdiv. (5) changed to “chapter 123 of this title”. 1981, No. 188 (Adj. Sess.), provided for the repeal of chapter 70 of Title 13 and the enactment of chapter 123 of this title.

In subdiv. (3)(D(vi)(II), added “(3)(D)(vi)” following “subdivision” for purposes of clarity.

—2015. In subdiv. (3)(E), substituted “required agricultural practices” for “accepted agricultural practices” preceding “adopted” in accordance with 2015, No. 64 , § 13.

In subdiv. (9), substituted “the National Register of Historic Places or the State Register of Historic Places, or both” for “the National Register and/or the State Register of Historic Places” to conform to V.S.A. style.

—2013. In subdiv. (11), deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

—2006. Reference to “chapter 70 of Title 13” in subdiv. (5) changed to “chapter 123 of this title”. 1981, No. 188 (Adj. Sess.), provided for the repeal of chapter 70 of Title 13 and the enactment of chapter 123 of this title.

Editor’s note

—2004. The text of this section is based on the harmonization of two amendments. During the 2003 (Adj. Sess.), this section was amended twice, by Act Nos. 115 and 121, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2003 (Adj. Sess.), the text of Act Nos. 115 and 121 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

Amendments

—2021. Intro. para.: Act No. 41 and Act No. 54 inserted “As used” at the beginning.

Subdiv. (3)(D)(ii): Act No. 54 inserted “energy storage,” and “or is subject to regulation under 30 V.S.A. § 8011 ,”.

Subdiv. (22)(H): Added by Act No. 41.

Subdivs. (38)-(42): Added by Act No. 41.

—2017. Subdiv. (3)(A)(iv)(I): Repealed subdivs. (aa) and (bb) and rewrote the first sentence of subdiv. (ff).

Subdiv. (3)(D): Added subdiv. (viii).

Subdiv. (27)(A)(i) and (ii): Substituted “that” for “which” following “purchase price”.

Subdiv. (27)(B): Substituted “of not less than 15 years” for “of no less than 20 years”.

Subdiv. (29): Amended generally.

—2015. Subdiv. (3)(D)(vi)(ff): Added.

—2013 (Adj. Sess.). Subdivs. (3), (16), (27), and (30) amended generally and subdivs. (35) and (36) added by Act No. 147.

Subdiv. (15) amended by Act No. 159: Rewrote the subdiv.

Subdiv. (37) added by Act No. 199 as subdiv. (35); redesignated as (37) to avoid conflict with subdiv. (35) as added by Act No. 147.

—2013. Introductory paragraph: Substituted “In this chapter” for “When used in this chapter”.

Subdiv. (3)(A): Inserted “each of the following” following “means”.

Subdivs. (3)(A)(ix) and (x): Added.

Subdiv. (3)(D): Amended generally.

Subdiv. (19)(A): Added the subdiv. designation and amended the subdiv. generally.

Subdiv. (19)(B): Added.

—2011. Subdiv. (3)(D)(iv): Inserted “registered with the agency of agriculture, food and markets and that are” preceding “open” and substituted “if the improvement is a building, the building was constructed prior to January 1, 2011 and is used solely for the purposes of the agricultural fair” for “any improvements constructed do not include one or more buildings” following “provided, that”.

Subdiv. (34): Added.

—2009 (Adj. Sess.) Subdiv. (3)(D)(vii): Added.

Subdiv. (3)(E): Added the last sentence.

Subdiv. (31), (33): Added.

—2009. Subdiv. (3)(D): Amended generally.

Subdiv. (3)(D)(vi): Added.

—2007 (Adj. Sess.). Subdivs. (3)(B), (C): Amended generally by Act No. 176.

Subdiv. (22)(F): Act No. 92 inserted “storage, preparation” following “on-site”, “and sale” following “production” and “principally” following “wastes”.

Subdiv. (27): Amended generally by Act No. 176.

—2007. Subdiv. (26): Added “above the highest point of an attached existing structure or 50 feet or more above ground level in the case of a proposed new support structure,” preceding “in order”.

—2005 (Adj. Sess.). Subdiv. (3)(B): Inserted “growth center designated pursuant to 24 V.S.A. § 2793c or within a” preceding “downtown”.

Subdiv. (3)(B)(iv): Substituted “25” for “20” in two places.

Subdivs. (3)(C)(i)-(3)(C)(iii): Inserted “or designated growth center” following “district” throughout the subdivs.

Subdiv. (3)(C)(v): Added.

Subdiv. (8): Amended generally.

Subdiv. (15): Amended generally.

Subdiv. (29): Amended generally.

Subdiv. (30): Added.

—2003 (Adj. Sess.). Act 115 substituted “natural resources” for “environmental” preceding “board” in subdiv. (1).

Act 121 added subdiv. (3)(E).

Act 121 deleted “equines” preceding “fish” in subdiv. (22)(B) and made minor punctuation changes.

Act 121 added subdiv. (22)(G).

—2003. Subdivs. (3)(D)(iii)-(v): Added.

—2001 (Adj. Sess.) Subdiv. (3): Amended existing text generally and designated it as subdivs. (A) and (D) and added subdivs. (B)-(C).

Subdivs. (27)-(29): Added.

—2001. Subdiv. (19): Added the fifth sentence.

—1997 (Adj. Sess.). Added subdiv. (26).

—1997. Subdiv. (3): Inserted “county” following “used for municipal” in the sixth sentence.

—1995. Subdiv. (19): Act No. 10 added the fourth sentence.

Subdiv. (25): Added by Act No. 30.

—1993 (Adj. Sess.) Act No. 200 added the eighth and ninth sentences in subdiv. (3).

Act No. 232 added subdivs. (23) and (24).

—1989 (Adj. Sess.) Subdiv. (3): Act No. 231 added the third sentence.

Act No. 234 inserted “and within any continuous period of five years” following “involved land” in the fourth sentence.

Subdiv. (19): Act No. 154 added the third sentence.

—1987 (Adj. Sess.) Subdiv. (3): In the seventh sentence, added “or a natural gas facility as defined by subdivision 248(a)(3) of that title” following “Title 30”.

—1987. Subdiv. (14): Amended generally.

Subdiv. (19): Amended generally.

—1985. Subdiv. (22): Added.

—1983 (Adj. Sess.) Subdiv. (11): Deleted “of less than 10 acres” preceding “whether”.

—1981 (Adj. Sess.) Subdiv. (3): Added the tenth sentence.

—1979 (Adj. Sess.) Subdiv. (3): Added the ninth sentence.

Subdiv. (20): Added.

Subdiv. (21): Added.

—1973. Section amended generally.

Effective date of 2017 amendment. 2017, No. 69 , § N.1(b) provides that the amendments to this section shall take effect on the date of enactment of the fiscal year 2018 annual budget bill, which occurred on June 28, 2017.

1995, No. 30 amendment. 1995, No. 30 , § 4, eff. April 13, 1995, provided in part that the amendment to this section by section 1 of the act shall be retroactive to June 1, 1970.

Basis for determination of number of lots. 1987, No. 64 , § 10, provided: “Any lot, all portions of which are greater than five miles apart, but any portion of which are within the jurisdictional area of a district commission, shall not be counted as a lot, solely on the basis of that distinction, if it was conveyed before the effective date of this act.”

The provisions of the act affecting Title 10 became effective on July 1, 1987.

Determination of existence of subdivision. 1983, No. 114 (Adj. Sess.), § 6, provided: “Lots of ten acres or more, which were conveyed prior to the effective date of this act, shall not be considered as lots in determining whether a subdivision exists, as defined in section 6001(19).”

Repeal of sunset date. 2010, No. 141 (Adj. Sess.), § 3a, which provided for the repeal of 10 V.S.A. §§ 6001(3)(D) (vii) (composting exemptions), 6001(31) (definition of farm for compost exemptions) and 6001e (circumvention authority), effective July 1, 2014, was repealed by 2013, No. 11 , § 7.

CROSS REFERENCES

See 30 V.S.A. § 55 on applicability of building energy stretch codes to priority housing projects as defined in 10 V.S.A. § 6001 .

Notes to Opinions

Animal feedlot.

An animal feedlot, such as a place where hogs are raised, none of the feed being raised on the premises, is a “development” within the meaning of this section, and not a farm, where no farming operations, such as raising other livestock and growing feed or other crops, are carried on. 1972-74 Vt. Op. Att'y Gen. 86.

Electric generation or transmission facility.

Where a proposed improvement bears a reasonable relation to, and can be considered to be a part of, an electric transmission or generation facility, it is exempt under provision of this section providing that a “development”’ does not include an electric transmission or generation facility required to have a certificate of public good, and the exemption covers such items as impoundments, roads, rail spurs and lagoons. 1970-72 Vt. Op. Att'y Gen. 167.

ANNOTATIONS

Access.

Even if the Court were to agree with a developer that the trial court considered a development project’s contemplated construction of a new road through two existing residential lots (a tenuous assertion) in finding that there was adequate access to the 10.85 acres at issue for commercial agricultural use, it would not change the fact that the trial court found that the parcel was still accessible from another street, a finding that was enough, by itself, to support the trial court’s conclusion regarding access. In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42, 2010 VT 42A, 188 Vt. 113, 998 A.2d 712, 2010 Vt. LEXIS 37 (2010).

Actual use.

Plain language of statute and regulation does not preclude State Environmental Board from basing Act 250 jurisdiction on actual use of land rather than overall purpose of development scheme. In re BHL Corp., 161 Vt. 487, 641 A.2d 771, 1994 Vt. LEXIS 42 (1994).

Attendant facilities to railroad line.

The Environmental Board erred in determining that a company’s proposed project to construct an intermodal fuel transfer facility on a spur line adjacent to the main railway line was subject to Act 250 jurisdiction under subdiv. (3)(C)(iv) of this section. In re MacIntyre Fuels, Inc., 2003 VT 59, 175 Vt. 613, 833 A.2d 829, 2003 Vt. LEXIS 144 (2003) (mem.).

Conditions.

Condition 14 of an Act 250 permit, which reserved continuing jurisdiction over a stormwater system, thereby creating for the District Environmental Commission a mechanism to continuously amend the permit as necessary to redress future Act 250 violations or failures under the terms of the approved project by adding additional conditions, was invalid, as it effectively endowed the Commission with the prospective extra-statutory authority to re-open the amended permit and perpetually act and was an invalid condition subsequent. In re Treetop Dev. Co. Act 250 Dev., 2016 VT 20, 201 Vt. 532, 143 A.3d 1086, 2016 Vt. LEXIS 20 (2016).

Control.

Resort did not “control” the rental homes within it for purposes of Act 250 jurisdiction because while the resort controlled access to the rental homes while guests were staying in them and prevented owners from entering their own homes, the rental agreement required the owners to completely furnish and equip their homes, homeowners could occupy their own homes for unlimited periods, and homeowners could terminate the rental agreement at any time. In re Mt. Top Inn & Resort, Jo 1-391, 2020 VT 57, 212 Vt. 554, 238 A.3d 637, 2020 Vt. LEXIS 71 (2020).

Demolition.

Demolition does not constitute the construction of improvements within the meaning of this chapter unless it is the first step in a proven development project, as defined in subdiv. (3) of this section; there is no reasonable connection between an isolated demolition project on any size tract of land, and the stated purpose of this chapter, to determine the suitability of land for large scale development of a type presumably to be described in a permit application. In re Agency of Administration, 141 Vt. 68, 444 A.2d 1349, 1982 Vt. LEXIS 479 (1982).

Proposed demolition of wood frame house, which property comprised less than one acre, was held not to be part of a State development project within the meaning of either the definitions rule of the Environmental Board rules or subdiv. (3) of this section, and was not subject to the permit requirements of this chapter, contrary to a decision of the Environmental Board, where the demolition of the wood frame house was authorized by the Legislature, not tied to any plan for construction of a building on the site or to any development project, and the razing of the building was not inconsistent with future use of the site for a number of purposes other than a State office building, or, indeed, with no future use of the site at all. In re Agency of Administration, 141 Vt. 68, 444 A.2d 1349, 1982 Vt. LEXIS 479 (1982).

Due Process.

In an Act 250 proceeding, the participation of the chair of the town’s development review board in the decision-making process violated due process, as he expressed open contempt for one group that opposed a project as outsiders and elitists. In re JLD Props. of St. Albans, LLC, 2011 VT 87, 190 Vt. 259, 30 A.3d 641, 2011 Vt. LEXIS 86 (2011).

Farming.

“On site storage, preparation and sale of agricultural products” encompasses storing, washing, waxing, wrapping, and packing apples. In re Ochs, 2006 VT 122, 181 Vt. 541, 915 A.2d 780, 2006 Vt. LEXIS 330 (2006) (mem.).

It was reasonable to conclude that the legislative intent behind the exemption to Act 250 was to include lands leased by a farmer as part of that farmer’s “farm” for purposes of satisfying the exemption for “the on site storage, preparation and sale of agricultural products principally produced on the farm.” In re Ochs, 2006 VT 122, 181 Vt. 541, 915 A.2d 780, 2006 Vt. LEXIS 330 (2006) (mem.).

Housing projects.

Development project required an Act 250 permit because it involved the construction of a housing project with 10 or more units, based on the definition of “development” under Act 250. In re Shenandoah LLC, 2011 VT 68, 190 Vt. 149, 27 A.3d 1078, 2011 Vt. LEXIS 68 (2011).

In determining whether two housing projects were so closely related as to constitute a single “development” for purposes of this chapter, Environmental Board could consider contiguity in time of development in conjunction with petitioner’s retained common ownership of the projects. In re Declaratory Ruling #149 Trono Construction Co., 146 Vt. 591, 508 A.2d 695, 1986 Vt. LEXIS 338 (1986).

Where housing authority was planning to construct, own and maintain several low income housing projects, consisting in the aggregate of thirty-five units, on separate tracts of lands situated within five miles of each other, since the proposal constituted a “development” as defined in subdiv. (3) of this section, order of Environmental Board requiring the authority to obtain an authorization permit prior to building the units as required by section 6081 of this title was proper. In re Burlington Housing Authority Declaratory Ruling #124, 143 Vt. 80, 463 A.2d 215, 1983 Vt. LEXIS 472 (1983).

Involved land.

Environmental Board was within its discretion in concluding that landowner should have gotten permit before constructing commercial garage; Board acted reasonably in determining that two contiguous parcels were a “tract” within meaning of subdiv. (3) of this section. In re Gerald Costello Garage, 158 Vt. 655, 614 A.2d 389, 1992 Vt. LEXIS 93 (1992) (mem.).

This section’s provision that “development” means improvements on a tract or tracts involving more than 10 acres of land within a radius of five miles of any point on any involved land does not restrict the term “involved land” to the acreage actually used in the improvements. Committee to Save the Bishop's House, Inc. v. Medical Center Hospital of Vermont, Inc., 137 Vt. 142, 400 A.2d 1015, 1979 Vt. LEXIS 945 (1979).

Land is “involved,” within the meaning of this section’s provision that development means improvements on a tract or tracts involving more than 10 acres within a radius of five miles of any point on any involved land, only where the land is incident to the use within the meaning of the act or bears some relationship to the land actually used in the improvements, such that there is demonstrable likelihood that the impact on the values sought to be protected by the act will be substantially increased by reason of that relationship. Committee to Save the Bishop's House, Inc. v. Medical Center Hospital of Vermont, Inc., 137 Vt. 142, 400 A.2d 1015, 1979 Vt. LEXIS 945 (1979).

State Environmental Board rule permitting and perhaps even encouraging a construction of “involved land” which authorized the District Environmental Commissions to assert jurisdiction over projects where the plain policy of this chapter indicated that the fate of the project should be left to local decision was invalid, and the rule could thus not support lower court’s liberal approach to application of this section’s provision that a development was an improvement on a tract or tracts involving more than 10 acres within a radius of five miles of any point on any involved land. Committee to Save the Bishop's House, Inc. v. Medical Center Hospital of Vermont, Inc., 137 Vt. 142, 400 A.2d 1015, 1979 Vt. LEXIS 945 (1979).

Where Mary Fletcher Unit occupied 26.7 acres and the DeGoesbriand Unit of the hospital occupied 5.9 acres, and hospital wanted to tear down historic house on DeGoesbriand Unit and build a parking lot, and the lands of the two units were separated by a half mile and the parking lot would serve primarily the DeGoesbriand Unit, the 26.7 acres of the Mary Fletcher Unit could not be termed “land involved” so as to make this chapter apply by reason of this section’s definition of a development as improvements on a tract or tracts involving more than 10 acres within a radius of five miles of any point on any involved land, and injunction against the demolition and construction until permit under this chapter could be obtained would be dissolved. Committee to Save the Bishop's House, Inc. v. Medical Center Hospital of Vermont, Inc., 137 Vt. 142, 400 A.2d 1015, 1979 Vt. LEXIS 945 (1979).

Jurisdiction.

Because the family that operated a shooting range did not charge a fee or rely on the donations it accepted to provide use of the range, the environmental court properly concluded that the range did not operate for a commercial purpose and was therefore not under Act 250 jurisdiction. In re Laberge Shooting Range, 2018 VT 84, 208 Vt. 441, 198 A.3d 541, 2018 Vt. LEXIS 126 (2018).

Trial court properly held that a talc mine continued to be subject to Act 250 jurisdiction after mine operations ceased and the Act 250 permit expired, as there was support for the finding that a causal connection existed between permit violations and post-operational drainage problems. In re Hamm Mine Act 250 Jurisdiction, 2009 VT 88, 186 Vt. 590, 980 A.2d 286, 2009 Vt. LEXIS 101 (2009) (mem.).

In an Act 250 case, a District Commission was not estopped from asserting jurisdiction over a mine after mine operations ceased and the Act 250 permit expired. The trial court had found that a causal connection existed between permit violations and post-operational drainage problems, and the past owners of the mine could not claim that they were ignorant of the unpermitted changes in the site plan or that they could rely on permits that did not address development for which neither they nor their predecessor sought or obtained approval. In re Hamm Mine Act 250 Jurisdiction, 2009 VT 88, 186 Vt. 590, 980 A.2d 286, 2009 Vt. LEXIS 101 (2009) (mem.).

Local governments may not apply a law like Act 250, 10 V.S.A. §§ 6001-6108 , so as to require pre-construction approval and permitting. Such a procedure is preempted by the Interstate Commerce Commission Termination Act of 1995, specifically 49 U.S.C.S. § 10501(b). Green Mt. R.R. Corp. v. Vermont, 2003 U.S. Dist. LEXIS 23774 (D. Vt. Dec. 15, 2003), aff'd, 404 F.3d 638, 2005 U.S. App. LEXIS 6164 (2d Cir. 2005).

Although federal government preempted certain aspects of aircraft and airport operation, it did not pervasively occupy field of land use regulations relating to aviation, and therefore application of Act 250 to appellant’s airport was not preempted by federal law. In re Commercial Airfield, 170 Vt. 595, 752 A.2d 13, 2000 Vt. LEXIS 42 (2000) (mem.).

In deciding whether the construction of an access road was a “road” for purposes of Environmental Board Rule 2(A)(6) and, thus, subject to jurisdiction under this chapter, decision is inherently fact-bound and difficult to reduce to a straightforward test, and a reasonable measure of discretion inheres in the determination of what qualifies as a road. Secretary v. Short, 165 Vt. 277, 682 A.2d 484, 1996 Vt. LEXIS 73 (1996).

A section of an access road built by property owners, which was 286 feet long and extended from a cul-de-sac at the end of a prior section of the road, on which two lots had frontage, was not a “road” for purposes of Environmental Board Rule 2(A)(6) but a shared driveway, and thus not subject to jurisdiction under this section. Secretary v. Short, 165 Vt. 277, 682 A.2d 484, 1996 Vt. LEXIS 73 (1996).

The crucial element of the commercial purpose test for determining Act 250 jurisdiction is whether the developer provides goods or facilities to others in exchange for something of value, and where a not-for-profit charitable foundation provides a facility to underprivileged children in exchange for donations and contributions, the Court concluded that the commercial purpose test was satisfied. In re Spring Brook Farm Found., Inc., 164 Vt. 282, 671 A.2d 315, 1995 Vt. LEXIS 119 (1995).

In deciding Act 250 jurisdiction, the Court viewed the term “commercial purpose” within the context of a land use statute, not as a tax statute or trade regulation, and viewed “commercial purpose” within the language of Environmental Rule 2 (L) to refer to land use by multiple parties as a result of the developer’s provision of facilities, goods, or services; consequently, the Court refused to rely on inappropriate distinctions between profit and nonprofit or payment by beneficiary and donation by a third party to create exceptions to Act 250 jurisdictional requirements. In re Spring Brook Farm Found., Inc., 164 Vt. 282, 671 A.2d 315, 1995 Vt. LEXIS 119 (1995).

Environmental Board’s assertion of jurisdiction over gas company’s proposed expansion of its transmission and distribution network was premature, since jurisdiction under this chapter does not attach until construction is about to commence, and the gas company had no specific plans establishing the precise location, the method of construction, or the extent of the work to be done in the expansion. In re Vermont Gas Systems, Inc., 150 Vt. 34, 549 A.2d 627, 1988 Vt. LEXIS 124 (1988).

Land incident to use.

This section’s provision that in computing the amount of land involved in a development, land shall be included which is “incident to the use,” such as lawns, parking areas, roadways, leaching fields and accessory buildings, does not limit the concept of land incident to the use so as to include only the enumerated examples; land incident to the use is only one component of land involved, not the sole component. Committee to Save the Bishop's House, Inc. v. Medical Center Hospital of Vermont, Inc., 137 Vt. 142, 400 A.2d 1015, 1979 Vt. LEXIS 945 (1979).

Necessary wildlife habitat.

Developer did not suffer a physical taking when its application for a land use permit was denied on grounds the project would imperil necessary wildlife habitat; developer did not lose right to possess allegedly occupied land forming part of deeryard, developer retained substantial power to control use of property, and since many uses were still available to any owner of the deeryard land, developer’s right to sell the land was not worthless. Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992), cert. denied, 507 U.S. 987, 113 S. Ct. 1586, 123 L. Ed. 2d 153, 1993 U.S. LEXIS 2199 (1993).

The term “necessary wildlife habitat” in subdiv. (12) of this section means habitat that is decisive to survival of those particular members of the species which depend upon that habitat it is not necessary that the habitat be decisive to the survival of the entire species within the state. In re Southview Associates, 153 Vt. 171, 569 A.2d 501, 1989 Vt. LEXIS 223 (1989).

Nonprofit land uses.

In creating Vermont’s land use law, Act 250 ( 10 V.S.A. §§ 6001-6108 ) the Legislature recognized that funding distinctions determining whether the funding for a project is derived from the actual beneficiary of the project or a third party are irrelevant to land use, and to distinguish between a profit versus nonprofit organization would affect the application of land use regulations and would allow charitable organizations to escape the purview of Act 250, rendering the statute ineffective. In re Spring Brook Farm Found., Inc., 164 Vt. 282, 671 A.2d 315, 1995 Vt. LEXIS 119 (1995).

Neither religious nor other nonprofit land uses, such as hospitals, are excluded from the definition of development under this chapter. In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636, 481 A.2d 1274, 1984 Vt. LEXIS 538 (1984).

This chapter speaks to land use and not to the particular institutional activity associated with the land use; to exclude a church from the provisions of the chapter simply because of its evangelical services could not be justified on environmental grounds. In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636, 481 A.2d 1274, 1984 Vt. LEXIS 538 (1984).

Construction of meetinghouse by a church is a “development” subject to the requirements of this chapter. In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636, 481 A.2d 1274, 1984 Vt. LEXIS 538 (1984).

Person.

Trial court properly found that a project did not constitute a “development” and thus did not require an Act 250 permit, as its conclusion that the landowners and a potential buyer of part of their property were not one “person” for purposes of Act 250 jurisdiction was supported by the evidence, including that the parties had no prior dealings with one another, the landowners had no ownership interest in the potential buyer, the size of the parcel reflected the size of the buyer’s quarry and keeping the parcel small was consistent with each party’s respective self-interests, and the contract did not call for or allow landowners to retain any ownership or controlling interest over the parcel to be sold or with respect to the access easement. In re Snowstone, LLC, 2021 VT 72, 2021 VT 72A, 2022 Vt. LEXIS 8 (Vt. 2022).

By its plain language, the statute defining “person” as “individuals and entities affiliated with each other for profit, consideration, or any other beneficial interest derived from the partition or division of land” is applicable only to the subdivision of land. Because an Act 250 rule improperly expanded this definition to include the development of land, the Environmental Division properly held that a resort and owners of the rental homes within the resort were not a collective person. In re Mt. Top Inn & Resort, Jo 1-391, 2020 VT 57, 212 Vt. 554, 238 A.3d 637, 2020 Vt. LEXIS 71 (2020).

Primary agricultural soils.

Though the Environmental Board decisions often conflate analysis of whether a limitation exists with analysis of whether that limitation can be easily overcome, the plain language of the statute pertaining to primary agricultural soils indicates there are two steps. Under the first step, a determination as to the existence of a limitation must be made—e.g., a determination as to whether the land is excessively wet, excessively treed, covered with rocks, or located on a steep incline or ledge; once a limitation is found to exist, the next step is to determine whether the limitation can be easily overcome. In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42, 2010 VT 42A, 188 Vt. 113, 998 A.2d 712, 2010 Vt. LEXIS 37 (2010).

Determination of the practical and technical difficulties of converting land to agricultural use is the touchstone of the analysis under the second step of the statute pertaining to primary agricultural soils; however, the cost of overcoming a limitation and whether the cost demands can be easily overcome is a relevant factor, and nothing in the statute precludes the Environmental Court from considering it. Indeed, though the cost of overcoming a limitation, such as the presence of trees, will rarely be a trump card that precludes a finding of primary agricultural soils, cost is still one of many factors to be considered, along with physical and practical difficulties of overcoming a limitation, such as tiling land to overcome wetness, removing stones, or eliminating inclines. In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42, 2010 VT 42A, 188 Vt. 113, 998 A.2d 712, 2010 Vt. LEXIS 37 (2010).

Presence of a “healthy eastern woodland” on the 10.85 acres that would otherwise contain primary agricultural soil presented a definite limitation for cultivation, as this forest cover would have to be removed before any farming could begin. Although the trial court made findings of fact with regard to the existence of practical and technical difficulties of overcoming tree removal, it erred in refusing to consider the cost of removing the trees and concluding that cost of removal of a limitation was not a relevant consideration. In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42, 2010 VT 42A, 188 Vt. 113, 998 A.2d 712, 2010 Vt. LEXIS 37 (2010).

Act 250 seeks to protect primary agricultural soils and Vermont small farms while encouraging responsible development, and this goal is not forwarded by protecting land that, even without development, would not be capable of sustaining any sort of agricultural venture; the Legislature recognized this reality when it chose to narrow the definition of “primary agricultural soils” with the qualifier that there be few limitations for cultivation or limitations that may be easily overcome. The Legislature did not intend to protect every parcel of land that contained the physical and chemical characteristics of primary agricultural soil regardless of any logistical challenges to its agricultural use; an interpretation of the statute pertaining to primary agricultural soils that includes analysis of whether or not removing a limitation for cultivation would be prohibitively expensive is consistent with both the plain language of the statute and the broader Act 250 statutory scheme and purpose. In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42, 2010 VT 42A, 188 Vt. 113, 998 A.2d 712, 2010 Vt. LEXIS 37 (2010).

2006 amendment to the statute pertaining to primary agricultural soils added reference to forests and forestland to the second sentence of the definition, thus including these types of land in the list of permissible current uses. The amendment does not preclude consideration of the cost of removing trees found in forests or forestlands in determining whether limitations on conversion to agricultural use presented by the presence of trees can be easily overcome; the amendment merely precludes the Agency of Agriculture, Food and Markets from automatically eliminating forested land from its analysis of whether primary agricultural soils exist, a practice that was apparently commonplace. In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42, 2010 VT 42A, 188 Vt. 113, 998 A.2d 712, 2010 Vt. LEXIS 37 (2010).

2006 amendment to the statute pertaining to primary agricultural soils appears to be a reaction to the practice in which the reviewing body gave undue weight to the presence of trees in its analysis of whether primary agricultural soils existed. The amendment merely serves as a clarification that the presence of trees is not a per se limitation not easily overcome under the statute. In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42, 2010 VT 42A, 188 Vt. 113, 998 A.2d 712, 2010 Vt. LEXIS 37 (2010).

Amended statute pertaining to primary agricultural soils contemplates instances where the presence of trees and the cost of removing them will create a limitation for cultivation that is simply impossible to overcome; however, there is nothing in the statute mandating this outcome whenever forested land is involved. Indeed, there may also be instances where it is entirely feasible and economically practicable to remove trees to ready land for agricultural use—the fact that trees themselves have economic value suggests that this may often be the case. In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42, 2010 VT 42A, 188 Vt. 113, 998 A.2d 712, 2010 Vt. LEXIS 37 (2010).

Consideration of the economic feasibility of tree removal to ready the land for an agricultural enterprise does not involve a comparison to the economic feasibility of tree removal to ready the land for development—such a comparison will almost always favor development; instead, consideration of the cost of removing a limitation will involve only a consideration of whether the cost of removal is so high that conversion of the land into agricultural use is not economically feasible. This analysis may involve inquiry into the standard range of profit margins for the contemplated agricultural enterprise and whether those margins support the cost of first removing the limitation; cost of removing the limitation, thus, is neither the starting point nor ending point of the inquiry and, instead, becomes another factor to consider, along with practical and technical considerations. In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42, 2010 VT 42A, 188 Vt. 113, 998 A.2d 712, 2010 Vt. LEXIS 37 (2010).

Provision of subdiv. (15) of this section that land containing primary agricultural soils must be capable of contributing to an economic agricultural operation does not require contribution only to an on-site agricultural operation. In re Spear Street Assocs., 145 Vt. 496, 494 A.2d 138, 1985 Vt. LEXIS 325 (1985).

Review.

Court on appeal will accord deference to Environmental Board’s interpretations of Act 250, its own rules, and to Board’s specialized knowledge in the environmental field; Board’s decisions are presumed to be correct, valid, and reasonable, and absent compelling indications of error, Court will sustain Board’s interpretation on appeal. In re Nehemiah Associates, Inc., 168 Vt. 288, 719 A.2d 34, 1998 Vt. LEXIS 253 (1998).

State purposes.

Construction at a National Guard base at an airport to accommodate the anticipated arrival of F-35A jets was not for State purposes as the project was not initiated or paid for by the State but by the federal government, was not located on state-controlled land, and was not intended for state use, and thus was not development within the meaning of Act 250 requiring a permit. In re Changes in Physical Structures & Use at Burlington Int'l Airport for F-35A, 2015 VT 41, 198 Vt. 510, 117 A.3d 457, 2015 Vt. LEXIS 25, cert. denied, 577 U.S. 975, 136 S. Ct. 480, 193 L. Ed. 2d 350, 2015 U.S. LEXIS 7111 (2015).

Under the relevant Act 250 rule, to demonstrate that construction is for a State purpose requires showing that it is both undertaken by or for the State and is to be used by the State. The rule’s use of the word “and” indicates an intent for the phrases to be conjunctive; therefore it is necessary to comply with both requirements to meet the definition. In re Changes in Physical Structures & Use at Burlington Int'l Airport for F-35A, 2015 VT 41, 198 Vt. 510, 117 A.3d 457, 2015 Vt. LEXIS 25, cert. denied, 577 U.S. 975, 136 S. Ct. 480, 193 L. Ed. 2d 350, 2015 U.S. LEXIS 7111 (2015).

Given that Act 250’s definition of “development” conspicuously excludes construction for a federal purpose, the Court construes the State-purpose requirement narrowly. In re Changes in Physical Structures & Use at Burlington Int'l Airport for F-35A, 2015 VT 41, 198 Vt. 510, 117 A.3d 457, 2015 Vt. LEXIS 25, cert. denied, 577 U.S. 975, 136 S. Ct. 480, 193 L. Ed. 2d 350, 2015 U.S. LEXIS 7111 (2015).

Subdivision.

As the definition of “person” specifically includes “an individual’s parents,” and as minor trust beneficiaries would receive or had received a beneficial interest from subdivisions, it was properly determined that their parents also met the definition of “person” for purposes of an Act 250 permit. In re Shenandoah LLC, 2011 VT 68, 190 Vt. 149, 27 A.3d 1078, 2011 Vt. LEXIS 68 (2011).

Exclusion of farming improvements from development is no answer to an assertion of jurisdiction based on the commencement of construction on a subdivision. Thus, landowners who commenced construction on a subdivision had to obtain an Act 250 permit for their construction. In re Eustance Act 250 Jurisdictional Opinion, 2009 VT 16, 185 Vt. 447, 970 A.2d 1285, 2009 Vt. LEXIS 26 (2009).

Language stating that when development is proposed to occur on land devoted to farming activity, “only those portions of the parcel or the tract that support the development shall be subject to regulation” is a clarification of the exemption from “development” of land devoted to farming and, like the exemption language, is not applicable where jurisdiction is based on the presence of a subdivision. Moreover, it applies when land devoted to farming is subsequently developed for other purposes. In re Eustance Act 250 Jurisdictional Opinion, 2009 VT 16, 185 Vt. 447, 970 A.2d 1285, 2009 Vt. LEXIS 26 (2009).

For purposes of requirement that persons who own or control subdivisions obtain permit for sale of interest, question of control of corporation that purchased and sold subdivision lots must be viewed with regard to general proposition that a corporation’s separate identity will be disregarded whenever the concept is asserted in an endeavor to circumvent a statute and defeat legislative policy. State Environmental Board v. Chickering, 155 Vt. 308, 583 A.2d 607, 1990 Vt. LEXIS 199 (1990).

For purposes of requirement that persons who own or control subdivisions obtain permit for sale of interest, control of corporations that purchased and resold lots is not conclusively determined by whether defendant derived any personal financial gain from the corporations. State Environmental Board v. Chickering, 155 Vt. 308, 583 A.2d 607, 1990 Vt. LEXIS 199 (1990).

Under section 6081 of this title, prohibiting person who owns or controls subdivision to sell an interest in the subdivision without a permit, control of an interest through control of an intermediary corporation which purchased and sold the lots may be inferred by proof that defendant fully controlled its activities notwithstanding percent ownership in the stock of the company. State Environmental Board v. Chickering, 155 Vt. 308, 583 A.2d 607, 1990 Vt. LEXIS 199 (1990).

Trial court erred in dismissing civil action against real estate developer for alleged sale without permit of subdivision property which he owned or controlled where ample evidence tended to demonstrate developer’s control of intermediary corporations owned by close family members and engaged in plan to develop property notwithstanding developer had no ownership interest in the intermediary corporations. State Environmental Board v. Chickering, 155 Vt. 308, 583 A.2d 607, 1990 Vt. LEXIS 199 (1990).

Corporation “controlled” land under subdiv. (19) of this section such that it was required to obtain a subdivision permit under section 6081(a) of this title where it had made arrangements with surveyor, chosen number of subdivisions to create, directed where survey lines should be drawn, paid for survey, and, once sales contract was signed, was equitable owner, even though it was not a legal owner. In re Eastland, Inc., 151 Vt. 497, 562 A.2d 1043, 1989 Vt. LEXIS 99 (1989).

Individual’s interest in property held jointly with his wife was an ownership interest sufficient enough in magnitude to allow aggregation of that interest with his other property interests, including those held jointly with another, for purposes of jurisdiction under this chapter; argument was rejected that individual and wife should not have been treated as the same “person” for purposes of determining whether a “subdivision” existed. In re Spencer, 152 Vt. 330, 566 A.2d 959, 1989 Vt. LEXIS 184 (1989).

Successive applications.

Trial court correctly concluded that a new Act 250 application was not automatically barred by the failure to apply for reconsideration, but rather was governed by the successive-application doctrine. The successive-application doctrine’s ability to strike the proper balance between finality and flexibility in municipal zoning decisions applies with equal force to the planning and environmental concerns underlying Act 250. In re JLD Props. of St. Albans, LLC, 2011 VT 87, 190 Vt. 259, 30 A.3d 641, 2011 Vt. LEXIS 86 (2011).

Mere participation in an earlier proceeding does not, without more, demonstrate a disqualifying bias. Thus, the mere participation of development review board members in an earlier proceeding involving a previous Act 250 application did not violate due process. In re JLD Props. of St. Albans, LLC, 2011 VT 87, 190 Vt. 259, 30 A.3d 641, 2011 Vt. LEXIS 86 (2011).

There was no basis to disturb the trial court’s findings or to reverse its conclusion that significant changes over the past twelve to fifteen years validated a new Act 250 application. The evidence showed—and the trial court found—that significant expansion in commercial development in the area surrounding the site had already occurred such that secondary growth was no longer a concern; in essence, the trial court here found the substantial evidence adduced by the developer relating to secondary growth and its associated social and economic impacts to be more compelling and persuasive than the countervailing evidence adduced by opponents of the development. In re JLD Props. of St. Albans, LLC, 2011 VT 87, 190 Vt. 259, 30 A.3d 641, 2011 Vt. LEXIS 86 (2011).

In contrast to errors of a “structural” nature, due process violations resulting from an individual decisionmaker’s personal bias have often been held to be subject to cure on de novo review. Thus there was ample support for the trial court’s conclusion that any due process concerns arising from the participation of a town’s development review board chair in Act 250 permit proceedings were effectively cured by the subsequent trial de novo in the Environmental Court. In re JLD Props. of St. Albans, LLC, 2011 VT 87, 190 Vt. 259, 30 A.3d 641, 2011 Vt. LEXIS 86 (2011).

Units.

The Environmental Board’s interpretation of the term “unit” as a bedroom is reasonable and does not reflect any compelling error by the Board. Accordingly, its conclusion that two houses together, which have seven bedrooms each, contain greater than ten units. In re Appeal of S-S Corporation/Rooney Housing Developments, 2006 VT 8, 179 Vt. 302, 896 A.2d 67, 2006 Vt. LEXIS 15 (2006).

—Legislative intent.

Where the “development” for which a permit was sought consisted entirely of logging and related activities, the Court did not believe that the Legislature intended to subject the low-elevation activities to Act 250 scrutiny simply because they were also related to the high-elevation logging. Skid-track and road-building activities below 2,500 feet, even if associated with logging above that elevation, were functionally no different from the same activities affiliated only with low-elevation logging, which Act 250 plainly conferred no power to regulate. In re Green Crow Corp., 2007 VT 137, 183 Vt. 33, 944 A.2d 244, 2007 Vt. LEXIS 268 (2007).

Permit conditions may be imposed on land above 2,500 feet based on concerns about impacts on land below that elevation. Conditions may not, however, be imposed on land below 2,500 feet simply because that land is used to further the purposes of the high-altitude development over which Act 250 has jurisdiction. In re Green Crow Corp., 2007 VT 137, 183 Vt. 33, 944 A.2d 244, 2007 Vt. LEXIS 268 (2007).

In determining whether a public charitable foundation’s camp for inner-city children, which would be funded by third-party contributions and donations, constitutes a “commercial purpose” within the meaning of Environmental Board Rule 2(L) and ‘commercial dwelling’ within the meaning of Rule 2(M), the Court considered Vermont’s land use law; given the plain meaning and purpose of Act 250, which focuses on the impact of the land use on the environment and the public regardless of the institutional activity associated with the land use, the Court held that the land use law and permit requirements applied to the foundation’s camp project. In re Spring Brook Farm Found., Inc., 164 Vt. 282, 671 A.2d 315, 1995 Vt. LEXIS 119 (1995).

Legislative history of subdiv. (3) of this section discloses a well-considered intent on the part of the Legislature to define as “development” only that activity which has achieved such finality of design that construction can be said to be ready to commence. In re Agency of Administration, 141 Vt. 68, 444 A.2d 1349, 1982 Vt. LEXIS 479 (1982).

Cited.

Cited in In re McDonald's Corp., 146 Vt. 380, 505 A.2d 1202, 1985 Vt. LEXIS 406 (1985); In re Vitale, 151 Vt. 580, 563 A.2d 613, 1989 Vt. LEXIS 104 (1989); In re Agency of Transportation, 157 Vt. 203, 596 A.2d 358, 1991 Vt. LEXIS 151 (1991); Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 617 A.2d 143, 1992 Vt. LEXIS 135 (1992); In re Wal*Mart Stores, Inc., 167 Vt. 75, 702 A.2d 397, 1997 Vt. LEXIS 242 (1997); In re Munson Earth Moving Corp., 169 Vt. 455, 737 A.2d 906, 1999 Vt. LEXIS 227 (1999); Roberts v. Chimileski, 2003 VT 10, 175 Vt. 480, 820 A.2d 995, 2003 Vt. LEXIS 13 (2003); In re Catamount Slate, Inc., 2004 VT 14, 176 Vt. 284, 844 A.2d 787, 2004 Vt. LEXIS 17 (2004); Agency of Natural Res. v. Weston, 2003 VT 58, 175 Vt. 573, 830 A.2d 92, 2003 Vt. LEXIS 140 (2003); In re Woodford Packers, Inc., 2003 VT 60, 175 Vt. 579, 830 A.2d 100, 2003 Vt. LEXIS 142 (2003); In re Audet, 2004 VT 30, 176 Vt. 617, 850 A.2d 1000, 2004 Vt. LEXIS 36 (2004) (mem.).

Law Reviews —

Party status and standing under Vermont’s land use and development law, see 2 Vt. L. Rev. 163 (1977).

Hear No Evil, See No Evil: In re Spencer and the Twilight of Judicial Scrutiny in Vermont, see 14 Vt. L. Rev. 501 (1990).

For note, “In re Quechee Lakes Corporation: Mitigating Aesthetic Environmental Damage or an Eyesore on Act 250 Land Use Protections?,” see 16 Vt. L. Rev. 541 (1992).

For article, “Killington Mountain and Act 250: An Eco-legal Perspective,” see 26 Vt. L. Rev. 543 (2002).

For article, “Killington Mountain Resort: A Case Study of ‘Green’ Expansion in Vermont,” see 26 Vt. L. Rev. 565 (2002).

For note, “Vermont’s Act 183: Smart Growth Takes Root in the Green Mountain State,” see 32 Vt. L. Rev. 583 (2008).

§§ 6001a-6001d. Repealed. 2013, No. 11, § 2.

History

Former §§ 6001a-6001d. Former § 6001a, relating to public auctions, was derived from 1973, No. 256 (Adj. Sess.), § 1 and amended by 1991, No. 111 , § 4.

Former § 6001b, relating to low level radioactive waste disposal facilities, was derived from 1989, No. 296 (Adj. Sess.), § 6.

Former § 6001c, relating to jurisdiction over broadcast and communication support structures and related improvements, was derived from 1997, No. 48 , § 2 and amended by 2007, No. 79 , § 12.

Former § 6001d, relating to large volume groundwater withdrawal, was derived from 2007, No. 199 (Adj. Sess.), § 6.

ANNOTATIONS

Annotations From Former § 6001a

Cited.

Cited in In re Merritt, 2003 VT 84, 175 Vt. 624, 833 A.2d 1278, 2003 Vt. LEXIS 272 (2003) (mem.).

§ 6001e. Commercial composting facility; circumvention.

Notwithstanding subdivisions 6001(3)(D)(vii)(I)-(VI) of this title, a permit under this chapter may be required for the construction of improvements below the elevation of 2,500 feet for the onsite storage, preparation, and sale of compost if the Chair of the District Commission, based on the information available to the Chair, determines that action has been taken to circumvent the requirements of this chapter.

HISTORY: Added 2009, No. 141 (Adj. Sess.), § 1b, eff. June 1, 2010.

History

Repeal of sunset date. 2010, No. 141 (Adj. Sess.), § 3a, which provided for the repeal of 10 V.S.A. §§ 6001(3)(D) (vii) (composting exemptions), 6001(31) (definition of farm for compost exemptions) and 6001e (circumvention authority), effective July 1, 2014, was repealed by 2013, No. 11 , § 7.

§ 6002. Procedures.

The provisions of 3 V.S.A. chapter 25 shall apply unless otherwise specifically stated.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 26, eff. April 4, 1970.

ANNOTATIONS

Appeals.

Statutory limitation on appellate standing applies only to Environmental Board decisions granting or denying Act 250 permits. With respect to appeals of Board decisions affirming or reversing jurisdictional opinions in proceedings commenced prior to the effective date of the 2004 amendments to Act 250, the Vermont Administrative Procedure Act (VAPA) governs appellate standing because, under the statute incorporating VAPA, no limitation of appellate standing is “otherwise specifically stated” in Act 250. In re Ochs, 2006 VT 34, 179 Vt. 495, 897 A.2d 550, 2006 Vt. LEXIS 85 (April 28, 2006).

Jurisdiction.

Administrative law doctrine of primary jurisdiction, invoked by a court to determine whether the court should refrain from exercising jurisdiction until after an administrative agency has determined some question in the proceeding before the court, did not excuse court’s failure to make determinations otherwise necessary to the grant of injunctive relief, where court proceeded to issue injunction without any determination of the applicability of this chapter and then excused lack of that determination of the applicability of this chapter and then excused lack of that determination by invoking the doctrine and stating that the underlying issue must be administratively decided. Committee To Save Bishop's House v. Medical Center Hospital of Vermont, Inc., 136 Vt. 213, 388 A.2d 827, 1978 Vt. LEXIS 721 (1978).

§ 6003. Penalties.

A violation of any provision of this chapter or the rules adopted under this chapter is punishable by a fine of not more than $500.00 for each day of the violation or imprisonment for not more than two years, or both. A person who completely transfers ownership and control of property that is the subject of a permit under this chapter shall not be liable for later violations of that permit by another person.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 28, eff. April 4, 1970; amended 2001, No. 40 , § 2; 2015, No. 97 (Adj. Sess.), § 28.

History

Amendments

—2015 (Adj. Sess.). Substituted “rules adopted under this chapter” for “rules promulgated hereunder”.

—2001. Added the second sentence.

ANNOTATIONS

Cited.

Cited in In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636, 481 A.2d 1274, 1984 Vt. LEXIS 538 (1984).

§§ 6004-6006. Repealed. 1989, No. 98, § 4(b).

History

Former §§ 6004-6006. Former § 6004, relating to civil enforcement, was derived from 1969, No. 250 (Adj. Sess.), § 29 and amended by 1985, No. 67 , § 1. The subject matter is now covered by § 8221 of this title.

Former § 6005, relating to assurance of discontinuance of violation, was derived from 1985, No. 67 , § 2. The subject matter is now covered by § 8007 of this title.

Former § 6006, relating to civil penalties, was derived from 1985, No. 67 , § 3. The subject matter is now covered by § 8221 of this title.

§ 6007. Act 250 Disclosure Statement; jurisdictional determination.

  1. Prior to the division or partition of land, the seller or other person dividing or partitioning the land shall prepare an “Act 250 Disclosure Statement.” A person who is dividing or partitioning land, but is not selling it, shall file a copy of the statement with the town clerk, who shall record it in the land records.  The seller who is dividing or partitioning land as part of the sale shall provide the buyer with the statement within 10 days of entering into a purchase and sale agreement for the sale or exchange of land, or at the time of transfer of title if no purchase and sales agreement was executed, and shall file a copy of the statement with the town clerk, who shall record it in the land records.  Failure to provide the statement as required shall, at the buyer’s option, render the purchase and sales agreement unenforceable.  If the disclosure statement establishes that the transfer is or may be subject to chapter 151 of this title, and that information had not been disclosed previously, then at the buyer’s option the contract may be rendered unenforceable. The statement shall include the following, on forms determined jointly by the Board and the Commissioner of Taxes:
    1. The name and tax identification number of the seller’s or divider’s or partitioner’s spouse, and parents and children, natural or adoptive, and whether or not any of the individuals named will derive profit or consideration, or acquire any other beneficial interest from the partition or division of the land in question.  However, this information will be required only to the extent that:
      1. the individuals in question have been sellers or buyers of record with respect to the partition or division of other land within the previous five years; and
      2. that other land is located within five miles of any part of the land currently being divided or partitioned or is located within the jurisdictional area of the same District Environmental Commission.
    2. The name and tax identification number of all individuals and entities affiliated with the seller or divider or partitioner for the purpose of deriving profit or consideration, or acquiring any other beneficial interest from the partition or division of the land, as that affiliation is conditioned and limited according to the definition of “person” in subdivision 6001(14) of this title.
    3. A statement identifying any partition or division of land that has been completed:
      1. within the preceding five years;
      2. by any of the entities or individuals identified under subdivision (1) or (2) of this subsection (a) as deriving profit or consideration or acquiring any other beneficial interest from the partition or division of the land;
      3. within five miles of any part of the land being divided or partitioned, or within the jurisdictional area of the district environmental commission in which the land is located.
    4. Notice that a permit may be required under this chapter.
  2. If, before the transfer of title, facts contained in the disclosure statement change, the seller shall provide the buyer with an amended statement in a timely manner.
  3. With respect to the partition or division of land, or with respect to an activity that might or might not constitute development, any person may submit to the district coordinator an “Act 250 Disclosure Statement” and other information required by the rules of the Board and may request a jurisdictional opinion from the district coordinator concerning the applicability of this chapter. If a requestor wishes a final determination to be rendered on the question, the district coordinator, at the expense of the requestor and in accordance with rules of the Board, shall publish notice of the issuance of the opinion in a local newspaper generally circulating in the area where the land that is the subject of the opinion is located and shall serve the opinion on all persons listed in subdivisions 6085(c)(1)(A) through (D) of this title. In addition, the requestor who is seeking a final determination shall consult with the district coordinator and obtain approval of a subdivision 6085(c)(1)(E) list of persons who shall be notified by the district coordinator because they are adjoining property owners or other persons who would be likely to be able to demonstrate a particularized interest protected by this chapter that may be affected by an act or decision by a District Commission.
  4. [Repealed.]

HISTORY: Added 1987, No. 64 , § 3; amended 1991, No. 111 , § 3, eff. June 28, 1991; 1991, No. 111 , § 7, eff. Oct. 1, 1991; 1993, No. 232 (Adj. Sess.), § 25, eff. March 15, 1995; 1999, No. 49 , § 155; 2003, No. 115 (Adj. Sess.), § 47, eff. Jan. 31, 2005; 2009, No. 154 (Adj. Sess.), § 236; 2013, No. 11 , § 8; 2015, No. 150 (Adj. Sess.), § 33, eff. May 31, 2016.

History

Amendments

—2015 (Adj. Sess.). Subsec. (d): Repealed.

—2013. Deleted the former fourth sentence.

Subsec. (d): Added.

—2009 (Adj. Sess.) Subsec. (c): Substituted “environmental division” for “environmental court” in the last sentence.

—2003 (Adj. Sess.). Subsec. (c): Inserted “rules of the” preceding “board” in the first sentence; “publish notice of the issuance of the opinion in a local newspaper generally circulating in the area where the land which is the subject of the opinion is located, and shall” preceding “serve”; deleted “on individuals or entities who may be affected by the outcome of the opinion, and” following “opinion” and substituted “all persons listed in subdivision 6085(c)(1)(A) through (D)” for “parties that would be entitled to notice under section 6084” in the second sentence; added the present third sentence; inserted “in accordance with rules of the board” following “reconsideration”; rewrote the fourth sentence; and deleted the former fifth through tenth sentences.

—1999. Subsec. (c): Substituted “fee authorized by section 6083a of this title” for “$25.00 filing fee” at the end of the sixth sentence.

—1993 (Adj. Sess.). Subsec. (c): Amended generally.

—1991. Subsec. (a): Inserted “or other person dividing or partitioning the land” following “seller” in the first sentence, added the second sentence, inserted “who is dividing or partitioning land as part of the sale” following “seller” and “and shall file a copy of the statement with the town clerk, who shall record it in the land records” following “executed” in the third sentence of the introductory paragraph, inserted “or divider’s or partitioner’s” following “seller’s” in the first sentence of subdiv. (1), and inserted “or divider or partitioner” following “seller” in subdiv. (2).

Subsec. (c): Inserted “or prior to the commencement of development” following “land” and “concerning the applicability of this chapter” following “coordinator” in the first sentence, substituted “appellant” for “applicant” following “discretion of the” in the second sentence, added a new third sentence, rewrote the fourth and fifth sentences, and substituted “section 6084 of this title” for “ 10 V.S.A. § 6084 ” following “pursuant to” in the ninth sentence.

Jurisdiction over slate quarries operational between June 1, 1970 and Jan. 1, 1994; changes to slate quarries after April 1, 1995. 1993, No. 232 (Adj. Sess.), § 37(a), eff. June 21, 1994, provided: “Effective upon passage [June 21, 1994], for purposes of jurisdiction under 10 V.S.A. chapter 151, slate quarries that have existed at any time prior to June 1, 1970 and have been operated at any time between June 1, 1970 and January 1, 1994 without Act 250 jurisdiction having been formally determined, by January 1, 1994, to apply, shall be deemed to be a pre-existing development under 10 V.S.A. § 6081 and shall be deemed to have remained open since June 1, 1970. Until April 1, 1995, no change to a slate quarry shall be deemed a substantial or material change under chapter 151, unless it constitutes an extreme change that creates a substantial and imminent threat to the health and welfare of the neighbors of the quarry or to the environment. This subsection shall be subject to the provisions of 1 V.S.A. § 213 .”

Legislative findings. 1987, No. 64 , § 1, provides: “It is the finding of the general assembly that the state of Vermont is experiencing a significant increase in the number of land subdivisions which are made for speculative purposes; that some of these subdivisions are eroding the natural resource base upon which Vermont’s agricultural, forestry, mineral and recreational industries depend; that some of these subdivisions have the potential of imposing significant financial burdens upon local communities providing municipal and educational services; that it is the policy of the state of Vermont to ensure that major subdivision activity within the state comply with the criteria of Vermont’s Land Use and Development Law (Act 250), in order to protect the public health, safety and general welfare; and that in order to ensure appropriate Act 250 review, it is necessary to treat persons with an affiliation for profit, consideration, or some other beneficial interest derived from the partition or division of land as a single person for the purpose of determining whether a particular conveyance is subject to Act 250 jurisdiction.”

Basis for determination of number of lots. 1987, No. 64 , § 10, provided: “Any lot, all portions of which are greater than five miles apart, but any portion of which are within the jurisdictional area of a district commission, shall not be counted as a lot, solely on the basis of that distinction, if it was conveyed before the effective date of this act.”

The provisions of the act affecting Title 10 became effective on July 1, 1987.

Legislative council statutory revision authority. 2009, No. 154 (Adj. Sess.), § 236 provides: “The staff of the legislative council, in its statutory revision capacity, is authorized and directed to make such amendments to the Vermont Statutes Annotated as are necessary to effect the purpose of this act, including, where applicable, substituting the words “superior court,” “civil division,” “criminal division,” “family division,” “environmental division,” or “probate division,” as appropriate, for the words “district court,” “family court,” ”probate court,” and “environmental court.” These amendments shall be made when new legislation is proposed or where there is a republication of a volume of the Vermont Statutes Annotated.”

Effective date and applicability of 2015 (Adj. Sess.) amendments. 2015, No. 150 (Adj. Sess.), § 38(3) provides: “Secs. 33 through 37 (Act 250 jurisdictional opinions; appeals) [which amended this section and 10 V.S.A. §§ 6089 , 8503 and 8504] shall take effect on passage [May 31, 2016] and shall apply to appeals of jurisdictional opinions issued on or after the effective date of those sections. Notwithstanding the repeal of its authority to consider jurisdictional opinions, the Natural Resources Board shall have authority to complete its consideration of any jurisdictional opinion pending before it as of that effective date, and appeal of the Board’s decision shall be governed by the law as it existed immediately prior to that date.”

ANNOTATIONS

Construction.

In subsec. (c) of this section, the provision that “any person . . . may request a jurisdictional opinion from the district coordinator,” read in context, suggests that “any person” refers broadly to third parties exclusive of the coordinator, who is authorized to rule on such requests, but not to make them. In re Vermont Verde Antique Int'l, Inc., 174 Vt. 208, 811 A.2d 181, 2002 Vt. LEXIS 244 (2002).

To the extent that an Environmental Board rule authorized the issuance of a jurisdictional opinion at the request of a district coordinator, it exceeded the scope of subsec. (c) of this section and was invalid. In re Vermont Verde Antique Int'l, Inc., 174 Vt. 208, 811 A.2d 181, 2002 Vt. LEXIS 244 (2002).

Jurisdictional determination.

Ruling of the Environmental Board, in which it decided that it did not have jurisdiction to determine whether it had Act 250 jurisdiction over a timber and logging company’s activities on lands below 2500 feet in elevation, was error. The Board’s particular expertise in deciding whether it has jurisdiction over proposed development presupposes that the Board has jurisdiction to make such a decision. In re Green Crow Corporation, 2006 VT 14, 179 Vt. 616, 895 A.2d 189, 2006 Vt. LEXIS 28 (2006) (mem.).

Procedure for approval of registration.

For a slate quarry registration approval to be final under 10 V.S.A. § 6007(c) , the owner had to ensure that the district coordinator served the opinion on the adjoining landowners listed in the application, any individuals the owner identified, and the parties entitled to notice under 10 V.S.A. § 6084 . In re Catamount Slate, Inc., 2004 VT 14, 176 Vt. 284, 844 A.2d 787, 2004 Vt. LEXIS 17 (2004).

Where plaintiff did everything the statutes and the Board required of it to obtain a ruling exempting its slate quarries from Act 250 jurisdiction, the district coordinator sent the registration approval to all adjoining property owners listed in the application, as well as other parties entitled to notice, and no appeal or request for reconsideration was filed within 30 days, under these circumstances, after the district coordinator’s approval, the opinion was final on whether plaintiff’s slate quarry holes were subject to Act 250 review. In re Catamount Slate, Inc., 2004 VT 14, 176 Vt. 284, 844 A.2d 787, 2004 Vt. LEXIS 17 (2004).

That the district coordinator did not serve a final opinion on persons who were not entitled to notice and service because they were neither parties entitled by statute to notice nor adjoining property owners did not alter the finality of the jurisdictional question; thus, the Environmental Board’s decision faulting plaintiff for failing to notify and serve those individuals at the time of the original action, when neither the Board nor the district coordinator identified them as people “who may be affected by the outcome” of the opinion, cannot stand. In re Catamount Slate, Inc., 2004 VT 14, 176 Vt. 284, 844 A.2d 787, 2004 Vt. LEXIS 17 (2004).

Absent some activity triggering Act 250 jurisdiction, plaintiff was not required to defend its exempt status through repeated requests for an opinion under 10 V.S.A. § 6007 . In re Catamount Slate, Inc., 2004 VT 14, 176 Vt. 284, 844 A.2d 787, 2004 Vt. LEXIS 17 (2004).

Remedy for violation.

Even though this section does not explicitly provide a private remedy for violations, the Legislature clearly established in the provision a direct connection between the violation of Act 250 and the unenforceability of contracts requiring buyers to pay for land sold to them in violation of Act 250. Jipac, N.V. v. Silas, 174 Vt. 57, 800 A.2d 1092, 2002 Vt. LEXIS 137 (2002).

In an action by the seller of subdivided lots for default on a promissory note by the purchasers, where the seller had failed to obtain the required Act 250 permit, remedy allowing restitution to the purchasers, but requiring them to retransfer the land to the seller as a condition of restitution, placed the cost and risk created by the applicability of Act 250 on the seller, where it properly belonged, and, considering the purchasers’ request for that remedy, under the unique circumstances of the case, the trial court had the discretion to order mutual restitution — that is, rescission — as the most practical response to the illegal conduct and the equities of the parties. Jipac, N.V. v. Silas, 174 Vt. 57, 800 A.2d 1092, 2002 Vt. LEXIS 137 (2002).

Cited.

Cited in Robitaille v. Rubin, 159 Vt. 152, 615 A.2d 1025, 1992 Vt. LEXIS 115 (1992); In re Shenandoah LLC, 2011 VT 68, 190 Vt. 149, 27 A.3d 1078, 2011 Vt. LEXIS 68 (2011).

Subchapter 2. Administration

§ 6021. Board; vacancy, removal.

  1. A Natural Resources Board is created.
    1. The Board shall consist of five members appointed by the Governor, with the advice and consent of the Senate, so that one appointment expires in each year. In making these appointments, the Governor and the Senate shall give consideration to experience, expertise, or skills relating to the environment or land use.
      1. The Governor shall appoint a chair of the Board, a position that shall be a full-time position.
      2. Following initial appointments, the members, except for the Chair, shall be appointed for terms of four years.
    2. The Governor shall appoint up to five persons, with preference given to former Environmental Board, Natural Resources Board, or District Commission members, with the advice and consent of the Senate, to serve as alternates for Board members.
      1. Alternates shall be appointed for terms of four years, with initial appointments being staggered.
      2. The Chair of the Board may assign alternates to sit on specific matters before the Board in situations where fewer than five members are available to serve.
  2. Any vacancy occurring in the membership of the Board shall be filled by the Governor for the unexpired portion of the term.
  3. Notwithstanding the provisions of 3 V.S.A. § 2004 , members shall be removable for cause only, except the Chair, who shall serve at the pleasure of the Governor.
  4. The Chair of the Board, upon request of the Chair of a District Commission, may appoint and assign former Commission members to sit on specific Commission cases when some or all of the regular members and alternates of the District Commission are disqualified or otherwise unable to serve.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 3, eff. April 4, 1970; amended 1989, No. 234 (Adj. Sess.), § 2; 1991. No. 111, § 1, eff. June 28, 1991; 1993, No. 82 , § 1; 1993, No. 232 (Adj. Sess.), § 26, eff. March 15, 1995; 2003, No. 115 (Adj. Sess.), § 48, eff. Jan. 31, 2005; 2013, No. 11 , § 9.

History

Amendments

—2013. Subsec. (a): Amended generally.

Subsec. (d): Inserted “of the district commission” following “regular members and alternates”.

—2003 (Adj. Sess.). Subsec. (a): Rewrote the subsec.

Subsec. (d): Deleted “board” preceding “chair” at the beginning of the subsec.

—1993 (Adj. Sess.). Subsec. (a): Deleted “eight of” preceding “the members” and “terms” for “a term” preceding “of four years” in the third sentence and deleted the fourth sentence.

Subsec. (c): Added “notwithstanding the provisions of 3 V.S.A. § 2004 ” preceding “members” and substituted “chair” for “chairman” following “except the”.

—1993. Subsec. (a): Substituted “nine” for “seven” following “fewer than” and deleted “but shall assign no more than three to any specific case” following “serve” in the seventh sentence.

—1991. Subsec. (a): Substituted “chair” for “chairman” preceding “(ninth member)” in the fourth sentence and added the fifth through seventh sentences.

—1989 (Adj. Sess.). Subsec. (d): Added.

CROSS REFERENCES

Transportation impact fee, see § 6101 of this title.

ANNOTATIONS

Cited.

Cited in In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993); Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992).

Notes to Opinions

Construction.

Immediately upon being rejected by Senate, governor’s appointees to Environmental Board were without authority to exercise prospectively the powers of board members, although governor’s subsequent reappointment of these individuals clothed them with power to act until Senate decided again on their confirmation. Op. Atty. Gen. 94-2F.

§ 6022. Personnel.

The Board may appoint legal counsel and administrative personnel as it finds necessary in carrying out its duties, unless the Governor shall otherwise provide.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 4, eff. April 4, 1970; amended 1993, No. 82 , § 2.

History

Amendments

—1993. Substituted “legal counsel and” for “an executive officer and other employees, including” preceding “administrative”.

Effect of 1993 amendment on classification of legal counsel. 1993, No. 82 , § 6, provided that legal counsel appointed pursuant this section, as amended by section 2 of the act, after July 1, 1993, shall be exempt from classified service.

§ 6023. Grants.

The Board may apply for and receive grants from the federal government and from other sources.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 4, eff. April 4, 1970.

§ 6024. Intragovernmental cooperation.

Other departments and agencies of State government shall cooperate with the Board and make available to it data, facilities, and personnel as may be needed to assist the Board in carrying out its duties and functions. There shall be established a regular schedule of project review that shall assure that all affected departments and agencies recognize and pursue their respective responsibilities. State employees whose job is to assist applicants in the permitting process established under this chapter shall endeavor to assist all applicants regardless of the size and value of the projects involved.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 4, eff. April 4, 1970; amended 2001, No. 40 , § 3.

History

Amendments

—2001. Added the second and third sentences.

§ 6025. Rules.

  1. The Board may adopt rules of procedure for itself and the District Commissions.
  2. The Board may adopt substantive rules, in accordance with the provisions of 3 V.S.A. chapter 25, that interpret and carry out the provisions of this chapter. These rules shall include provisions that establish criteria under which applications for permits under this chapter may be classified in terms of complexity and significance of impact under the standards of subsection 6086(a) of this chapter. In accordance with that classification, the rules may:
    1. provide for simplified or less stringent procedures than are otherwise required under sections 6083, 6084, and 6085 of this chapter;
    2. provide for the filing of notices instead of applications for the permits that would otherwise be required under section 6081 of this chapter; and
    3. provide a procedure by which a District Commission may authorize a district coordinator to issue a permit that the District Commission has determined under Natural Resources Board rules is a minor application with no undue adverse impact.
    1. This subsection shall apply to lots within a subdivision: (c) (1) This subsection shall apply to lots within a subdivision:
      1. that were created as part of a subdivision owned or controlled by a person who may have been required to obtain a permit under this chapter; and
      2. with respect to which a determination has been made that a permit was needed under this chapter; and
      3. that were sold to a purchaser prior to January 1, 1991 without a required permit.
    2. The rules shall provide for a modified process by which the sole purchaser, or the group of purchasers, of one or more lots to which this subsection applies may apply for and obtain a permit under this chapter that shall be issued in light of the existing improvements, facts, and circumstances that pertain to the lots; provided, however, that the requirements of this chapter shall be modified only to the extent needed to issue those permits. For purposes of these rules, a purchaser eligible for relief under this subsection must not have been involved in creating the lots; must not be a person who owned or controlled the land when it was divided or partitioned, as a person is defined in this chapter; and must not have known at the time of purchase that the transfer was subject to a permit requirement that had not been met.
    3. [Repealed.]
  3. , (e)[Repealed.]

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 25, eff. April 4, 1970; amended 1973, No. 85 , § 2; 1979, No. 123 (Adj. Sess.), § 4, eff. April 14, 1980; 1985, No. 52 , § 3, eff. May 15, 1985; 1987, No. 186 (Adj. Sess.), eff. May 5, 1988; 1991, No. 111 , § 5, eff. June 28, 1991; 2003, No. 115 (Adj. Sess.), § 49, eff. Jan. 31, 2005; 2009, No. 31 , § 7; 2011, No. 138 (Adj. Sess.), § 24, eff. May 14, 2012; 2013, No. 11 , §§ 10, 25.

History

Amendments

—2013. Subsec. (a): Substituted “itself and” for “the panels” preceding “the district” and deleted “and the board itself” following “commissions”.

Subsec. (b): Substituted “Board” for “land use panel” preceding “may” and deleted “that pertain to land use regulated under section 6086 of this title” following “chapter”.

Subdiv. (b)(3): Substituted “Natural Resources Board” for “land use panel”.

—2011 (Adj. Sess.). Subsecs. (d) and (e): Deleted.

—2009. Subdiv. (d)(5): Added “and values” following “functions” in the second sentence.

Subdiv. (d)(5)(G): Substituted the present provisions for “provides for hydrophytic vegetation habitat.”

Subdiv. (d)(7): Substituted “permits and the issuance of wetland determinations under chapter 37 of this title” for “conditional use determinations” in the first sentence.

—2003 (Adj. Sess.). Subsecs. (a)-(c) amended generally and subsecs. (d) and (e) added.

—1991. Subsec. (c): Added.

—1987 (Adj. Sess.). Subdiv. (b)(2): Added “and” following “chapter”.

Subdiv. (b)(3): Added.

—1985. Subsec. (a): Substituted “3 V.S.A., chapter 25, the Vermont Administrative Procedure Act” for “sections 801 through 808 of Title 3” following “agencies by”.

—1979 (Adj. Sess.). Designated existing provisions of section as subsec. (a), substituted “emergency rules” for “rules under the emergency rule-making powers contained in section 803(b) of Title 3” following “may not adopt”, and added subsec. (b).

—1973. Section amended generally.

Effective date of 2009 amendments. 2009, No. 31 , Sec. 14(b) provides in relevant part that: Sec. 7 (which amended this section) “of this act shall take effect 45 days after such time as the water resources panel has issued both a rule updating the Vermont significant wetlands inventory maps and a rule updating the Vermont wetland rules.” The water resources panel took these action effective August 1, 2010, and Sec. 7 took effect September 15, 2010.

ANNOTATIONS

Procedure for purchasers to obtain permit.

The special procedure for purchasers to obtain an Act 250 permit provided by subsec. (c) did not apply where there was no indication that the subdivided lots had been developed, so that the existing conditions at the time of the discovery of the need for a permit were the same as the conditions at the time of the sale and, in these circumstances, the modification of the permitting requirements would not help the purchasers. Jipac, N.V. v. Silas, 174 Vt. 57, 800 A.2d 1092, 2002 Vt. LEXIS 137 (2002).

Even if the provision of subsec. (c) was of assistance to the purchasers of land sold without an Act 250 permit, it could not be accepted as a remedy that displaced any private remedy between the purchasers and the seller because there is nothing in the statutory language suggesting that the “innocent purchaser” provision was intended to be an exclusive remedy and, more importantly, the determination that the purchase was not exempt from Act 250 jurisdiction changed the essence of what was purchased, and the purchaser was entitled to evaluate the significance of that change before he purchased the land. Jipac, N.V. v. Silas, 174 Vt. 57, 800 A.2d 1092, 2002 Vt. LEXIS 137 (2002).

Ratification by Legislature.

Legislature has approved and sanctioned all rules of the Environmental Board relating to the administration of this chapter, adopted prior to May 15, 1985; these rules have the same effect as would any law passed by the Legislature in the first instance. In re Spencer, 152 Vt. 330, 566 A.2d 959, 1989 Vt. LEXIS 184 (1989).

Claim that Environmental Board rule outlining the meaning of the term “development” under this chapter was an invalid and unconstitutional expansion of the legislative definition was rejected, since the Legislature had ratified the Board rule, and the rule therefore had the same effect as would any law passed by the Legislature in the first instance. In re Spencer, 152 Vt. 330, 566 A.2d 959, 1989 Vt. LEXIS 184 (1989).

Cited.

Cited in In re Agency of Administration, 141 Vt. 68, 444 A.2d 1349, 1982 Vt. LEXIS 479 (1982); In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636, 481 A.2d 1274, 1984 Vt. LEXIS 538 (1984); In re Appeal of S-S Corporation/Rooney Housing Developments, 2006 VT 8, 179 Vt. 302, 896 A.2d 67, 2006 Vt. LEXIS 15 (2006); In re Appeal of S-S Corporation/Rooney Housing Developments, 2006 VT 8, 179 Vt. 302, 896 A.2d 67, 2006 Vt. LEXIS 15 (2006); In re Mathez Act 250 LU Permit, 2018 VT 55, 207 Vt. 537, 192 A.3d 400, 2018 Vt. LEXIS 55 (2018).

Law Reviews —

Hear No Evil, See No Evil: In re Spencer and the Twilight of Judicial Scrutiny in Vermont, see 14 Vt. L. Rev. 501 (1990).

§ 6026. District Commissioners.

  1. For the purposes of the administration of this chapter, the State is divided into nine districts.
    1. District No. 1, comprising administrative district 1 as provided in 3 V.S.A. § 4001 .
    2. District No. 2, comprising administrative district 2 as provided in 3 V.S.A. §  4001.
    3. District No. 3, comprising administrative district 3 as provided in 3 V.S.A. §  4001.
    4. District No. 4, comprising administrative district 4 as provided in 3 V.S.A. §  4001, excluding the towns of Addison, Bridport, Bristol, Cornwall, Ferrisburgh, Goshen, Leicester, Lincoln, Middlebury, Monkton, New Haven, Orwell, Panton, Ripton, Salisbury, Shoreham, Starksboro, Vergennes, Waltham, Weybridge, and Whiting.
    5. District No. 5, comprising administrative district 5 as provided in 3 V.S.A. §  4001.
    6. District No. 6, comprising administrative district 6 as provided in 3 V.S.A. §  4001.
    7. District No. 7, comprising administrative district 7 as provided in 3 V.S.A. §  4001.
    8. District No. 8, comprising administrative district 8 as provided in 3 V.S.A. §  4001.
    9. District No. 9, comprising the towns of Addison, Bridport, Bristol, Cornwall, Ferrisburg, Goshen, Leicester, Lincoln, Middlebury, Monkton, New Haven, Orwell, Panton, Ripton, Salisbury, Shoreham, Starksboro, Vergennes, Waltham, Weybridge, and Whiting.
  2. A District Environmental Commission is created for each district. Each District Commission shall consist of three members from that district appointed in the month of February by the Governor so that two appointments expire in each odd-numbered year. Two of the members shall be appointed for a term of four years, and the Chair (third member) of each District shall be appointed for a two-year term. In any district, the Governor may appoint not more than four alternate members from that district whose terms shall not exceed two years, who may hear any case when a regular member is disqualified or otherwise unable to serve.
  3. Members shall be removable for cause only, except the Chair who shall serve at the pleasure of the Governor.
  4. Any vacancy shall be filled by the Governor for the unexpired period of the term.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 5, eff. April 4, 1970; amended 1971, No. 74 , § 1; 1973, No. 54 ; 1985, No. 107 (Adj. Sess.), eff. March 14, 1986; 1993, No. 232 (Adj. Sess.), § 27, eff. March 15, 1995.

History

Revision note

—2015. In subsec (c), substituted “Chair” for “chairman” in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Amendments

—1993 (Adj. Sess.). Subsec. (b): Substituted “chair” for “chairman” preceding “(third member)” in the third sentence and “four” for “two” preceding “alternate” in the fourth sentence.

—1985 (Adj. Sess.). Subsec. (b): Added the fourth sentence.

—1973. Subdiv. (a)(4): Amended generally.

Subdiv. (a)(8): Added.

Subdiv. (a)(9): Added.

—1971. Subsec. (a): Amended generally.

ANNOTATIONS

Cited.

Cited in Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992).

Law Reviews —

For note, “Vermont’s Act 183: Smart Growth Takes Root in the Green Mountain State,” see 32 Vt. L. Rev. 583 (2008).

§ 6027. Powers.

  1. The Board and District Commissions each shall have the power, with respect to any matter within its jurisdiction, to:
    1. administer oaths, take depositions, subpoena and compel the attendance of witnesses, and require the production of evidence;
    2. allow parties to enter upon lands of other parties for the purposes of inspecting and investigating conditions related to the matter before the Board or Commission;
    3. enter upon lands for the purpose of conducting inspections, investigations, examinations, tests, and site evaluations as it deems necessary to verify information presented in any matter within its jurisdiction;
    4. apply for and receive grants from the federal government and from other sources.
  2. The powers granted under this chapter are additional to any other powers which may be granted by other legislation.
  3. The Natural Resources Board may designate or establish such regional offices as it deems necessary to implement the provisions of this chapter and the rules adopted hereunder. The Natural Resources Board may designate or require a regional planning commission to receive applications, provide administrative assistance, perform investigations, and make recommendations.
  4. At the request of a District Commission, if the Board Chair determines that the workload in the requesting district is likely to result in unreasonable delays or that the requesting District Commission is disqualified to hear a case, the Chair may authorize the District Commission of another district to sit in the requesting district to consider one or more applications.
  5. The Natural Resources Board may by rule allow joint hearings to be conducted with specified State agencies or specified municipalities.
  6. The Board may publish or contract to publish annotations and indices of the decisions of the Environmental Division and the text of those decisions. The published product shall be available at a reasonable rate to the general public and at a reduced rate to libraries and governmental bodies within the State.
  7. The Natural Resources Board shall manage the process by which land use permits are issued under section 6086 of this title, may initiate enforcement on related matters under the provisions of chapters 201 and 211 of this title, and may petition the Environmental Division for revocation of land use permits issued under this chapter. Grounds for revocation are:
    1. noncompliance with this chapter, rules adopted under this chapter, or an order that is issued that relates to this chapter;
    2. noncompliance with any permit or permit condition;
    3. failure to disclose all relevant and material facts in the application or during the permitting process;
    4. misrepresentation of any relevant and material fact at any time;
    5. failure to pay a penalty or other sums owed pursuant to, or other failure to comply with, court order, stipulation agreement, schedule of compliance, or other order issued under Vermont statutes and related to the permit; or
    6. failure to provide certification of construction costs, as required under subsection 6083a(a) of this title, or failure to pay supplemental fees as required under that section.
  8. The Natural Resources Board may hear appeals of fee refund requests under section 6083a of this title.
  9. The Chair, subject to the direction of the Board, shall have general charge of the offices and employees of the Board and the offices and employees of the District Commissions.
  10. The Natural Resources Board may participate as a party in all matters before the Environmental Division that relate to land use permits issued under this chapter.
  11. [Repealed.]
  12. A District Commission may reject an application under this chapter that misrepresents any material fact and may after notice and opportunity for hearing award reasonable attorney’s fees and costs to any party or person who may have become a party but for the false or misleading information or who has incurred attorney’s fees or costs in connection with the application.
  13. After notice and opportunity for hearing, a District Commission may withhold a permit or suspend the processing of a permit application for failure of the applicant to pay costs assessed under 3 V.S.A. § 2809 related to the participation of the Agency of Natural Resources in the review of the permit or permit application.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 25, eff. April 4, 1970; amended 1973, No. 85 , § 3; 1979, No. 123 (Adj. Sess.), § 8, eff. April 14, 1980; 1991, No. 111 , § 6 eff. June 28, 1991; 1993, No. 232 (Adj. Sess.), § 28, eff. March 15, 1995; 2003, No. 115 (Adj. Sess.), § 50, eff. Jan. 31, 2005; 2009, No. 54 , § 46, eff. June 1, 2009; 2009, No. 146 (Adj. Sess.), § F20; 2009, No. 154 (Adj. Sess.), § 236; 2013, No. 11 , §§ 15, 25.

History

Amendments

—2013. Subsec. (a): Deleted “panels of the” preceding “Board”.

Subsec. (c): Substituted “Natural Resources Board” for “land use panel” in the first and second sentences.

Subsecs. (e), (g), (h) and (j): Substituted “Natural Resources Board” for “land use panel”.

Subsec. (k): Repealed.

—2009 (Adj. Sess.) Act No. 146 added subsec. (m).

Act No. 154 Substituted “environmental division” for “environmental court” wherever it appeared throughout the section.

—2009. Subsec. ( l ): Added.

—2003 (Adj. Sess.). Subsec. (a): Inserted “panels of the” preceding “board”, “each” following “commissions”, and “with respect to any matter within its jurisdiction” following “power”.

Subdiv. (a)(1): Added the subdiv. designation and inserted “Administer oaths, take depositions, subpoena and” preceding “compel”.

Subdivs. (a)(2)-(4): Added.

Subsec. (b): Deleted “to the board” following “granted” and “to it” preceding “by other legislation”.

Subsec. (c): Substituted “land use panel” for “board” in the first and second sentences and inserted “perform” preceding “investigations”.

Subsec. (d): Rewrote the subsec.

Subsec. (e): Substituted “land use panel” for “board”.

Subsec. (f): Substituted “the” for “its” preceding “decisions” and inserted “of the environmental court” following “decisions”.

Subsec. (g): Rewrote the subsec. and added subdivs. (1)-(6).

Subsecs. (h)-(k): Added.

—1993 (Adj. Sess.). Subsec. (g): Added.

—1991. Subsec. (f): Added.

—1979 (Adj. Sess.). Subsec. (f): Repealed.

—1973. Subsec. (f): Added.

CROSS REFERENCES

Enforcement of subpoenas issued by administrative agencies generally, see 3 V.S.A. § 809a .

Modification of subpoenas or discovery orders issued by administrative agencies, see 3 V.S.A. § 809b .

Regional planning commissions, see 24 V.S.A. chapter 117, subchapter 3.

§ 6028. Compensation.

Members of the Board and District Commissions shall receive per diem pay and all necessary and actual expenses in accordance with 32 V.S.A. § 1010 .

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 31, eff. April 4, 1970; amended 1993, No. 82 , § 3.

History

Amendments

—1993. Deleted “a” preceding “per diem pay” and “of $ 25.00” thereafter, inserted “and actual” preceding “expenses in” and added “in accordance with 32 V.S.A. § 1010 ” thereafter.

§ 6029. Act 250 Permit Fund.

There is hereby established a special fund to be known as the Act 250 Permit Fund for the purposes of implementing the provisions of this chapter. Revenues to the fund shall be those fees collected in accordance with section 6083a of this title, gifts, appropriations, and copying and distribution fees. The Board shall be responsible for the Fund and shall account for revenues and expenditures of the Board. At the Commissioner’s discretion, the Commissioner of Finance and Management may anticipate amounts to be collected and may issue warrants based thereon for the purposes of this section. Disbursements from the Fund shall be made through the annual appropriations process to the Board and to the Agency of Natural Resources to support those programs within the Agency that directly or indirectly assist in the review of Act 250 applications. This Fund shall be administered as provided in 32 V.S.A. chapter 7, subchapter 5.

HISTORY: Added 1989, No. 279 (Adj. Sess.), § 2, eff. June 30, 1990; amended 1993, No. 70 , § 1; 1997, No. 59 , § 41, eff. June 30, 1997; 2003, No. 115 (Adj. Sess.), § 51; 2003, No. 163 (Adj. Sess.), § 25.

History

Editor’s note

—2004. The text of this section is based on the harmonization of two amendments. During the 2003 (Adj. Sess.), this section was amended twice, by Act Nos. 115 and 163, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2003 (Adj. Sess.), the text of Act Nos. 115 and 163 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

Amendments

—2003 (Adj. Sess.). Act No. 115 substituted “section 6083a of this title” for “rules adopted under 10 V.S.A. §§ 6025(a) , 6083(a)(3) and 6089(a)” in the second sentence; deleted “environmental” preceding “board” throughout.

Act No. 163 substituted “section 6083a of this title” for “rules adopted under 10 V.S.A. §§ 6025(a) , 6083(a)(3) and 6089(a)” in the second sentence, and deleted “as a special program fund” at the end of the section.

—1997. Deleted the former sixth and seventh sentences.

—1993. Added the eighth sentence.

§ 6030. Map of wireless telecommunications facilities.

The Board shall maintain a map that shows the location of all wireless telecommunications facilities in the State.

HISTORY: Added 1997, No. 94 (Adj. Sess.), § 1, eff. April 15, 1998.

§ 6031. Ethical standards.

  1. The Chair and members of the Board and the Chair and members of each District Commission shall comply with the following ethical standards:
    1. The provisions of 12 V.S.A. § 61 (disqualification for interest).
    2. The Chair and each member shall conduct the affairs of his or her office in such a manner as to instill public trust and confidence and shall take all reasonable steps to avoid any action or circumstance that might result in any one of the following:
      1. undermining his or her independence or impartiality of action;
      2. taking official action on the basis of unfair considerations;
      3. giving preferential treatment to any private interest on the basis of unfair considerations;
      4. giving preferential treatment to any family member or member of his or her household;
      5. using his or her office for the advancement of personal interest or to secure special privileges or exemptions;
      6. adversely affecting the confidence of the public in the integrity of the District Commission.
  2. As soon as practicable after grounds become known, a party may move to disqualify a Board member or District Commissioner from a particular matter before the Board or District Commission.
    1. The motion shall contain a clear statement of the specific grounds for disqualification and when such grounds were first known.
    2. On receipt of the motion, a District Commissioner who is the subject of the motion shall disqualify himself or herself or shall refer the motion to the Chair of the Board.
      1. The Chair of the Board may disqualify the District Commissioner from the matter before the District Commission if, on review of the motion, the Chair determines that such disqualification is necessary to ensure compliance with subsection (a) (ethical standards) of this section.
      2. On disqualification of a District Commissioner under this subsection (b), the Chair of the Board shall assign another District Commissioner to take the place of the disqualified Commissioner. The Chair shall consider making such an assignment from among the members of the same District Commission before assigning a member of another District Commission.
    3. On receipt of the motion, a Board member who is the subject of the motion shall disqualify himself or herself or shall refer the motion to the full Board. The Board may disqualify a member from the matter before the Board if, on review of the motion, the Board determines that such disqualification is necessary to ensure compliance with subsection (a) (ethical standards) of this section. The Board member who is the subject of the motion shall not be eligible to vote on the motion.
  3. For one year after leaving office, a former appointee to the Board or a District Commission shall not, for pecuniary gain:
    1. be an advocate on any matter before the Board or the District Commission to which he or she was appointed; or
    2. be an advocate before any other public body or the General Assembly or its committees regarding any matter in which, while an appointee, he or she exercised any official responsibility or participated personally and substantively.

HISTORY: Added 2013, No. 11 , § 12.

Subchapter 3. Use and Development Plans

ANNOTATIONS

Cited.

Cited in In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993).

§ 6041. Omitted.

History

Former § 6041. Former § 6041, relating to adoption and duration of an interim capability plan, was derived from 1969, No. 250 (Adj. Sess.), § 18, and has been omitted as obsolete, the provisions thereof having been executed.

§ 6042. Capability and Development Plan.

The Board shall adopt a Capability and Development Plan consistent with the Interim Land Capability Plan that shall be made with the general purpose of guiding and accomplishing a coordinated, efficient, and economic development of the State, which will, in accordance with present and future needs and resources, best promote the health, safety, order, convenience, prosperity, and welfare of the inhabitants, as well as efficiency and economy in the process of development, including such distribution of population and of the uses of the land for urbanization, trade, industry, habitation, recreation, agriculture, forestry, and other uses as will tend to create conditions favorable to transportation, health, safety, civic activities, and educational and cultural opportunities, reduce the wastes of financial and human resources that result from either excessive congestion or excessive scattering of population and tend toward an efficient and economic utilization of drainage, sanitary, and other facilities and resources and the conservation and production of the supply of food, water, and minerals. In addition, the plan may accomplish the purposes set forth in 24 V.S.A. § 4302 .

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 19, eff. April 4, 1970.

History

Revision note

—2015. Deleted “but not limited to,” following “including” in accordance with 2013, No. 5 , § 4.

1973 capability and development plan; statement of intent and findings. 1973, No. 85 , §§ 6, 7, provided:

“(a) This act [which amended former § 805 of Title 3, former § 6043 and §§ 6025, 6027, 6046, 6001, 6085, 6086, and 6089 of this title and § 3481 of Title 32] constitutes the capability and development plan provided for in section 6042 of Title 10, and is adopted by the general assembly for the purposes set forth in that section and in section 4302 of Title 24.

“(b) This act is not intended and shall not be construed to limit in any way the freedom of any person to sell or otherwise dispose of his land unless by so doing he will create a subdivision as defined by section 6001(18) [So in original. Probably should be (19).] of Title 10.

“Sec. 7. Legislative findings

“(a) In order to provide general and uniform policies on land use and development to municipal, regional, and state governmental agencies, for their guidance and consideration, and to provide the basis for the Vermont land use plan to be adopted under [former] section 6043 of Title 10, the general assembly hereby finds and declares as follows:

“The capability of land to support development or subdivision provides a foundation for judgment of whether a proposal of development or subdivision is consistent with policies designed to make reasonable use of the state’s resources and to minimize waste or destruction of irreplaceable values. Accordingly, such information regarding the physical characteristics of land as is found in the interim land capability and development plan adopted under [former] section 6041 of Title 10, and as may hereafter be adopted as a rule of the environmental board, shall be considered a part of this capability and development plan.

“(2) UTILIZATION OF NATURAL RESOURCES

“Products of the land and the stone and minerals under the land, as well as the beauty of our landscape are principal natural resources of the state. Preservation of the agricultural and forest productivity of the land, and the economic viability of agricultural units, conservation of the recreational opportunity afforded by the state’s hills, forests, streams and lakes, wise use of the state’s non-renewable earth and mineral reserves, and protection of the beauty of the landscape are matters of public good. Uses which threaten or significantly inhibit these resources should be permitted only when the public interest is clearly benefited thereby.

“(3) PUBLIC AND PRIVATE CAPITAL INVESTMENT

“(A) A balance of public and private capital investment determines the economic well-being of a town or region. An area of industrial, recreational, or residential growth requires highways, schools, utilities, and services the cost of which is borne in large part by others. A settled area, with a full complement of public services, needs continuing private capital investment to create a tax base to pay for the services. Increased demands for and costs of public services, such as schools, road maintenance, and fire and police protection must be considered in relation to available tax revenues and reasonable public and private capital investment. The location and rate of development must be considered, so that the revenue and capital resources of the town, region or state are not diverted from necessary and reasonably anticipated increased governmental services. Accordingly, conditions may be imposed upon the rate and location of development in order to control its impact upon the community.

“(4) PLANNING FOR GROWTH

“(A) Strip development along highways and scattered residential development not related to community centers cause increased cost of government, congestion of highways, the loss of prime agricultural lands, overtaxing of town roads and services and economic or social decline in the traditional community center.

“(5) SEASONAL HOME DEVELOPMENT

“Seasonal homes not only are convertible to permanent homes but are often so converted and may require increased municipal and public services. There should, therefore, be imposed such conditions upon a seasonal home development or subdivision as should be imposed upon a permanent residential development or subdivision.

“(6) GENERAL POLICIES FOR ECONOMIC DEVELOPMENT

“(A) In order to achieve a strong economy that provides satisfying and rewarding job and investment opportunities and sufficient income to meet the needs and aspirations of the citizens of Vermont, economic development should be pursued selectively so as to provide maximum economic benefit with minimal environmental impact.

“(7) SPECIFIC AREAS FOR RESOURCE DEVELOPMENT

“The flow of cash into Vermont to pay for goods manufactured in the state, grown in the state, or mined and quarried in the state, and to pay for services offered in the state to out-of-staters is of primary importance to the state’s economy. Enterprises adding the greatest value by conversion of native raw materials or the products of the land are particularly beneficial to the public interest.

“(8) PLANNING FOR HOUSING

“(A) Opportunity for decent housing is a basic need of all Vermont’s citizens. A decent home in a suitable living environment is a necessary element for protecting the health, safety, and general welfare of the public. The housing requirement for Vermont’s expanding resident population, particularly for those citizens of low or moderate income, must be met by the construction of new housing units and the rehabilitation of existing substandard dwellings. It is in the public interest that new or rehabilitated housing should be: safe and sanitary; available in adequate supply to meet the requirements of all Vermont’s residents; located conveniently to employment and commercial centers; and, coordinated with the provision of necessary public facilities and utilities and consistent with municipal and regional plans.

“Those natural resources referred to in section 6086(a)(1)(A) “Headwaters”, (B) “Waste disposal”, (C) “Water conservation”, (D) “Floodplains” [Floodways], (E) “Watercourses” [Streams], and (F) “Shorelines”, and section 6086(a)(8)(A) “Wildlife habitat and endangered species”, and section 6086(a)(9)(B) “Primary agricultural soils”, (C) “Forests and secondary agricultural soils”, (D) “Earth resources”, (E) “Extraction of earth resources”, and (K) “Development affecting public investments” should be planned for development and use under the principles of environmental conservation set forth in those sections.

“(10) RECREATIONAL RESOURCES

“(A) the use and development of land and waters should occur in such a way as not to significantly diminish the value and availability of outdoor recreational activities to the people of Vermont, including hunting, fishing, hiking, canoeing and boating, skiing, horseback riding, snowmobiling, and other outdoor recreational activities.

“(11) SPECIAL AREAS

“Lands that include or are adjacent to sites or areas of historical, educational, cultural, scientific, architectural or archeological value, including those designated by the rules of the environmental board, should only be developed in a manner that will not significantly reduce that value of the site or area. Sites or areas which are in danger of destruction should be placed in whatever form of public or private ownership that would best maintain and utilize their value to the public.

“(12) SCENIC RESOURCES

“The use and development of lands and waters should not significantly detract from recognized scenic resources including river corridors, scenic highways and roads, and scenic views. Accordingly conditions may be imposed on development in order to control unreasonable or unnecessary adverse effects upon scenic resources.

“(13) CONSERVATION OF ENERGY

“Energy conversion and utilization depletes a limited resource, and produces wastes harmful to the environment, while facilitating our economy and satisfying human needs essential to life. Energy conservation should be actively encouraged and wasteful practices discouraged.

“(14) TAXATION OF LAND

“Land should be appraised and assessed for tax purposes on the use of the land consistent with this act and any other state or local law or regulation affecting current of prospective use of land.

“The development and provision of governmental and public utility facilities and services should be based upon a projection of reasonably expected population increase and economic growth, and should recognize the limits of the state’s human, financial, and natural resources.

“(16) PUBLIC FACILITIES OR SERVICES ADJOINING AGRICULTURAL OR FORESTRY LANDS

“The construction, expansion or provision of public facilities and services should not significantly reduce the resource value of adjoining agricultural or forestry lands unless there is no feasible and prudent alternative, and the facility or service has been planned to minimize its effect on the adjoining lands.

“(17) PLANNING FOR TRANSPORTATION AND UTILITY CORRIDORS

“The development and expansion of governmental and public utility facilities and services should occur within highway or public utility rights-of-way corridors in order to reduce adverse physical and visual impact on the landscape and achieve greater efficiency in the expenditure of public funds.

“(18) TRANSPORTATION SYSTEMS

“Safe, convenient and economical transportation is essential to the people and economy of Vermont and should be planned so as to conform to and further the purposes of this act. Highway, air, rail and other means of transportation should be mutually supported, balanced and integrated. The transportation system should provide convenience and service which are commensurate with need and should respect the integrity of the natural environment. New construction or major reconstruction of roads and highways should provide paths, tracks or areas solely for use by pedestrian or other non-motorized means of transportation when economically feasible and in the public interest.

“(19) PLANNING FOR WASTE DISPOSAL

“Development which is responsible for unique or large amounts of waste should be permitted only if it can be demonstrated that available methods will allow the environment to satisfactorily assimilate the waste and that the public can finance the disposal method without assuming an unreasonable economic burden.”

ANNOTATIONS

Growth.

The Legislature intended the word “growth,” as used in 10 V.S.A. § 6086(a)(9)(A) , to apply to economic, as well as population, growth. In re Wal*Mart Stores, Inc., 167 Vt. 75, 702 A.2d 397, 1997 Vt. LEXIS 242 (1997).

Cited.

Cited in Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992).

§ 6043. Repealed. 1983, No. 114 (Adj. Sess.), § 5.

History

Former § 6043. Former § 6043, relating to land use plans, was derived from 1969, No. 250 (Adj. Sess.), § 20 and amended by 1973, No. 85 , § 4.

§ 6044. Public hearings.

  1. The Board shall hold public hearings for the purpose of collecting information to be used in establishing the Capability and Development Plan and Interim Land Capability Plan.  The public hearings may be held in an appropriate area or areas of the State and shall be conducted according to rules to be established and published by the Board.
  2. The Board may, on its own motion or on petition of an interested agency of the State or any regional or local planning commission, hold such other hearings as it may deem necessary from time to time for the purpose of obtaining information necessary or helpful in the determination of its policies, the carrying out of its duties, or the formulation of its rules and regulations.
  3. At least one public hearing shall be held in each district prior to adoption of a Plan pursuant to section 6042 of this title.  Notice of a hearing shall be furnished each municipality and municipal and regional planning commission in the district where the hearing is to be held not less than 15 days prior to the hearing.
  4. The provisions of 3 V.S.A. chapter 25 shall not apply to the hearings under this section.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 21, eff. April 4, 1970; amended 1983, No. 114 (Adj. Sess.), § 2.

History

Amendments

—1983 (Adj. Sess.). Subsec. (a): Deleted “land use plan” preceding “and interim” in the first sentence.

Subsec. (c): Substituted “section” for “sections” preceding “6042” and deleted “and 6043” thereafter in the first sentence.

CROSS REFERENCES

Municipal planning commissions, see 24 V.S.A. chapter 117, subchapter 2.

Regional planning commissions, see 24 V.S.A. chapter 117, subchapter 3.

§ 6045. Repealed. 1983, No. 114 (Adj. Sess.), § 5.

History

Former § 6045. Former § 6045, relating to submission of land use plans to planning commissions, was derived from 1969, No. 250 (Adj. Sess.), § 22.

§ 6046. Approval of Governor and Legislature.

  1. Upon approval of a Capability and Development or Interim Land Capability Plan by the Board, it shall submit the plan to the Governor for approval.  The Governor shall approve the Plan, or disapprove the Plan or any portion of a Plan, within 30 days of receipt.  If the Governor fails to act, the plan shall be deemed approved by the Governor.  This section shall also apply to any amendment of a Plan.
  2. After approval by the Governor, plans pursuant to section 6042 of this title shall be submitted to the General Assembly when next in session for approval.  A Plan shall be considered adopted for the purposes of subdivision 6086(a)(9) of this title when adopted by the act of the General Assembly.  No permit shall be issued or denied by a District Commission or Environmental Board that is contrary to or inconsistent with a local plan, capital program, or municipal bylaw governing land use, unless it is shown and specifically found that the proposed use will have a substantial impact or effect on surrounding towns, the region, or an overriding interest of the State and the health, safety, and welfare of the citizens and residents thereof requires otherwise.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 23, eff. April 4, 1970; amended 1973, No. 85 , § 5; 1983, No. 114 (Adj. Sess.), § 3.

History

Amendments

—1983 (Adj. Sess.). Subsec. (a): Deleted “land use” preceding “or interim” in the first sentence and “and section 6045 of this title” preceding “shall” in the fourth sentence.

Subsec. (b): Substituted “section” for “sections” preceding “6042” and deleted “and 6043” thereafter in the first sentence.

—1973. Subsec. (b): Amended generally.

CROSS REFERENCES

Municipal development plans, see 24 V.S.A. chapter 117, subchapter 5.

Municipal zoning implementation, see 24 V.S.A. chapter 117, subchapter 6.

§ 6047. Changes in the Capability and Development Plan.

  1. After final adoption, any department or agency of the State or a municipality, or any property owner or lessee may petition the Board for a change in the Capability and Development Plan.
  2. Within 10 days of receipt, the Board shall forward a copy of the petition to the District Commission and regional planning agency for comments and recommendations.  If no regional planning commission exists, the copy shall be sent to the affected municipal planning commissions and municipalities.
  3. After 60 days but within 120 days of the original receipt of a petition, the Board shall advertise a public hearing to be held in the appropriate county.  The Board shall notify the persons and agencies that have an interest in the change of the time and place of the hearing, and the procedures established for initial adoption of a Plan shall apply.
  4. -(f) [Repealed.]

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 24, eff. April 4, 1970; amended 1983, No. 114 (Adj. Sess.), § 4.

History

Amendments

—1983 (Adj. Sess.). Subsec. (a): Deleted “the boundary of any district created under section 6043 of this title or” preceding “the capability” and substituted “and development plan” for “of land for a use under section 6041 of this title” thereafter.

Subsec. (c): Added “and the procedures established for initial adoption of a plan shall apply” following “hearing” at the end of the second sentence.

Subsec. (d): Repealed.

Subsec. (e): Repealed.

Subsec. (f): Repealed.

CROSS REFERENCES

Municipal planning commissions, see 24 V.S.A. chapter 117, subchapter 2.

Regional planning commissions, see 24 V.S.A. chapter 117, subchapter 3.

Subchapter 4. Permits

ANNOTATIONS

Cited.

Cited in In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993).

§ 6081. Permits required; exemptions.

  1. No person shall sell or offer for sale any interest in any subdivision located in this State, or commence construction on a subdivision or development, or commence development without a permit. This section shall not prohibit the sale, mortgage, or transfer of all, or an undivided interest in all, of a subdivision unless the sale, mortgage, or transfer is accomplished to circumvent the purposes of this chapter.
  2. Subsection (a) of this section shall not apply to a subdivision exempt under the regulations of the Department of Health in effect on January 21, 1970 or any subdivision which has a permit issued prior to June 1, 1970 under the Board of Health regulations, or has pending a bona fide application for a permit under the regulations of the Board of Health on June 1, 1970, with respect to plats on file as of June 1, 1970 provided such permit is granted prior to August 1, 1970. Subsection (a) of this section shall not apply to development which is not also a subdivision, which has been commenced prior to June 1, 1970, if the construction will be completed by March 1, 1971. Subsection (a) of this section shall not apply to a State highway on which a hearing pursuant to 19 V.S.A. § 222 has been held prior to June 1, 1970. Subsection (a) of this section shall not apply to any telecommunications facility in existence prior to July 1, 1997, unless that facility is a “development” as defined in subdivision 6001(3) of this title. Subsection (a) of this section shall apply to any substantial change in such excepted subdivision or development.
  3. No permit or permit amendment is required for activities at a solid waste management facility authorized by a provisional certification issued under section 6605d of this title; however, development at such a facility that is beyond the scope of that provisional certification is not exempt from the provisions of this chapter.
  4. For purposes of this section, the following construction of improvements to preexisting municipal, county, or State projects shall not be considered to be substantial changes and shall not require a permit as provided under subsection (a) of this section:
    1. municipal, county, or State wastewater treatment facility enhancements that do not expand the capacity of the facility by more than 10 percent, excluding the extension of a wastewater collection system or an expansion of the service-area boundaries of a wastewater treatment facility.
    2. municipal, county, or State water supply enhancements that do not expand the capacity of the facility by more than 10 percent.
    3. public school reconstruction or expansion that does not expand the student capacity of the school by more than 10 percent.
    4. municipal, county, or State building renovations or reconstruction that does not expand the floor space of the building by more than 10 percent.
    5. [Repealed.]
  5. For purposes of this section, the replacement of water and sewer lines, as part of a municipality’s regular maintenance or replacement of existing facilities, shall not be considered to be substantial changes and shall not require a permit as provided under subsection (a) of this section, provided that the replacement does not expand the capacity of the relevant facility by more than 10 percent.
  6. A permit application for a development for which a certificate of need pursuant to section 6606a of this title is required shall be accompanied by such certificate.
  7. The owners or operators of earth removal sites associated with a landfill closing, other than the landfill site itself, shall obtain a municipal zoning permit in lieu of a permit under this chapter, unless the municipality chooses to refer the matter to the District Environmental Commission having jurisdiction. At the District Commission level, the matter will be treated as a minor application. If municipal zoning bylaws do not exist, the excavation application shall be subject to the provisions of this chapter as a minor application.
  8. No permit or permit amendment is required for closure operations at an unlined landfill which began disposal operations prior to July 1, 1992 and which has been ordered closed under section 6610a or chapter 201 of this title. Closure and post-closure operations covered by this provision are limited to the following on-site operations: final landfill cover system construction and related maintenance operations, water quality monitoring, landfill gas control systems installation and maintenance, erosion control measures, site remediation, and general maintenance. Prior to issuing a final order for closure for landfills qualifying for this exemption, a public informational meeting shall be noticed and held by the Secretary with public comment accepted on the draft order. The public comment period shall extend no less than seven days before the public meeting and 14 days after the meeting. Public comment related to the public health, water pollution, air pollution, traffic, noise, litter, erosion, and visual conditions shall be considered. Landfills with permits in effect under this chapter as of July 1, 1994, shall not qualify for an exemption as described under this section.
  9. The repair or replacement of railroad facilities used for transportation purposes, as part of a railroad’s maintenance, shall not be considered to be substantial changes and shall not require a permit as provided under subsection (a) of this section, provided that the replacement or repair does not result in the physical expansion of the railroad’s facilities.
  10. With respect to the extraction of slate from a slate quarry that is included in final slate quarry registration documents, if it were removed from a site prior to June 1, 1970, the site from which slate was actually removed, if lying unused at any time after those operations commenced, shall be deemed to be held in reserve, and shall not be deemed to be abandoned.
    1. With respect to the commercial extraction of slate from a slate quarry, activities that are not ancillary to slate mining operations may constitute substantial changes and be subject to permitting requirements under this chapter. “Ancillary activities” include the following activities that pertain to slate and that take place within a registered parcel that contains a slate quarry: drilling, crushing, grinding, sizing, washing, drying, sawing, and cutting stone; blasting, trimming, punching, splitting, and gauging; and use of buildings and use and construction of equipment exclusively to carry out such activities. Buildings that existed on April 1, 1995, or any replacements to those buildings, shall be considered ancillary. (k) (1) With respect to the commercial extraction of slate from a slate quarry, activities that are not ancillary to slate mining operations may constitute substantial changes and be subject to permitting requirements under this chapter. “Ancillary activities” include the following activities that pertain to slate and that take place within a registered parcel that contains a slate quarry: drilling, crushing, grinding, sizing, washing, drying, sawing, and cutting stone; blasting, trimming, punching, splitting, and gauging; and use of buildings and use and construction of equipment exclusively to carry out such activities. Buildings that existed on April 1, 1995, or any replacements to those buildings, shall be considered ancillary.
    2. Activities that are ancillary activities that involve crushing may constitute substantial changes if they may result in significant impact with respect to any of the criteria specified in subdivisions 6086(a)(1) through (10) of this title.
    1. By no later than January 1, 1997, any owner of land or mineral rights or any owner of slate quarry leasehold rights on a parcel of land on which a slate quarry was located as of June 1, 1970, may register the existence of the slate quarry with the District Commission and with the clerk of the municipality in which the slate quarry is located, while also providing each with a map which indicates the boundaries of the parcel which contains the slate quarry. (l) (1) By no later than January 1, 1997, any owner of land or mineral rights or any owner of slate quarry leasehold rights on a parcel of land on which a slate quarry was located as of June 1, 1970, may register the existence of the slate quarry with the District Commission and with the clerk of the municipality in which the slate quarry is located, while also providing each with a map which indicates the boundaries of the parcel which contains the slate quarry.
    2. Slate quarry registration shall state the name and address of the owner of the land, mineral rights, or leasehold rights; whether that person holds mineral rights or leasehold rights or is the owner in fee simple; the physical location of the same; the physical location and size of ancillary buildings; and the book and page of the recorded deed or other instrument by which the owner holds title to the land or rights.
    3. Slate quarry registration documents shall be submitted to the District Commission together with a request, under the provisions of subsection 6007(c) of this title, for a final determination regarding the applicability of this chapter.
    4. The final determination regarding a slate quarry registration under subsection 6007(c) of this title shall be recorded in the municipal land records at the expense of the registrant along with an accurate site plan of the parcel depicting the site specific information contained in the registration documents.
    5. With respect to a slate quarry located on a particular registered parcel of land, ancillary activities on the parcel related to the extraction and processing of slate into products that are primarily other than crushed stone products shall not be deemed to be substantial changes, as long as the activities do not involve the creation of one or more new slate quarry holes that are not related to an existing slate quarry hole.
  11. No permit is required for the replacement of a preexisting telecommunications facility, in existence prior to July 1, 1997, provided the facility is not a development as defined in subdivision 6001(3) of this title, unless the replacement would constitute a substantial change to the telecommunications facility being replaced, or to improvements ancillary to the telecommunications facility, or both. No permit is required for repair or routine maintenance of a preexisting telecommunications facility or of those ancillary improvements associated with the telecommunications facility.
  12. No permit amendment is required for the replacement of a permitted telecommunications facility unless the replacement would constitute a material or substantial change to the permitted telecommunications facility to be replaced, or to improvements ancillary to the telecommunications facility, or both. No permit is required for repair or routine maintenance of a permitted telecommunications facility or of those ancillary improvements associated with the telecommunications facility.
  13. If a designation pursuant to 24 V.S.A. chapter 76A is removed, subsection (a) of this section shall apply to any subsequent substantial change to a priority housing project that was originally exempt pursuant to subdivision 6001(3)(A)(iv)(I) of this title on the basis of that designation.
    1. No permit or permit amendment is required for any change to a project that is located entirely within a downtown development district designated pursuant to 24 V.S.A. § 2793 , if the change consists exclusively of any combination of mixed use and mixed income housing, and the cumulative changes within any continuous period of five years, commencing on or after May 28, 2002, remain below any applicable jurisdictional threshold specified in subdivision 6001(3)(A)(iv)(I) of this title. (p) (1) No permit or permit amendment is required for any change to a project that is located entirely within a downtown development district designated pursuant to 24 V.S.A. § 2793 , if the change consists exclusively of any combination of mixed use and mixed income housing, and the cumulative changes within any continuous period of five years, commencing on or after May 28, 2002, remain below any applicable jurisdictional threshold specified in subdivision 6001(3)(A)(iv)(I) of this title.
    2. No permit or permit amendment is required for a priority housing project in a designated center other than a downtown development district if the project remains below any applicable jurisdictional threshold specified in subdivision 6001(3)(A)(iv)(I) of this title and will comply with all conditions of any existing permit or permit amendment issued under this chapter that applies to the tract or tracts on which the project will be located. If such a priority housing project will not comply with one or more of these conditions, an application may be filed pursuant to section 6084 of this title.
  14. For the purposes of reviewing any combination of electrical distribution and communications lines and subsidiary facilities that, standing alone, constitutes a development for purposes of this chapter, the actual and potential impacts considered by the Board or District Commission under subsection 6086(a) of this title shall not include actual or potential impacts of the construction of other improvements to be served by those lines and subsidiary facilities.
  15. In situations in which the construction of improvements for any combination of electrical distribution and communications lines and subsidiary facilities, standing alone, constitutes a development subject to the jurisdiction of the Board or District Commission under this chapter, subsequent construction of improvements for any combination of electrical distribution and communications lines and subsidiary facilities not identified or reasonably identifiable at the time construction commences, standing alone, shall be considered new construction of improvements and shall not be considered a material or substantial change to that previously permitted development.
    1. No permit amendment is required for farming that: (s) (1) No permit amendment is required for farming that:
      1. will occur on primary agricultural soils preserved in accordance with section 6093 of this title; or
      2. will not conflict with any permit condition issued pursuant to this chapter.
    2. Permits shall include a statement that farming is permitted on lands exempt from amendment jurisdiction under this subsection.
  16. [Repealed.]
  17. A building constructed prior to January 1, 2011 in accordance with subdivision 6001(3)(D)(iv) of this title shall not be subject to an enforcement action under this chapter for:
    1. construction or any event or activity at the building that occurred prior to January 1, 2011; and
    2. any event or activity at the building on or after January 1, 2011 if the building is used solely for the purpose of an agricultural fair.
  18. A permit or permit amendment shall not be required for a development or subdivision in a designated downtown development district for which the District Commission has issued positive findings and conclusions under section 6086b of this title on all the criteria listed in that section. A person shall obtain new or amended findings and conclusions from the District Commission under section 6086b of this title prior to commencement of a material change, as defined in the rules of the Board, to a development or subdivision for which the District Commission has issued such findings and conclusions. A person may seek a jurisdictional opinion under section 6007 of this title concerning whether such a change is a material change.
    1. A permit or permit amendment shall not be required for a change to a sport shooting range, as defined in section 5227 of this title, if a jurisdictional opinion issued under subsection 6007(c) of this title determines that each of the following applies: (w) (1) A permit or permit amendment shall not be required for a change to a sport shooting range, as defined in section 5227 of this title, if a jurisdictional opinion issued under subsection 6007(c) of this title determines that each of the following applies:
      1. The range was in operation before January 1, 2006 and has been operating since that date.
      2. The range has a lead management plan approved by the Department of Environmental Conservation under chapters 47 and 159 of this title that requires implementation of best management practices to mitigate environmental impacts to soil and water.
      3. The change is for the purpose of one or more of the following:
        1. To improve the safety of range employees, users of the range, or the public.
        2. To abate noise from activities at the range. A qualified noise abatement professional may certify that a change in a sport shooting range is for this purpose and this certification shall be conclusive evidence that a purpose of the change is to abate noise from activities at the range.
        3. To remediate, mitigate, or reduce impacts to air or water quality from the range or the deposit or disposal of waste generated by the range or its use.
    2. Obtaining a certification described in subdivision (1)(B)(ii) of this subsection shall be at the option of the range’s owner.
    1. No permit or permit amendment is required for the construction of improvements for any one of the actions or abatements authorized in this subdivision: (x) (1) No permit or permit amendment is required for the construction of improvements for any one of the actions or abatements authorized in this subdivision:
      1. a remedial or removal action for which the Secretary of Natural Resources has authorized disbursement under section 1283 of this title;
      2. abating a release or threatened release, as directed by the Secretary of Natural Resources under section 6615 of this title;
      3. a remedial or removal action directed by the Secretary of Natural Resources under section 6615 of this title;
      4. a corrective action authorized in a corrective action plan approved by the Secretary of Natural Resources under section 6615b of this title;
      5. a corrective action authorized in a corrective action plan approved by the Secretary of Natural Resources under chapter 159, subchapter 3 of this title; or
      6. the management of “development soils,” as that term is defined in subdivision 6602(39) of this title, under a plan approved by the Secretary of Natural Resources under section 6604c of this title.
    2. Any development subsequent to the construction of improvements for any one of the actions or abatements authorized in subdivision (1) of this subsection shall not be exempt from the provisions of this chapter.

HISTORY: Added 1969, No. 250 (Adj. Sess.), §§ 6, 7, subsec. (a), eff. June 1, 1970, subsec. (b), eff. April 4, 1970; amended 1989, No. 218 (Adj. Sess.), § 2; 1989, No. 276 (Adj. Sess.), §§ 17a, 17b, eff. June 20, 1990; 1989, No. 282 (Adj. Sess.), § 7, eff. June 22, 1990; 1991, No. 256 (Adj. Sess.), § 30, eff. June 9, 1992; 1993, No. 200 (Adj. Sess.), § 2; 1993, No. 208 (Adj. Sess.), § 4; 1995, No. 30 , § 2, eff. April 13, 1995; 1999, No. 93 (Adj. Sess.), §§ 1, 2; 2001, No. 114 (Adj. Sess.), § 7c, eff. May 28, 2002; 2003, No. 133 (Adj. Sess.), § 1; 2007, No. 38 , § 15, eff. May 21, 2007; 2009, No. 54 , § 53; 2009, No. 54 , § 54, eff. June 1, 2009; 2011, No. 18 , § 3, eff. May 11, 2011; 2011, No. 53 , §§ 4, 4a, eff. May 27, 2011; 2013, No. 11 , § 25; 2013, No. 147 (Adj. Sess.), § 4, eff. June 1, 2014; 2015, No. 145 (Adj. Sess.), § 31; 2017, No. 69 , § H.4, eff. June 28, 2017; 2017, No. 74 , § 17; 2017, No. 209 (Adj. Sess.), § 2, eff. May 30, 2018.

History

References in text.

Section 222 of Title 19, referred to in subsec. (b), was recodified as section 502 of Title 19 by 1985, No. 268 (Adj. Sess.), § 1.

Revision note

—2015. In subsecs. ( o ) and (p), changed the cross-references from subdiv. “6001(3)(B)” of this title to “6001(3)(A)(iv)(I)” because 2013, No. 147 (Adj. Sess.), § 1 repealed subdiv. (3)(B) and moved the subject matter to subdiv. (3)(A)(iv)(I).

—2014. 10 V.S.A. § 6081(t) was repealed effective July 1, 2014 by 2011, No. 53 , § 4a.

—2011. 2009, No. 54 , § 54, effective June 1, 2009 provides: “Effective July 1, 2011, each occurrence of ‘25’ in 10 V.S.A. § 6081(d) is amended to ‘10’. Also effective July 1, 2011, 10 V.S.A. § 6081(d) (5) (exemption for ARRA-funded road and bridge improvements) shall cease to be effective. However, the construction of improvements commenced prior to July 1, 2011 shall not require a permit by operation of this section if such construction was exempt under Sec. 53 [which amended subdivision (d) of this section] of this act.”

Revision note—. Redesignated subsecs. (c) and (d) of this section, as added by 1989, No. 276 (Adj. Sess.), §§ 17a, 17b, as subsecs. (d) and (e), respectively, to avoid a conflict with existing subsec. (c), as added by 1989, No. 218 .

Redesignated subsec. (c) of this section, as added by 1989, No. 282 (Adj. Sess.), § 7, as subsec. (f), to avoid a conflict with existing subsecs. (c) through (e).

Subsec. (i), which was enacted as subsec. (h) by 1993, No. 200 (Adj. Sess.), § 2, was redesignated to avoid conflict with subsec. (h), as added by 1993, No. 208 (Adj. Sess.), § 4.

Amendments

—2017 (Adj. Sess.). Subsec. (x): Added.

—2017. Subdiv. (k)(1): Act No. 74, in the second sentence, substituted “such” for “the above” preceding “activities”.

Subsec. (o): Amended generally by Act No. 69.

Subdiv. (p)(1): Act No. 69 added the subdiv. designation; and substituted “any applicable” for “the” preceding “jurisdictional threshold”.

Subdiv. (p)(2): Act No. 69 added.

—2015 (Adj. Sess.). Subdivs. (w)(1) and (w)(2): Added.

—2013 (Adj. Sess.). Subsec. (v): Added.

—2013. Subdiv. (t)(3): Substituted “Natural Resources Board” for “land use panel of the natural resources board”.

—2011. Subsec. (t): Added by Act No. 53, § 4.

Subsec. (u): Added by Act No. 18, § 3 as subsec. (t) and is redesignated to avoid conflict.

—2009. Subsec. (d): Amended generally. Some amendments were repealed effective July 1, 2011 by 2009, No. 54 , § 54.

—2007. Subsec. (s): Added.

—2003 (Adj. Sess.) Subsecs. (q), (r): Added.

—2001 (Adj. Sess.) Subsecs. (o), (p): Added.

—1999 (Adj. Sess.). Subsec. (b): Added the third sentence.

Subsecs. (m) and (n): Added.

—1995. Added subsecs. (j)-( l ).

—1993 (Adj. Sess.) Subsec. (h): Added by Act Nos. 200 and 208.

—1991 (Adj. Sess.) Subsec. (g): Added.

—1989 (Adj. Sess.) Subsec. (c): Added by Act Nos. 218, 276 and 282.

Subsec. (d): Added by Act No. 276.

Effective date of 2017 amendment. 2017, No. 69 , § N.1(b) provides that the amendments to this section shall take effect on the date of enactment of the fiscal year 2018 annual budget bill, which occurred on June 28, 2017.

1995 amendment. 1995, No. 30 , § 4, eff. April 13, 1995, provided that the amendment to this section by section 2 of the act shall be retroactive to June 1, 1970.

Section 4 of the act further provided: “Upon issuance to a person of final slate quarry registration documents under this act [which amended this section and section 6001 of this title], any existing permit or part of a permit, held by that person under 10 V.S.A. chapter 151, shall be subject to amendment or a finding of lack of jurisdiction under this act.”

CROSS REFERENCES

Exemption of actions required to be performed at landfills operating under closure extensions from permit requirements, see § 6605e of this title.

Jurisdiction over broadcast and communication support structures and related improvements, see § 6001c of this title.

ANNOTATIONS

Constitutionality.

Agency of Natural Resources order penalizing construction company for violating construction permit law did not attempt to regulate federal government directly or discriminate against the federal government or those with whom it deals, and there was no conflict with federal law, as the Disaster Relief Act language expressly encourages the states to develop land use and construction regulations. Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 617 A.2d 143, 1992 Vt. LEXIS 135 (1992).

Actual use.

Plain language of statute and regulation does not preclude State Environmental Board from basing Act 250 jurisdiction on actual use of land rather than overall purpose of development scheme. In re BHL Corp., 161 Vt. 487, 641 A.2d 771, 1994 Vt. LEXIS 42 (1994).

Advisory opinions.

Environmental Board was not estopped from ruling that a permit was required under this section, even though advisory opinion of environmental district coordinator had stated that no permit was needed, since the opinion was advisory in nature, and beyond the coordinator’s power and authority to determine. In re McDonald's Corp., 146 Vt. 380, 505 A.2d 1202, 1985 Vt. LEXIS 406 (1985).

Development.

Because the proposed construction of improvements to a National Guard base served a federal and not a state purpose and was therefore not a “development” the proposed construction was not a substantial change to a preexisting development requiring a permit. In re Changes in Physical Structures & Use at Burlington Int'l Airport for F-35A, 2015 VT 41, 198 Vt. 510, 117 A.3d 457, 2015 Vt. LEXIS 25, cert. denied, 577 U.S. 975, 136 S. Ct. 480, 193 L. Ed. 2d 350, 2015 U.S. LEXIS 7111 (2015).

Under Act 250 and Environmental Board rules, any construction activity, no matter how minute, triggers Act 250 jurisdiction. In re Audet, 2004 VT 30, 176 Vt. 617, 850 A.2d 1000, 2004 Vt. LEXIS 36 (2004), overruled as stated in In re Snowstone, LLC, 2021 VT 72, 2021 Vt. LEXIS 91 (Vt. 2021).

Where a change in land utilization involved a change in use but no construction, physical change to the land, or other lasting impact, ceasing and abandoning the change of use negated the change in land utilization and thus the need for Act 250 review. In re Audet, 2004 VT 30, 176 Vt. 617, 850 A.2d 1000, 2004 Vt. LEXIS 36 (2004), overruled as stated in In re Snowstone, LLC, 2021 VT 72, 2021 Vt. LEXIS 91 (Vt. 2021).

Pursuant to this section, in towns with permanent zoning and subdivision bylaws, construction of improvements for commercial purposes on a tract or tracts of land, owned or controlled by a person, involving more than ten acres of land requires an Act 250 permit. In re Stokes Communications Corp., 164 Vt. 30, 664 A.2d 712, 1995 Vt. LEXIS 66 (1995).

Petitioner’s claim that he never used his land-use permit is erroneous because, once jurisdiction is established, subsec. (a) of this section requires a land-use permit before commencement of any construction on a development; after receiving the land-use permit petitioner cleared the land, constructed the roadways and two ponds, and built his private residence after securing the permit and two amendments to it, all of which, by law, involved use of the permit. In re Rusin, 162 Vt. 185, 643 A.2d 1209, 1994 Vt. LEXIS 54 (1994).

Construction company quarrying of rock and enlarging of business area was development, invoking land use law requiring commercial construction permit, since activities were primarily for private commercial purpose. Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 617 A.2d 143, 1992 Vt. LEXIS 135 (1992).

Environmental Board’s assertion of jurisdiction over gas company’s proposed expansion of its transmission and distribution network was premature, since jurisdiction under this chapter does not attach until construction is about to commence, and the gas company had no specific plans establishing the precise location, the method of construction, or the extent of the work to be done in the expansion. In re Vermont Gas Systems, Inc., 150 Vt. 34, 549 A.2d 627, 1988 Vt. LEXIS 124 (1988).

Where housing authority was planning to construct, own and maintain several low income housing projects, consisting in the aggregate of thirty-five units, on separate tracts of land situated within five miles of each other, since the proposal constituted a “development” as defined in section 6001 of this title, order of Environmental Board requiring the authority to obtain an authorization permit prior to building the units as required by subsec. (a) of this section was proper. In re Burlington Housing Authority Declaratory Ruling #124, 143 Vt. 80, 463 A.2d 215, 1983 Vt. LEXIS 472 (1983).

—Duration.

Because a development is exempt at one time from permit requirement under subsec. (b) of this section does not mean it will always be exempt. In re Orzel, 145 Vt. 355, 491 A.2d 1013, 1985 Vt. LEXIS 309 (1985).

Expertise of Board.

Absent compelling indication of error, Supreme Court will defer to the State Environmental Board’s interpretation of Act 250 and its own duly promulgated rules. In re BHL Corp., 161 Vt. 487, 641 A.2d 771, 1994 Vt. LEXIS 42 (1994).

Determination of what qualifies as a large scale development for purposes of Act 250 jurisdiction is committed to the State Environmental Board as the agency charged with the responsibility to execute the Act and deemed to have experts in that regard. In re BHL Corp., 161 Vt. 487, 641 A.2d 771, 1994 Vt. LEXIS 42 (1994).

Determination of what constitutes potential significant impact on Act 250 criteria is within Environmental Board’s area of expertise and enjoys a presumption of validity. In re Barlow, 160 Vt. 513, 631 A.2d 853, 1993 Vt. LEXIS 74 (1993).

Farming.

Amended statute can only be applied if it will not affect any right, privilege, obligation, or liability acquired prior to the statute’s effective date. Because an amendment to Act 250 regarding farming did not pass this test, the court would not apply it. In re Eustance Act 250 Jurisdictional Opinion, 2009 VT 16, 185 Vt. 447, 970 A.2d 1285, 2009 Vt. LEXIS 26 (2009).

Amendment to Act 250 regarding farming applied to permit amendments only if the farming would not conflict with any permit condition. As the landowners’ unpermitted construction activity violated an explicit condition of a preexisting permit, the amended provision would not apply. In re Eustance Act 250 Jurisdictional Opinion, 2009 VT 16, 185 Vt. 447, 970 A.2d 1285, 2009 Vt. LEXIS 26 (2009).

Functions of Environmental Board.

Where petition for a declaratory ruling requested the Environmental Board to determine under what circumstances and/or conditions a gravel pit could be operated without requiring a state land use and development permit, no error occurred as a consequence of the Board’s failure to issue guidelines for petitioners. In re Orzel, 145 Vt. 355, 491 A.2d 1013, 1985 Vt. LEXIS 309 (1985).

Jurisdiction.

The principle of priority, under which as between two tribunals with concurrent subject matter jurisdiction, the one which first acquires such jurisdiction should exercise it, and the second in point of time should defer to the first, does not apply where the second may offer relief not available in the first. This exception applied where a landfill was subject to administrative closure by order of the Secretary of the Agency of Natural Resources without requiring an Act 250 permit, which relief the Superior Court could not provide. Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997).

Preexisting operations.

Environmental Board did not err in extending a church’s exemption from Act 250 jurisdiction as a preexisting development to cover a company’s installation of antennas within the church’s existing bell towers and construction of an equipment building in the parking lot. In re Vermont RSA Limited Partnership d/b/a Verizon Wireless, 2007 VT 23, 181 Vt. 589, 925 A.2d 1006, 2007 Vt. LEXIS 53 (2007) (mem.).

Environmental Board did not err in extending a church’s exemption from Act 250 jurisdiction as a preexisting development to cover a company’s installation of antennas within the church’s existing bell towers and construction of an equipment building in the parking lot. In re Vermont RSA Limited Partnership d/b/a Verizon Wireless, 2007 VT 23, 181 Vt. 589, 925 A.2d 1006, 2007 Vt. LEXIS 53 (2007) (mem.).

Where the Environmental Board found that a gravel pit owned by petitioners had been used intermittently by previous owners for the extraction of gravel, that this was done before the enactment of this chapter, and made no findings which indicated that the operations, although intermittent, were abandoned at any time, the gravel pit was a commercial operation in existence as of the enactment of this chapter. In re Orzel, 145 Vt. 355, 491 A.2d 1013, 1985 Vt. LEXIS 309 (1985).

Sign.

Definition of “sign” contained in 10 V.S.A. § 481 was specifically limited to chapter 21 of Title 10, regulating outdoor advertising, and did not apply to this section. Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995).

Subdivision.

Act 250 rule regarding permits cannot be used to amend a master plan absent the full review of all criteria necessary to obtain an Act 250 land use permit; the rule notwithstanding, the statutes governing the requirement of permits and the issuance of permits prevent creation of a proposed subdivision absent full review of all criteria. Thus, a so-called “technical amendment” to a master development plan—which reconfigured a nine-lot subdivision into a fifteen-lot subdivision for transfer to another company for future development—triggered the subdivision jurisdiction of Act 250, requiring a permit and the full review necessary to obtain one. In re SP Land Co., 2011 VT 104, 190 Vt. 418, 35 A.3d 1007, 2011 Vt. LEXIS 111 (2011).

Exclusion of farming improvements from development is no answer to an assertion of jurisdiction based on the commencement of construction on a subdivision. Thus, landowners who commenced construction on a subdivision had to obtain an Act 250 permit for their construction. In re Eustance Act 250 Jurisdictional Opinion, 2009 VT 16, 185 Vt. 447, 970 A.2d 1285, 2009 Vt. LEXIS 26 (2009).

For purposes of requirement that persons who own or control subdivisions obtain permit for sale of interest, question of control of corporation that purchased and sold subdivision lots must be viewed with regard to general proposition that a corporation’s separate identity will be disregarded whenever the concept is asserted in an endeavor to circumvent a statute and defeat legislative policy. State Environmental Board v. Chickering, 155 Vt. 308, 583 A.2d 607, 1990 Vt. LEXIS 199 (1990).

For purposes of requirement that persons who own or control subdivision obtain permit for sale of interest, control of corporations that purchased and resold lots is not conclusively determined by whether defendant derived any personal financial gain from the corporations. State Environmental Board v. Chickering, 155 Vt. 308, 583 A.2d 607, 1990 Vt. LEXIS 199 (1990).

Under this section, prohibiting person who owns or controls subdivision to sell an interest in the subdivision without a permit, control of an interest through control of an intermediary corporation which purchased and sold the lots may be inferred by proof that defendant fully controlled its activities notwithstanding percent ownership in the stock of the company. State Environmental Board v. Chickering, 155 Vt. 308, 583 A.2d 607, 1990 Vt. LEXIS 199 (1990).

Under this section, prohibiting sale of interest in subdivision without permit, ownership and functional control of land are independent criteria; control is neither limited to precise percentage of ownership of land nor to particular degree of stockholding in an owning corporation if defendant’s activities by themselves prove that he controlled the property. State Environmental Board v. Chickering, 155 Vt. 308, 583 A.2d 607, 1990 Vt. LEXIS 199 (1990).

Trial court erred in dismissing civil action against real estate developer for alleged sale without permit of subdivision property which he owned or controlled where ample evidence tended to demonstrate developer’s control of intermediary corporations owned by close family members and engaged in plan to develop property notwithstanding developer had no ownership interest in the intermediary corporations. State Environmental Board v. Chickering, 155 Vt. 308, 583 A.2d 607, 1990 Vt. LEXIS 199 (1990).

For purposes of requirement that participants in joint venture owning or controlling subdivisions obtain permit for sale of interest, in opposing motion to dismiss state did not bear burden of proving existence of joint venture; it was sufficient to avoid dismissal if state’s evidence reasonably tended to justify conclusion that defendant and his close relatives had agreed upon a plan amounting to joint venture. State Environmental Board v. Chickering, 155 Vt. 308, 583 A.2d 607, 1990 Vt. LEXIS 199 (1990).

Trial court properly denied state’s motion for summary judgment in civil action against defendant for allegedly selling subdivision property without permit where state had not demonstrated absence of genuine issues of material fact concerning defendant’s control of any of the lots in question. State Environmental Board v. Chickering, 155 Vt. 308, 583 A.2d 607, 1990 Vt. LEXIS 199 (1990).

Corporation “controlled” land under section 6001(19) of this title such that it was required to obtain subdivision permit under subsec. (a) of this section, where it had made arrangements with surveyor, chosen number of subdivisions to create, directed where survey lines should be drawn, paid for survey, and, once sales contract was signed, was equitable owner, even though it was not legal owner. In re Eastland, Inc., 151 Vt. 497, 562 A.2d 1043, 1989 Vt. LEXIS 99 (1989).

Individual’s interest in property held jointly with his wife was an ownership interest sufficient enough in magnitude to allow aggregation of that interest with his other property interests, including those held jointly with another, for purposes of jurisdiction under this chapter; argument was rejected that individual and wife should not have been treated as the same “person” for purposes of determining whether a “subdivision” existed. In re Spencer, 152 Vt. 330, 566 A.2d 959, 1989 Vt. LEXIS 184 (1989).

Environmental Board erred by ruling Act 250 jurisdiction attached to a 1983 subdivision which was physically undeveloped prior to the sale of lots. In re Patton Corp. Northeast Declaratory Ruling #186, 152 Vt. 644, 566 A.2d 969, 1989 Vt. LEXIS 172 (1989) (mem.).

Substantial change.

With regard to whether a rock-crushing operation had a potential for significant impact under one or more of the Act 250 criteria, the likely effect of noise and clouds of rock dust on the sensibilities of the average person was significant enough to show a potential impact as a matter of law, and it was therefore error to find that no permit was required on the ground that there had been no substantial change to a preexisting development. In re N. E. Materials Group LLC Act 250 Jo #5-21 Russell Austin, 2016 VT 87, 202 Vt. 588, 151 A.3d 766, 2016 Vt. LEXIS 86 (2016).

In determining that a rock-crushing operation was exempt from Act 250 because there had not been a substantial change to the preexisting development, the trial court erred in applying a rationale which would harken back to the view that the location of development on the tract was generally irrelevant in determining whether a cognizable change had occurred, a view the court had explicitly rejected. In re N. E. Materials Group LLC Act 250 Jo #5-21 Russell Austin, 2016 VT 87, 202 Vt. 588, 151 A.3d 766, 2016 Vt. LEXIS 86 (2016).

The Environmental Board did not err in finding that a game club had to apply only for a limited Act 250 permit for changes made to its property. Testimony supported the finding that the level of intensity of the club members’ use and the concomitant noise could not be said to have increased over pre-1970 levels. In re Hale Mt. Fish & Game Club, Inc., 2009 VT 10, 185 Vt. 613, 969 A.2d 691, 2009 Vt. LEXIS 18 (2009); In re Vermont RSA Limited Partnership d/b/a Verizon Wireless, 2007 VT 23, 181 Vt. 589, 925 A.2d 1006, 2007 Vt. LEXIS 53 (2007) (mem.).

Environmental Board did not err in finding that a proposed project to install antennas within a church’s existing bell towers and to construct an equipment building in the parking lot did not amount to a substantial change and that the project was therefore exempt from Act 250 jurisdiction. In re Vermont RSA Limited Partnership d/b/a Verizon Wireless, 2007 VT 23, 181 Vt. 589, 925 A.2d 1006, 2007 Vt. LEXIS 53 (2007) (mem.).

There was sufficient evidence to support the Environmental Law Division’s finding that, since 1970, there had been “substantial change” at defendant’s preexisting construction site, in the form of the expansion of an access road, such as to subject it to the division’s jurisdiction: the clearing of trees and excavation of the turnaround, the application of gravel to 115 feet of the road, the paving of a larger portion of the road, the paving of an apron on the road, and a direct, rather than oblique, access down into the gravel pit, all had the potential to cause significant impacts. Secretary v. Earth Construction, Inc., 165 Vt. 160, 676 A.2d 769, 1996 Vt. LEXIS 21 (1996).

Environmental Board did not apply wrong legal standard in concluding it was required to find only potential impacts on Act 250 criteria to determine that substantial change of use had occurred and that permit was required; in defining “substantial changes” to include changes that might result in significant impact, plain language of Board rule did not limit Act 250 jurisdiction to changes that produced actual impact on statutory criteria. In re Barlow, 160 Vt. 513, 631 A.2d 853, 1993 Vt. LEXIS 74 (1993).

Findings of fact supported Environmental Board’s conclusion that petitioners’ operation of gravel pit constituted a substantial change to development and required Act 250 permit, where findings showed that both extraction of gravel and frequency of usage of gravel pit had increased since 1970 enactment of Act 250. In re Barlow, 160 Vt. 513, 631 A.2d 853, 1993 Vt. LEXIS 74 (1993).

Gravel business operator was required to obtain permit under this section where increased extraction and associated alterations in the facility and its manner of operation constituted a substantial change to preexisting development. In re L. W. Haynes, Inc., 150 Vt. 572, 556 A.2d 77, 1988 Vt. LEXIS 233 (1988).

Where owner of gravel extraction facility which existed prior to the enactment of this chapter applied for a land use permit for improvements to the facility, extraction of gravel at or below the facility’s historic rate was not a change in the development, and a comparison of current and historic rates of extraction was not relevant to issuance of the permit. In re R. E. Tucker, Inc., 149 Vt. 551, 547 A.2d 1314, 1988 Vt. LEXIS 89 (1988).

Environmental Board’s finding that there were no specific plans for the continued operation of a gravel pit owned by petitioners fairly and reasonably supported its conclusion that it could not be determined whether future operation would constitute a substantial change to a pre-existing operation which would require a state land use and development permit. In re Orzel, 145 Vt. 355, 491 A.2d 1013, 1985 Vt. LEXIS 309 (1985).

Environmental Board rule defining substantial change under subsec. (b) of this section, requiring a state land use and development permit for any substantial change in a pre-existing development, as any change in a development or subdivision which may result in significant impact with respect to any of the criteria specified in section 6086(a) of this title, governing issuance of permits, was not erroneous. In re Orzel, 145 Vt. 355, 491 A.2d 1013, 1985 Vt. LEXIS 309 (1985).

Cited.

Cited in In re Great Waters of America, Inc., 140 Vt. 105, 435 A.2d 956, 1981 Vt. LEXIS 566 (1981); In re Agency of Administration, 141 Vt. 68, 444 A.2d 1349, 1982 Vt. LEXIS 479 (1982); In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636, 481 A.2d 1274, 1984 Vt. LEXIS 538 (1984); In re H. A. Manosh Corp., 147 Vt. 367, 518 A.2d 18, 1986 Vt. LEXIS 423 (1986); In re Gallagher, 150 Vt. 50, 549 A.2d 637, 1988 Vt. LEXIS 111 (1988); Kirchner v. Giebink, 150 Vt. 172, 552 A.2d 372, 1988 Vt. LEXIS 148 (1988); C.V. Landfill, Inc. v. Environmental Board, 158 Vt. 386, 610 A.2d 145, 1992 Vt. LEXIS 63 (1992); Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992), Jipac, N.V. v. Silas, 174 Vt. 57, 800 A.2d 1092, 2002 Vt. LEXIS 137 (2002); Roberts v. Chimileski, 2003 VT 10, 175 Vt. 480, 820 A.2d 995, 2003 Vt. LEXIS 13 (2003); State v. Therrien, 2003 VT 44, 175 Vt. 342, 830 A.2d 28, 2003 Vt. LEXIS 87 (2003); In re Catamount Slate, Inc., 2004 VT 14, 176 Vt. 284, 844 A.2d 787, 2004 Vt. LEXIS 17 (2004); In re Ochs, 2006 VT 122, 181 Vt. 541, 915 A.2d 780, 2006 Vt. LEXIS 330 (2006); In re Shenandoah LLC, 2011 VT 68, 190 Vt. 149, 27 A.3d 1078, 2011 Vt. LEXIS 68 (2011) (mem.).

Notes to Opinions

Rights-of-way.

A right-of-way cannot be considered a road subject to the provisions of this chapter. 1972-74 Vt. Op. Att'y Gen. 77.

§ 6082. Approval by local governments and State agencies.

The permit required under section 6081 of this title shall not supersede or replace the requirements for a permit of any other State agency or municipal government.

HISTORY: 1969, No. 250 (Adj. Sess.), § 27, eff. April 4, 1970.

ANNOTATIONS

Construction.

Act 250 explicitly proclaims its primacy over, without preemption of, ancillary permit and approval processes, and the fact that a court is employed in giving approval has no bearing on the overall process of protecting the environment as envisioned in the legislation. In re Agency of Transportation, 157 Vt. 203, 596 A.2d 358, 1991 Vt. LEXIS 151 (1991).

A less stringent provision required elsewhere does not preclude stricter Act 250 review. In re Agency of Transportation, 157 Vt. 203, 596 A.2d 358, 1991 Vt. LEXIS 151 (1991).

A less stringent Act 250 permit may not substitute for a more stringent provision required elsewhere. In re Agency of Transportation, 157 Vt. 203, 596 A.2d 358, 1991 Vt. LEXIS 151 (1991).

When Act 250 requires more stringent standards than provided in an ancillary permit process, Act 250 controls. In re Agency of Transportation, 157 Vt. 203, 596 A.2d 358, 1991 Vt. LEXIS 151 (1991).

Legislature has explicitly precluded the possibility that a permit under this chapter might supersede or replace the requirements of municipal land use regulations, and Supreme Court would not presume an intention on the part of the Legislature, in enacting this chapter, to dilute the authority delegated to the municipalities to regulate land use decisions. Committee to Save the Bishop's House, Inc. v. Medical Center Hospital of Vermont, Inc., 137 Vt. 142, 400 A.2d 1015, 1979 Vt. LEXIS 945 (1979).

Cited.

Cited in In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988).

§ 6083. Applications.

  1. An application for a permit shall be filed with the District Commission as prescribed by the rules of the Board and shall contain at least the following documents and information:
    1. The applicant’s name, address, and the address of each of the applicant’s offices in this State, and, where the applicant is not an individual, municipality, or State agency, the form, date, and place of formation of the applicant.
    2. Four copies of a plan of the proposed development or subdivision showing the intended use of the land, the proposed improvements, the details of the project, and any other information required by this chapter, or the rules adopted under this chapter.
    3. The fee prescribed by section 6083a of this title.
    4. Certification of filing of notice as set forth in 6084 of this title.
  2. An applicant or petitioner shall grant the Board or District Commission, or their agents, permission to enter upon the applicant’s or petitioner’s land for these purposes.
  3. Where an application concerns the extraction or processing of fissionable source material, before the application is considered the District Commission shall obtain the express approval of the General Assembly by act of legislation stating that extraction or processing of fissionable source material will promote the general welfare.  The District Commission shall advise the General Assembly of any application for extraction or processing of fissionable source material by delivering written notice to the Speaker of the House of Representatives and to the President of the Senate, and shall make available all relevant material.  The procedural requirements and deadlines applicable to permit applications under this chapter shall be suspended until the approval is granted.  Approval by the General Assembly under this subsection shall not be construed as approval of any particular application or proposal for development.
  4. The Board and Commissions shall make all practical efforts to process matters before the Board and permits in a prompt manner. The Board shall establish time limits for the processing of land use permits issued under section 6086 of this title as well as procedures and time periods within which to notify applicants whether an application is complete. The Board shall report annually by February 15 to the General Assembly by electronic submission. The annual report shall assess the performance of the Board and Commissions in meeting the limits; identify areas which hinder effective performance; list fees collected for each permit; summarize changes made to improve performance; and describe staffing needs for the coming year. The annual report shall list the number of enforcement actions taken by the Board, the disposition of such cases, and the amount of penalties collected. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection.
  5. The District Commissions shall give priority to municipal projects that have been mandated by the State through a permit, enforcement order, court order, enforcement settlement agreement, statute, rule, or policy.
  6. In situations where the party seeking to file an application is a State agency, municipality, or solid waste management district empowered to condemn the involved land or an interest in it, the application need only be signed by that party.
    1. A District Commission, pending resolution of noncompliance, may stay the issuance of a permit or amendment if it finds, by clear and convincing evidence, that a person who is an applicant: (g) (1) A District Commission, pending resolution of noncompliance, may stay the issuance of a permit or amendment if it finds, by clear and convincing evidence, that a person who is an applicant:
      1. is not in compliance with a court order, an administrative order, or an assurance of discontinuance with respect to a violation that is directly related to the activity which is the subject of the application; or
      2. has one or more current violations of this chapter, or any rules, permits, assurances of discontinuance, court order, or administrative orders related to this chapter, which, when viewed together, constitute substantial noncompliance.
    2. Any decision under this subsection to issue a stay may be subject to review by the Environmental Division, as provided by rule of the Supreme Court.
    3. If the same violation is the subject of an enforcement action under chapter 201 of this title, then jurisdiction over the issuance of a stay shall remain with the Environmental Division and shall not reside with the District Commission.

HISTORY: Added 1969, No. 250 (Adj. Sess.), §§ 8, 15, eff. April 4, 1970; amended 1979, No. 123 (Adj. Sess.), § 6, eff. April 14, 1980; 1987, No. 76 , § 10; 1989, No. 276 (Adj. Sess.), § 17, eff. June 20, 1990; 1989, No. 279 (Adj. Sess.), § 3; 1991, No. 109 , § 7, eff. June 28, 1991; 1995, No. 186 (Adj. Sess.), § 35, eff. May 22, 1996; 1997, No. 155 (Adj. Sess.), § 26; 2001, No. 40 , § 4; 2003, No. 151 (Adj. Sess.), § 1; 2003, No. 115 (Adj. Sess.), § 52, eff. Jan. 31, 2005; 2007, No. 191 (Adj. Sess.), § 11; 2009, No. 146 (Adj. Sess.), § F21; 2009, No. 154 (Adj. Sess.), § 236; 2011, No. 139 (Adj. Sess.), § 10, eff. May 14, 2012; 2013, No. 11 , §§ 13, 25.

History

Amendments

—2013. Subsec. (a): Substituted “commission” for “commissioner” following “district”.

Subsec. (b): Substituted “Board” for ”appropriate panel of the board” following “the”.

Subsec. (d): Substituted “Board” for “panels of the board”, and “land use panel” throughout the subsec.

—2011 (Adj. Sess.). Subsec. (d): Substituted “general assembly by electronic submission” for “house and senate committees on natural resources and energy and on government operations, and the house committees on fish, wildlife and water resources” in the third sentence, and added the last sentence.

—2009 (Adj. Sess.) Act No. 146 substituted “four copies” for “five copies” in subdiv. (a)(2).

Act No. 154 substituted “environmental division” for “environmental court” in subdivs. (g)(2) and (g)(3).

—2007 (Adj. Sess.) Subsec. (d): Inserted “on” preceding “government operations” and added “and the house committee on fish, wildlife and water resources” thereafter in the third sentence, and added the last sentence.

—2003 (Adj. Sess.). Subsec. (f): Act No. 151, inserted “state agency” preceding “municipality”, deleted “or a” preceding “solid waste”, and deleted “then” preceding “the application”.

Subdiv. (a)(2): Act No. 115, substituted “adopted under this chapter” for “promulgated thereunder”.

Subsec. (b): Deleted the former first sentence; inserted “or petitioner” following “applicant” and “appropriate panel of” preceding “board” and substituted “the applicant’s or petitioner’s” for “his” in the second sentence.

Subsec. (d): Inserted “panels of the” preceding “board” and “matters before the board and” preceding “permits” in the first sentence; substituted “land use panel” for “board” and “the processing of land use permits issued under section 6086 of this title” for “permit processing” in the second sentence; substituted “land use panel” for “board” in the third sentence; deleted “by the board” following “changes made”, inserted “and” preceding “describe”, and deleted “and certify that the revenue from the fees collected is at least equal to the costs associated with those positions” in the fourth sentence.

Subdiv. (g)(2): Substituted “review by the environmental court, as provided by rule of the supreme court” for “an interlocutory appeal to the board”.

—2001. Subsec. (g): Added.

—1997 (Adj. Sess.). Subdiv. (a)(3): Substituted “by section 6083a of this title” for “by rule” and deleted the second sentence.

—1995 (Adj. Sess.) Subdiv. (a)(3): Added the second sentence.

—1991. Subsec. (f): Added.

—1989 (Adj. Sess.). Subsec. (d): In the third sentence, Act No. 279 inserted “and energy” following “resources”, and in the fourth sentence, deleted “agency’s” following “assess the”, inserted “of the board and commissions” preceding “in meeting”, deleted “agency” following “effective”, and substituted “board” for “agency” preceding “to improve”.

Subsec. (e): Added by Act No. 276.

—1987. Subsec. (d): Added.

—1979 (Adj. Sess.). Subsec. (c): Added.

CROSS REFERENCES

Fissionable source material defined, see § 6001(20) of this title.

Act 250 Permit Fund defined, see § 6029 of this title.

ANNOTATIONS

Financing.

In appeal from grant of permit to build apartment complex, whether it was error to rule that evidence of financing would be received confidentially without participation by objecting adjoining landowners, and whether it was error to fail to make findings on the sufficiency of the data, were irrelevant, since financing was not an issue in such proceedings, and the fact that hearing board requested the data did not thereby make it an issue. In re Preseault, 132 Vt. 471, 321 A.2d 65, 1974 Vt. LEXIS 370 (1974).

Jurisdiction.

Under this chapter, initial consideration of a land use proposal is assigned to a District Commission, and the State Environmental Conservation Board is not vested with concurrent jurisdiction to hear and decide the matter. In re Juster Associates, 136 Vt. 577, 396 A.2d 1382, 1978 Vt. LEXIS 671 (1978).

State Environmental Conservation Board could not grant an amendment to an outstanding land use permit, so as to allow a new four acre tract of land to be developed, without proceedings before the district commission, even though the land was to be used to fulfill a condition attached to the original permit; and board’s power to enforce permits was not grounds for allowance of amendment. In re Juster Associates, 136 Vt. 577, 396 A.2d 1382, 1978 Vt. LEXIS 671 (1978).

Cited.

Cited in In re Great Waters of America, Inc., 140 Vt. 105, 435 A.2d 956, 1981 Vt. LEXIS 566 (1981); In re Agency of Administration, 141 Vt. 68, 444 A.2d 1349, 1982 Vt. LEXIS 479 (1982); Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992).

§ 6083a. Act 250 fees.

  1. All applicants for a land use permit under section 6086 of this title shall be directly responsible for the costs involved in the publication of notice in a newspaper of general circulation in the area of the proposed development or subdivision and the costs incurred in recording any permit or permit amendment in the land records. In addition, applicants shall be subject to the following fees for the purpose of compensating the State of Vermont for the direct and indirect costs incurred with respect to the administration of the Act 250 program:
    1. For projects involving construction, $6.65 for each $1,000.00 of the first $15,000,000.00 of construction costs, and $3.12 for each $1,000.00 of construction costs above $15,000,000.00. An additional $0.75 for each $1,000.00 of the first $15,000,000.00 of construction costs shall be paid to the Agency of National Resources to account for the Agency of Natural Resources’ review of Act 250 applications.
    2. For projects involving the creation of lots, $125.00 for each lot.
    3. For projects involving exploration for or removal of oil, gas, and fissionable source materials, a fee as determined under subdivision (1) of this subsection or $1,000.00 for each day of Commission hearings required for such projects, whichever is greater.
    4. For projects involving the extraction of earth resources, including sand, gravel, peat, topsoil, crushed stone, or quarried material, the greater of: a fee as determined under subdivision (1) of this subsection; or a fee equivalent to the rate of $0.02 per cubic yard of the first million cubic yards of the total volume of earth resources to be extracted over the life of the permit, and $.01 per cubic yard of any such earth resource extraction above one million cubic yards. Extracted material that is not sold or does not otherwise enter the commercial marketplace shall not be subject to the fee. The fee assessed under this subdivision for an amendment to a permit shall be based solely upon any additional volume of earth resources to be extracted under the amendment.
    5. For projects involving the review of a master plan, a fee equivalent to $0.10 per $1,000.00 of total estimated construction costs in current dollars in addition to the fee established in subdivision (1) of this subsection for any portion of the project seeking construction approval.
    6. In no event shall a permit application fee exceed $165,000.00.
  2. Notwithstanding the provisions of subsection (a) of this section, there shall be a minimum fee of $187.50 for original applications and $62.50 for amendment applications, in addition to publication and recording costs. These costs shall be in addition to any other fee established by statute, unless otherwise expressly stated.
  3. Fees shall not be required for projects undertaken by municipal agencies or by State governmental agencies, except for publication and recording costs.
  4. Neighborhood development area fees.   Fees for residential development in a Vermont neighborhood or neighborhood development area designated according to 24 V.S.A. § 2793e shall be no more than 50 percent of the fee otherwise charged under this section. The fee shall be paid within 30 days after the permit is issued or denied.
  5. A written request for an application fee refund shall be submitted to the District Commission to which the fee was paid within 90 days of the withdrawal of the application.
    1. In the event that an application is withdrawn prior to the convening of a hearing, the District Commission shall, upon request of the applicant, refund 50 percent of the fee paid between $100.00 and $5,000.00, and all of that portion of the fee paid in excess of $5,000.00 except that the District Commission may decrease the amount of the refund if the direct and indirect costs incurred by the State of Vermont with respect to the administration of the Act 250 program clearly and unreasonably exceed the fee that would otherwise be retained by the District Commission.
    2. In the event that an application is withdrawn after a hearing, the District Commission shall, upon request of the applicant, refund 25 percent of the fee paid between $100.00 and $10,000.00 and all of that portion of the fee paid in excess of $10,000.00 except that the District Commission may decrease the amount of the refund if the direct and indirect costs incurred by the State of Vermont with respect to the administration of the Act 250 program clearly and unreasonably exceed the fee that would otherwise be retained by the District Commission.
    3. The District Commission shall, upon request of the applicant, increase the amount of the refund if the application of subdivisions (1) and (2) of this subsection clearly would result in a fee that unreasonably exceeds the direct and indirect costs incurred by the State of Vermont with respect to the administration of the Act 250 program.
    4. District Commission decisions regarding application fee refunds may be appealed to the Natural Resources Board in accordance with Board rules.
    5. For the purposes of this section, a “hearing” is a duly warned meeting concerning an application convened by a quorum of the District Commission, at which parties may be present. However, a hearing does not include a prehearing conference.
    6. In no event may an application fee or a portion thereof be refunded after a District Commission has issued a final decision on the merits of an application.
    7. In no event may an application fee refund include the payment of interest on the application fee.
  6. In the event that an application involves a project or project impacts that previously have been reviewed, the applicant may petition the Chair of the District Commission to waive all or part of the application fee. If an application fee was paid previously in accordance with subdivisions (a)(1) through (4) of this section, the Chair may waive all or part of the fee for a new or revised project if the Chair finds that the impacts of the project have been reviewed in an applicable master permit application, or that the project is not significantly altered from a project previously reviewed, or that there will be substantial savings in the review process due to the scope of review of the previous applications.
  7. A Commission or the Natural Resources Board may require any permittee to file a certification of actual construction costs and may direct the payment of a supplemental fee in the event that an application understated a project’s construction costs. Failure to file a certification or to pay a supplemental fee shall be grounds for permit revocation.
  8. The costs of republishing a notice due to a scheduling change requested by a party shall be borne by the party requesting the change.

HISTORY: Added 1997, No. 155 (Adj. Sess.), § 27; amended 2003, No. 163 (Adj. Sess.), § 26; 2003, No. 115 (Adj. Sess.), § 53, eff. Jan. 31, 2005; 2007, No. 176 (Adj. Sess.), § 8; 2009, No. 134 (Adj. Sess.), § 33; 2011, No. 161 (Adj. Sess.), § 8; 2013, No. 11 , § 25; 2013, No. 59 , § 12; 2015, No. 57 , § 18; 2019, No. 131 (Adj. Sess.), § 13.

History

Amendments

—2019 (Adj. Sess.). Subdiv. (a)(5): Substituted “seeking” for “seeing”.

—2015. Subdiv. (a)(1): Amended generally.

Subdiv. (a)(2): Substituted “$125.00” for “$100.00”.

Subdiv. (a)(4): Deleted “but not limited to” preceding “sand” in the first sentence.

Subdiv. (a)(6): Substituted “$165,000.00” for “$150,000.00”.

Subsec. (b): Substituted “$187.50” for “$150.00” and “$62.50” for “$50.00”.

—2013. Subsec. (d): Amended generally.

Subdiv. (e)(4): Substituted “Natural Resources Board” for “land use panel”.

Subsec. (g): Substituted “Natural Resources Board” for “land use panel”.

—2011 (Adj. Sess.). Subdiv. (a)(4): In the first sentence, added “the greater of:” and substituted “$0.02 per cubic yard of the first million cubic yards of the total volume of earth resources to be extracted over the life of the permit, and $.01 per cubic yard of any such earth resource extraction above one million cubic yards” for “$0.20 per cubic yard of maximum estimated annual extraction whichever is greater”, and added the last two sentences.

—2009 (Adj. Sess.) Subdiv. (a)(1): Substituted “$5.40” for “$4.75” and “$2.50” for “$2.25”.

Subdiv. (a)(4): Substituted “$0.20” for “$0.10”.

Subdiv. (a)(6): Substituted “$150,000.00” for “$135,000.00”.

—2007 (Adj. Sess.). Subsec. (d): Added.

—2003 (Adj. Sess.). Subdiv. (a)(1): Act No. 163, substituted “$4.75” for “$4.25” and “$2.25” for “$2.00” preceding “for each”.

Subdiv. (a)(2): Substituted “$100.00” for “$50.00”.

Subsec. (b): Substituted “$150.00” for “$100.00” and “$50.00” for “$25.00”.

Subsec. (d): Substituted “$150.00” for “$100.00”.

Act No. 115, inserted “Act 250” preceding “fees” in the section heading and “for a land use permit under section 6086 of this title” in subsec. (a).

Subdiv. (a)(3): Deleted “and board” preceding “hearings”.

Subsec. (d): Deleted.

Subdiv. (e)(4): Substituted “land use panel” for “board”.

Subdiv. (e)(5): Deleted “ board or” preceding “district commission” and “or a hearing officer or panel of the board” following “commission”.

Subsec. (g): Substituted “land use panel” for “board”.

CROSS REFERENCES

Act 250 Permit Fund defined, see § 6029 of this title.

§ 6084. Notice of application; hearings; commencement of review.

  1. On or before the date of filing of an application with the District Commission, the applicant shall send notice and a copy of the initial application to the owner of the land if the applicant is not the owner; the municipality in which the land is located; the municipal and regional planning commissions for the municipality in which the land is located; the Vermont Agency of Natural Resources; and any adjacent Vermont municipality and municipal and regional planning commission if the land is located on a municipal or regional boundary. The applicant shall furnish to the District Commission the names of those furnished notice by affidavit, and shall post a copy of the notice in the town clerk’s office of the town or towns in which the project lies. The applicant shall also provide a list of adjoining landowners to the District Commission. Upon request and for good cause, the District Commission may authorize the applicant to provide a partial list of adjoining landowners in accordance with Board rules.
  2. Upon an application being ruled complete, the District Commission shall determine whether to process the application as a major application with a required public hearing or process the application as a minor application with the potential for a public hearing in accordance with Board rules.
    1. For major applications, the District Commission shall provide notice not less than 10 days prior to any scheduled hearing or prehearing conference to: the applicant; the owner of the land if the applicant is not the owner; the municipality in which the land is located; the municipal and regional planning commissions for the municipality in which the land is located; any adjacent Vermont municipality and municipal and regional planning commission if the land is located on a municipal or regional boundary; adjoining landowners as deemed appropriate by the District Commission pursuant to the rules of the Board, and any other person the District Commission deems appropriate.
    2. For minor applications, the District Commission shall provide notice of the commencement of application review to the persons listed in subdivision (1) of this subsection.
    3. For both major and minor applications, the District Commission shall also provide such notice and a copy of the application to: the Board and any affected State agency; the solid waste management district in which the land is located, if the development or subdivision constitutes a facility pursuant to subdivision 6602(10) of this title; and any other municipality, State agency, or person the District Commission deems appropriate.
  3. Anyone required to receive notice of commencement of minor application review pursuant to subsection (b) of this section may request a hearing by filing a request within the public comment period specified in the notice pursuant to Board rules. The District Commission, on its own motion, may order a hearing within 20 days of notice of commencement of minor application review.
  4. Any hearing or prehearing conference for a major application shall be held within 40 days of receipt of a complete application; or within 20 days of the end of the public comment period specified in the notice of minor application review if the District Commission determines that it is appropriate to hold a hearing for a minor application.
  5. Any notice for a major or minor application, as required by this section, shall also be published by the District Commission in a local newspaper generally circulating in the area where the development or subdivision is located not more than ten days after receipt of a complete application.
    1. Notice of any hearing for a major application shall be published, as required by this section, not less than 10 days before the hearing or prehearing conference.
    2. If the District Commission determines that it is appropriate to hold a hearing for an application that was originally noticed as a minor application, then the application shall be renoticed as a major application in accordance with the requirements of this section and Board rules, except that there shall be no requirement to publish the second notice in a local newspaper. Direct notice of the hearing to all persons listed in subdivisions (b)(1) and (3) of this section shall be deemed sufficient.
  6. This subsection concerns an application for a new permit amendment to change the conditions of an existing permit or existing permit amendment in order to authorize the construction of a priority housing project described in subdivision 6081(p)(2) of this title.
    1. The District Commission may authorize a district coordinator to issue such an amendment, without notice and a hearing, if the applicant demonstrates that all parties to the existing permit or existing permit amendment, which contains the condition or conditions proposed to be changed, or their successors in interest have consented to the proposed changes to conditions relative to the criteria for which the party obtained party status.
    2. If the applicant is not able to obtain the consent of a party or parties or their successors in interest with respect to one or more of the conditions in the existing permit or permit amendment proposed to be changed, the applicant shall file a permit application pursuant to this section. However, review by the District Commission shall be limited to whether the changes to conditions not consented to by the party or parties or their successors in interest enable positive findings to be made under subsection 6086(a) and are authorized under subsection 6086(c) of this title.
  7. When an application concerns the construction of improvements for one of the following, the application shall be processed as a minor application in accordance with subsections (b) through (e) of this section:
    1. a sawmill that produces three and one-half million board feet or less annually; or
    2. an operation that involves the primary processing of forest products of commercial value and that annually produces:
      1. 3,500 cords or less of firewood or cordwood; or
      2. 10,000 tons or less of bole wood, whole tree chips, or wood pellets.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 9, eff. April 4, 1970; amended 1991, No. 109 , § 2 eff. June 28, 1991; 1993, No. 232 (Adj. Sess.), § 29, eff. March 15, 1995; 1995, No. 189 (Adj. Sess.), § 10, eff. May 22, 1996; 2003, No. 115 (Adj. Sess.), § 54; 2009, No. 146 (Adj. Sess.), § F22; 2017, No. 69 , § H.5, eff. June 28, 2017; 2017, No. 113 (Adj. Sess.), § 45; 2017, No. 194 (Adj. Sess.), § 6, eff. May 30, 2018.

History

Amendments

—2017 (Adj. Sess.). Subsec. (a): In the first sentence, Act No. 113 added “an” before “any adjacent”; in the second sentence, Act 113 replaced “wherein” with “in which” before “the project lies”.

Subsec. (g): Act No. 194 added.

—2017. Subsec. (f): Added.

—2009 (Adj. Sess.) Subsec. (a): Inserted “the Vermont agency of natural resources” in the first sentence.

—2003 (Adj. Sess.). Rewrote the section heading and amended section generally.

—1995 (Adj. Sess.) Subsec. (a): Deleted the second sentence.

—1993 (Adj. Sess.). Subsec. (a): Substituted “the municipality in which the land is located; the municipal and regional planning commissions for the municipality in which the land is located” for “a municipality, and municipal and regional planning commissions wherein the land is located” preceding “any adjacent”, substituted “and municipal and” for “municipal or” following “Vermont municipality” in the first sentence and added the second and third sentences.

Subsec. (b): Inserted “the solid waste management district in which the land is located, if the development or subdivision constitutes a facility pursuant to subdivision 6602(10) of this title” following “affected” and deleted “or” following “municipality” in the first sentence.

—1991. Subsec. (a): Inserted “the owner of the land if the applicant is not the owner” preceding “a municipality” in the first sentence.

Effective date of 2017 amendment. 2017, No. 69 , § N.1(b) provides that the amendments to this section shall take effect on the date of enactment of the fiscal year 2018 annual budget bill, which occurred on June 28, 2017.

ANNOTATIONS

Discretion of commission.

This section, as amplified by agency regulations, requires that District Commission exercise discretion as to whether adjacent landowner is required to be notified of application. In re Conway, 152 Vt. 526, 567 A.2d 1145, 1989 Vt. LEXIS 199 (1989).

Where District Commission had discretion to give Barre City notice of proposed real estate development in Barre Town, which would give Barre City party status, and did not do so, and city appealed as it wished to raise questions regarding water supply and sewage, which it supplied to town, Commission’s failure to give city notice was not an abuse of discretion, as the town obtained its water and sewage from city by contract, the limits of the contracts were all the protection the city needed, and it was of no concern to the city how the town distributed its limited water and sewer rights under the contracts among the town’s customers. In re Lunde Construction Co., 139 Vt. 376, 428 A.2d 1140, 1981 Vt. LEXIS 474 (1981).

District Commission and Environmental Board did not abuse their discretion in denying city’s request under rule for party status in hearing on proposed development where the request was four months late, came after considerable progress had been made in the hearing, the city’s agents could be called as witnesses by the parties to the hearing, no compelling reason for waiver of time limit for the requesting of party status appeared, and great delay and expense would result to others if party status were granted under rule. In re Lunde Construction Co., 139 Vt. 376, 428 A.2d 1140, 1981 Vt. LEXIS 474 (1981).

Parties.

Environmental Board did not err in admitting town as statutory party to Act 250 permit-approval proceeding; where case involved impact of development on an area directly adjacent to town, board was required to look at alternative sites owned or controlled by applicant, and alternative sites might have direct impact on town. In re Killington, Ltd., 159 Vt. 206, 616 A.2d 241, 1992 Vt. LEXIS 123 (1992).

Agency of Environmental Conservation could participate in hearing before Environmental Board on appeal by the Agency and others from District Commission’s grant of land use permit even though the Board was a part of the Agency; no apparent conflict of interest existed, since the Agency has no adjudicatory powers under the land use act and the Secretary of the Agency neither appoints nor controls the Board. In re Wildlife Wonderland, Inc., 133 Vt. 507, 346 A.2d 645, 1975 Vt. LEXIS 443 (1975).

On appeal to Vermont Environmental Board from District Commission’s grant of a land use permit, fact that the town planning commissions appeared before the District Commission and the Board on two of the ten criteria for grant of the permit and had not appeared before the District Commission on the other eight criteria did not bar the town planning commissions from appearing before the Board. In re Wildlife Wonderland, Inc., 133 Vt. 507, 346 A.2d 645, 1975 Vt. LEXIS 443 (1975).

Procedure for approval of registration.

That the district coordinator did not serve a final opinion on persons who were not entitled to notice and service because they were neither parties entitled by statute to notice nor adjoining property owners did not alter the finality of the jurisdictional question; thus, the environmental board’s decision faulting plaintiff for failing to notify and serve those individuals at the time of the original action, when neither the board nor the district coordinator identified them as people “who may be affected by the outcome” of the opinion, cannot stand. In re Catamount Slate, Inc., 2004 VT 14, 176 Vt. 284, 844 A.2d 787, 2004 Vt. LEXIS 17 (2004).

Where plaintiff did everything the statutes and the board required of it to obtain a ruling exempting its slate quarries from Act 250 jurisdiction, the district coordinator sent the registration approval to all adjoining property owners listed in the application, as well as other parties entitled to notice, and no appeal or request for reconsideration was filed within thirty days, under these circumstances, after the district coordinator’s approval, the opinion was final on whether plaintiff’s slate quarry holes were subject to Act 250 review. In re Catamount Slate, Inc., 2004 VT 14, 176 Vt. 284, 844 A.2d 787, 2004 Vt. LEXIS 17 (2004).

Procedure for approval of registration.

For a slate quarry registration approval to be final under 10 V.S.A. § 6007(c) , providing for Act 250 disclosure statements, the owner had to ensure that the district coordinator served the opinion on the adjoining landowners listed in the application, any individuals the owner identified, and the parties entitled to notice under 10 V.S.A. § 6084 . In re Catamount Slate, Inc., 2004 VT 14, 176 Vt. 284, 844 A.2d 787, 2004 Vt. LEXIS 17 (2004).

Purpose.

Legislature, in enacting this section and section 6085 of this title, sought to balance the interests of developers and the interests of adjoining landowners and localities and thus attempted to increase participation in permit application hearings; however, recognizing the burden of providing actual notice to all adjoining landowners, the Legislature struck a compromise, allowing them to become parties to the hearings if, upon receipt of constructive notice, they notified the District Environmental Commission within a statutory time limit. In re Great Waters of America, Inc., 140 Vt. 105, 435 A.2d 956, 1981 Vt. LEXIS 566 (1981). (Decided under prior law) .

Sanctions.

Vermont Environmental Board’s ruling of applicability of this chapter would be vacated where board’s rule that notice of petition for declaratory ruling be given to parties listed in statute was not followed. Committee To Save Bishop's House v. Medical Center Hospital of Vermont, Inc., 136 Vt. 213, 388 A.2d 827, 1978 Vt. LEXIS 721 (1978).

Type of notice required.

Constructive notice procedures prescribed by this section were constitutionally adequate; property interests of adjoining landowners were not such as to require actual notice of hearings under due process clause of Fourteenth Amendment. In re Great Waters of America, Inc., 140 Vt. 105, 435 A.2d 956, 1981 Vt. LEXIS 566 (1981).

Considerations of due process entitled all interested parties in proceeding for declaratory ruling by Vermont Environmental Board to the best notice possible or that notice which was reasonably calculated under all the circumstances to apprise interested parties of the pendency of the proceeding and afford them an opportunity to present objections. Committee To Save Bishop's House v. Medical Center Hospital of Vermont, Inc., 136 Vt. 213, 388 A.2d 827, 1978 Vt. LEXIS 721 (1978).

Cited.

Cited in In re Agency of Administration, 141 Vt. 68, 444 A.2d 1349, 1982 Vt. LEXIS 479 (1982).

§ 6085. Hearings; party status.

  1. , (b)[Repealed.]

    (c) (1) Party status. In proceedings before the District Commissions, the following persons shall be entitled to party status:

  1. the applicant;
  2. the landowner, if the applicant is not the landowner;
  3. the municipality in which the project site is located, and the municipal and regional planning commissions for that municipality; if the project site is located on a boundary, any Vermont municipality adjacent to that border and the municipal and regional planning commissions for that municipality; and the solid waste management district in which the land is located, if the development or subdivision constitutes a facility pursuant to subdivision 6602(10) of this title;
  4. any State agency affected by the proposed project;
  5. any adjoining property owner or other person who has a particularized interest protected by this chapter that may be affected by an act or decision by a District Commission.

    (2) Content of petitions. All persons seeking to participate in proceedings before the District Commission as parties pursuant to subdivision (c)(1)(E) of this section must petition for party status. Any petition for party status may be made orally or in writing to the District Commission. All petitions must include:

    (A) A detailed statement of the petitioner’s interest under the relevant criteria of the proceeding, including, if known, whether the petitioner’s position is in support of or in opposition to the relief sought by the permit applicant, or petitioner.

    (B) In the case of an organization, a description of the organization, its purposes, and the nature of its membership.

    (C) A statement of the reasons the petitioner believes the District Commission should allow the petitioner party status in the pending proceeding.

    (D) In the case of a person seeking party status under subdivision (c)(1)(E) of this section:

    1. If applicable, a description of the location of the petitioner’s property in relation to the proposed project, including a map, if available;
    2. A description of the potential effect of the proposed project upon the petitioner’s interest with respect to each of the relevant criteria or subcriteria under which party status is being requested.

      (3) Timeliness. A petition for party status pursuant to subdivision (c)(1)(E) of this section must be made at or prior to an initial prehearing conference held pursuant to Board rule or at the commencement of the hearing, whichever shall occur first, unless the District Commission directs otherwise. The District Commission may grant an untimely petition if it finds that the petitioner has demonstrated good cause for failure to request party status in a timely fashion, and that the late appearance will not unfairly delay the proceedings or place an unfair burden on the parties.

      (4) Conditions. Where a person has been granted party status pursuant to subdivision (c)(1)(E) of this section, the District Commission shall restrict the person’s participation to only those issues in which the person has demonstrated an interest, and may encourage the person to join with other persons with respect to representation, presentation of evidence, or other matters in the interest of promoting judicial efficiency.

      (5) Friends of the Commission. The District Commission, on its own motion or by petition, may allow nonparties to participate in any of its proceedings, without being accorded party status. Participation may be limited to the filing of memoranda, proposed findings of fact and conclusions of law, and argument on legal issues. However, if approved by the District Commission, participation may be expanded to include the provision of testimony, the filing of evidence, or the cross examination of witnesses. A petition for leave to participate as a friend of the Commission shall identify the interest of the petitioner and the desired scope of participation and shall state the reasons why the participation of the petitioner will be beneficial to the District Commission. Except where all parties consent or as otherwise ordered by the District Commission or by the Chair of the District Commission, all friends of the Commission shall file their memoranda, testimony, or evidence within the times allowed the parties.

      (6) Reexamination of party status. A District Commission shall reexamine party status determinations before the close of hearings and state the results of that reexamination in the District Commission decision. In the reexamination of party status coming before the close of District Commission hearings, persons having attained party status up to that point in the proceedings shall be presumed to retain party status. However, on motion of a party, or on its own motion, a Commission shall consider the extent to which parties continue to qualify for party status. Determinations made before the close of District Commission hearings shall supersede any preliminary determinations of party status.

      (d) If no hearing has been requested or ordered within the prescribed period, no hearing need be held by the District Commission. In such an event, a permit shall be granted or denied within 60 days of receipt; otherwise, it shall be deemed approved and a permit shall be issued.

      (e) The Natural Resources Board and any District Commission, acting through one or more duly authorized representatives at any prehearing conference or at any other times deemed appropriate by the Natural Resources Board or by the District Commission, shall promote expeditious, informal, and nonadversarial resolution of issues, require the timely exchange of information concerning the application, and encourage participants to settle differences. No District Commissioner who is participating as a decisionmaker in a particular case may act as a duly authorized representative for the purposes of this subsection. These efforts at dispute resolution shall not affect the burden of proof on issues before a Commission or the Environmental Division, nor shall they affect the requirement that a permit may be issued only after the issuance of affirmative findings under the criteria established in section 6086 of this title.

      (f) A hearing shall not be closed until a Commission provides an opportunity to all parties to respond to the last permit or evidence submitted. Once a hearing has been closed, a Commission shall conclude deliberations as soon as is reasonably practicable. A decision of a Commission shall be issued within 20 days of the completion of deliberations.

HISTORY: Added 1969, No. 250 (Adj. Sess.), §§ 10, 11, eff. April 4, 1970; amended 1973, No. 85 , § 9; 1989, No. 234 (Adj. Sess.), § 3; 1993, No. 82 , § 4; 1993, No. 232 (Adj. Sess.), §§ 30, 31, eff. March 15, 1995; 2003, No. 115 (Adj. Sess.), § 55, eff. Jan. 31, 2005; 2009, No. 154 (Adj. Sess.), § 236; 2013, No. 11 , § 25.

History

Amendments

—2013. Subsec. (e): Substituted “Natural Resources Board” for “land use panel” twice in the first sentence.

—2009 (Adj. Sess.) Subsec. (e): Substituted “environmental division” for “environmental court” in the last sentence.

—2003 (Adj. Sess.). Inserted “party status” following “hearings” in the section heading.

Subsecs. (a), (b): Deleted.

Subsec. (c): Rewrote the subsec.

Subsec. (e): Substituted “land use panel” for “board” twice in the first sentence; deleted “board member or” preceding “district commissioner” in the second sentence; substituted “environmental court” for “board” in the third sentence.

Subsec. (f): Deleted “or the board” following “commission” in three places.

—1993 (Adj. Sess.). Designated the existing provisions of subsec. (c) as subdiv. (c)(1) and inserted “to the supreme court” following “appeal” in the second sentence and “or her” following “his” in the third sentence in that subdiv. and added subdiv. (c)(2) and subsecs. (e) and (f).

—1993. Subsec. (b): Deleted the former first sentence.

—1989 (Adj. Sess.). Subsec. (b): Inserted “or a prehearing conference” preceding “shall be held” in the second sentence.

—1973. Subsec. (c): Added third sentence.

ANNOTATIONS

Appeal.

Statutory limitation on appellate standing applies only to Environmental Board decisions granting or denying Act 250 permits. With respect to appeals of Board decisions affirming or reversing jurisdictional opinions in proceedings commenced prior to the effective date of the 2004 amendments to Act 250, the Vermont Administrative Procedure Act (VAPA) governs appellate standing because, under the statute incorporating VAPA, no limitation of appellate standing is “otherwise specifically stated” in Act 250. In re Ochs, 2006 VT 34, 179 Vt. 495, 897 A.2d 550, 2006 Vt. LEXIS 85 (April 28, 2006).

Act 250 is not silent on the right to appeal; in fact, it explicitly limits the right to appeal an Environmental Board decision to certain enumerated persons. In re Cabot Creamery Cooperative, Inc., 164 Vt. 26, 663 A.2d 940, 1995 Vt. LEXIS 63 (1995).

It was clear that as a permissive party, petitioner, who was resident of village but not adjoining landowner, was allowed to participate in administrative proceedings, but he had no statutory right of appeal from the Environmental Board’s decision on the merits. In re Cabot Creamery Cooperative, Inc., 164 Vt. 26, 663 A.2d 940, 1995 Vt. LEXIS 63 (1995).

Petitioner, who was allowed to participate as permissive party in administrative proceedings regarding land use permit, could not challenge the merits of an Environmental Board decision by relying on the extraordinary relief provided by V.R.C.P. 75 where he was prohibited from doing so pursuant to subsec. (c) of this section. In re Cabot Creamery Cooperative, Inc., 164 Vt. 26, 663 A.2d 940, 1995 Vt. LEXIS 63 (1995).

In appropriate circumstances, V.R.A.P. 29 may provide the proper avenue for an interested person, who is not a statutory party, to participate in the appellate process arising from a decision of the Environmental Board. In re Stokes Communications Corp., 164 Vt. 30, 664 A.2d 712, 1995 Vt. LEXIS 66 (1995).

Because adjoining landowners were not proper parties to appeal and had not requested permission to join it as amicus curiae, their participation in briefing and argument before Supreme Court was inappropriate and would not influence Supreme Court’s decision. In re Stokes Communications Corp., 164 Vt. 30, 664 A.2d 712, 1995 Vt. LEXIS 66 (1995).

Permissive parties, such as adjoining landowners, are not among the parties explicitly enumerated in subsec. (c) of this section as entitled to appeal to Supreme Court from a decision regarding a land use permit, and therefore are affirmatively prohibited from appealing to Supreme Court. In re Cabot Creamery Cooperative, Inc., 164 Vt. 26, 663 A.2d 940, 1995 Vt. LEXIS 63 (1995).

Eligibility to appeal an Environmental Board order to the Supreme Court is strictly limited to those parties expressly designated in this statute. In re Stokes Communications Corp., 164 Vt. 30, 664 A.2d 712, 1995 Vt. LEXIS 66 (1995).

Notice.

Where notice provisions in section 6084 of this title were properly followed, and adjoining landowners did not notify District Environmental Commission of intention to become a party within time limit prescribed in this section or properly petition to become a party according to rules of Environmental Board, subsequent motions to be admitted as a party and to extend the deadline for filing documentary evidence were properly denied. In re Great Waters of America, Inc., 140 Vt. 105, 435 A.2d 956, 1981 Vt. LEXIS 566 (1981).

Parties.

Environmental Board did not err in admitting town as statutory party to Act 250 permit-approval proceeding where case involved impact of development on an area directly adjacent to town, Board was required to look at alternative sites owned or controlled by applicant, and alternative sites might have direct impact on town. In re Killington, Ltd., 159 Vt. 206, 616 A.2d 241, 1992 Vt. LEXIS 123 (1992).

Provision of this section relating to hearings and providing that for purposes of appeal only the applicant for a land use permit, a State agency, the municipal and regional planning commissions and the municipalities required to receive notice shall be considered parties applies only to appellate review in the Supreme Court, and owners of land near proposed development were not entitled to appeal to the supreme court. In re George F. Adams & Co., 134 Vt. 172, 353 A.2d 576, 1976 Vt. LEXIS 622 (1976).

Agency of Environmental Conservation could participate in hearing before Environmental Board on appeal by the Agency and others from District Commission’s grant of land use permit even though the Board was a part of the Agency; no apparent conflict of interest existed, since the Agency has no adjudicatory powers under the land use act and the Secretary of the Agency neither appoints nor controls the Board. In re Wildlife Wonderland, Inc., 133 Vt. 507, 346 A.2d 645, 1975 Vt. LEXIS 443 (1975).

One owning property adjoining that of an applicant for a land use permit is a permitted participant in an appeal to the Vermont Environmental Board from a decision of the District Commission, not a party, and, lacking party status, the adjoining landowner cannot appeal to the Supreme Court. In re Wildlife Wonderland, Inc., 133 Vt. 507, 346 A.2d 645, 1975 Vt. LEXIS 443 (1975).

On appeal to Vermont Environmental Board from District Commission’s grant of a land use permit, that town planning commissions, which appeared before the District Commission and the Board on two of the ten criteria for grant of the permit, had not appeared before the District Commission on the other eight criteria, did not bar the town planning commissions from appearing before the Board. In re Wildlife Wonderland, Inc., 133 Vt. 507, 346 A.2d 645, 1975 Vt. LEXIS 443 (1975).

Assertion of homeowners, who lived a quarter of a mile from proposed condominium and who were not otherwise entitled to be parties in land use permit hearing, that there is a right of intervention in an administrative proceeding, was unfounded since the assertion was not buttressed by any statute and since any equitable short-comings arising from limits on who could be parties at such a hearing were remedied by participation of the municipality and planning commission. In re Great Eastern Building Co., 132 Vt. 610, 326 A.2d 152, 1974 Vt. LEXIS 403 (1974).

Homeowners whose property was approximately one quarter mile down town highway from proposed building site for 48 unit condominium did not assert a violation of a legally protected right, entitling them to party status in the land use permit hearing, where they alleged a right to be free from the consequences of increased traffic flow allegedly leading to unreasonable highway congestion and unsafe traffic conditions. In re Great Eastern Building Co., 132 Vt. 610, 326 A.2d 152, 1974 Vt. LEXIS 403 (1974).

Purpose.

Legislature, in enacting this section and section 6084 of this title, sought to balance the interests of developers and the interests of adjoining landowners and localities and thus attempted to increase participation in permit application hearings; however, recognizing the burden of providing actual notice to all adjoining landowners, the Legislature struck a compromise, allowing them to become parties to the hearings if, upon receipt of constructive notice, they notified the District Environmental Commission within a statutory time limit. In re Great Waters of America, Inc., 140 Vt. 105, 435 A.2d 956, 1981 Vt. LEXIS 566 (1981).

Cited.

Cited in In re Patch, 140 Vt. 158, 437 A.2d 121, 1981 Vt. LEXIS 597 (1981); In re Agency of Administration, 141 Vt. 68, 444 A.2d 1349, 1982 Vt. LEXIS 479 (1982); In re Orzel, 145 Vt. 355, 491 A.2d 1013, 1985 Vt. LEXIS 309 (1985); In re Carrier, 148 Vt. 635, 537 A.2d 135, 1987 Vt. LEXIS 562 (1987); In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992) (mem.).

Law Reviews —

Hear No Evil, See No Evil: In re Spencer and the Twilight of Judicial Scrutiny in Vermont, see 14 Vt. L. Rev. 501 (1990).

Party status and standing under Vermont’s land use and development law, see 2 Vt. L. Rev. 163 (1977).

§ 6085a. Repealed.

History

Former § 6085a. Former § 6085a, relating to pilot project regarding appeals on the record from district environmental commission determinations, was derived from 2001, No. 40 , § 5 and was repealed by its own terms although proceedings pursuant to a motion for recorded hearings that is filed prior to that date shall continue under this section until all of the proceedings before the board are completed.

§ 6086. Issuance of permit; conditions and criteria.

  1. Before granting a permit, the District Commission shall find that the subdivision or development:
    1. Will not result in undue water or air pollution.  In making this determination it shall at least consider: the elevation of land above sea level; and in relation to the flood plains, the nature of soils and subsoils and their ability to adequately support waste disposal; the slope of the land and its effect on effluents; the availability of streams for disposal of effluents; and the applicable Health and Environmental Conservation Department regulations.
      1. Headwaters.   A permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria, the development or subdivision will meet any applicable Health and Environmental Conservation Department regulation regarding reduction of the quality of the ground or surface waters flowing through or upon lands which are not devoted to intensive development, and which lands are:
        1. headwaters of watersheds characterized by steep slopes and shallow soils; or
        2. drainage areas of 20 square miles or less; or
        3. above 1,500 feet elevation; or
        4. watersheds of public water supplies designated by the Agency of Natural Resources; or
        5. areas supplying significant amounts of recharge waters to aquifers.
      2. Waste disposal.   A permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria, the development or subdivision will meet any applicable Health and Environmental Conservation Department regulations regarding the disposal of wastes, and will not involve the injection of waste materials or any harmful or toxic substances into ground water or wells.
      3. Water conservation.   A permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria, the design has considered water conservation, incorporates multiple use or recycling where technically and economically practical, utilizes the best available technology for such applications, and provides for continued efficient operation of these systems.
      4. Floodways.   A permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria:
        1. the development or subdivision of lands within a floodway will not restrict or divert the flow of flood waters, and endanger the health, safety, and welfare of the public or of riparian owners during flooding; and
        2. the development or subdivision of lands within a floodway fringe will not significantly increase the peak discharge of the river or stream within or downstream from the area of development and endanger the health, safety, or welfare of the public or riparian owners during flooding.
      5. Streams.   A permit will be granted whenever it is demonstrated by the applicant that, in addition to all other applicable criteria, the development or subdivision of lands on or adjacent to the banks of a stream will, whenever feasible, maintain the natural condition of the stream, and will not endanger the health, safety, or welfare of the public or of adjoining landowners.
      6. Shorelines.   A permit will be granted whenever it is demonstrated by the applicant that, in addition to all other criteria, the development or subdivision of shorelines must of necessity be located on a shoreline in order to fulfill the purpose of the development or subdivision, and the development or subdivision will, insofar as possible and reasonable in light of its purpose:
        1. retain the shoreline and the waters in their natural condition;
        2. allow continued access to the waters and the recreational opportunities provided by the waters;
        3. retain or provide vegetation which will screen the development or subdivision from the waters; and
        4. stabilize the bank from erosion, as necessary, with vegetation cover.
      7. Wetlands.   A permit will be granted whenever it is demonstrated by the applicant, in addition to other criteria, that the development or subdivision will not violate the rules of the Secretary of Natural Resources, as adopted under chapter 37 of this title, relating to significant wetlands.
    2. Does have sufficient water available for the reasonably foreseeable needs of the subdivision or development.
    3. Will not cause an unreasonable burden on an existing water supply, if one is to be utilized.
    4. Will not cause unreasonable soil erosion or reduction in the capacity of the land to hold water so that a dangerous or unhealthy condition may result.
      1. Will not cause unreasonable congestion or unsafe conditions with respect to use of the highways, waterways, railways, airports and airways, and other means of transportation existing or proposed. (5) (A) Will not cause unreasonable congestion or unsafe conditions with respect to use of the highways, waterways, railways, airports and airways, and other means of transportation existing or proposed.
      2. As appropriate, will incorporate transportation demand management strategies and provide safe access and connections to adjacent lands and facilities and to existing and planned pedestrian, bicycle, and transit networks and services. In determining appropriateness under this subdivision (B), the District Commission shall consider whether such a strategy, access, or connection constitutes a measure that a reasonable person would take given the type, scale, and transportation impacts of the proposed development or subdivision.
    5. Will not cause an unreasonable burden on the ability of a municipality to provide educational services.
    6. Will not place an unreasonable burden on the ability of the local governments to provide municipal or governmental services.
    7. Will not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites, or rare and irreplaceable natural areas.
      1. Necessary wildlife habitat and endangered species.   A permit will not be granted if it is demonstrated by any party opposing the applicant that a development or subdivision will destroy or significantly imperil necessary wildlife habitat or any endangered species; and
        1. the economic, social, cultural, recreational, or other benefit to the public from the development or subdivision will not outweigh the economic, environmental, or recreational loss to the public from the destruction or imperilment of the habitat or species; or
        2. all feasible and reasonable means of preventing or lessening the destruction, diminution, or imperilment of the habitat or species have not been or will not continue to be applied; or
        3. a reasonably acceptable alternative site is owned or controlled by the applicant which would allow the development or subdivision to fulfill its intended purpose.
    8. Is in conformance with a duly adopted capability and development plan, and land use plan when adopted. However, the legislative findings of subdivisions 7(a)(1) through (19) of Act 85 of 1973 shall not be used as criteria in the consideration of applications by a District Commission.
      1. Impact of growth.   In considering an application, the District Commission shall take into consideration the growth in population experienced by the town and region in question and whether or not the proposed development would significantly affect their existing and potential financial capacity to reasonably accommodate both the total growth and the rate of growth otherwise expected for the town and region and the total growth and rate of growth which would result from the development if approved.  After considering anticipated costs for education, highway access and maintenance, sewage disposal, water supply, police and fire services, and other factors relating to the public health, safety, and welfare, the District Commission shall impose conditions which prevent undue burden upon the town and region in accommodating growth caused by the proposed development or subdivision. Notwithstanding section 6088 of this title, the burden of proof that proposed development will significantly affect existing or potential financial capacity of the town and region to accommodate such growth is upon any party opposing an application, excepting however, where the town has a duly adopted capital improvement program the burden shall be on the applicant.
      2. Primary agricultural soils.   A permit will be granted for the development or subdivision of primary agricultural soils only when it is demonstrated by the applicant that, in addition to all other applicable criteria, either, the subdivision or development will not result in any reduction in the agricultural potential of the primary agricultural soils; or:
        1. the development or subdivision will not significantly interfere with or jeopardize the continuation of agriculture or forestry on adjoining lands or reduce their agricultural or forestry potential;
        2. except in the case of an application for a project located in a designated area listed in subdivision 6093(a)(1) of this title, there are no lands other than primary agricultural soils owned or controlled by the applicant which are reasonably suited to the purpose of the development or subdivision;
        3. except in the case of an application for a project located in a designated area listed in subdivision 6093(a)(1) of this title, the subdivision or development has been planned to minimize the reduction of agricultural potential of the primary agricultural soils through innovative land use design resulting in compact development patterns, so that the remaining primary agricultural soils on the project tract are capable of supporting or contributing to an economic or commercial agricultural operation; and
        4. suitable mitigation will be provided for any reduction in the agricultural potential of the primary agricultural soils caused by the development or subdivision, in accordance with section 6093 of this title and rules adopted by the Natural Resources Board.
      3. Productive forest soils.   A permit will be granted for the development or subdivision of productive forest soils only when it is demonstrated by the applicant that, in addition to all other applicable criteria, either, the subdivision or development will not result in any reduction in the potential of those soils for commercial forestry; or:
        1. the development or subdivision will not significantly interfere with or jeopardize the continuation of agriculture or forestry on adjoining lands or reduce their agricultural or forestry potential; and
        2. except in the case of an application for a project located in a designated growth center, there are no lands other than productive forest soils owned or controlled by the applicant which are reasonably suited to the purpose of the development or subdivision; and
        3. except in the case of an application for a project located in a designated growth center, the subdivision or development has been planned to minimize the reduction of the potential of those productive forest soils through innovative land use design resulting in compact development patterns, so that the remaining forest soils on the project tract may contribute to a commercial forestry operation.
      4. Earth resources.   A permit will be granted whenever it is demonstrated by the applicant, in addition to all other applicable criteria, that the development or subdivision of lands with high potential for extraction of mineral or earth resources, will not prevent or significantly interfere with the subsequent extraction or processing of the mineral or earth resources.
      5. Extraction of earth resources.   A permit will be granted for the extraction or processing of mineral and earth resources, including fissionable source material:
        1. When it is demonstrated by the applicant that, in addition to all other applicable criteria, the extraction or processing operation and the disposal of waste will not have an unduly harmful impact upon the environment or surrounding land uses and development; and
        2. Upon approval by the District Commission of a site rehabilitation plan that ensures that upon completion of the extracting or processing operation the site will be left by the applicant in a condition suited for an approved alternative use or development. A permit will not be granted for the recovery or extraction of mineral or earth resources from beneath natural water bodies or impoundments within the State, except that gravel, silt, and sediment may be removed pursuant to the rules of the Agency of Natural Resources, and natural gas and oil may be removed pursuant to the rules of the Natural Gas and Oil Resources Board.
      6. Energy conservation.   A permit will be granted when it has been demonstrated by the applicant that, in addition to all other applicable criteria, the planning and design of the subdivision or development reflect the principles of energy conservation, including reduction of greenhouse gas emissions from the use of energy, and incorporate the best available technology for efficient use or recovery of energy. An applicant seeking an affirmative finding under this criterion shall provide evidence that the subdivision or development complies with the applicable building energy standards under 30 V.S.A. § 51 or 53.
      7. Private utility services.   A permit will be granted for a development or subdivision which relies on privately owned utility services or facilities, including central sewage or water facilities and roads, whenever it is demonstrated by the applicant that, in addition to all other applicable criteria, the privately owned utility services or facilities are in conformity with a capital program or plan of the municipality involved, or adequate surety is provided to the municipality and conditioned to protect the municipality in the event that the municipality is required to assume the responsibility for the services or facilities.
      8. Costs of scattered development.   The District Commission will grant a permit for a development or subdivision which is not physically contiguous to an existing settlement whenever it is demonstrated that, in addition to all other applicable criteria, the additional costs of public services and facilities caused directly or indirectly by the proposed development or subdivision do not outweigh the tax revenue and other public benefits of the development or subdivision such as increased employment opportunities or the provision of needed and balanced housing accessible to existing or planned employment centers.

        (J) Public utility services. A permit will be granted for a development or subdivision whenever it is demonstrated that, in addition to all other applicable criteria, necessary supportive governmental and public utility facilities and services are available or will be available when the development is completed under a duly adopted capital program or plan, an excessive or uneconomic demand will not be placed on such facilities and services, and the provision of such facilities and services has been planned on the basis of a projection of reasonable population increase and economic growth.

        (K) Development affecting public investments. A permit will be granted for the development or subdivision of lands adjacent to governmental and public utility facilities, services, and lands, including highways, airports, waste disposal facilities, office and maintenance buildings, fire and police stations, universities, schools, hospitals, prisons, jails, electric generating and transmission facilities, oil and gas pipe lines, parks, hiking trails and forest and game lands, when it is demonstrated that, in addition to all other applicable criteria, the development or subdivision will not unnecessarily or unreasonably endanger the public or quasi-public investment in the facility, service, or lands, or materially jeopardize or interfere with the function, efficiency, or safety of, or the public’s use or enjoyment of or access to the facility, service, or lands.

        (L) Settlement patterns. To promote Vermont’s historic settlement pattern of compact village and urban centers separated by rural countryside, a permit will be granted for a development or subdivision outside an existing settlement when it is demonstrated by the applicant that, in addition to all other applicable criteria, the development or subdivision:

        1. will make efficient use of land, energy, roads, utilities, and other supporting infrastructure; and
          1. will not contribute to a pattern of strip development along public highways; or

          (II) if the development or subdivision will be confined to an area that already constitutes strip development, will incorporate infill as defined in 24 V.S.A. § 2791 and is designed to reasonably minimize the characteristics listed in the definition of strip development under subdivision 6001(36) of this title.

    9. Is in conformance with any duly adopted local or regional plan or capital program under 24 V.S.A. chapter 117. In making this finding, if the District Commission finds applicable provisions of the town plan to be ambiguous, the District Commission, for interpretive purposes, shall consider bylaws, but only to the extent that they implement and are consistent with those provisions, and need not consider any other evidence.
  2. At the request of an applicant, or upon its own motion, the District Commission shall consider whether to review any criterion or group of criteria of subsection (a) of this section before proceeding to or continuing to review other criteria. This request or motion may be made at any time prior to or during the proceedings. The District Commission, in its sole discretion, shall, within 20 days of the completion of deliberations on the criteria that are the subject of the request or motion, either issue its findings and decision thereon, or proceed to a consideration of the remaining criteria.
  3. A permit may contain such requirements and conditions as are allowable proper exercise of the police power and which are appropriate within the respect to subdivisions (a)(1) through (10) of this section, including those set forth in 24 V.S.A. §§ 4414(4) , 4424(a)(2), 4414(1)(D)(i), 4463(b), and 4464, the dedication of lands for public use, and the filing of bonds to ensure compliance. The requirements and conditions incorporated from Title 24 may be applied whether or not a local plan has been adopted. General requirements and conditions may be established by rule of the Natural Resources Board.
  4. The Natural Resources Board may by rule allow the acceptance of a permit or permits or approval of any State agency with respect to subdivisions (a)(1) through (5) of this section or a permit or permits of a specified municipal government with respect to subdivisions (a)(1) through (7) and (9) and (10) of this section, or a combination of such permits or approvals, in lieu of evidence by the applicant. A District Commission, in accordance with rules adopted by the Board, shall accept determinations issued by a development review board under the provisions of 24 V.S.A. § 4420 , with respect to local Act 250 review of municipal impacts. The acceptance of such approval, positive determinations, permit, or permits shall create a presumption that the application is not detrimental to the public health and welfare with respect to the specific requirement for which it is accepted. In the case of approvals and permits issued by the Agency of Natural Resources, technical determinations of the Agency shall be accorded substantial deference by the Commissions. The acceptance of negative determinations issued by a development review board under the provisions of 24 V.S.A. § 4420 , with respect to local Act 250 review of municipal impacts, shall create a presumption that the application is detrimental to the public health and welfare with respect to the specific requirement for which it is accepted. Any determinations, positive or negative, under the provisions of 24 V.S.A. § 4420 shall create presumptions only to the extent that the impacts under the criteria are limited to the municipality issuing the decision. Such a rule may be revoked or amended pursuant to the procedures set forth in 3 V.S.A. chapter 25, the Vermont Administrative Procedure Act. The rules adopted by the Board shall not approve the acceptance of a permit or approval of such an agency or a permit of a municipal government unless it satisfies the appropriate requirements of subsection (a) of this section.
  5. This subsection shall apply with respect to a development that consists of the construction of temporary physical improvements for the purpose of producing films, television programs, or advertisements. These improvements shall be considered “temporary improvements” if they remain in place for less than one year, unless otherwise extended by the permit or a permit amendment, and will not cause a long-term adverse impact under any of the 10 criteria after completion of the project. In situations where this subsection applies, jurisdiction under this chapter shall not continue after the improvements are no longer in place and the conditions in the permit have been met, provided there is not a long-term adverse impact under any of the 10 criteria after completion of the project; except, however, if jurisdiction is otherwise established under this chapter, this subsection shall not remove jurisdiction. This termination of jurisdiction in these situations does not represent legislative intent with respect to continuing jurisdiction over other types of development not specified in this subsection.
  6. Prior to any appeal of a permit issued by a District Commission, any aggrieved party may file a request for a stay of construction with the District Commission together with a declaration of intent to appeal the permit. The stay request shall be automatically granted for seven days upon receipt and notice to all parties and pending a ruling on the merits of the stay request pursuant to Board rules. The automatic stay shall not extend beyond the 30-day appeal period unless a valid appeal has been filed with the Environmental Division. The automatic stay may be granted only once under this subsection during the 30-day appeal period. Following appeal of the District Commission decision, any stay request must be filed with the Environmental Division pursuant to the provisions of chapter 220 of this title. A District Commission shall not stay construction authorized by a permit processed under the Board’s minor application procedures.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 12, eff. April 4, 1970; amended 1973, No. 85 , § 10; 1973, No. 195 (Adj. Sess.), § 3, eff. April 2, 1974; 1979, No. 123 (Adj. Sess.), § 5, eff. April 14, 1980; 1981, No. 240 (Adj. Sess.), § 7, eff. April 28, 1982; 1985, No. 52 , § 4, eff. May 15, 1985; 1985, No. 188 (Adj. Sess.), § 5; 1987, No. 76 , § 18; 1989, No. 234 (Adj. Sess.), § 1; 1989, No. 280 (Adj. Sess.), § 13; 1993, No. 232 (Adj. Sess.), § 32, eff. March 15, 1995; 2001, No. 40 , §§ 6-9; 2003, No. 115 (Adj. Sess.), § 56, eff. Jan. 31, 2005; 2005, No. 183 (Adj. Sess.), § 7; 2009, No. 154 (Adj. Sess.), § 236; 2011, No. 138 (Adj. Sess.), §§ 16, 27, eff. May 14, 2012; 2013, No. 11 , § 25; 2013, No. 89 , §§ 10, 11; 2013, No. 147 (Adj. Sess.), § 2, eff. June 1, 2014; 2015, No. 51 , § F.7.

History

References in text.

Legislative findings of sections 7(a)(1) through 7(a)(19) of “this act” ( 1973, No. 85 ), referred to in subdiv. (a)(9), are set out in a note following section 6042 of this title.

Revision note

—2015. In subdiv. (a)(9)(K), deleted “, but not limited to,” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2015. Subdiv. (a)(9)(B)(ii) and (iii): Substituted “area listed in subdivision 6093(a)(1) of this title” for “growth center” following “project located in a designated” near the beginning of the sentence.

—2013 (Adj. Sess.). Subdivs. (a)(5) and (9)(L) amended generally.

—2013. Generally: Substituted “Natural Resources Board” or “Board” for “land use panel” at the end of the subdiv.

Subdiv. (a)(1)(G): Substituted “Secretary of Natural Resources” for “board”.

Subdiv. (a)(9)(F): Inserted “, including reduction of greenhouse gas emissions from the use of energy,” following “conservation” and added the second sentence.

—2011 (Adj. Sess.). Subsec. (c): Substituted “4424(a)(2)” for “4424(2)” in the first sentence.

—2009 (Adj. Sess.) Subsec. (f): Substituted “environmental division” for “environmental court” in the third and last sentences.

—2005 (Adj. Sess.). Subdiv. (a)(9): Amended generally.

—2003 (Adj. Sess.). Subsec. (a): Deleted “board or” preceding “District Commission”.

Subdiv. (a)(1)(A)(iv): Substituted “agency of natural resources” for “Vermont department of health”.

Subdiv. (a)(1)(G): Deleted “water resources” preceding “board” and substituted “this chapter” for “section 905(9) of this title”.

Subdiv. (a)(9): Deleted “or the Environmental Board” following “commission” at the end.

Subdiv. (a)(9)(A): Deleted “or the board” following “commission” in two places.

Subdiv. (a)(9)(E)(ii): Deleted “or the board” following “commission”; substituted “rules” for “regulations” and agency of natural resources” for “water resources”.

Subdiv. (a)(9)(H): Deleted “or the board” following “commission”.

Subdiv. (a)(10): Deleted “board or” preceding “District Commission” in two places.

Subsec. (b): Deleted “or the board” following “commission” in the first and third sentences and deleted the former fourth and fifth sentences.

Subsec. (c): Substituted “4414(4), 4424(2), 4414(1)(D)(i), 4463(b) and 4464” for “4407(4), 4414(8) and (9), 4415, 4416 and 4417” and inserted “land use panel” following “rule”.

Subsec. (d): Substituted “land use panel” for “board”, “A District Commission, in accordance with rules adopted by the land use panel” for “The board”, “4420” for “4449” throughout, and “rules adopted by the land use panel” for “board”.

Subsec. (f): Substituted “environmental court” for “board” in two places, “the provisions of chapter 220 of this title” for “board rules”, and “land use panel’s” for “board’s”.

—2001. Subdiv. (a)(10): Added the second sentence.

Subsec. (d): Inserted the fourth sentence

Subsecs. (e) and (f): Added.

—1993 (Adj. Sess.). Subsec. (b): Amended generally.

Subsec. (d): Added the second sentence, inserted “positive determinations” following “approval” in the third sentence, and added the fourth and fifth sentences.

—1989 (Adj. Sess.). Subsec. (b): Amended generally by Act No. 234.

Subsec. (d): Act No. 280 inserted “(9) and” preceding “(10)” in the first sentence.

—1987. Substituted “environmental conservation department” for “water resources and environmental engineering department” at the end of the last sentence of subdiv. (a)(1) and following “applicable health and” in subdivs. (a)(1)(A) and (a)(1)(B).

—1985 (Adj. Sess.). Subdiv. (a)(1)(G): Added.

—1985. Subsec. (d): Substituted “3 V.S.A., chapter 25, the Vermont Administrative Procedure Act” for “section 803(b) of Title 3” following “forth in” at the end of the third sentence.

—1981 (Adj. Sess.). Subdiv. (a)(9)(E)(ii): Added “and natural gas and oil may be removed pursuant to the rules of the natural gas and oil resources board” following “water resources board” in the second sentence.

—1979 (Adj. Sess.). Subdiv. (a)(9)(E): Inserted “including fissionable source material” following “mineral and earth resources” in the first sentence.

—1973 (Adj. Sess.). Subdiv. (a)(5): Deleted “highway” preceding “congestion” and inserted “waterways, railways, airports and airways, and other means of transportation” preceding “existing or proposed”.

—1973. Subsec. (a): Amended generally.

Subsec. (b): Amended generally.

Ratification and retroactivity of Environmental Board rules adopted under this section. 1985, No. 52 , § 5, eff. May 15, 1985, provided: “Rules of the Environmental Board pertaining to the administration of Act 250 and adopted under subsection 6025(a) or 6086(d) of Title 10 are hereby ratified and shall apply retroactively from the date of adoption.”

CROSS REFERENCES

Qualifications for eligibility, see 4 V.S.A. § 4772 .

Permits to include completion dates for developments and subdivisions, see § 6091 of this title.

Notes to Opinions

Appeal.

An appeal, pursuant to subsec. (b) of this section, of a decision on subdivs. (9) and (10) of subsec. (a) of this section, stays further proceedings before the commission under subdivs. (1) through (8) of subsec. (a). 1972-74 Vt. Op. Att'y Gen. 84.

Conformance with local or regional plan.

State agencies that are planning developments contemplated by this chapter must obtain a permit, which, under this section, will not be granted if the development is not in conformance to a duly adopted regional plan; in that sense, a regional transportation plan within a regional plan overrides a conflicting highway department development. 1970-72 Vt. Op. Att'y Gen. 155.

Denial of permit.

A permit may be denied only on the grounds set forth in this section, and, in addition, upon a conclusion that failure to meet the conditions set forth in this section makes the proposed development detrimental to the public health, safety or general welfare; a permit may not be denied, where the conditions of this section have been met, solely on the ground that the proposed development will be detrimental to the public health, safety or general welfare. 1972-74 Vt. Op. Att'y Gen. 67.

Permit conditions.

District Environmental Commission could not, as a condition to grant of permit by the Commission, require that a permit be obtained under section 1082 of this title, requiring permits for certain impoundments of water, where impoundment of water was not one to which section 1082 applied. 1970-72 Vt. Op. Att'y Gen. 457.

Vested rights.

Mere preparations by a developer, including substantial investments embracing surveying, design, testing and all preliminary planning, prior to adoption of a town plan, do not establish a vested right to develop the land under the theory of a pre-existing nonconforming use; nor will mere application of a permit prior to the enactment of a town plan exempt the developer from complying with the plan, and the District Commission must still make a finding on whether the development complies with the town plan or zoning requirements. 1972-74 Vt. Op. Att'y Gen. 71.

ANNOTATIONS

Aesthetics.

Environmental Division properly found that a project would not violate Criterion 8 of Act 250, as conflicting architectural styles were evidence that the zoning criterion requiring new construction to adhere to a “New England architectural appearance” was not a clear community standard intended to preserve aesthetics, at least as applied to the area surrounding the project. In re Zaremba Group Act 250 Permit, 2015 VT 88, 199 Vt. 538, 127 A.3d 93, 2015 Vt. LEXIS 66 (2015).

Amendment of application.

Act 250’s criterion 10 was closed and developer’s rights vested in the 1987 plan when period for appealing umbrella permit expired; Environmental Board was therefore required, on remand, to determine de novo whether developer’s amendment application complied with town and regional plans in effect in 1987. In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993).

Amendment of permit.

Grounds for a permit amendment with respect to truck traffic were not established, such that it was error to change the limit on that issue. In re Application of Lathrop L.P. I, 2015 VT 49, 199 Vt. 19, 121 A.3d 630, 2015 Vt. LEXIS 29 (2015).

Landowners needed an Act 250 permit amendment that included full review of their construction on a subdivision. A preexisting permit issued in 1993 specifically stated that any sale or further construction was specifically not approved without an amendment to the permit. In re Eustance Act 250 Jurisdictional Opinion, 2009 VT 16, 185 Vt. 447, 970 A.2d 1285, 2009 Vt. LEXIS 26 (2009).

Trial court acted well within its discretion in concluding that evidence of past permit violations, without evidence of any pending violations or allegations of noncompliance, would not provide a legal foundation for denying an applicant’s amended permit request to expand its quarry operation. In re Route 103 Quarry, 2008 VT 88, 184 Vt. 283, 958 A.2d 694, 2008 Vt. LEXIS 91 (2008).

Although the trial court would have acted within its discretion had it compelled an applicant, which sought a permit amendment to expand its quarry operation, to conduct a test blast, there was no reversible error in its refusal to do so. Refusing to compel a test blast of a particular magnitude outside the context of a determination that the actual circumstances required such a blast was not necessarily unreasonable; furthermore, test blast or no test blast, the applicant had the burden to prove the absence of undue adverse impacts from the blasting, and the record contained sufficient evidence to support the trial court’s conclusion that it met that burden. In re Route 103 Quarry, 2008 VT 88, 184 Vt. 283, 958 A.2d 694, 2008 Vt. LEXIS 91 (2008).

Environmental Board did not err on remand in not automatically granting developer’s application for Act 250 permit amendment, where Board did exactly what it was required to do, which was to balance policy considerations raised by parties in determining whether to amend permit condition which included open-land requirement. In re Nehemiah Associates, Inc., 168 Vt. 288, 719 A.2d 34, 1998 Vt. LEXIS 253 (1998).

Environmental Board appropriately weighed interests of finality and flexibility in denying developer’s application for Act 250 permit amendment, where Board appraised parties’ and District Commission’s interests in finality and concluded that three landowners as well as District Commission reasonably relied on substantive requirement of permit condition including open-land requirement. In re Nehemiah Associates, Inc., 168 Vt. 288, 719 A.2d 34, 1998 Vt. LEXIS 253 (1998).

Where original permit authorized residential development but set aside a parcel to be preserved for agricultural uses, an application for a permit to build a single-family home with attached stable on the parcel was not consistent with preserving it for agricultural uses. In re Stowe Club Highlands, 166 Vt. 33, 687 A.2d 102, 1996 Vt. LEXIS 106 (1996).

The doctrine of collateral estoppel, or issue preclusion, applies when a party seeks to relitigate a factual or legal issue previously decided in a judicial or administrative proceeding, and the effect of collateral estoppel is that resolution of a specific issue is given the same preclusive effect as the final judgment of the court or agency; however, permits to allow development are not final or unalterable since a party subject to an amendment may seek to amend the conditions and a board will sometimes grant the amendment, and since they are not final judgments, the doctrine of collateral estoppel is not applicable to the modification of such a permit. In re Stowe Club Highlands, 166 Vt. 33, 687 A.2d 102, 1996 Vt. LEXIS 106 (1996).

State Environmental Conservation Board could not grant an amendment to an outstanding land use permit, so as to allow a new four acre tract of land to be developed, without proceedings before the District Commission, even though the land was to be used to fulfill a condition attached to the original permit; Board’s power to enforce permits was not grounds for allowance of amendment. In re Juster Associates, 136 Vt. 577, 396 A.2d 1382, 1978 Vt. LEXIS 671 (1978).

Ancillary permits and approvals.

When Act 250 requires more stringent standards than provided in an ancillary permit process, Act 250 controls. In re Agency of Transportation, 157 Vt. 203, 596 A.2d 358, 1991 Vt. LEXIS 151 (1991).

Act 250 explicitly proclaims its primacy over, without preemption of, ancillary permit and approval processes, and the fact that a court is employed in giving approval has no bearing on the overall process of protecting the environment as envisioned in the legislation. In re Agency of Transportation, 157 Vt. 203, 596 A.2d 358, 1991 Vt. LEXIS 151 (1991).

Appeal.

The Agency of Natural Resources (ANR) was not estopped from appealing the District Commission’s decision grant of a land use permit on the basis that an ANR employee made a prior determination that the developer’s project would not be located in a floodway or floodway fringe. In re Woodford Packers, Inc., 2003 VT 60, 175 Vt. 579, 830 A.2d 100, 2003 Vt. LEXIS 142 (2003) (mem.).

As an administrative body, Environmental Board has only the adjudicatory authority conferred on it by statute, and the courts may intervene where it exceeds the bounds of its enabling legislation. In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993).

In reviewing decisions of Environmental Board, Supreme Court affords great deference to Board’s interpretation of Act 250, even in appeals raising jurisdictional issues; absent a compelling indication of error, Supreme Court will uphold Board’s decision regarding the scope of its authority. In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993).

Scope of a de novo hearing in appeal from District Commission to Environmental Board is limited to those issues raised in notice of appeal; once an Act 250 criterion is noticed for appeal, however, issues generally within the scope of the criterion are properly before the Board. In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993).

Cattle pass under highway.

Condemnation statute authorizing Superior Court to require installation of a cattle underpass does not conflict with subdiv. (a)(5) of this section and section 6087 of this title authorizing imposition of land use permit conditions to remedy unsafe traffic conditions. In re Agency of Transportation, 157 Vt. 203, 596 A.2d 358, 1991 Vt. LEXIS 151 (1991).

Although Superior Court had granted condemnation petition which included a proposal to install a standard cattle pass under a highway, Environmental Board was not precluded from determining the need for, and size of, the underpass. In re Agency of Transportation, 157 Vt. 203, 596 A.2d 358, 1991 Vt. LEXIS 151 (1991).

In Act 250 proceedings, cattle underpass size is solely a traffic safety issue; once an underpass is deemed necessary for environmental reasons, the farm owner’s need and financial contribution are not critical in determining its size. In re Agency of Transportation, 157 Vt. 203, 596 A.2d 358, 1991 Vt. LEXIS 151 (1991).

Conformance with local or regional plan.

Project, which contemplated 115,000 square feet of new construction in a largely undeveloped area near an interstate exchange, did not conform to the regional plan as required by Criterion 10 of Act 250, as the plan’s mandatory framework did not authorize major development, including principal retail establishments, at this non-growth-center highway interchange. In re B&M Realty, LLC, 2016 VT 114, 203 Vt. 438, 158 A.3d 754, 2016 Vt. LEXIS 118 (2016).

Town plan was too ambiguous to be enforced against an applicant. Even if the words “where feasible” were given their plain and ordinary meaning, it remained uncertain if the drafters of the town plan intended this phrase to refer to economic feasibility, physical feasibility, some combination of both, or perhaps some other measure of feasibility altogether; such ambiguity and uncertainty rendered the words meaningless, and therefore unenforceable under Criterion 10 of Act 250. In re Appeal of Times & Seasons, LLC, 2008 VT 7, 183 Vt. 336, 950 A.2d 1189, 2008 Vt. LEXIS 8 (2008).

Statutory requirement that a project had to be in “conformance” with a plan to qualify for a development permit was arguably stricter than that of a city zoning ordinance, which required “substantial conformance.” Thus, the trial court properly held that a finding of the city’s development review board that a project was in conformance with the municipal development plan precluded the parties from relitigating the issue under the zoning ordinance. In re Hartland Group North Avenue Permit, 2008 VT 92, 184 Vt. 606, 958 A.2d 685, 2008 Vt. LEXIS 144 (2008) (mem.).

A finding of nonconformity will be reversed where the plan sets forth an abstract policy but provides no specific standards to enforce the policy, or is at best, ambiguous and in conflict with applicable zoning provisions. In re John A. Russell Corp., 2003 VT 93, 176 Vt. 520, 838 A.2d 906, 2003 Vt. LEXIS 284 (2003).

Even though a town plan evinced a clear intent to protect the rural character of the area and to promote residential and “other compatible uses,” no specific policy prohibiting industrial development per se could be discerned; accordingly, the plan did not evince a sufficiently “specific policy” against industrial development in the district to support the Environmental Board’s finding of nonconformity. In re John A. Russell Corp., 2003 VT 93, 176 Vt. 520, 838 A.2d 906, 2003 Vt. LEXIS 284 (2003).

Where examination of regional plan disclosed a policy of encouraging sanitary landfill refuse disposal in language of even more compelling urgency than a policy against handicapping residential development, and the stated purpose of the plan was to provide guidance and direction to regional communities so that development in the area would be more cooperative and consistent, with implementation to be effected by adoption of zoning ordinances by municipalities, finding that a proposed landfill did not conform with the regional plan because specific location for the proposed landfill was barred by the mere possibility of residential development read too much specificity into the requirement of conformance and was unwarranted, and reversal of grant of land use permit based upon that ground was improper. In re Patch, 140 Vt. 158, 437 A.2d 121, 1981 Vt. LEXIS 597 (1981).

For purposes of Criterion 10 of Act 250, none of the language in the town and regional plans created a specific policy prohibiting a quarry project such as the applicants’. The language was broad and nonregulatory, espousing general policies about maintaining features, protecting valuable areas, and minimizing impacts, but contained no specific requirements that were legally enforceable. In re Chaves A250 Permit, 2014 VT 5, 195 Vt. 467, 93 A.3d 69, 2014 Vt. LEXIS 6 (2014).

Construction.

Legislature’s intent to protect Vermont’s farmland from disappearance at the hands of more profitable development cannot be used to justify imposition of protection measures for fictitious farms—i.e., land that will not be used for farming regardless of the proposed development because it is logistically difficult or too costly to overcome existing limitations. The underlying purpose of Act 250 is to regulate impacts of development, not the purpose served, nor the parties benefited by the construction; the provisions of Act 250, like the off-site mitigation provision, support a practical approach to conservation efforts, an approach that is at odds with a statutory interpretation that essentially requires the decisionmaker to ignore the realities of potential land use. In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42, 2010 VT 42A, 188 Vt. 113, 998 A.2d 712, 2010 Vt. LEXIS 37 (2010).

Denial of permit.

Because a developer’s proposed project failed to meet three of the criteria under this section, the Environmental Court properly vacated its Act 250 permit. In re Woodford Packers, Inc., 2003 VT 60, 175 Vt. 579, 830 A.2d 100, 2003 Vt. LEXIS 142 (2003) (mem.).

Reconfiguration of lots in developer’s amendment application, by itself, was insufficient to establish material or substantial change necessary to trigger review; rather, reconfiguration would not need to have significant impact on one of Act 250’s criteria. In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993).

Developer did not suffer a physical taking when its application for a land use permit was denied due to adverse effect project would have on deeryard; developer did not lose right to possess allegedly occupied land forming part of deeryard, developer retained substantial power to control use of property, and since many uses were still available to any owner of the deeryard land, developer’s right to sell the land was not worthless. Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992), cert. denied, 507 U.S. 987, 113 S. Ct. 1586, 123 L. Ed. 2d 153, 1993 U.S. LEXIS 2199 (1993).

There was no governmental compulsion in connection with the denial of developer’s land use permit and developer’s claim of a physical taking, where developer voluntarily proposed to construct a residential subdivision project, and in so doing engaged in activity it knew would subject it to the permit review process. Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992), cert. denied, 507 U.S. 987, 113 S. Ct. 1586, 123 L. Ed. 2d 153, 1993 U.S. LEXIS 2199 (1993).

Failure of applicants for a sanitary landfill permit to show absolutely that the project would not discharge toxic substances into the groundwater did not require denial of a land use permit; such a literal reading of this section, requiring that applicants for permits show that development would not involve injection of waste materials or harmful or toxic substances into groundwater or wells, would virtually preclude any landfills in the state, since contamination of groundwater is always a possibility. In re Patch, 140 Vt. 158, 437 A.2d 121, 1981 Vt. LEXIS 597 (1981).

In appeal from Vermont Environmental Board’s denial of land use permit, record supported Board’s conclusions that proposed project would cause undue water pollution, unreasonable soil erosion and reduction in the capacity of the land to hold water, and denial of the permit was thus warranted. In re Wildlife Wonderland, Inc., 133 Vt. 507, 346 A.2d 645, 1975 Vt. LEXIS 443 (1975).

Discretion of Board.

In some circumstances mitigating steps to reduce the negative aesthetic impact of a particular project may be unaffordable or ineffective; in those circumstances, it is within the Environmental Board’s discretion to grant or deny a permit. In re Stokes Communications Corp., 164 Vt. 30, 664 A.2d 712, 1995 Vt. LEXIS 66 (1995).

Evidence.

Evidence supported the trial court’s finding that proposed near-term highway improvements were sufficient to mitigate a development’s traffic impacts under Criterion 5 of Act 250. The trial court relied on the report and testimony of the applicant’s traffic expert, having found that she presented the most credible explanation and examination of the current traffic challenges, how the proposed improvements would impact on existing and future traffic, and to what extent the proposed mitigation steps would alleviate overall traffic concerns. In re Costco Stormwater Discharge Permit, 2016 VT 86, 202 Vt. 564, 151 A.3d 320, 2016 Vt. LEXIS 85 (2016).

When a wetland consultant testified that the diversion of untreated stormwater from the wetland represented an enhancement of its quality and that she could not identify any adverse impacts to wetland functions from a new stormwater system, and a wetland ecologist similarly testified that the diversion of largely untreated stormwater would not affect the wetland’s quality or functions, that it would continue to receive and store water from other sources, and that the new system would not alter the physical and vegetative characteristics of the wetland to the detriment of its functions, this evidence was more than adequate to support the trial court’s finding in an Act 250 case that the project and new stormwater system would not adversely affect the wetland. In re Costco Stormwater Discharge Permit, 2016 VT 86, 202 Vt. 564, 151 A.3d 320, 2016 Vt. LEXIS 85 (2016).

Applicants for an Act 250 permit met their burden of production, as a detailed traffic-study report coupled with the evidence showing that its traffic projections were dramatically overstated in material respects were sufficient to establish prima facie compliance with Criterion 5. In re Champlain Parkway Act 250 Permit, 2015 VT 105, 200 Vt. 158, 129 A.3d 670, 2015 Vt. LEXIS 87 (2015).

In finding that a permit to complete a roadway project complied with Criteria 5 of Act 250 if certain conditions applied, the trial court properly rejected appellant’s proposed alternative design, as appellant offered no evidence as to how the redesigned alternative would be engineered, its environmental effects, its impact on other components of the project, and its estimated quantitative reduction in traffic congestion and delays. In re Champlain Parkway Act 250 Permit, 2015 VT 105, 200 Vt. 158, 129 A.3d 670, 2015 Vt. LEXIS 87 (2015).

Environmental Division properly found that a project would not violate Criterion 1(D) of Act 250, as the testimony of both of the floodway experts and related evidence supported the conclusion that the project would not significantly increase peak discharge and would not endanger the public, and the Environmental Division’s misstatement concerning the width of constriction did not significantly factor into this conclusion. Furthermore, the provision did not require computer-modeling evidence. In re Zaremba Group Act 250 Permit, 2015 VT 88, 199 Vt. 538, 127 A.3d 93, 2015 Vt. LEXIS 66 (2015).

Applicant’s burden under Criterion 1(D) of Act 250 does not require computer-modeling evidence. The Environmental Division need only determine by credible evidence that the project would not significantly increase peak discharge in such a way as to endanger the public. In re Zaremba Group Act 250 Permit, 2015 VT 88, 199 Vt. 538, 127 A.3d 93, 2015 Vt. LEXIS 66 (2015).

In a case involving an Act 250 permit granted to a college, a neighbor had failed to present substantial evidence to support her alternative-siting argument under Criterion 8 when, beyond her own testimony that a college representative had told her that there were other sites the college had considered, she presented no evidence that a suitable alternate site was reasonably feasible or that the alternative satisfied the statutory criteria and any other applicable permitting requirements. In re Goddard College Conditional Use, 2014 VT 124, 198 Vt. 85, 111 A.3d 1285, 2014 Vt. LEXIS 129 (2014).

Trial court did not err in finding that an applicant for an amended permit to expand its quarry operation had shown that its operation would not have an unduly harmful impact upon the environment or surrounding land uses and development. There was undisputed evidence that the previously allowed and currently requested level of blasting satisfied, by a wide margin, U.S. Bureau of Mines standards and that compliance with such standards established a high degree of certainty that there would be no adverse effects from the blasting. In re Route 103 Quarry, 2008 VT 88, 184 Vt. 283, 958 A.2d 694, 2008 Vt. LEXIS 91 (2008).

In considering an application for a permit amendment to expand a quarry operation, the trial court properly found that the applicant’s operation would have sufficient water available for its reasonably foreseeable needs and would not cause an unreasonable burden on an existing water supply. The trial court found that the quarry required little or no water for its future operations and that its foreseeable needs would be more than adequately met by the water available at the quarry site. In re Route 103 Quarry, 2008 VT 88, 184 Vt. 283, 958 A.2d 694, 2008 Vt. LEXIS 91 (2008).

Trial court properly held that an applicant for a permit amendment allowing it to expand its quarry operation had shown that its operation would not involve the injection of waste materials or any harmful or toxic substances into groundwater or wells. The trial court found no direct evidence indicating that activities at the applicant’s quarry were contributing in any way to the contamination of neighboring wells from a 1990 gasoline spill, which no one claimed was related to quarry operations; the trial court further found that routine past monitoring of neighboring wells showed that contaminants from the gasoline spill continued to dissipate, even as the applicant dug deeper into the quarry. In re Route 103 Quarry, 2008 VT 88, 184 Vt. 283, 958 A.2d 694, 2008 Vt. LEXIS 91 (2008).

In a retail store permit application proceeding, the Environmental Board did not err in requiring applicant to provide secondary-growth studies to satisfy Criteria 6 (impact on education), 7 (municipal services), and 9(A) (impact of growth). To make a positive finding under these criteria, the Board needed evidence of the expected secondary growth and its associated costs and benefits to determine whether the project would cause an undue burden on the financial capacity of the town and the region and, under the Board’s rules, it could require such additional information or supplementary information as it deemed necessary to fairly and properly review the proposal. In re Wal*Mart Stores, Inc., 167 Vt. 75, 702 A.2d 397, 1997 Vt. LEXIS 242 (1997).

Environmental Board properly concluded that proposed project was in a rural, not urban, area, and that applicant had to provide a plan appropriate for the lower level of traffic congestion experienced in rural areas, despite the determination of the Agency of Transportation that the intersection at issue was in an urban area and therefore required a lower traffic flow standard. Under Criterion 5, the Board must make its own determination as to the nature of the area and the level of service appropriate for that area. In re Wal*Mart Stores, Inc., 167 Vt. 75, 702 A.2d 397, 1997 Vt. LEXIS 242 (1997).

In a retail store permit application proceeding, although applicant did not bear the burden of proof with respect to Criterion 6 (impact on education), once applicant offered evidence showing that the project would cause a burden on regional education services, the Environmental Board could properly require applicant to produce additional evidence demonstrating its plan to reduce or eliminate that burden. In re Wal*Mart Stores, Inc., 167 Vt. 75, 702 A.2d 397, 1997 Vt. LEXIS 242 (1997).

Town could have been admitted as permitted party to Act 250 permit-approval proceeding based on finding that proposed development might affect town’s interests or that town’s participation would materially assist Environmental Board by providing testimony, cross-examining witnesses, and/or offering other evidence relevant to statutory requirements. In re Killington, Ltd., 159 Vt. 206, 616 A.2d 241, 1992 Vt. LEXIS 123 (1992).

In hearing before Environmental Board to determine whether unauthorized architectural changes in condominium project which resulted in substantial increase in glass area of buildings caused undue adverse impact on scenic, natural beauty or aesthetics of the area, the Board properly considered testimony of landscape architect who addressed impact of the additional glazing in context of the entire project. In re Quechee Lakes Corp., 154 Vt. 543, 580 A.2d 957, 1990 Vt. LEXIS 130 (1990).

Environmental Board could consider Water Resources Board’s water quality standards when determining whether a land use permit should be granted. In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988).

Applicant for land use permit could not limit the Environmental Board’s discretion in framing a noise pollution condition by restricting the kind of evidence it presented on the issue. In re R. E. Tucker, Inc., 149 Vt. 551, 547 A.2d 1314, 1988 Vt. LEXIS 89 (1988).

Evidence was adequate to support condition of land use permit that permittee not operate its gravel crusher at any location north of a contour line between its wash house and nearby residences, where the Environmental Board had before it precise and detailed acoustical evidence based on sound emanating from the wash house and monitored at varying distances from the source; the Board was free to exercise its discretion within a range of values supported by the evidence, even though there were no noise level readings based on a sound source located at the precise point chosen by the Board as reasonable. In re R. E. Tucker, Inc., 149 Vt. 551, 547 A.2d 1314, 1988 Vt. LEXIS 89 (1988).

In an Act 250 case concerning a quarry project, given that the undisputed evidence indicated that significant traffic already existed on the road in question, it was not an abuse of discretion for the trial court to credit the applicants’ expert and find that the added traffic would not be adverse as it was in keeping with the existing character of the area. In re Chaves A250 Permit, 2014 VT 5, 195 Vt. 467, 93 A.3d 69, 2014 Vt. LEXIS 6 (2014).

In an Act 250 case, the trial court’s findings regarding the noise level of trucks were not in error. Essentially, even though the applicants’ experts testified that in some instances the noise from trucks leaving the quarry could exceed 55 dBA, the character of the area already included significant traffic noise at or near the level of those exceedances and therefore a slight increase in the traffic noise would not amount to an adverse impact, and other testimony supported the trial court’s general finding that noise levels were unlikely to be in excess of 55 dBA at locations off of the applicants’ property, particularly residences. In re Chaves A250 Permit, 2014 VT 5, 195 Vt. 467, 93 A.3d 69, 2014 Vt. LEXIS 6 (2014).

Even assuming that the neighbors’ inn qualified as a historic site for Act 250 purposes, the neighbors did not present any evidence as to how the inn would be specifically impacted as a historic site, beyond the general impact on the inn. It was the neighbors’ burden to demonstrate that a historic site was impacted and that any conditions imposed by the permit were inadequate to protect the site. In re Chaves A250 Permit, 2014 VT 5, 195 Vt. 467, 93 A.3d 69, 2014 Vt. LEXIS 6 (2014).

Findings and decision.

In determining whether phosphorus discharges would cause undue pollution under Act 250 Criterion 1, the trial court did not erroneously apply a de minimis standard, but made a factual finding that the project would cause an “exceedingly small” increase in phosphorous discharge while also considering the project’s compliance with applicable regulations, the ability of the floodplains to retain phosphorus, and available mitigation measures; furthermore, the mere possibility of additional mitigation measures, without more, did not necessarily require a finding that pollution was undue. In re Diverging Diamond Interchange Act 250, 2020 VT 98, 247 A.3d 499, 2020 Vt. LEXIS 114 (Vt. 2020).

Trial court did not err in finding under Criterion 1 of Act 250 that the project would not cause undue chloride pollution, as it expressly evaluated each pollutant on the merits, rather than relying upon a presumption, did not improperly shift the burden of proof to appellant, and had a sufficient evidentiary basis to consider the town’s chloride application. In re Diverging Diamond Interchange Act 250, 2020 VT 98, 247 A.3d 499, 2020 Vt. LEXIS 114 (Vt. 2020).

Trial court did not err in finding that a proposed rock-crushing operation complied with Act 250 Criterion 8 with respect to noise from off-site traffic, as it properly considered Lmax (instantaneous or sudden bursts of noise), as required, while also considering Leq(n) (the maximum noise level that would occur as averaged over a period of time) in concluding that the noise impacts were adverse but were not undue, and considered the experience of local residents and the context of the area. In re North East Materials Group, LLC/Rock of Ages Corp. Act 250 Permit, 2019 VT 55, 210 Vt. 525, 217 A.3d 541, 2019 Vt. LEXIS 108 (2019).

Trial court did not err in finding that a proposed rock-crushing operation complied with Act 250 Criterion 1 with respect to air pollution due to silica dust. The evidence supported its findings of fact that the Environmental Protection Agency AP-42 factors were reliable for use in permitting and compliance, that the crushing operation’s silica emissions were well within regulatory standards, and that the photos and videos submitted by neighbors were of limited utility; furthermore, it did not rely solely on the fact that the project received an Agency of Natural Resources permit in determining whether the dust was undue, but conducted the full burden-shifting analysis as required. In re North East Materials Group, LLC/Rock of Ages Corp. Act 250 Permit, 2019 VT 55, 210 Vt. 525, 217 A.3d 541, 2019 Vt. LEXIS 108 (2019).

In finding that the proposed project did not materially jeopardize or interfere with the public’s use or enjoyment of a canal path in violation of Criterion 9(K) of Act 250, the Environmental Division properly considered the commercial setting of the path and the substantial landscaping and screening along the path. In re Hinesburg Hannaford Act 250 Permit, 2017 VT 106, 206 Vt. 118, 179 A.3d 727, 2017 Vt. LEXIS 127 (2017).

In determining that a proposed stormwater grass swale satisfied Act 250 water quality criteria, the Environmental Division erred. In the face of specific unchallenged evidence that the system would not work as intended, it relied upon the applicant’s conclusory representations that the system was designed according to governing standards, and its reliance on enforcement proceedings, in the absence of evidence supporting its finding that the swale would likely work, deprived neighbors of their only certain opportunity to present evidence demonstrating that the system would not function as designed because of the particularities of its location. In re Hinesburg Hannaford Act 250 Permit, 2017 VT 106, 206 Vt. 118, 179 A.3d 727, 2017 Vt. LEXIS 127 (2017).

Environmental Division’s condition requiring the installation of a traffic signal at an intersection was not supported by the evidence. The testimony of the neighbors’ expert did not support the traffic light requirement, and the neighbors did not offer sufficient evidence that the condition was reasonable in the sense that it was likely to be attainable and so would not operate as an insurmountable obstacle to the project in violation of the Legislature’s direction that Act 250 permits not be denied on the basis of Criterion 5. In re Hinesburg Hannaford Act 250 Permit, 2017 VT 106, 206 Vt. 118, 179 A.3d 727, 2017 Vt. LEXIS 127 (2017).

In considering whether a project satisfied Criterion 5 of Act 250, the trial court exceeded its discretion in striking a traffic-study condition concerning a southbound left-turn lane for two reasons. First, in striking the condition, the trial court relied on the same predictive-model evidence that led it to impose the condition in the first place, but failed to explain why the post-project monitoring was no longer necessary; moreover, because all parties to the proceedings had agreed to some form of the post-development study condition, and the trial court removed the condition on its own initiative, the town’s opportunity to present to the trial court its arguments in favor of keeping the study had been circumscribed. In re Hinesburg Hannaford Act 250 Permit, 2017 VT 106, 206 Vt. 118, 179 A.3d 727, 2017 Vt. LEXIS 127 (2017).

Act 250 rule regarding permits applies solely to the Act 250 land use permit issued after full substantive review of all ten statutory criteria under the statute governing issuance of permits and cannot apply to findings of fact and conclusions of law on fewer than all of the Act 250 criteria for a master plan. In re SP Land Co., 2011 VT 104, 190 Vt. 418, 35 A.3d 1007, 2011 Vt. LEXIS 111 (2011).

Environmental Board erred in concluding that development project was not in compliance with objective of town plan relating to steep slopes because, absent some objective measure to guide enforcement of the steep-slope prohibition, there was no basis for the Board to conclude that the project was not in compliance with this policy. In re Kisiel, 172 Vt. 124, 772 A.2d 135, 2000 Vt. LEXIS 386 (2000).

Environmental Board erred in concluding that development project was not in compliance with town plan concerning town’s goal of maintaining the “status” of class 4 roads because the meaning of the plan is ambiguous, and municipal actions of the bodies responsible for its implementation and enforcement were directly contrary to the plan interpretation accepted by the Board. In re Kisiel, 172 Vt. 124, 772 A.2d 135, 2000 Vt. LEXIS 386 (2000).

Environmental Board erred in denying application for permit to subdivide and develop tract of land where interpretation of town plan adopted by the Board would ban further residential development by the intentional continuation of bad and impassable roads, even though provisions of the plan plainly contemplated limited development, and the zoning ordinance in place at the time of landowners’ application allowed residential development as a permitted use. In re Kisiel, 172 Vt. 124, 772 A.2d 135, 2000 Vt. LEXIS 386 (2000).

Environmental Board erred in holding that landowner’s development proposal violated criterion of town plan because when language of the plan was reviewed in light of its application by the regulatory bodies responsible for its implementation within the town, it could not be construed to prohibit the improvement of a road as part of the proposal. In re Kisiel, 172 Vt. 124, 772 A.2d 135, 2000 Vt. LEXIS 386 (2000).

In its consideration of an application for an Act 250 permit, the Environmental Board properly looked to municipal zoning bylaws to determine whether a housing project satisfied the density restrictions of county regional plan. In re MBL Associates, 166 Vt. 606, 693 A.2d 698, 1997 Vt. LEXIS 24 (1997) (mem.).

The District Commission and neighboring landowners of a 22-acre lot reasonably relied upon the original permit condition restricting development of the lot and preserving it for agricultural use when they chose to live in the neighborhood, and applicants for amending the permit had benefited from the commission’s and landowners’ reliance, and it was this reliance that weighed strongly against granting the permit amendment which would have allowed residential development of the lot. In re Stowe Club Highlands, 166 Vt. 33, 687 A.2d 102, 1996 Vt. LEXIS 106 (1996).

Environmental Board’s conclusion that developer’s amendment application involved significant change to development was not supported, and remand to District Commission to consider it as a new application was not proper, where Board’s review of substantial change issue was limited to consideration of project’s impact on Act 250’s criterion 10, and Board made no finding as to whether project might result in significant impact on criterion 10. In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993).

Where neither 1987 umbrella permit nor 1988 amendment granted to developer was appealed to Environmental Board, the findings, conclusions and permits were final and not subject to attack in subsequent application proceeding, whether or not they had been properly granted in the first instance, and therefore Board had no authority to “reopen” the umbrella permit. In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993).

Where notice of appeal from denial of act 250 permit for construction of pond generally attacked District Environmental Commission’s findings and conclusions that applicant’s project would significantly impair necessary wildlife habitat, Environmental Board did not err in considering effect pond development would have on habitat necessary to survival of a population of black bears. In re Killington, Ltd., 159 Vt. 206, 616 A.2d 241, 1992 Vt. LEXIS 123 (1992).

Environmental Board did not err in admitting town as statutory party to Act 250 permit-approval proceeding where case involved impact of development on an area directly adjacent to town, Board was required to look at alternative sites owned or controlled by applicant, and alternative sites might have direct impact on town. In re Killington, Ltd., 159 Vt. 206, 616 A.2d 241, 1992 Vt. LEXIS 123 (1992).

Subdiv. (a)(8) of this section requires Environmental Board to make finding on each factor, including aesthetics, irrespective of the placement of the burden of proof. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

Findings of Environmental Board that of 20 lots in proposed residential development, 11 lots consisted of slopes greater than 20% over more than half their area and that only a very small portion of the overall site’s gradation was less than 15% were sufficient to support the conclusion that the proposed development did not conform to the regional plan which explicitly disfavored residential development on slopes of greater than 20% grade, despite developer’s argument that actual structures could be built on low grade areas of the lots. In re Green Peak Estates, 154 Vt. 363, 577 A.2d 676, 1990 Vt. LEXIS 77 (1990).

Environmental Board properly rejected argument that an Act 250 permit should have issued without conditions because the District Environmental Commission issued its opinion after 20-day period mandated under subsec. (b) of this section, where automatic approval of the permit without conditions was not justified when the possible harm to the applicant for the delay was balanced against the overall protection of the public’s health, safety and welfare. In re Spencer, 152 Vt. 330, 566 A.2d 959, 1989 Vt. LEXIS 184 (1989).

Where Superior Court in de novo proceeding upon appeal from grant of land use permit found that most of the elements of the leachate from a proposed landfill would be removed as it passed through the soil and that the remaining substances would be diluted when mixed with the groundwater, the Court addressed the primary concerns of this section, requiring that applicants for permit show that project would not result in undue water pollution, and weighed the factors specifically required to be considered by this section in making its determinations, and the Supreme Court could not say that, as a matter of law, the lower court erred in its findings. In re Patch, 140 Vt. 158, 437 A.2d 121, 1981 Vt. LEXIS 597 (1981).

Where administrative board did not make its findings and decisions on certain issues within required 20 day period from the final hearing day on the issues, the board was in error, but party claiming error waived the protection of the 20 day requirement where the purpose of the requirement was nullified by party’s actions. In re Wildlife Wonderland, Inc., 133 Vt. 507, 346 A.2d 645, 1975 Vt. LEXIS 443 (1975).

Floodways.

Although the trial court did not give proper deference to the agency’s authority to define “floodway” and “floodway fringe” and erroneously found that the project was not within a floodway, there was sufficient evidence to support its conclusion that the project complied with Criterion 1(D) of Act 250, including evidence that the project was on a significant upward slope and that the parcel had not flooded in 50 years despite significant storms along with testimony by a licensed professional engineer and land surveyor. In re Korrow Real Estate, LLC, 2018 VT 39, 207 Vt. 274, 187 A.3d 1125, 2018 Vt. LEXIS 40 (2018).

Environmental Board did not err by permitting the Secretary of the Agency of Natural Resources to determine a floodway when no such determination had been made by the Agency at the District Commission level. In re Woodford Packers, Inc., 2003 VT 60, 175 Vt. 579, 830 A.2d 100, 2003 Vt. LEXIS 142 (2003) (mem.).

Alteration by the Agency of Natural Resources of its long-standing practice of relying on National Flood Insurance Program maps to determine whether a proposed development was within a floodway or floodway fringe did not require it to promulgate the change by rule pursuant to rulemaking procedures set forth in the Vermont Administrative Procedure Act. In re Woodford Packers, Inc., 2003 VT 60, 175 Vt. 579, 830 A.2d 100, 2003 Vt. LEXIS 142 (2003) (mem.).

Application by the Agency of Natural Resources (ANR) of its floodway determination on a case-by-case basis is not without legal authority because the statute enabling the Secretary of ANR to determine floodways and floodway fringes does not compel the determination be made by rules promulgated pursuant to the Vermont Administrative Procedure Act. In re Woodford Packers, Inc., 2003 VT 60, 175 Vt. 579, 830 A.2d 100, 2003 Vt. LEXIS 142 (2003) (mem.).

The Environmental Board’s decision that a project failed to comply with the criterion for “soil erosion” was proper where it concluded that existing erosion would be exacerbated by the proposed development. In re Woodford Packers, Inc., 2003 VT 60, 175 Vt. 579, 830 A.2d 100, 2003 Vt. LEXIS 142 (2003) (mem.).

Growth.

The Legislature intended the word “growth,” as used in subdiv. (a)(9) (impact of growth), to apply to economic, as well as population, growth. When it enacted this section, the Legislature included a statement of intent, declaring it necessary to regulate the use of land to insure that permits were granted only where the uses were “not unduly detrimental to the environment, would promote the general welfare through orderly growth and development and would be suitable to the demands and needs of the people of the state” ( 1969, No. 250 (Adj. Sess.), § 1). In re Wal*Mart Stores, Inc., 167 Vt. 75, 702 A.2d 397, 1997 Vt. LEXIS 242 (1997).

Impact on primary agricultural soils.

Environmental Board did not err in finding that a project did not comply with Criterion 9(B) of Act 250. The applicant’s argument contradicted the testimony of its own expert witness and also relied upon an inaccurate definition of “primary agricultural soils”; the record supported the Board’s finding that there were 2.8 acres of primary agricultural soils on the project tract and that the project would significantly reduce the agricultural potential of 1.9 of the 2.8 acres, which constituted a significant reduction of the agricultural potential of such soils. In re Appeal of Times & Seasons, LLC, 2008 VT 7, 183 Vt. 336, 950 A.2d 1189, 2008 Vt. LEXIS 8 (2008).

It is incumbent upon a developer to demonstrate to the Environmental Board that its proposed development is designed to reduce the impact on primary agricultural soils. In re Spear Street Assocs., 145 Vt. 496, 494 A.2d 138, 1985 Vt. LEXIS 325 (1985).

Where on appeal of District Environmental Commission’s decision to grant a land use permit for a proposed development the developer failed to present evidence that the proposed development would minimize the impact on primary agricultural soils relative to other reasonable design alternatives and adjoining landowners presented an alternative, less-destructive plan, the developer failed to satisfy his burden of proof, and the Environmental Board’s refusal to permit the development would stand. In re Spear Street Assocs., 145 Vt. 496, 494 A.2d 138, 1985 Vt. LEXIS 325 (1985).

Where evidence presented to the Environmental Board at a hearing on a proposed development which would subdivide 51 acres of land revealed that the soils at the site were best suited for producing forage crops for a dairy farm, and that the very act of subdividing the ownership of the parcel would significantly reduce the agricultural potential of its primary agricultural soils, it was not improper for the Board to conclude that the subdivision of the site would significantly reduce the agricultural potential of the primary agricultural soils, notwithstanding the fact that individual vegetable gardens could have been cultivated on the subdivided lots. In re Spear Street Assocs., 145 Vt. 496, 494 A.2d 138, 1985 Vt. LEXIS 325 (1985).

Interlocutory appeal.

Where Environmental Board’s remand decision clearly exceeded Board’s jurisdiction and required permit applicant virtually to commence application process again, delay and expense justified Supreme Court’s consideration of interlocutory decision. In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993).

Jurisdiction.

Environmental Board’s jurisdiction is limited by scope of proceedings below; it has no jurisdiction to decide issues regarding Act 250 criteria that were not before the District Commission and ruled upon by it. In re Taft Corners Assocs., 160 Vt. 583, 632 A.2d 649, 1993 Vt. LEXIS 89 (1993).

Under state land use and development law, initial consideration of a land use proposal is assigned to a District Commission and the State Environmental Conservation Board is not vested with concurrent jurisdiction to hear and decide the matter. In re Juster Associates, 136 Vt. 577, 396 A.2d 1382, 1978 Vt. LEXIS 671 (1978).

Logging.

Act 250 may certainly impose permit conditions limiting tree-cutting activities associated with a subdivision or other low-altitude development. The Legislature’s intent was to allow bona fide logging projects below 2,500 feet to proceed without the substantial administrative and financial burdens of complying with the Act. In re Green Crow Corp., 2007 VT 137, 183 Vt. 33, 944 A.2d 244, 2007 Vt. LEXIS 268 (2007).

Market competition.

Environmental Board’s conclusion that a project’s impact on market competition was a relevant factor under Criterion 9(A) (impact of growth) was supported by the plain language of the statute, which requires the board to consider the “financial capacity” of the town and the region to accommodate growth. In re Wal*Mart Stores, Inc., 167 Vt. 75, 702 A.2d 397, 1997 Vt. LEXIS 242 (1997).

Municipal permits.

In the event that the requirements of this chapter become a duplication of local standards, developer may use permits obtained from municipal agencies in the state permit process if they satisfy the requirements of subsec. (a) of this section. In re Declaratory Ruling #149 Trono Construction Co., 146 Vt. 591, 508 A.2d 695, 1986 Vt. LEXIS 338 (1986).

Necessary wildlife habitat.

On review of Act 250 permit application, destruction or significant imperilment of habitat of a population of wildlife triggers statutory necessary wildlife habitat review, irrespective of whether species as a whole is threatened with extinction. In re Killington, Ltd., 159 Vt. 206, 616 A.2d 241, 1992 Vt. LEXIS 123 (1992).

On appeal from denial of Act 250 permit for construction of pond, Environmental Board’s findings supported its conclusion that proposed construction would imperil habitat necessary to survival of a population of black bears. In re Killington, Ltd., 159 Vt. 206, 616 A.2d 241, 1992 Vt. LEXIS 123 (1992).

The term “necessary wildlife habitat” in subdiv. (a)(8) of this section means habitat that is decisive to survival of those particular members of the species which depend upon that habitat; it is not necessary that the habitat be decisive to the survival of the entire species within the state. In re Southview Associates, 153 Vt. 171, 569 A.2d 501, 1989 Vt. LEXIS 223 (1989).

In weighing criterion for granting permit under subdiv. (a)(8)(A), Environmental Board should not restrict its comparison to economic data only; Board should also assess less tangible effects, which are not reducible to mathematical formulae. In re Southview Associates, 153 Vt. 171, 569 A.2d 501, 1989 Vt. LEXIS 223 (1989).

Party status.

Environmental Board did not act unreasonably in exercising its discretion to deny party status to neighbors where they failed to show how a company’s installation of antennas within a church’s existing bell towers and construction of an equipment building in the parking lot would result in a relevant impact on the values underlying criteria contained in subdivs. (a)(5) and (a)(9)(K) of this section. In re Vermont RSA Limited Partnership d/b/a Verizon Wireless, 2007 VT 23, 181 Vt. 589, 925 A.2d 1006, 2007 Vt. LEXIS 53 (2007) (mem.).

Permit conditions.

There was sufficient evidence that the applicant could comply with the conditions imposed pursuant to Criterion 8 of Act 250, regarding adverse odors, when it was undisputed that if complied with, the condition would prevent the undue adverse impacts and the Environmental Division concluded that the applicant could comply with the condition. In re N. E. Materials Group, LLC, 2017 VT 43, 205 Vt. 490, 174 A.3d 747, 2017 Vt. LEXIS 62 (2017).

Environmental Division satisfied Criterion 5 of Act 250, regarding traffic, when, confronted with the safety concern posed by tractor-trailer-sized trucks, it imposed a condition precluding all trucks from crossing the center line and another condition aiding enforcement by requiring the permit applicant to pay to have the center line painted each spring. In re N. E. Materials Group, LLC, 2017 VT 43, 205 Vt. 490, 174 A.3d 747, 2017 Vt. LEXIS 62 (2017).

In finding that a permit to complete a roadway project complied with Criteria 5 of Act 250 if certain conditions applied, the trial court did not err. The conditions requiring future monitoring and reporting and authorizing a renewed challenge by appellant if necessary to mitigate unreasonable congestion were appropriately tailored to the evidence and findings, and directing the parties to work in good faith to resolve congestion and safety issues did not require appellant to alter the use of its property. In re Champlain Parkway Act 250 Permit, 2015 VT 105, 200 Vt. 158, 129 A.3d 670, 2015 Vt. LEXIS 87 (2015).

District Environmental Commission and the Vermont Environmental Board were fully authorized to impose permit conditions limiting the number of truck trips plaintiff company could complete through a town upon finding the requested number of trips would cause “unreasonable congestion” and adversely affect the environment. OMYA, Inc. v. Town of Middlebury, 171 Vt. 532, 758 A.2d 777, 2000 Vt. LEXIS 187 (2000) (mem.).

Permit conditions imposed under Act 250 must be reasonable. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

Conditions imposed by Environmental Board on proposed subdivision to leave open space and to implement findings on aesthetic impact were not unreasonable. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

Conditions imposed on proposed subdivision that it be completed in manner consistent with both Environmental Board’s findings and conclusions, and with the approved plans and exhibits, and that findings are conclusions would govern over the plans and exhibits in the event of conflict, was not an unreasonable restriction on title. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

Evidence supported Environmental Board’s conclusion that conditions on proposed subdivision were required to prevent an undue adverse aesthetic effect where visibility to highway would result, construction would be on open land that served as an aesthetic buffer, and other features of the property mitigated the degree of adverse effect as long as they remained in current use. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

Although Vermont Environmental Board was entitled to condition a land use permit on requirements which the Board, in the exercise of its police power, deemed appropriate, language in its decision that a right of way to be used was inadequate to accommodate the traffic and would need to be widened was mere dicta, and applicant was entitled to propose the alternative ways to meet the criteria proscribing congestion or unsafe conditions. In re Pilgrim Partnership, 153 Vt. 594, 572 A.2d 909, 1990 Vt. LEXIS 36 (1990).

Mitigating conditions imposed by District Environmental Commission upon condominium builder were reasonable where original permit contained requirement that no changes be made in the project without written approval of the Commission, but builder made substantial unauthorized changes which the Environmental Board determined had an undue adverse impact on the scenic, natural beauty and aesthetics of the area nor were there any unanticipated circumstances justifying the changes. In re Quechee Lakes Corp., 154 Vt. 543, 580 A.2d 957, 1990 Vt. LEXIS 130 (1990).

Environmental Board did not exceed its authority by requiring applicants for land use permit to obtain a water discharge permit pursuant to section 1263 of this title, although the agency of environmental conservation had waived the requirement. In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988).

Presumption of compliance.

With regard to water pollution and waste disposal, appellant in an Act 250 case had not rebutted the presumption of compliance when it merely elicited evidence that the expected performance impact of the Agency of Natural Resources’ design standards had not been validated by local field tests, as evidence that the design standards had not been proven to yield the expected performance outcomes was not the same thing as evidence that the design standards did not in fact yield those outcomes. In re Costco Stormwater Discharge Permit, 2016 VT 86, 202 Vt. 564, 151 A.3d 320, 2016 Vt. LEXIS 85 (2016).

Presumptions.

A presumption created pursuant to subsec. (d) of this section is merely “locative,” placing the burden of going forward with the evidence on the party against whom it operates as a rule of law, but operating without any independent probative value. In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988).

A presumption created pursuant to subsec. (d) of this section disappears when credible evidence is introduced fairly and reasonably indicating that the real fact is not as presumed. In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988).

Although permits and certificates of compliance from other state agencies create a presumption that a project satisfies the relevant criteria of subdiv. (a)(1) of this section, the Environmental Board must conduct an independent review of the proposed development and may deny the Act 250 permit if it finds that the certificate of compliance or other required permits were improvidently granted. In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988).

Public investments.

Proposed highway did not rise to level of a public “facility” requiring protection under State land use statute where State had no current construction timetable or funding for highway project, and therefore Environmental Board erred in denying development permit on ground that subdivision would endanger public investment in highway. In re Munson Earth Moving Corp., 169 Vt. 455, 737 A.2d 906, 1999 Vt. LEXIS 227 (1999).

Public lands.

In appeal from Vermont Environmental Board’s denial of application for land use permit to develop land adjacent to public lands, record supported the Board’s decision that White River qualified as public lands and that proposed recreational vehicle campground would significantly diminish the public’s enjoyment of the river. In re McShinsky, 153 Vt. 586, 572 A.2d 916, 1990 Vt. LEXIS 17 (1990).

Shoreline development.

Considering the trial court’s failure to adequately define the scope of the “shoreline” along two rivers, its analysis of the project’s compliance with Criterion 1(F) of Act 250 was insufficient to justify its conclusions. Further, should the project fall within the “shoreline,” the trial court would then have to further consider whether it had to, of necessity, be located there. In re Korrow Real Estate, LLC, 2018 VT 39, 207 Vt. 274, 187 A.3d 1125, 2018 Vt. LEXIS 40 (2018).

There was no error in the Environmental Board’s consideration of whether a project’s shoreline location “serves an integral part of the developmental scheme” where the Board reasonably concluded, on the facts before it, that the applicant’s laudable objective of providing walking paths and other facilities to meet the needs of the project’s residents was not so integral to the developmental scheme to “of necessity” require location on a shoreline. In re Woodford Packers, Inc., 2003 VT 60, 175 Vt. 579, 830 A.2d 100, 2003 Vt. LEXIS 142 (2003) (mem.).

Mandate that proposed shoreline developments meet certain environmental criteria “insofar as possible in light of [their] purpose” requires Vermont Environmental Board to independently assess whether, considering the purpose of the development, possible and reasonable measures have been taken to protect the shoreline; the board need not permit a development merely because the applicant is doing what he or she feels is possible or reasonable, nor need it retain oversight to evaluate at a later date whether such measures are being taken. In re McShinsky, 153 Vt. 586, 572 A.2d 916, 1990 Vt. LEXIS 17 (1990).

State regulations.

Criterion 1 and Subcriterion 1(B) of Act 250 are independent criteria with different standards. In re Diverging Diamond Interchange SW Permit, 2019 VT 57, 210 Vt. 577, 218 A.3d 564, 2019 Vt. LEXIS 113 (2019).

Environmental Division erred by dismissing appellant’s Act 250 questions concerning Criterion 1 based on the fact that water quality standards for chlorine and phosphorus did not exist at the time of the permit applications. Compliance with applicable regulations was only one factor for consideration under that criterion and obtaining a stormwater permit created only a rebuttable presumption that Criterion 1 was satisfied. In re Diverging Diamond Interchange SW Permit, 2019 VT 57, 210 Vt. 577, 218 A.3d 564, 2019 Vt. LEXIS 113 (2019).

Regulations administered by the Department of Water Resources and Environmental Engineering (now the Department of Environmental Conservation) come within the purview of subdiv. (a)(1) of this section. In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988).

Subdivisions.

Act 250 rule regarding permits cannot be used to amend a master plan absent the full review of all criteria necessary to obtain an Act 250 land use permit; the rule notwithstanding, the statutes governing the requirement of permits and the issuance of permits prevent creation of a proposed subdivision absent full review of all criteria. Thus, a so-called “technical amendment” to a master development plan—which reconfigured a nine-lot subdivision into a fifteen-lot subdivision for transfer to another company for future development—triggered the subdivision jurisdiction of Act 250, requiring a permit and the full review necessary to obtain one. In re SP Land Co., 2011 VT 104, 190 Vt. 418, 35 A.3d 1007, 2011 Vt. LEXIS 111 (2011).

Substantial change.

With regard to whether a rock-crushing operation had a potential for significant impact under one or more of the Act 250 criteria, the likely effect of noise and clouds of rock dust on the sensibilities of the average person was significant enough to show a potential impact as a matter of law, and it was therefore error to find that no permit was required on the ground that there had been no substantial change to a preexisting development. In re N. E. Materials Group LLC Act 250 Jo #5-21 Russell Austin, 2016 VT 87, 202 Vt. 588, 151 A.3d 766, 2016 Vt. LEXIS 86 (2016).

Undue adverse impact.

Trial court found that a project would not result in an adverse impact because the project was designed with buildings that matched local architecture and preserved upland fields and forested hillsides visible to passing travelers. The neighbors bringing a challenge based on aesthetic impact had not directly challenged this conclusion, and it was alone sufficient to uphold the project against their challenge. In re Woodstock Community Trust & Housing Vt. PRD, 2012 VT 87, 192 Vt. 474, 60 A.3d 686, 2012 Vt. LEXIS 88 (2012).

Open space language of the Woodstock Town Plan is intended, in part, to protect the aesthetics of the Town; the Vermont Supreme Court does not, however, take the plan language as a clear, written community standard that no currently open space can be developed anywhere in Woodstock or find that the plan language clearly protects from development a ball field that is behind a row of houses on a state highway and barely visible to the public. Thus, the planned development did not violate a clear community standard for purposes of the undue adverse impact analysis of Criterion 8 of Act 250. In re Woodstock Community Trust & Housing Vt. PRD, 2012 VT 87, 192 Vt. 474, 60 A.3d 686, 2012 Vt. LEXIS 88 (2012).

As a trial court determined that a 180-foot telecommunications tower would not have an undue adverse effect on the aesthetics of the area and that it would not violate a clear, written community standard, it properly affirmed the issuance of a land-use permit for that purpose. In re Rinkers, Inc., 2011 VT 78, 190 Vt. 567, 27 A.3d 334, 2011 Vt. LEXIS 78 (2011).

Trial court properly determined that a communication company could not mitigate the aesthetic impact of a 180-foot telecommunications tower by shortening its height, as there was evidence that a shorter tower would not adequately meet the paging needs for which it was being constructed. In re Rinkers, Inc., 2011 VT 78, 190 Vt. 567, 27 A.3d 334, 2011 Vt. LEXIS 78 (2011).

When the Environmental Board found that an applicant failed to take available mitigation measures to minimize the aesthetic impact of the project, and the applicant did not challenge this finding on appeal, this finding alone supported the Board’s conclusion. Thus, the Court did not have to address the applicant’s challenge to the Board’s finding that the project violated a clear, written community standard. In re Appeal of Times & Seasons, LLC, 2008 VT 7, 183 Vt. 336, 950 A.2d 1189, 2008 Vt. LEXIS 8 (2008).

There was sufficient evidence to support the Environmental Division’s finding that, since 1970, there had been “substantial change” at defendant’s preexisting construction site, in the form of the expansion of an access road, such as to subject it to the Division’s jurisdiction: the clearing of trees and excavation of the turnaround, the application of gravel to 115 feet of the road, the paving of a larger portion of the road, the paving of an apron on the road, and a direct, rather than oblique, access down into the gravel pit, all had the potential to cause significant impacts. Secretary v. Earth Construction, Inc., 165 Vt. 160, 676 A.2d 769, 1996 Vt. LEXIS 21 (1996).

For purposes of evaluating a proposed land use under environmental impact criteria, an adverse impact on the environment is “undue” if (1) the project violates a clear, written community standard intended to preserve the aesthetics or scenic, natural beauty of the area, (2) the project offends the sensibilities of the average person, or (3) the applicant has failed to take generally available reasonable mitigating steps to improve the harmony of the proposed project with its surroundings. In re McShinsky, 153 Vt. 586, 572 A.2d 916, 1990 Vt. LEXIS 17 (1990).

For purposes of determining whether the environmental impact of a proposed land use is unduly adverse, the Vermont Environmental Board must determine whether the sensibilities of the average person would be offended by the use, without regard to actual opinions held or opposition shown by the community. In re McShinsky, 153 Vt. 586, 572 A.2d 916, 1990 Vt. LEXIS 17 (1990).

In appeal from Vermont Environmental Board’s denial of land use permit, record supported the Board’s decision that the project would offend the sensibilities of the average person and thus the environmental impact of the project would be unduly adverse upon the scenic and natural beauty of the area in contravention of criterion for permissible land use. In re McShinsky, 153 Vt. 586, 572 A.2d 916, 1990 Vt. LEXIS 17 (1990).

Unsafe conditions.

Mandate that proposed land uses not cause unsafe conditions does not require that the proposed development be the principal cause of original source of the unsafe conditions; several causes may contribute to an effect that would require denial of the permit. In re Pilgrim Partnership, 153 Vt. 594, 572 A.2d 909, 1990 Vt. LEXIS 36 (1990).

In appeal from Vermont Environmental Board’s remand of land use permit application which if granted would allow applicant’s use of a right of way over privately held land already subject to heavy traffic, the Board reasonably concluded that criterion mandating that proposed land use not cause unreasonable congestion or unsafe conditions was not met. In re Pilgrim Partnership, 153 Vt. 594, 572 A.2d 909, 1990 Vt. LEXIS 36 (1990).

Vested rights.

Revisions appellee made to its Act 250 application — including amending its Schedule E to add abutting landowners and seeking a separate permit instead of an amended permit for the project area because the revisions tipped the acreage over ten acres — were not substantial enough to extinguish any vesting rights until June 4, 2014, after Criterion 5(B) was enacted. The revisions did not fundamentally or substantially alter the project; rather, it remained basically the same as initially proposed, with its nature, scope, and location remaining essentially the same. In re Diverging Diamond Interchange SW Permit, 2019 VT 57, 210 Vt. 577, 218 A.3d 564, 2019 Vt. LEXIS 113 (2019).

Where landowners submitted development permit application requesting review under subsec. (b) of this section, and information in application was inadequate, they did not have vested right to have development reviewed under town plan in effect at time application was submitted. In re Ross, 151 Vt. 54, 557 A.2d 490, 1989 Vt. LEXIS 12 (1989).

Cited.

Cited in In re Agency of Administration, 141 Vt. 68, 444 A.2d 1349, 1982 Vt. LEXIS 479 (1982); In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636, 481 A.2d 1274, 1984 Vt. LEXIS 538 (1984); In re Orzel, 145 Vt. 355, 491 A.2d 1013, 1985 Vt. LEXIS 309 (1985); In re H. A. Manosh Corp., 147 Vt. 367, 518 A.2d 18, 1986 Vt. LEXIS 423 (1986); In re Vermont Gas Systems, Inc., 150 Vt. 34, 549 A.2d 627, 1988 Vt. LEXIS 124 (1988); In re Gallagher, 150 Vt. 50, 549 A.2d 637, 1988 Vt. LEXIS 111 (1988); In re Maple Tree Place Assocs., 151 Vt. 331, 560 A.2d 382, 1989 Vt. LEXIS 49 (1989); C.V. Landfill, Inc. v. Environmental Board, 158 Vt. 386, 610 A.2d 145, 1992 Vt. LEXIS 63 (1992); In re Barlow, 160 Vt. 513, 631 A.2d 853, 1993 Vt. LEXIS 74 (1993); In re Chittenden Recycling Services, 162 Vt. 84, 643 A.2d 1204, 1994 Vt. LEXIS 53 (1994); Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995); Chittenden Solid Waste District v. Hinesburg Sand & Gravel Co., 169 Vt. 153, 730 A.2d 614, 1999 Vt. LEXIS 78 (1999).

Law Reviews —

For comment, “Act 250’s ‘Necessary Wildlife Habitat’ Definition: How Much Wildlife Does It Embrace?,” see 12 Vt. L. Rev. 531 (1987).

Hear No Evil, See No Evil: In re Spencer and the Twilight of Judicial Scrutiny in Vermont, see 14 Vt. L. Rev. 501 (1990).

The effect of Act 250 on prime farmland, see 6 Vt. L. Rev. 467 (1981).

For article, “The ‘Malling’ of Vermont: Can the ‘Growth Center’ Designation Save the Traditional Village from Suburban Sprawl?” see 21 Vt. L. Rev. 929 (1997).

§ 6086a. Generators of radioactive waste.

No land use permit will be issued for a development which generates low-level radioactive waste unless it shows that it will have access to a low-level radioactive waste disposal facility and that the facility is expected to have sufficient capacity for the waste.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 7, eff. June 29, 1990.

CROSS REFERENCES

Disposal of low-level radioactive waste, see chapter 161 of this title.

Texas Low-Level Radioactive Waste Disposal Compact, see chapter 162 of this title.

§ 6086b. Downtown development; findings.

Notwithstanding any provision of this chapter to the contrary, each of the following shall apply to a development or subdivision that is completely within a downtown development district designated under 24 V.S.A. chapter 76A and for which a permit or permit amendment would otherwise be required under this chapter:

  1. In lieu of obtaining a permit or permit amendment, a person may request findings and conclusions from the District Commission, which shall approve the request if it finds that the development or subdivision will meet subdivisions 6086(a)(1) (air and water pollution), (2) (sufficient water available), (3) (burden on existing water supply), (4) (soil erosion), (5) (traffic), (8) (aesthetics, historic sites, rare and irreplaceable natural areas), (8)(A) (endangered species; necessary wildlife habitat), (9)(B) (primary agricultural soils), (9)(C) (productive forest soils), (9)(F) (energy conservation), and (9)(K) (public facilities, services, and lands) of this title.
  2. The request shall be complete as to the criteria listed in subdivision (1) of this subsection and need not address other criteria of subsection 6086(a) of this title.
    1. The requestor shall file the request in accordance with the requirements of subsection 6084(a) of this title and the requestor shall provide a copy of the request to each agency and department listed in subdivision (3) of this section.
    2. Within five days of the request’s filing, the District Coordinator shall determine whether the request is complete. Within five days of the date the District Coordinator determines the request to be complete, the District Commission shall provide notice of the complete request to each person required to receive a copy of the filing under subdivision (2)(A) of this section and to each adjoining property owner and shall post the notice and a copy of the request on the Board’s web page. The computation of time under this subdivision (2)(B) shall exclude Saturdays, Sundays, and State legal holidays.
  3. Within 30 days of receiving notice of a complete request:
    1. The State Historic Preservation Officer or designee shall submit a written recommendation on whether the improvements will have an undue adverse effect on any historic site.
    2. The Commissioner of Public Service or designee shall submit a written recommendation on whether the improvements will meet or exceed the applicable energy conservation and building energy standards under subdivision 6086(a)(9)(F) of this title.
    3. The Secretary of Transportation or designee shall submit a written recommendation on whether the improvements will have a significant impact on any highway, transportation facility, or other land or structure under the Secretary’s jurisdiction.
    4. The Commissioner of Buildings and General Services or designee shall submit a written recommendation on whether the improvements will have a significant impact on any adjacent land or facilities under the Commissioner’s jurisdiction.
    5. The Secretary of Natural Resources or designee shall submit a written recommendation on whether the improvements will have a significant impact on any land or facilities under its jurisdiction or on any important natural resources, other than primary agricultural soils. In this subdivision (E), “important natural resources” shall have the same meaning as under 24 V.S.A. § 2791 .
    6. The Secretary of Agriculture, Food and Markets or designee shall submit a written recommendation on whether the improvements will reduce or convert primary agricultural soils and on whether there will be appropriate mitigation for any reduction in or conversion of those soils.
  4. Any person may submit written comments or ask for a hearing within 30 days of the date on which the District Commission issues notice of a complete request. If the person asks for a hearing, the person shall include a petition for party status in the submission. The petition for party status shall meet the requirements of subdivision 6085(c)(2) of this title.
  5. The District Commission shall not hold a hearing on the request unless it determines that there is a substantial issue under one or more applicable criteria that requires a hearing. The District Commission shall hold any hearing within 20 days of the end of the comment period specified in subdivisions (3) and (4) of this section. Subdivisions 6085(c)(1)-(5) of this title shall govern participation in a hearing under this section.
  6. The District Commission shall issue a decision within 60 days of issuing notice of a complete request under this section or, if it holds a hearing, within 15 days of adjourning the hearing. The District Commission shall send a copy of the decision to each State agency listed in subdivision (3) of this section, to the municipality, to the municipal and regional planning commissions for the municipality, and to each person that submitted a comment, requested a hearing, or participated in the hearing, if any. The decision may include conditions that meet the standards of subsection 6086(c) of this title.
  7. The requestor may waive the time periods required under subdivisions (3), (4), and (6) of this section as to one or more agencies, departments, the District Commission, the District Coordinator, or other persons. Such a waiver shall extend the applicable and subsequent time periods by the amount of time waived. In the absence of a waiver under this subdivision, the failure of a State agency to file a written determination or a person to submit a comment or ask for a hearing within the time periods specified in subdivisions (3) and (4) of this section shall not delay the District Commission’s issuance of a decision on a complete request.

HISTORY: Added 2013, No. 147 (Adj. Sess.), § 3, eff. June 1, 2014.

§ 6087. Denial of application.

  1. No application shall be denied by the District Commission unless it finds the proposed subdivision or development detrimental to the public health, safety, or general welfare.
  2. A permit may not be denied solely for the reasons set forth in subdivisions 6086(a)(5), (6), and (7) of this title.  However, reasonable conditions and requirements allowable in subsection 6086(c) of this title may be attached to alleviate the burdens created.
  3. A denial of a permit shall contain the specific reasons for denial.  A person may, within six months, apply for reconsideration of his or her permit which application shall include an affidavit to the District Commission and all parties of record that the deficiencies have been corrected. The District Commission shall hold a new hearing upon 25 days’ notice to the parties.  The hearing shall be held within 40 days of receipt of the request for reconsideration.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 12, eff. April 4, 1970; amended 2003, No. 115 (Adj. Sess.), § 57, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Subsec. (a): Deleted “board or” preceding “district commission”.

ANNOTATIONS

Basis for denial.

Environmental Division’s condition requiring the installation of a traffic signal at an intersection was not supported by the evidence. The testimony of the neighbors’ expert did not support the traffic light requirement, and the neighbors did not offer sufficient evidence that the condition was reasonable in the sense that it was likely to be attainable and so would not operate as an insurmountable obstacle to the project in violation of the legislature’s direction that Act 250 permits not be denied on the basis of Criterion 5. In re Hinesburg Hannaford Act 250 Permit, 2017 VT 106, 206 Vt. 118, 179 A.3d 727, 2017 Vt. LEXIS 127 (2017).

Construction.

Together, the statute and the rule governing reconsideration of Act 250 applications simply serve to encourage and reward timely reconsideration motions by obviating the need to relitigate any positive findings from the initial permit proceeding. The Vermont Supreme Court discerns nothing in the statute or rule to prevent an applicant from reapplying after the six-month reconsideration period has expired, albeit without the benefit of the presumption of validity for findings not otherwise affected by the proposed modifications. In re JLD Props. of St. Albans, LLC, 2011 VT 87, 190 Vt. 259, 30 A.3d 641, 2011 Vt. LEXIS 86 (2011).

Dicta.

Although Vermont Environmental Board was entitled to condition a land use permit on requirements which the board, in the exercise of its police power, deemed appropriate, language in its decision that a right of way to be use was inadequate to accommodate the traffic and would need to be widened was mere dicta and applicant was entitled to propose alternative ways to meet the criteria proscribing congestion or unsafe conditions. In re Pilgrim Partnership, 153 Vt. 594, 572 A.2d 909, 1990 Vt. LEXIS 36 (1990).

Reconsideration.

It is provided by statute that acts of the General Assembly, except those regulating practice in court, relating to the competency of witnesses or to amendments of process or pleadings, shall not affect a suit begun or pending at the time of their passage. Just as this provision protects applicants from newly adopted ordinances, regulations, or laws unfavorable to an already-submitted permit application, so too it prevents an applicant for an Act 250 permit from selectively taking advantage of favorable changes in the law on reconsideration, which is merely the continuation of the original permit application. In re Times & Seasons, 2011 VT 76, 190 Vt. 163, 27 A.3d 323, 2011 Vt. LEXIS 70 (2011).

Under the vested rights doctrine, an applicant for an Act 250 permit on reconsideration could not rely solely on the change in a definition to correct the deficiencies causing its Act 250 permit denial. To take advantage of the change in law, the applicant had to begin the Act 250 permit process anew. In re Times & Seasons, 2011 VT 76, 190 Vt. 163, 27 A.3d 323, 2011 Vt. LEXIS 70 (2011).

Cited.

Cited in In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988); In re Quechee Lakes Corp., 154 Vt. 543, 580 A.2d 957, 1990 Vt. LEXIS 130 (1990); In re Agency of Transportation, 157 Vt. 203, 596 A.2d 358, 1991 Vt. LEXIS 151 (1991); In re Wal*Mart Stores, Inc., 167 Vt. 75, 702 A.2d 397, 1997 Vt. LEXIS 242 (1997).

§ 6088. Burden of proof.

  1. The burden shall be on the applicant with respect to subdivisions 6086(a)(1), (2), (3), (4), (9), and (10) of this title.
  2. The burden shall be on any party opposing the applicant with respect to subdivisions 6086(a)(5) through (8) of this title to show an unreasonable or adverse effect.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 13, eff. April 4, 1970.

ANNOTATIONS

Generally.

Nothing in language of Act 250 prevents Environmental Board from finding against the applicant on an issue even though the applicant does not have the burden of proof on that issue; the allocation of the burden of proof to opponents merely relieves the applicant of the “risk of non-persuasion,” and means that in the absence of evidence on the issue, or where the evidence is indecisive, the issue must be decided in the applicant’s favor. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

Any party opposing a land use permit application has the burden of showing the proposed use would adversely impact aesthetics, while the applicant has the burden of proof with respect to other environmental factors. In re McShinsky, 153 Vt. 586, 572 A.2d 916, 1990 Vt. LEXIS 17 (1990).

Evidence.

Applicants for an Act 250 permit met their burden of production, as a detailed traffic-study report coupled with the evidence showing that its traffic projections were dramatically overstated in material respects were sufficient to establish prima facie compliance with Criterion 5. In re Champlain Parkway Act 250 Permit, 2015 VT 105, 200 Vt. 158, 129 A.3d 670, 2015 Vt. LEXIS 87 (2015).

In finding that a permit to complete a roadway project complied with Criteria 5 of Act 250 if certain conditions applied, the trial court properly rejected appellant’s proposed alternative design, as appellant offered no evidence as to how the redesigned alternative would be engineered, its environmental effects, its impact on other components of the project, and its estimated quantitative reduction in traffic congestion and delays. In re Champlain Parkway Act 250 Permit, 2015 VT 105, 200 Vt. 158, 129 A.3d 670, 2015 Vt. LEXIS 87 (2015).

Burden of proof allocations of Act 250 impose no limits, direct or indirect, on evidence Environmental Board is allowed to consider in deciding whether a particular issue has been proved. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

While an applicant for Act 250 permit never bears the risk of nonpersuasion as to aesthetics criterion, the burden of proof is properly satisfied by actual proof of adverse aesthetic effect, regardless of which party introduces the evidence. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

In Act 250 proceeding, Environmental Board did not misallocate burden of proof on the issue of aesthetics; although no opponent of the permit appeared or presented evidence before the board, the board’s finding that adherence to its conditions would be necessary to prevent an adverse aesthetic effect was based on testimony by the applicant and on information gained through site visit. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

Burden of proof requirements in land use permit proceedings may be satisfied by evidence introduced by any of the parties or witnesses or by evidence gathered at a site visit, so long as such evidence does not constitute the exclusive basis of the Board’s decision. In re McShinsky, 153 Vt. 586, 572 A.2d 916, 1990 Vt. LEXIS 17 (1990).

Under this section placing burden upon party opposing issuance of land use permit to show that project would have an undue adverse effect on scenic, natural beauty and aesthetics of an area, Environmental Board was at liberty to consider all of the evidence, including that garnered during its site visits, in determining whether the opposing parties had carried their burden of proof. In re Quechee Lakes Corp., 154 Vt. 543, 580 A.2d 957, 1990 Vt. LEXIS 130 (1990).

Cited.

Cited in In re Spear Street Assocs., 145 Vt. 496, 494 A.2d 138, 1985 Vt. LEXIS 325 (1985); In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988); In re R. E. Tucker, Inc., 149 Vt. 551, 547 A.2d 1314, 1988 Vt. LEXIS 89 (1988); In re Ross, 151 Vt. 54, 557 A.2d 490, 1989 Vt. LEXIS 12 (1989).

§ 6089. Appeals.

Appeals of any act or decision of a District Commission under this chapter or a district coordinator under subsection 6007(c) of this title shall be made to the Environmental Division in accordance with chapter 220 of this title. For the purpose of this section, a decision of the Chair of a District Commission under section 6001e of this title on whether action has been taken to circumvent the requirements of this chapter shall be considered an act or decision of the District Commission.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 14, eff. April 4, 1970; amended 1973, No. 85 , § 12; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1985, No. 52 , § 1, eff. May 15, 1985; 1987, No. 76 , § 10a; 1993, No. 232 (Adj. Sess.), § 34, eff. March 15, 1995; 1997, No. 155 (Adj. Sess.), § 28; 2003, No. 115 (Adj. Sess.), § 58, eff. Jan. 31, 2005; 2009, No. 154 (Adj. Sess.), § 236; 2013, No. 11 , § 14; 2015, No. 150 (Adj. Sess.), § 34, eff. May 31, 2016.

History

Amendments

—2015 (Adj. Sess.). Substituted “a district coordinator under subsection 6007(c) of this title” for “the Natural Resources Board under subsection 6007(d) of this title”.

—2013. Deleted “district coordinator or a” preceding “district commission”, inserted “or the Natural Resources Board under section 6007(d) of this title” following “chapter”, and added the second sentence.

—2009 (Adj. Sess.) Substituted “environmental division” for “environmental court”.

—2003 (Adj. Sess.). Rewrote the section.

—1997 (Adj. Sess.). Subdiv. (a)(1): Substituted “section 6083a of this title” for “rule of the board, which shall be reasonably related to the costs associated with hearing the appeal.”

—1993 (Adj. Sess.). Subsec. (a): Designated the existing first sentence as subdiv. (1) and made a minor punctuation change in that subdiv., added subdiv. (2), designated the existing third sentence as subdiv. (3) and added “that files an appeal or cross appeal, according to the rules of the board” following “party” in that subdiv., and designated the existing third through fifth sentences as subdiv. (4).

—1987. Subsec. (a): Rewrote the first sentence.

—1985. Subsec. (a): Amended generally.

Subsec. (b): Deleted “or county court” following “board”.

Subsec. (c): Deleted “or county court” following “board” wherever it appeared in the subsec.

Subsec. (d): Deleted “or county court” following “board” in the first sentence.

—1973 (Adj. Sess.). Subsec. (a): Substituted “superior” for “county” preceding “court” in the second, fourth, and sixth sentences.

Subsec. (b): Substituted “superior” for “county” preceding “court under subsection (a)”.

Subsec. (c): Substituted “superior” for “county” preceding “court may be considered” in the first sentence and preceding “court with respect to” in the second sentence.

Subsec. (d): Substituted “superior” for “county” preceding “court will be allowed” in the first sentence.

—1973. Section amended generally.

Effective date and applicability of 2015 (Adj. Sess.) amendments. 2015, No. 150 (Adj. Sess.), § 38(3) provides: “Secs. 33 through 37 (Act 250 jurisdictional opinions; appeals) [which amended this section and 10 V.S.A. §§ 6007 , 8503 and 8504] shall take effect on passage [May 31, 2016] and shall apply to appeals of jurisdictional opinions issued on or after the effective date of those sections. Notwithstanding the repeal of its authority to consider jurisdictional opinions, the Natural Resources Board shall have authority to complete its consideration of any jurisdictional opinion pending before it as of that effective date, and appeal of the Board’s decision shall be governed by the law as it existed immediately prior to that date.”

ANNOTATIONS

Evidence.

The court’s review of the Environmental Board’s decision is circumscribed both by statute and by traditional principles of administrative law; under 10 V.S.A. § 6089(c) the Board’s findings of fact are conclusive if grounded in substantial evidence, which is evidence properly before the Board that is relevant and which a reasonable person might accept as adequate to support a conclusion. In re Rusin, 162 Vt. 185, 643 A.2d 1209, 1994 Vt. LEXIS 54 (1994).

Where sufficiency of evidence is questioned on appeal from decisions of the Environmental Board, the Supreme Court must uphold the Board’s decision where supported by substantial evidence. In re Quechee Lakes Corp., 154 Vt. 543, 580 A.2d 957, 1990 Vt. LEXIS 130 (1990).

Environmental Board abused its discretion by failing to give parties an opportunity to present evidence as to matters bearing on whether proposed condominium conversion would effect a material or substantial change requiring a land use permit amendment. In re Gallagher, 150 Vt. 50, 549 A.2d 637, 1988 Vt. LEXIS 111 (1988).

In appeal before Vermont Environmental Board, from District Commission’s grant of land use permit, when a conflict in the evidence develops, its resolution falls within the board’s jurisdiction since the Board is the proper trier of facts, and the Board has the right to believe all of the testimony of any witness, or part of it or none of it; thus, it is not for Supreme Court on appeal from the Board to reweigh conflicting evidence, reassess the credibility or weight of testimony or determine whether the factual decision is mistaken. In re Wildlife Wonderland, Inc., 133 Vt. 507, 346 A.2d 645, 1975 Vt. LEXIS 443 (1975).

Findings.

Substantial evidence, sufficient to support findings of Environmental Board, is evidence properly before Board that is relevant and which a reasonable person might accept as adequate to support a conclusion. In re Putney Paper Co., 168 Vt. 608, 714 A.2d 644, 1998 Vt. LEXIS 170 (1998) (mem.).

Supreme Court must affirm Environmental Board decision if its findings of fact are based on substantial evidence. In re Killington, Ltd., 159 Vt. 206, 616 A.2d 241, 1992 Vt. LEXIS 123 (1992).

Findings of Environmental Board must be affirmed if based on substantial evidence, which is evidence properly before the Board that is relevant and which a reasonable person might accept as adequate to support a conclusion. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

Findings of the Environmental Board that unauthorized architectural changes in condominium project, consisting of addition of skylights and enlargement of sliding glass doors, significantly increased the perceived mass of the buildings and the amount of reflective glare and thus would have an undue adverse effect on aesthetics requiring the imposition of mitigating conditions, such as additional plantings, were supported by substantial evidence on the record in both testimony and photographic documentation. In re Quechee Lakes Corp., 154 Vt. 543, 580 A.2d 957, 1990 Vt. LEXIS 130 (1990).

Issues.

In de novo proceeding, Environmental Board is required to hear matter as if there had been no prior proceedings in District Environmental Commission. In re Killington, Ltd., 159 Vt. 206, 616 A.2d 241, 1992 Vt. LEXIS 123 (1992).

Act 250 must be construed to require preservation of all issues even if they go to subject-matter jurisdiction of Environmental Board; an exception for extraordinary circumstances provides a sufficient safety valve to protect against excusable failures, especially if they involve clear questions of law on which board expertise is less important. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

Claim that Environmental Board lacked jurisdiction over subdivision proposal could not be raised for the first time on appeal where no extraordinary circumstances excused not raising the issue before the Board or environmental commission. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

In appeal from grant of permit to build apartment complex, whether it was error to rule that evidence of financing would be received confidentially without participation by objecting adjoining landowners, and whether it was error to fail to make findings on the sufficiency of the data, were irrelevant, as financing is not an issue in such proceedings, and that hearing board requested the data did not thereby make it an issue. In re Preseault, 132 Vt. 471, 321 A.2d 65, 1974 Vt. LEXIS 370 (1974).

Motion to dismiss.

Environmental Board correctly denied motion of real estate developer to dismiss its appeal from conditions of permit approval set by District Environmental Commission under Act 250 criteria where motion to dismiss was filed after the time for filing an appeal had run; other parties were entitled to participate in the de novo proceedings, although they had not filed cross-appeals. In re Green Peak Estates, 154 Vt. 363, 577 A.2d 676, 1990 Vt. LEXIS 77 (1990).

Notice of appeal.

Environmental Board rule providing that if timely notice of appeal is filed by a party, any other party entitled to take an appeal may file notice of appeal is permissive, at least where the other party does not wish to address criteria other than those already noticed. In re Green Peak Estates, 154 Vt. 363, 577 A.2d 676, 1990 Vt. LEXIS 77 (1990).

Objections.

Applicants for subdivision permit waived objections to permit requirements where there was opportunity to respond and they failed to object to proposed decision of Environmental Board. In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992).

Parties.

Provision of section 6085 of this title, which provides that for purposes of appeal only the applicant for a land use permit, a state agency, the municipal and regional planning commissions and the municipalities required to receive notice shall be considered parties, applies only to appellate review in the Supreme Court, and owners of land near proposed development were not entitled to appeal to the Supreme Court. In re George F. Adams & Co., 134 Vt. 172, 353 A.2d 576, 1976 Vt. LEXIS 622 (1976).

Right to appeal.

Act 250 is not silent on the right to appeal; in fact, it explicitly limits the right to appeal an Environmental Board decision to certain enumerated persons. In re Cabot Creamery Cooperative, Inc., 164 Vt. 26, 663 A.2d 940, 1995 Vt. LEXIS 63 (1995).

Site visits.

Environmental Board’s partial reliance on knowledge garnered during site visits for decision upholding District Environmental Commission’s issuance of amended land use permit imposing certain mitigating conditions was not erroneous. In re Quechee Lakes Corp., 154 Vt. 543, 580 A.2d 957, 1990 Vt. LEXIS 130 (1990).

Cited.

Cited in In re Great Waters of America, Inc., 140 Vt. 105, 435 A.2d 956, 1981 Vt. LEXIS 566 (1981); In re Patch, 140 Vt. 158, 437 A.2d 121, 1981 Vt. LEXIS 597 (1981); In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636, 481 A.2d 1274, 1984 Vt. LEXIS 538 (1984); In re Hawk Mountain Corp., 149 Vt. 179, 542 A.2d 261, 1988 Vt. LEXIS 23 (1988); In re R. E. Tucker, Inc., 149 Vt. 551, 547 A.2d 1314, 1988 Vt. LEXIS 89 (1988); In re L. W. Haynes, Inc., 150 Vt. 572, 556 A.2d 77, 1988 Vt. LEXIS 233 (1988); In re Ross, 151 Vt. 54, 557 A.2d 490, 1989 Vt. LEXIS 12 (1989); In re Maple Tree Place Assocs., 151 Vt. 331, 560 A.2d 382, 1989 Vt. LEXIS 49 (1989); In re Southview Associates, 153 Vt. 171, 569 A.2d 501, 1989 Vt. LEXIS 223 (1989); Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992), In re BHL Corp., 161 Vt. 487, 641 A.2d 771, 1994 Vt. LEXIS 42 (1994); In re Nehemiah Associates, Inc., 168 Vt. 288, 719 A.2d 34, 1998 Vt. LEXIS 253 (1998); In re Woodford Packers, Inc., 2003 VT 60, 175 Vt. 579, 830 A.2d 100, 2003 Vt. LEXIS 142 (2003); In re Merritt, 2003 VT 84, 175 Vt. 624, 833 A.2d 1278, 2003 Vt. LEXIS 272 (2003); In re Appeal of S-S Corporation/Rooney Housing Developments, 2006 VT 8, 179 Vt. 302, 896 A.2d 67, 2006 Vt. LEXIS 15 (2006); In re Ochs, 2006 VT 34, 179 Vt. 495, 897 A.2d 550, 2006 Vt. LEXIS 85 (April 28, 2006) (mem.).

Law Reviews —

Party status and standing under Vermont’s land use and development law, see 2 Vt. L. Rev. 163 (1977).

§ 6090. Recording; duration and revocation of permits.

  1. In order to afford adequate notice of the terms and conditions of land use permits, permit amendments and revocations of permits, they shall be recorded in local land records. Recordings under this chapter shall be indexed as though the permittee were the grantor of a deed.
    1. Any permit granted under this chapter for extraction of mineral resources, operation of solid waste disposal facilities, or logging above 2,500 feet shall be for a specified period determined by the Board in accordance with the rules adopted under this chapter as a reasonable projection of the time during which the land will remain suitable for use if developed or subdivided as contemplated in the application and with due regard for the economic considerations attending the proposed development or subdivision. Other permits issued under this chapter shall be for an indefinite term, as long as there is compliance with the conditions of the permit. (b) (1) Any permit granted under this chapter for extraction of mineral resources, operation of solid waste disposal facilities, or logging above 2,500 feet shall be for a specified period determined by the Board in accordance with the rules adopted under this chapter as a reasonable projection of the time during which the land will remain suitable for use if developed or subdivided as contemplated in the application and with due regard for the economic considerations attending the proposed development or subdivision. Other permits issued under this chapter shall be for an indefinite term, as long as there is compliance with the conditions of the permit.
    2. Expiration dates contained in permits issued before July 1, 1994 (involving developments that are not for extraction of mineral resources, operation of solid waste disposal facilities, or logging above 2,500 feet) are extended for an indefinite term, as long as there is compliance with the conditions of the permits.
  2. [Repealed.]

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 16, eff. April 4, 1970; amended 1985, No. 32 ; 1993, No. 232 (Adj. Sess.), § 35, eff. June 21, 1994; 2003, No. 115 (Adj. Sess.), § 119(b).

History

Amendments

—2003 (Adj. Sess.). Subsec. (c) repealed effective January 31, 2005.

—1993 (Adj. Sess.). Subsec. (b): Designated the existing provisions of the subsec. as subdiv. (1) and inserted “for extraction of mineral resources, operation of solid waste disposal facilities, or logging above 2,500 feet” following “granted under this chapter” in the first sentence, added the second sentence in that subdiv., and added subdiv. (2).

—1985. Added “Recording” preceding “duration” in the section heading, redesignated former subsecs. (a) and (b) as present subsecs. (b) and (c), and added present subsec. (a).

ANNOTATIONS

Action for injunctive relief.

Environmental Board’s initiation of action in Superior Court to enjoin violations of Act 250 permit did not create a due process barrier to its continuation of hearing on petition to revoke the permit. In re Crushed Rock, Inc., 150 Vt. 613, 557 A.2d 84, 1988 Vt. LEXIS 226 (1988).

Environmental Board’s initiation of action in Superior Court to enjoin violations of Act 250 permit and its continuation of hearing on petition to revoke the permit did not violate 12 V.S.A. § 61(a) , requiring disqualification of person acting in judicial capacity; mere combination of functions did not make board “interested” and therefore disqualified to act on petition for revocation. In re Crushed Rock, Inc., 150 Vt. 613, 557 A.2d 84, 1988 Vt. LEXIS 226 (1988).

Expiration of permit.

When a permit expires pursuant to subdiv. (b)(1) of this section, the land is no longer subject to Act 250 jurisdiction absent some activity to trigger the statute’s application. In re Huntley, 2004 VT 115, 177 Vt. 596, 865 A.2d 1123, 2004 Vt. LEXIS 326 (2004) (mem.).

Hearing.

At hearing on petition to revoke Act 250 permit, Environmental Board denied parties’ right under 3 V.S.A. § 809(c) to offer evidence on the remedy to be imposed for breach of permit, where each party was limited to a five-minute offer of proof. In re Crushed Rock, Inc., 150 Vt. 613, 557 A.2d 84, 1988 Vt. LEXIS 226 (1988).

Standing to seek revocation.

The Environmental Board properly held that petitioners lacked standing for their claim seeking revocation of a land use permit where it found that petitioners’ property did not share a boundary with the proposed development because the properties were not separated by a river, stream or public highway and a privately owned greenbelt separated the two properties. In re Tahmoush, 174 Vt. 530, 811 A.2d 199, 2002 Vt. LEXIS 230 (2002) (mem.).

Cited.

Cited in In re Patch, 140 Vt. 158, 437 A.2d 121, 1981 Vt. LEXIS 597 (1981); In re Denio, 158 Vt. 230, 608 A.2d 1166, 1992 Vt. LEXIS 42 (1992); LaFrance v. Environmental Board, 167 Vt. 597, 706 A.2d 957, 1998 Vt. LEXIS 5 (1998); In re White, 172 Vt. 335, 779 A.2d 1264, 2001 Vt. LEXIS 178 (2001) (mem.).

§ 6091. Renewals and nonuse.

  1. Renewal.   At the expiration of each permit, it may be renewed under the same procedure herein specified for an original application.
  2. Nonuse of permit.   Nonuse of a permit for a period of three years following the date of issuance shall constitute an abandonment of the development or subdivision and the permit shall be considered expired. For purposes of this section, for a permit to be considered “used,” construction must have commenced and substantial progress toward completion must have occurred within the three-year period, unless construction is delayed by litigation or proceedings to secure other permits or to secure title through foreclosure, or unless, at the time the permit is issued or in a subsequent proceeding, the District Commission provides that substantial construction may be commenced more than three years from the date the permit is issued.
  3. Extensions.   If the application is made for an extension prior to expiration, the District Commission may grant an extension and may waive the necessity of a hearing.
  4. Completion dates for developments and subdivisions.   Permits shall include dates by which there shall be full or phased completion. The Natural Resources Board, by rule, shall establish requirements for review of those portions of developments and subdivisions that fail to meet their completion dates, giving due consideration to fairness to the parties involved, competing land use demands, and cumulative impacts on the resources involved. If completion has been delayed by litigation, proceedings to secure other permits, proceedings to secure title through foreclosure, or because of market conditions, the District Commission shall provide that the completion dates be extended for a reasonable period of time.

HISTORY: Added 1969, No. 250 (Adj. Sess.), § 17, eff. April 4, 1970; amended 1991, No. 111 , § 2 eff. June 28, 1991; 1993, No. 232 (Adj. Sess.), § 36, eff. June 21, 1994; 2003, No. 115 (Adj. Sess.), § 59, eff. January 31, 2005; 2013, No. 11 , § 25.

History

Amendments

—2013. Subdiv. (d): Substituted “Natural Resources Board” for “land use panel”.

—2003 (Adj. Sess.). Subsec. (b): Deleted “or board” following “district commission”.

Subsec. (d): Substituted “land use panel” for “board”, deleted “or board” in the second sentence and following “district commission” in the third sentence.

—1993 (Adj. Sess.). Subsec. (a): Added the subsec. heading.

Subsec. (b): Amended generally.

Subsec. (c): Added the subsec. heading.

Subsec. (d): Added.

—1991. Subsec. (b): Substituted “two years” for “one year” preceding “following” in the first sentence and added the second sentence.

ANNOTATIONS

Substantial construction.

Petitioner’s claim that his work was not a “substantial construction” is without merit because this section does not define “substantial construction,” but the court is guided by the definition of “substantial change” in Envtl. Bd. R. 2(G) as any change in a development which may result in significant impact with respect to permitting criteria; petitioner’s development, which called for 1100 feet of roads, four residences, and two ponds on a previously wooded lot would certainly be considered substantial construction. In re Rusin, 162 Vt. 185, 643 A.2d 1209, 1994 Vt. LEXIS 54 (1994).

§ 6092. Construction.

In the event that the federal government preempts part of the activity regulated by this chapter, this chapter shall be construed to regulate activity that has not been preempted.

HISTORY: Added 1979, No. 123 (Adj. Sess.), § 7, eff. April 14, 1980.

History

Revision note—

This section was enacted as § 6093 but was renumbered as § 6092 to conform to V.S.A. style.

§ 6093. Mitigation of primary agricultural soils.

  1. Mitigation for loss of primary agricultural soils.   Suitable mitigation for the conversion of primary agricultural soils necessary to satisfy subdivision 6086(a)(9)(B)(iv) of this title shall depend on where the project tract is located.
    1. Project located in certain designated areas.   This subdivision applies to projects located in the following areas designated under 24 V.S.A. chapter 76A: a downtown development district, a growth center, a new town center designated on or before January 1, 2014, and a neighborhood development area associated with a designated downtown development district. If the project tract is located in one of these designated areas, an applicant who complies with subdivision 6086(a)(9)(B)(iv) of this title shall deposit an offsite mitigation fee into the Vermont Housing and Conservation Trust Fund established under section 312 of this title for the purpose of preserving primary agricultural soils of equal or greater value with the highest priority given to preserving prime agricultural soils as defined by the U.S. Department of Agriculture. Any required offsite mitigation fee shall be derived by:
      1. Determining the number of acres of primary agricultural soils affected by the proposed development or subdivision.
      2. Multiplying the number of affected acres of primary agricultural soils by a factor resulting in a ratio established as follows:
        1. For development or subdivision within a designated area described in this subdivision (a)(1), the ratio shall be 1:1.
        2. For residential construction that has a density of at least eight units of housing per acre, of which at least eight units per acre or at least 40 percent of the units, on average, in the entire development or subdivision, whichever is greater, meets the definition of affordable housing established in this chapter, no mitigation shall be required, regardless of location in or outside a designated area described in this subdivision (a)(1). However, all affordable housing units shall be subject to housing subsidy covenants, as defined in 27 V.S.A. § 610 , that preserve their affordability for a period of 99 years or longer. As used in this section, housing that is rented shall be considered affordable housing when its inhabitants have a gross annual household income that does not exceed 60 percent of the county median income or 60 percent of the standard metropolitan statistical area income if the municipality is located in such an area.
      3. Multiplying the resulting product by a “price-per-acre” value, which shall be based on the amount that the Secretary of Agriculture, Food and Markets has determined to be the recent, per-acre cost to acquire conservation easements for primary agricultural soils in the same geographic region as the proposed development or subdivision.
    2. Project located outside certain designated areas.   If the project tract is not located in a designated area described in subdivision (1) of this subsection, mitigation shall be provided on site in order to preserve primary agricultural soils for present and future agricultural use, with special emphasis on preserving prime agricultural soils. Preservation of primary agricultural soils shall be accomplished through innovative land use design resulting in compact development patterns that will maintain a sufficient acreage of primary agricultural soils on the project tract capable of supporting or contributing to an economic or commercial agricultural operation and shall be enforceable by permit conditions issued by the District Commission. The number of acres of primary agricultural soils to be preserved shall be derived by:
      1. Determining the number of acres of primary agricultural soils affected by the proposed development or subdivision.
      2. Multiplying the number of affected acres of primary agricultural soils by a factor based on the quality of those primary agricultural soils, and other factors as the Secretary of Agriculture, Food and Markets may deem relevant, including the soil’s location; accessibility; tract size; existing agricultural operations; water sources; drainage; slope; the presence of ledge or protected wetlands; the infrastructure of the existing farm or municipality in which the soils are located; and the NRCS rating system for Vermont soils. This factor shall result in a ratio of no less than 2:1, but no more than 3:1, protected acres to acres of impacted primary agricultural soils.
    3. Mitigation flexibility.
      1. Notwithstanding the provisions of subdivision (a)(1) of this section pertaining to a development or subdivision on primary agricultural soils within certain designated areas, the District Commission may, in appropriate circumstances, require on-site mitigation with special emphasis on preserving prime agricultural soils if that action is deemed consistent with the agricultural elements of local and regional plans and the goals of 24 V.S.A. § 4302 . In this situation, the approved plans must designate specific soils that shall be preserved inside a designated area described in subdivision (a)(1) of this section. For projects located within such a designated area, all factors used to calculate suitable mitigation acreage or fees, or some combination of these measures, shall be as specified in this subsection, subject to a ratio of 1:1.
      2. Notwithstanding the provisions of subdivision (a)(2) of this section pertaining to a development or subdivision on primary agricultural soils outside a designated area described in subdivision (a)(1) of this section, the District Commission may, in appropriate circumstances, approve off-site mitigation or some combination of on-site and off-site mitigation if that action is deemed consistent with the agricultural elements of local and regional plans and the goals of 24 V.S.A. § 4302 . For projects located outside such a designated area, all factors used to calculate suitable mitigation acreage or fees, or some combination of these measures, shall be as specified in this subsection (a), subject to a ratio of no less than 2:1, but no more than 3:1.
    4. Industrial parks.
      1. Notwithstanding any provision of this chapter to the contrary, a conversion of primary agricultural soils located in an industrial park permitted under this chapter and in existence as of January 1, 2006, shall be allowed to pay a mitigation fee computed according to the provisions of subdivision (1) of this subsection (a), except that it shall be entitled to a ratio of 1:1 protected acres to acres of affected primary agricultural soil. If an industrial park is developed to the fullest extent before any expansion, this ratio shall apply to any contiguous expansion of such an industrial park that totals no more than 25 percent of the area of the park or no more than 10 acres, whichever is larger; provided any expansion based on percentage does not exceed 50 acres. Any expansion larger than that described in this subdivision shall be subject to the mitigation provisions of this subsection at ratios that depend upon the location of the expansion.
      2. In any application to a District Commission to amend a permit for an existing industrial park, the most efficient and full use of land shall be allowed consistent with all applicable criteria of subsection 6086(a) of this title. Industrial park expansions and industrial park infill shall not be subject to requirements established in subdivision 6086(a)(9)(B)(iii) or 6086(a)(9)(C)(iii) of this title.
  2. Easements required for protected lands.   All primary agricultural soils preserved for commercial or economic agricultural use by the Vermont  Housing and Conservation Board pursuant to this section shall be protected by permanent conservation easements (grant of development rights and conservation restrictions) conveyed to a qualified holder, as defined in section 821 of this title, with the ability to monitor and enforce easements in perpetuity. Off-site mitigation fees may be used by the Vermont Housing and Conservation Board and shall be used by the Agency of Agriculture, Food and Markets to pay reasonable staff or transaction costs, or both, of the Board and Agency related to the preservation of primary agricultural soils or to the implementation of subdivision 6086(a)(9)(B) or section 6093 of this title.

HISTORY: Added 2005, No. 183 (Adj. Sess.), § 8; amended 2007, No. 65 , § 232a; 2013, No. 159 (Adj. Sess.), § 16a; 2013, No. 199 (Adj. Sess.), § 39; 2015, No. 97 (Adj. Sess.), § 29.

History

Amendments

—2015 (Adj. Sess.). Subsec. (a)(4)(B): Substituted “or 6086(a)(9)(C)(iii) of this title” for “of this title, nor to requirements established in subdivision 6086(a)(9)(C)(iii)”.

—2013 (Adj. Sess.). Subdivs. (a)(1)-(3) and subsec. (b) amended generally by Act No. 159.

Subdiv. (a)(4) amended by Act No. 199: In subdiv. (A), deleted “as defined in subdiv. 212(7) of this title and” following “located in an industrial park”, and amended subdiv. (B) generally.

—2007. Subsec. (b): Added the second sentence.

Law Reviews —

For note, “Vermont’s Act 183: Smart Growth Takes Root in the Green Mountain State,” see 32 Vt. L. Rev. 583 (2008).

Subchapter 5. Transportation Impact Fees

History

Findings and intent. 2013, No. 145 (Adj. Sess.) § 1 provides: (a) The General Assembly finds that:

“(1) To issue a land use permit under 10 V.S.A. chapter 151 (Act 250), a District Commission must make required findings, including that the proposed development and subdivision does not cause unreasonable traffic congestion or unsafe traffic conditions and does not materially interfere with or jeopardize the function, safety, and efficiency of Vermont’s public highway and transportation systems.

“(2) To ensure that the development or subdivision meets the statutory requirements related to transportation impacts, District Commissions often require physical improvements or other measures to mitigate those impacts.

“(3) Because the District Commissions address mitigation on a case by case basis, the obligation to mitigate transportation impacts often falls on the development or subdivision whose traffic impacts cause existing traffic conditions to become unsafe or unreasonably congested.

“(4) This approach, often referred to as “last-one-in,” can require an applicant to bear the entire burden of installing mitigation measures that benefit not only the applicant’s project, but existing and future developments or subdivisions, as well as regional and statewide through traffic. The potential for this outcome is high in areas that are already developed and experiencing significant traffic volumes.

“(5) Physical improvements to mitigate transportation impacts can be costly and exceed the cost of a proposed development and subdivision, particularly if the proposal is a small project in an already developed area.

“(b) In enacting this legislation, the General Assembly intends:

“(1) to establish an alternative to the “last-one-in” approach that enables the costs to mitigate transportation impacts to be allocated proportionally among the State and the land use projects that have traffic impact and that will benefit from the mitigation;

“(2) to foster in-fill development, further Vermont’s planning goals set forth in 24 V.S.A § 4302, and encourage economic growth by creating a mechanism to apportion the cost of new transportation infrastructure in already developed areas; and

“(3) to encourage planning for the establishment of transportation improvement districts in which the costs of transportation infrastructure are allocated proportionally and thereby to support economic growth, the construction of needed transportation improvements, and Vermont’s planning goals.”

Former subchapter 5. Former subchapter 5, comprising sections 6101-6108, relating to the Waste Facility Panel, was derived from 1989, No. 218 (Adj. Sess.), § 3 and was repealed by 2003, No. 115 (Adj. Sess.), § 119(b).

§ 6101. Purpose.

The purpose of this subchapter is to provide a mechanism to allocate the costs to mitigate the impacts of land use projects to the transportation system in a manner that is equitable and that supports the planning goals of 24 V.S.A. § 4302 .

HISTORY: Added 2013, No. 145 (Adj. Sess.), § 2.

History

Former § 6101. Former § 6101, relating to the waste facility panel and jurisdiction, was derived from 1989, No. 218 (Adj. Sess.), § 3 and amended by 1989, No. 282 (Adj. Sess.), § 8; 1993, No. 82 , § 5; and 1997, No. 155 (Adj. Sess.), § 29. This section was previously repealed by 2003, No. 115 (Adj. Sess.), § 119(b).

§ 6102. Definitions.

As used in this subchapter:

  1. “Agency” means the Agency of Transportation.
  2. “Capacity” means each of the following:
    1. the number of vehicles per hour accommodated by transportation infrastructure;
    2. the ability of transportation infrastructure to provide connectivity for pedestrians and cyclists; and
    3. the number of people that can be accommodated by bus at levels of service specified for each mode of travel.
  3. “Capital Transportation Program” means the multiyear transportation program under 19 V.S.A. § 10g as established each year by the General Assembly.
  4. “Capital transportation project” means:
    1. a physical improvement to the State transportation system or to a municipal highway, right-of-way, or transportation facility; and
    2. a study or survey requested or commissioned by a District Commission or the Agency relating to any physical improvement of one or more of the following:
      1. the State transportation system; and
      2. a municipal highway, right-of-way, or transportation improvement or facility.
  5. “District Commission” shall have the same meaning as under section 6001 of this title except that the term also shall include the Board in exercising its authority to make findings of fact and conclusions of law.
  6. “Land use project” means any activity requiring a permit under this chapter or 19 V.S.A. § 1111 .
  7. “Municipality” means a city, town, incorporated village, or unorganized town or gore.
  8. “Pass-by trips” means traffic that is present on a roadway adjacent to a land use project for reasons other than accessing the project and that enters the project.
  9. “Regional planning commission” shall have the same meaning as under 24 V.S.A. § 4303 .
  10. “Secretary” means the Secretary of Transportation or designee.
  11. “State transportation system” means the highways, rights-of-way, and transportation facilities under the jurisdiction of the Agency or any other agency of the State and does not include highways, rights-of-way, and transportation facilities under the jurisdiction of a municipality.
  12. “Transportation Demand Management” or “TDM” means measures that reduce vehicle trips or redistribute vehicle trips to non-peak times or other areas. Examples include telecommuting, incentives to carpool or ride public transit, and staggered work shifts.
  13. “Transportation impact fee” means a fee that is assessed to a land use project as a condition of a permit issued under this chapter or a State highway access permit under 19 V.S.A. § 1111 and is used to support any portion of the costs of a completed or planned capital transportation project that will benefit or is attributable to the land use project.
  14. “Transportation Improvement District” or “TID” means a discrete geographic area that includes and will benefit from one or more capital transportation projects included in the Capital Transportation Program and for which the Agency has established a transportation impact fee under this subchapter.
  15. “Vehicle trips” means the number of trips by motorized conveyance generated by a proposed land use project measured at a specific place and for a specific duration. The ownership of and number of persons within the conveyance shall be irrelevant.

HISTORY: Added 2013, No. 145 (Adj. Sess.), § 2.

History

Former § 6102. Former § 6102, relating to parties in proceedings before the waste facility panel, was derived from 1989, No. 218 (Adj. Sess.), § 3 and amended by 1989, No. 282 (Adj. Sess.), § 8 and 1991, No. 109 , § 4. This section was previously repealed by 2003, No. 115 (Adj. Sess.), § 119(b).

§ 6103. Authority.

A District Commission or the Agency may assess a transportation impact fee in accordance with this subchapter.

HISTORY: Added 2013, No. 145 (Adj. Sess.), § 2.

History

Former § 6103. Former § 6103, relating to review of provisional certifications, was derived from 1989, No. 218 (Adj. Sess.), § 3. This section was previously repealed by 2003, No. 115 (Adj. Sess.), § 119(b).

§ 6104. Transportation impact fee; District Commission.

  1. A District Commission may require payment of a transportation impact fee in accordance with section 6106 of this title to fund, in whole or in part, capital improvements that are necessary to mitigate the transportation impacts of a proposed development or subdivision or that benefit the proposed development or subdivision. The Agency shall review the application and recommend to the District Commission whether to require mitigation of the transportation impacts of the development or subdivision. The District Commission may require an applicant to pay the entire cost of a capital transportation project and may provide for reimbursement of the applicant by developments and subdivisions subsequently receiving permits or amended permits under this chapter that benefit from the capital transportation project. The period for reimbursement shall expire when the associated capital transportation project ceases to provide additional capacity.
  2. A District Commission may require an applicant for a development or subdivision within a TID to pay the transportation impact fee established by the Secretary if the Commission determines that the fee will fund, in whole or in part, improvements to mitigate transportation impacts of the development or subdivision.
  3. This subchapter shall apply to the exercise of authority by a District Commission under any permit condition issued pursuant to subdivision 6086(a)(5) of this title in which the District Commission has reserved the right to conduct proceedings that may result in assessment and collection of impact fees to support transportation improvements.
  4. The authority granted to the District Commissions under this subchapter is in addition to their other authority.

HISTORY: Added 2013, No. 145 (Adj. Sess.), § 2.

History

Former § 6104. Former § 6104, relating to review of agency determinations, was derived from 1989, No. 218 (Adj. Sess.), § 3 and amended by 1989, No. 282 (Adj. Sess.), § 8; 1991, No. 109 , § 4; and 1993, No. 92 , § 11. This section was previously repealed by 2003, No. 115 (Adj. Sess.), § 119(b).

§ 6105. Transportation Improvement District and fee; Agency of Transportation.

  1. The Secretary may establish a TID and transportation impact fee in accordance with this section and section 6106 of this title if one or more capital transportation projects in the most recent Capital Transportation Program will provide capacity that benefits one or more future land use projects within a discrete geographic area or will provide capacity for future land use projects identified by a regional planning commission or municipality within a discrete geographic area.
  2. To establish a TID and transportation impact fee, the Secretary shall cause the Agency to issue a proposed TID and transportation impact fee.
    1. In preparing the proposal, the Agency shall consult with each regional planning commission, municipality, and the public in which the TID will be located on the geographic extent of the TID, the land use assumptions to be used, the performance standards and the consistency of the proposal with each applicable municipal and regional plan.
    2. The Agency shall prepare a transportation infrastructure plan for the capital transportation project that identifies highway, transit, bicycle, and pedestrian infrastructure needs of a proposed TID. The Agency’s proposal shall identify the recommended geographic extent of the TID, the proposed performance standards within the TID, and the proposed transportation impact fee in accordance with section 6106 of this title.
      1. The infrastructure plan shall follow generally accepted planning and engineering standards.
      2. The performance standard for a TID shall be suitable for the area in which the TID is located.
      3. The proposed fee shall reflect a rational nexus between the needs that the transportation infrastructure plan is designed to meet and the benefits that will be provided or the impacts attributable to the proposed land use projects to which the fee will be assessed and shall be roughly proportional to those benefits or impacts.
    3. On issuance of the proposal, the Agency shall provide notice of a public hearing on the proposal before the Secretary. The notice shall include the date and location of the hearing, a description of the TID including the capital transportation project or projects, the TID’s geographic extent, and the proposed transportation impact fee. The Agency shall provide the notice to each property owner within the TID, the municipal legislative body and municipal and regional planning commissions for the area in which the TID is located, and shall publish the notice on its web page and in a newspaper of general circulation in the geographic area of the TID. The date of the public hearing shall be not less than 30 days after issuance and publication of the notice.
    4. The Secretary shall hold a public hearing and take testimony on the Agency’s proposal. The Secretary shall provide an opportunity for members of the public and affected property owners to testify.
    5. After completing the public hearing, the Secretary may approve, approve with revisions, or deny the Agency’s proposal. The Secretary’s approval shall establish the proposed TID and transportation impact fee, with any revisions required by the Secretary.
  3. The Secretary shall consider the following to establish the boundaries of a TID:
    1. the existing and planned pattern of development as set forth in the municipal or regional plans;
    2. the future land use projects to be served by the capital transportation projects that the TID will fund; and
    3. each land use project having transportation impacts that are mitigated by a capital transportation project to serve the TID.
  4. The Agency may assess a transportation impact fee to each land use project within a TID for which a State highway access permit is required under 19 V.S.A. § 1111 . This subsection shall not apply to a development or subdivision requiring a permit under section 6081 of this title.
  5. The TID and transportation impact fee shall expire after the Secretary determines that the associated capital transportation project or projects no longer meet the approved performance standards.

HISTORY: Added 2013, No. 145 (Adj. Sess.), § 2.

History

Former § 6105. Former § 6105, relating to appeals of district commission decisions, was derived from 1989, No. 218 (Adj. Sess.), § 3 and amended by 1989, No. 282 (Adj. Sess.), § 8. This section was previously repealed by 2003, No. 115 (Adj. Sess.), § 119(b).

§ 6106. Transportation impact fee; formula.

  1. When assessing a transportation impact fee to a land use project, the Secretary shall apply a formula that reflects the performance standards for the TID, and the District Commission shall apply a formula that reflects those performance standards or the mitigation that the Commission determines is required to address the transportation impacts of the development or subdivision. In either case, the formula shall account for each of the following:
    1. the vehicle trips generated by the land use project estimated pursuant to a generally accepted methodology;
    2. the capital costs of highway infrastructure, pedestrian and bicycle facilities, public transportation, and other transportation infrastructure that benefit or mitigate the transportation impacts of the land use project;
    3. conditions not attributable to the transportation impacts of the land use project including forecasted growth in background traffic and existing infrastructure and capacity deficiencies;
    4. the proportional share of the capital costs of transportation infrastructure that provides benefit to or is attributable to the transportation impacts of the land use project and determined pursuant to a reasonably accepted methodology; and
    5. other funding sources available to finance the capital transportation project.
  2. When determining a transportation impact fee under this section for a land use project, the Secretary or the District Commission may adjust the result of the formula to account for one or more of the following:
    1. a traffic allocation, if any, set for the land use project by a prior permit;
    2. the net change in vehicle trip generation of a proposed land use project considering pass-by-trips and the amount of traffic already generated by the tract of land on which the land use project is to be located;
    3. municipal traffic impact fees paid by the applicant to the extent that those fees fund improvements on which the transportation impact fee is based;
    4. the fair market value of dedications of land, interests in land, or transportation infrastructure improvements provided by the developer to mitigate offsite traffic impacts;
    5. TDM programs offered by the applicant that reduce vehicle trips; and
    6. the siting of a proposed land use project in a downtown, village center, new town center, growth center, Vermont neighborhood, or neighborhood development area designated under 24 V.S.A. chapter 76A.
  3. A transportation impact fee for one or more capital transportation projects in a TID shall not exceed the portion of the cost of each capital transportation project that is required to mitigate the transportation impacts of the land use project and shall not include costs attributable to the operation, administration, or maintenance of the capital transportation project.
  4. An applicant may choose to fund the entire cost of a capital transportation project. An applicant for a permit under this chapter who chooses to fund the entire cost of a capital transportation project may request and the District Commission may authorize reimbursement in accordance with subsection 6104(a) of this title.
  5. In assessing a transportation impact fee to an applicant under this subchapter, the Agency or District Commission shall require the applicant to pay the transportation impact fee prior to commencement of construction of the applicant’s land use project and shall not require the applicant to delay commencement of construction of that project until construction of each capital transportation project for which the fee was assessed, unless the Agency or District Commission determines that the capital transportation project must first be built to address a transportation safety issue caused or exacerbated by the land use project. If a land use project is to be constructed in stages, the Agency or District Commission may approve payment of a proportionate amount of the fee prior to commencement of construction on each stage.

HISTORY: Added 2013, No. 145 (Adj. Sess.), § 2.

History

Former § 6106. Former § 6106, relating to consolidation of Act 250 and agency review proceedings, was derived from 1989, No. 218 (Adj. Sess.), § 3 and amended by 1989, No. 282 (Adj. Sess.), § 8. This section was previously repealed by 2003, No. 115 (Adj. Sess.), § 119(b).

§ 6107. Transportation Improvement District Fund.

  1. There is created a special fund within the Transportation Fund known as the Transportation Improvement District Fund. The Agency shall deposit into the District Fund each transportation impact fee it receives under this subchapter. The Agency shall administer the District Fund.
  2. Balances in the District Fund shall be expended only for the purposes authorized in this subchapter and shall not be used for the general obligations of government. All balances in the District Fund at the end of any fiscal year shall be carried forward and remain within the District Fund. Interest earned by the District Fund shall be deposited in the District Fund.
  3. The Agency shall provide to the Treasurer an annual accounting of each TID and associated transportation impact fee for that district showing the source, the amount collected, each project that was funded or that will be funded with the fee, and the amount expended.

HISTORY: Added 2013, No. 145 (Adj. Sess.), § 2.

History

Former § 6107. Former § 6107, relating to appeals to the Supreme Court, was derived from 1989, No. 218 (Adj. Sess.), § 3 and amended by 1989, No. 282 (Adj. Sess.), § 8. This section was previously repealed by 2003, No. 115 (Adj. Sess.), § 119(b).

§ 6108. Payment of fees.

  1. An applicant shall pay a transportation impact fee assessed under this subchapter to the Agency, except that a District Commission may direct an applicant to pay a transportation impact fee to a municipality if the impacts of the applicant’s development or subdivision are limited to municipal highways and rights-of-way or other municipal transportation facilities.
  2. A municipality receiving a transportation impact fee under this subchapter shall place the fee into a separate account, with balances in the account carried forward from year to year and remaining within the account. Interest earned by the account shall be deposited into the account. The municipality shall provide to the voters an annual accounting of each fee received under this subchapter showing the source, the amount of each fee received, and each project that was funded or will be funded with the fee.

HISTORY: Added 2013, No. 145 (Adj. Sess.), § 2.

History

Former § 6108. Former § 6108, relating to transition authority, was derived from 1989, No. 218 (Adj. Sess.), § 3. This section was previously repealed by 2003, No. 115 (Adj. Sess.), § 119(b).

§ 6109. Unspent fee amounts; refunds.

Within 15 years from the date of payment, a fee assessed under this subchapter shall be spent on the capital transportation project or projects in the appropriate TID or on the appropriate capital transportation project for which the fee was paid. If the Agency or municipality to which the fee was paid does not spend all or portion of the fee collected on the appropriate capital transportation project or projects, the applicant or its successors may apply to the Agency or municipality for a refund of the proportionate share of that fee within one year of the date on which the applicant’s right to claim the refund accrued.

HISTORY: Added 2013, No. 145 (Adj. Sess.), § 2.

§ 6110. Appeals.

  1. A person aggrieved by a decision of the Secretary regarding the establishment of a TID or the transportation impact fee for the TID may appeal to the Civil Division of the Superior Court under Rule 74 of the Vermont Rules of Civil Procedure.
  2. A permit issued by the Agency under 19 V.S.A. § 1111 may be appealed in accordance with 19 V.S.A. § 5 .
  3. Appeal of an act or decision of a District Commission under this subchapter shall be pursuant to section 6089 of this title.

HISTORY: Added 2013, No. 145 (Adj. Sess.), § 2.

§ 6111. Rulemaking.

The Board and the Agency may adopt rules to implement the provisions of this subchapter.

HISTORY: Added 2013, No. 145 (Adj. Sess.), § 2.

Chapter 153. Mobile Home Parks

History

1969, No. 291 (Adj. Sess.), § 2 provided: “In order to deal with the problems described in the preceding section the purposes of this act are to encourage the development of attractive sites for mobile homes, to protect the health, safety and welfare of the residents of mobile home development, and to preserve the traditional scenic environment of the state.”

Legislative findings. 1969, No. 291 (Adj. Sess.), § 1 provided:

“(a) The state of Vermont has scenic resources of great value, distributed throughout the state, which have long been precious to its citizens.

“(b) The state’s scenic resources have contributed greatly to its economic development, by encouraging native Vermonters to remain in the state and by attracting tourists, new industries, and new cultural facilities; and such scenic resources thus help to support existing and new businesses and recreational establishments, to encourage new investment, to increase employment and real income in the state, and to support the tax structure of the state and its local subdivisions.

“(c) As a result of the great increase in population and employment in metropolitan areas to the south and the north of Vermont, and of the recent construction of interstate highways, the number of people coming to Vermont for vacation and recreational opportunities and for permanent residence is increasing rapidly.

“(d) The state is entering into a period of rapid growth of population and substantial redistribution of employment opportunities; and as a result of these factors, together with the obsolescence of older housing, there is a substantial need for new housing in the state, particularly for moderate and low-income groups, which need is likely to increase in the future.

“(e) Current construction of conventional homes has failed to provide sufficient low cost housing, but mobile homes have provided a substantial amount of safe and sanitary new low cost housing, and cost of the new housing available to moderate and low-income groups consists of mobile homes.

“(f) Mobile homes can provide an attractive residential environment suitable for family living if properly designed and placed on the land, but the unrestricted proliferation of new mobile homes in the state has in some cases tended to destroy the scenic qualities of that environment and to depreciate property values, and therefore requires regulation in the public interest.

“(g) Many recent mobile developments in the state have insufficient land for family living and insufficient space for children to play safely, and such conditions are seriously detrimental to the health, safety, and welfare of the residents of these developments.”

CROSS REFERENCES

Ordinances for regulation and licensing of mobile home parks, see chapter 153 of this title.

Protection of tenants in conversion of mobile home parks, see 27 V.S.A. chapter 15, subchapter 3.

Sale and financing of mobile homes, see 9 V.S.A. chapter 72.

Subchapter 1. General Provisions

§ 6201. Definitions.

As used in this chapter, unless the context requires otherwise:

  1. “Mobile home” means:
    1. a structure or type of manufactured home, including the plumbing, heating, air-conditioning, and electrical systems contained in the structure, that is:
      1. built on a permanent chassis;
      2. designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities;
      3. transportable in one or more sections; and
        1. at least eight feet wide, 40 feet long, or when erected has at least 320 square feet; or

        (II) if the structure was constructed prior to June 15, 1976, at least eight feet wide or 32 feet long; or

    2. any structure that meets all the requirements of this subdivision (1) except the size requirements, and for which the manufacturer voluntarily files a certification required by the U.S. Department of Housing and Urban Development and complies with the construction and safety standards established under Title 42 of the U.S. Code.
    3. [Repealed.]
  2. “Mobile home park” means any parcel of land under single or common ownership or control that contains, or is designed, laid out, or adapted to accommodate, more than two mobile homes. “Mobile home park” does not mean premises used solely for storage or display of mobile homes. Mobile home park does not mean any parcel of land under the ownership of an agricultural employer who may provide up to four mobile homes used by full-time workers or employees of the agricultural employer as a benefit or condition of employment or any parcel of land used solely on a seasonal basis for vacation or recreational mobile homes.
  3. “Public highway” means a public highway as defined in 19 V.S.A. § 1 except within the perimeter of a mobile home park.
  4. [Repealed.]
  5. “Leaseholder” means a resident lawfully occupying a mobile home owned by the park owner or the owner of a mobile home sited on a mobile home lot in a mobile home park regardless of whether the leaseholder has actual possession of a written lease.
  6. “Mobile home park resident” or “resident” means an individual, individuals, or family who occupies a mobile home on a permanent or temporary basis in a mobile home park as that term is defined in subdivision (2) of this section.
  7. “Mobile home park owner” or “park owner” means the owners, operators, officers, or managing agents of a mobile home park as well as any person acting through any corporate or other device who has the practical authority to establish rules, policies, or other requirements for the operation of the mobile home park. The term shall not include a stockholder for a corporation owning stock in a mobile home park unless such stockholder has a controlling interest in the corporation and has the practical authority to establish rules, policies, or other requirements for the operation of the mobile home park.
  8. “Department” means the Department of Housing and Community Development.
  9. “Good faith” means honesty in fact and the observance of reasonable standards and fair dealing, such that each party shall respond promptly and fairly to offers from the other party.
  10. “Lot rent” means a charge assessed on a mobile home park resident for the occupancy of a mobile home lot, but does not include charges permitted under section 6238 of this title.
  11. “Commissioner” means the Commissioner of Housing and Community Development.
  12. “Single or common ownership or control” means ownership or control by any person or persons and includes affiliations of individuals or entities, or both, that are formed in order to derive profit, consideration, or any other beneficial interest. The following individuals and entities shall be presumed not to be affiliated for beneficial interest unless there is substantial evidence of an intent to evade the purposes of this chapter:
    1. A stockholder in a corporation, if the stockholder and the stockholder’s spouse, parents, children, and siblings own, control, or have a beneficial interest in less than five percent of the outstanding shares in the corporation.
    2. An individual in the capacity as an agent and within the normal scope of the individual’s duties as a court appointed guardian, attorney, real estate broker or salesperson, engineer, or land surveyor, unless compensation received or beneficial interest obtained as a result of these duties indicates more than an agency relationship.
    3. A seller or chartered lending institution that only provides financing for all or a part of the purchase price at rates not substantially higher than prevailing lending rates in the community and subsequently grants a partial release of the security when the buyer establishes or maintains a mobile home park.

HISTORY: Added 1969, No. 291 (Adj. Sess.), § 3, eff. date, see note set out below; amended 1973, No. 264 (Adj. Sess.), § 1; 1989, No. 229 (Adj. Sess.), § 3; 1989, No. 235 (Adj. Sess.); 1993, No. 141 (Adj. Sess.), §§ 2, 20, eff. May 6, 1994; 1995, No. 33 , §§ 4, 5, eff. June 1, 1995; 1997, No. 103 (Adj. Sess.), § 1, eff. April 23, 1998; 2001, No. 133 (Adj. Sess.), § 14, eff. June 13, 2002; 2003, No. 104 (Adj. Sess.), § 1; 2007, No. 176 (Adj. Sess.), § 53; 2011, No. 137 (Adj. Sess.), § 2, eff. May 14, 2012; 2019, No. 131 (Adj. Sess.), § 14.

History

Revision note

—2013. In subdivs. (8) and (11), substituted “Housing and Community Development” for “Economic, Housing and Community Development” in light of Executive Order No. 3-56 (No. 01-13), effective April 12, 2013.

Amendments

—2019 (Adj. Sess.). Subdiv. (2): Substituted “ ‘Mobile home park’ does not mean” for “Nothing herein shall be construed to apply to” in the second sentence.

—2011 (Adj. Sess.). Rewrote subdiv. (1), repealed subdivs. (1)(C) and (4), substituted “department of economic, housing and community development” for “department of housing and community affairs” in subdiv. (8), added the definition for “Lot rent” in subdiv. (10), and substituted “economic, housing and community development” for “housing and community affairs” in subdiv. (11).

—2007 (Adj. Sess.). Added subdiv. (5); inserted “or ‘resident’ ” preceding “means an individual” in subdiv. (6); and inserted “or ‘park owner’ ” preceding “means the owners” in subdiv. (7).

—2003 (Adj. Sess.). Subdiv. (1): Rewrote the subdiv.

Subdiv. (5): Repealed.

—1997 (Adj. Sess.). In the last sentence in subdiv. (2), substituted “does” for “shall” after “park” and “provide” for “accommodate thereon” after “may”, added “or any parcel of land used solely on a seasonal basis for vacation or recreational mobile homes” at the end, and added subdivs. (10) and (12).

—1995. Subdiv. (5): Substituted “of natural resources” for “department or division of state government designated by the governor to administer this chapter” following “agency”.

Subdiv. (11): Added.

—1993 (Adj. Sess.) Subdiv. (2): Added the third sentence.

Subdiv. (10): Added.

—1989 (Adj. Sess.) Subdiv. (2): Act No. 235 inserted “more than” preceding “two” and deleted “or more” thereafter in the first sentence.

Subdiv. (8): Added by Act No. 229.

Subdiv. (9): Added by Act No. 229.

—1973 (Adj. Sess.) Subdiv. (6): Added.

Subdiv. (7): Added.

1969, No. 291 (Adj. Sess.), § 20, provided in part: “Sections 1-12 of this act (which enacted §§ 6201-6205 and 6231-6235 of this title) shall take effect June 1, 1970, except as provided in section 5(b) (section 6235(b) of this title). This act shall not affect or apply to any mobile home park established and existing prior to the effective date of this act.”

ANNOTATIONS

Mobile home park resident.

Because the definition of “mobile home park resident” turns on the fact of occupancy rather than its legality, even if plaintiff bringing illegal eviction claim were unlawfully occupying her mobile home and lot, there is nothing in the words of the definition to suggest that she did not have the protection of the Mobile Home Park Act; indeed, the broad coverage of temporary and permanent occupancies suggests that the occupant need not have a particular status to be a resident for purposes of the Act. Sweet v. Roy, 173 Vt. 418, 801 A.2d 694, 2002 Vt. LEXIS 65 (2002).

The Legislature did not require that a mobile home park resident have a lease with the park owner in order to be protected by the Vermont Mobile Home Park Act. Sweet v. Roy, 173 Vt. 418, 801 A.2d 694, 2002 Vt. LEXIS 65 (2002).

One of the purposes of a broad definition of “resident” in the Vermont Mobile Home Park Act was to ensure that disputes between mobile home park owners and occupants of homes would not be resolved by the methods employed by defendants, such as cutting off heat and power without warning, or breaking every window in the home, as a means to evict the tenant. Sweet v. Roy, 173 Vt. 418, 801 A.2d 694, 2002 Vt. LEXIS 65 (2002).

Cited.

Cited in State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

§ 6202. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

History

Former § 6202. Former § 6202, relating to advisory commission, was derived from 1969, No. 291 (Adj. Sess.), § 11 and amended by 1983, No. 235 (Adj. Sess.), § 1; 1989, No. 229 (Adj. Sess.), § 4; and 1993, No. 141 (Adj. Sess.), § 21.

§ 6203. Municipal acquisition of land for mobile home parks.

Any municipality, or group of municipalities jointly, may acquire land for the purpose of encouraging the development of suitable mobile home parks under this chapter, and may lease or sell such land to private persons for that purpose, and may impose additional restrictions on the land conforming to the spirit of this chapter and acquired by a municipality under this section.

HISTORY: Added 1969, No. 291 (Adj. Sess.), § 10, eff. date, see note under § 6201 of this title.

§ 6204. Application of other laws and rules.

  1. A municipality may impose more restrictive requirements on mobile home parks and mobile homes than are contained in this chapter to the extent it is authorized to do so under other legislation.
  2. Other applicable laws and rules that are more restrictive than this chapter shall prevail.
  3. To the extent that they are consistent with this chapter, the provisions of 9 V.S.A. chapter 137 (residential rental agreements) and the provisions of 12 V.S.A. chapter 169, subchapter 3 (eviction) shall apply to the occupancy and rental of a mobile home, and the provisions of 12 V.S.A. chapter 169, subchapter 3 (eviction) shall apply to the rental of a mobile home lot, except the rental of a mobile home lot shall be subject to the provisions of 12 V.S.A. chapter 169, relating to payment of rent into court.
  4. A mobile home occupied on the basis of a lease-purchase or rent-to-own contract, however named, shall be subject to the provisions of 9 V.S.A. § 2602(e) .
  5. Notwithstanding any other provision of this section, where a mobile home park is a nonconforming use under local zoning regulations, its status regarding conformance or nonconformance shall apply to the parcel as a whole and not to any individual mobile home lot within the park. The vacancy of any individual mobile home lot shall not be considered a discontinuance or abandonment of the nonconforming use.
  6. This chapter shall not apply to the rental or use of campsites occupied for vacation or recreational purposes by camping units, such as: tents, yurts, tepees, lean-tos, camping cabins, and recreational vehicles, including motor homes, folding camping trailers, conventional travel trailers, fifth wheel travel trailers, truck campers, van campers, and conversion vehicles designed and used for travel, recreation, and camping.

HISTORY: Added 1969, No. 291 (Adj. Sess.), § 4, eff. date, see note under § 6201 of this title; amended 1987, No. 252 (Adj. Sess.), § 2; 1993, No. 141 (Adj. Sess.), § 3, eff. May 6, 1994; 1999, No. 161 (Adj. Sess.), § 2; 2003, No. 104 (Adj. Sess.), § 5; 2007, No. 176 (Adj. Sess.), §§ 49, 54; 2007, No. 196 (Adj. Sess.), § 2; 2009, No. 140 (Adj. Sess.), § 3, eff. Sept. 1, 2010; 2019, No. 131 (Adj. Sess.), § 15.

History

Editor’s note

—2008. The text of this section is based on the harmonization of two amendments. During the 2007 adjourned session, this section was amended twice, by Act No. 176, §§ 49 and 54, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2007 adjourned session, the text of Act No. 176, §§ 49 and 54 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

Amendments

—2019 (Adj. Sess.). Section heading: Substituted “rules” for “regulations”.

Subsec. (b): Substituted “rules that” for “regulations which”.

—2009 (Adj. Sess.) Subsec. (d): Inserted “however named” preceding “shall be subject”, and substituted “§ 2602(e)” for “chapter 59”.

—2007 (Adj. Sess.). Subsec. (c): 2007, No. 176 , § 49, inserted “except the rental of a mobile home lot shall be subject to the provisions of chapter 169 of Title 12, relating to payment of rent into court” at the end.

2007, No. 176 , § 54, substituted “and the provisions of subchapter 3 of chapter 169 of Title 12 (eviction) shall apply” for “but not” following “rental of a mobile home”.

Subsec. (f): Added by Act No. 196.

—2003 (Adj. Sess.). Subsec. (d): Substituted “chapter 59” for “chapter 61, the retail instrument sales act”.

—1999 (Adj. Sess.) Subsec. (e): Added.

—1993 (Adj. Sess.). Subsec. (d): Added.

—1987 (Adj. Sess.). Subsec. (c): Added.

ANNOTATIONS

Applicability.

Except in case of a direct inconsistency, the Landlord and Tenant Act and the Mobile Home Parks Act can coexist so that requirements of both can be applicable to rental of a mobile home; if conflict does arise between the two acts, the latter controls. State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

Construction with other law.

Section 6237 of Mobile Home Parks Act, requiring cause for eviction, was not rendered inapplicable to renters of mobile homes by 1988 statutory amendments; the eviction provision of Landlord and Tenant Act was inconsistent with § 6237 since it would permit eviction on grounds other than those stated in § 6237; therefore, Landlord and Tenant Act did not apply to renters of mobile homes. State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

§ 6205. Enforcement; penalties.

  1. A mobile home park owner who violates or fails to comply with a provision of this chapter violates 9 V.S.A. § 2453 .
  2. If a mobile home park owner violates this chapter, the Department shall have the authority:
    1. to impose an administrative penalty of up to $5,000.00 per violation;
    2. to bring a civil action for damages or injunctive relief, or both, in the Superior Court for the unit in which a violation occurred; and
    3. to refer a violation to the Attorney General or State’s Attorney for enforcement pursuant to subsection (a) of this section.
    1. A leaseholder may bring an action against the park owner for a violation of sections 6236-6243 of this title. (c) (1) A leaseholder may bring an action against the park owner for a violation of sections 6236-6243 of this title.
    2. The action shall be filed in the Superior Court for the unit in which the alleged violation occurred.
    3. No action may be commenced by the leaseholder unless the leaseholder has first notified the park owner of the violation by certified mail at least 30 days prior to bringing the action.
    4. During the pendency of an action brought by a leaseholder, the leaseholder shall pay rent in an amount designated in the lease, or as provided by law, which rental amount shall be deposited in an escrow account as directed by the court.

HISTORY: Added 1969, No. 291 (Adj. Sess.), § 12, eff. date, see note under § 6201 of this title; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1983, No. 235 (Adj. Sess.), § 2; 1989, No. 229 (Adj. Sess.), § 5; 2001, No. 133 (Adj. Sess.), § 4, eff. June 13, 2002; 2007, No. 176 (Adj. Sess.), § 55; 2009, No. 154 (Adj. Sess.), § 62; 2015, No. 8 , § 1.

History

References in text.

Section 6243 of this title, referred to in subsec. (c), expired July 1, 1994, pursuant to 1991, No. 152 (Adj. Sess.), § 3.

Amendments

—2015. Subsecs. (a) and (b): Rewrote the subsecs.

Subsec. (c): Added the subdiv. designations (1) through (4).

—2009 (Adj. Sess.) Subsec. (c): Substituted “superior” for “district” preceding “court for the” and “unit” for “district” thereafter in the second sentence, and deleted the former third sentence.

—2007 (Adj. Sess.). Subsec. (c): Substituted “leaseholder” for “resident of a mobile home park” in the first sentence and “leaseholder’s” and “leaseholder” for “resident’s” and “resident” throughout.

—2001 (Adj. Sess.) Subsec. (b): Deleted “by the agency in the case of violations of sections 6231-6235 of this title and” following “on application”, and “by the agency or” preceding “by the department”.

—1989 (Adj. Sess.). Subsec. (b): Substituted “case of violations of sections 6231-6235 of this title and by the department in the case of violations of sections 6236-6243 of this title” for “name of the state” preceding “to enjoin”, and inserted “or by the department” preceding “to proceed”.

Subsec. (c): Substituted “6243” for “6241” in the first sentence.

—1983 (Adj. Sess.). Subsec. (c): Added.

—1973 (Adj. Sess.). Subsec. (b): Substituted “superior” for “county” preceding “court”.

CROSS REFERENCES

Enforcement of provisions of chapter by Secretary of Natural Resources, see § 8003 of this title.

Prohibition against retaliatory measures by park owners against residents filing complaints, see § 6247 of this title.

ANNOTATIONS

Cited.

Cited in State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

Subchapter 2. Permits and Rules

History

Amendments

—2019 (Adj. Sess.). 2019, No. 131 (Adj. Sess.), § 16 substituted “rules” for “regulations” in the subchapter heading.

CROSS REFERENCES

Actions for violations of sections 6236-6241, see § 6205 of this title.

Schedule of permit fees, see 3 V.S.A. § 2822 .

§ 6231. Rules.

  1. [Repealed.]
  2. The Department may adopt rules to carry out the provisions of this chapter.
  3. A mobile home park that has been closed pursuant to section 6237a of this title and reduced to no more than two occupied leased lots shall be required, if the number of occupied leased lots subsequently is increased to more than two, to obtain all State land use and environmental permits required for a mobile home park that has been established or expanded after May 31, 1970.

HISTORY: Added 1969, No. 291 (Adj. Sess.), § 7, eff. date, see note under § 6201 of this title; amended 1987, No. 76 , § 8; 1987, No. 265 (Adj. Sess.), § 1; 1989, No. 229 (Adj. Sess.), § 6; 1999, No. 161 (Adj. Sess.), § 3; 2001, No. 133 (Adj. Sess.), § 5, eff. June 13, 2002; 2007, No. 176 (Adj. Sess.), § 56; 2011, No. 137 (Adj. Sess.), § 2, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Subsec. (b): Substituted “of this chapter” for “of sections 6236-6243 of this title” following “the provisions”.

—2007 (Adj. Sess.). Rewrote subsec. (b) and substituted “section 6237a” for “subdivision 6237(a)(5)” in subsec. (c).

—2001 (Adj. Sess.) Deleted “Permit required” from the section heading, and deleted subsec. (a).

—1999 (Adj. Sess.) Subsec. (c): Added.

—1989 (Adj. Sess.). Added “rules” following “required” in the section heading, designated the existing provisions of the section as subsec. (a), substituted “adopt” for “issue” preceding “rules”, deleted “and regulations consistent with this chapter” thereafter, substituted “the” for “its” preceding “provisions” and inserted “of sections 6231-6235 of this title” thereafter in the fourth sentence of that subsec., and added subsec. (b).

—1987 (Adj. Sess.). In the second sentence, inserted “or expand” preceding “a mobile home park” and “including extensions or expansions to water and sewage systems” thereafter.

—1987. Rewrote the third sentence.

§§ 6232-6235. Repealed. 2001, No. 133 (Adj. Sess.), § 14.

History

Former §§ 6232-6235. Former § 6232, relating to site plan review of permits, was derived from 1969, No. 291 (Adj. Sess.), § 8 and amended by 1987, No. 265 (Adj. Sess.), § 2.

Former § 6233, relating to issuance, revocation and appeals of permits, was derived from 1969, No. 291 (Adj. Sess.), § 8 and amended by 1987, No. 265 (Adj. Sess.), § 2.

Former § 6234, relating to bonuses for improved facilities and layout, was derived from 1969, No. 291 (Adj. Sess.), § 8.

Former § 6235, relating to basic regulations, was derived from 1969, No. 291 (Adj. Sess.), § 8 and amended by 1987, No. 265 (Adj. Sess.), § 2; and 1989, No. 229 (Adj. Sess.), § 7.

§ 6236. Lease terms; mobile home parks.

  1. All terms governing the use and occupancy of a mobile home lot shall be contained in a written lease. Mobile home park owners shall promulgate reasonable and fair lease terms governing the use and occupancy of a mobile home lot and shall furnish an initial copy of the lease to leaseholders. Any lease term that prohibits or in any other manner obstructs the ability of any leaseholder to act in accordance with the provisions of this chapter shall be unenforceable. Any lease term that is not uniformly applied to all leaseholders of the same or a similar category shall be unenforceable, except that a park owner may establish a different lot rent rate for a mobile home park constructed after June 1, 1995 or for new lots in an expanded mobile home park constructed after June 1, 1995. Mobile home park owners shall not restrict access by representatives of the Department to the leaseholders of the park.
  2. A lease term requiring the removal from a mobile home park of a mobile home that is detrimental to the other residents of the park for either health, safety, or aesthetic reasons shall not be considered unreasonable or unfair.
  3. Prospective leaseholders shall be furnished with a copy of the proposed lease prior to any agreement to use or occupy a mobile home lot, and upon acceptance of the lease terms the lease shall be signed by the lessor and lessee. Any provision in a lease governing rental and utility charges shall be effective for a minimum of one year, except in the case of a new leaseholder in a mobile home park in which there is a uniform rent schedule that affects all lots in that park simultaneously. The initial lease for a new leaseholder may include the anticipated increase in the rent and utility charge at the time it occurs for the other lots. A mobile home park owner shall provide leaseholders with a minimum of 60 days’ notice prior to any rent increase. Rent increase notices shall not be given within six months prior to the issuance of a closure notice or at any time during which the closure notice is in effect. All rent increases received by the park owner during the six months prior to the issuance of a closure notice shall be returned to the affected leaseholders within seven days of issuance of the closure notice, except when the Commissioner determines the rent increase is needed to help remedy an emergency situation that affects the resident’s health, safety, or welfare. This subsection shall not apply to proprietary leases in mobile home parks owned by limited equity housing cooperatives established under 11 V.S.A. chapter 14. The rental and utility charge may be increased during a year if the operating expenses of the park increase 20 percent or more during that year as the result of legislative action taken during that year and the increase could not have been anticipated. The rental and utility charge may be increased during a year only to the extent necessary to cover the increase in operating expenses of the park.
  4. No person shall sell, lease, or sublease a mobile home or sublease or assign a lease for a lot in a mobile home park without first obtaining the written approval of the park owner, which shall not be unreasonably withheld. A violation of this subsection shall be grounds for eviction.
  5. All mobile home lot leases shall contain the following:
    1. Rental and utility charges and other reasonable incidental service charges, if any. No charges other than properly disclosed charges for rent, utilities, or other reasonable incidental services may be imposed or collected.
    2. Names and addresses of the park owners.
    3. Notice that the park owner shall not discriminate for reasons of race, religious creed, color, sex, sexual orientation, gender identity, marital status, disability, national origin, or because a person is a recipient of public assistance.
    4. Notice that the park owner shall not discriminate based on age or the presence of one or more minor children in the household, except as permitted under 9 V.S.A. § 4503(b) and (c). If age restrictions exist in all or part of a park, the specific restrictions and geographic sections in which restrictions apply shall be documented in the lease.
    5. The requirement to obtain permission from the park owner prior to leasing or selling a mobile home or assigning or subleasing a lease for a mobile home lot to another person.
    6. The notice required from a leaseholder in order to terminate the lease or occupancy arrangement.
    7. An effective date of the lease.
  6. A copy of all new lease terms shall be furnished to all leaseholders at least 30 days prior to the effective date of any amendment, addition, or deletion of the existing lease terms. Upon request, the park owner shall provide to any leaseholder a copy of the current lease for his or her lot.

HISTORY: Added 1973, No. 264 (Adj. Sess.), § 2; amended 1987, No. 252 (Adj. Sess.), § 3; 1989, No. 229 (Adj. Sess.), § 8; 1993, No. 141 (Adj. Sess.), § 10, eff. May 6, 1994; 1995, No. 33 , § 3, eff. June 1, 1995; 1997, No. 103 (Adj. Sess.), § 2, eff. April 23, 1998; 2007, No. 176 (Adj. Sess.), § 57; 2011, No. 137 (Adj. Sess.), § 2, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Subdiv. (e)(3): Amended generally.

Subdiv. (e)(4): Substituted “park owner” for “owner” preceding “shall not discriminate based on age” and inserted “or the presence of one or more minor children in the household” after “age”.

—2007 (Adj. Sess.). Section amended generally.

—1997 (Adj. Sess.). Subdiv. (e)(4): Substituted “ 9 V.S.A. § 4503(b) and (c)” for “section 4508(b) of Title 9” at the end of the first sentence.

—1995. Subsec. (a): Substituted “except that an owner may establish a different lot rent rate for a mobile home park constructed after June 1, 1995, or for new lots in an expanded mobile home park constructed after June 1, 1995” for “unless expressly permitted in accordance with section 4508(b) of Title 9” following “unenforceable” in the fourth sentence.

—1993 (Adj. Sess.) Subsec. (c): Added the fourth sentence and deleted the last sentence.

—1989 (Adj. Sess.) Subsec. (a): Added the third sentence, deleted “or prospective mobile home residents” preceding “of the same” in the fourth sentence, and added the fifth sentence.

Subsec. (c): Amended generally.

—1987 (Adj. Sess.) Subsec. (a): Deleted “on or before July 1, 1974” following “residents” in the second sentence and added “unless expressly permitted in accordance with section 4508(b) of Title 9” following “unenforceable” in the third sentence.

Subsec. (b): Substituted “aesthetic” for “esthetic” following “health, safety or”.

Subsec. (c): Added the third through sixth sentences.

Subsec. (d): Substituted “the resident’s”’ for “his” following “sublet”.

Subsec. (e): Rewrote subdiv. (3), added present subdiv. (4), redesignated former subdivs. (4)-(6) as present subdivs. (5)-(7), respectively, and substituted “the” for “his” preceding “lease” in present subdiv. (6).

CROSS REFERENCES

Action by mobile home park resident against park owner for violation of this section, see § 6205 of this title.

Appeals of mobile home lot rental increases, see § 6251 of this title.

Prohibition against revision of lease agreement by park owner as retaliatory measure against resident, see § 6247 of this title.

ANNOTATIONS

Cited.

Cited in State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

§ 6237. Evictions.

  1. A leaseholder may be evicted only for nonpayment of rent or for a substantial violation of the lease terms of the mobile home park, or if there is a change in use of the park land or parts thereof or a termination of the mobile home park, and only in accordance with the following procedure:
    1. A leaseholder shall not be evicted by force or any other self-help measure.
    2. Prior to the commencement of any eviction proceeding, the park owner shall notify the leaseholder by certified or registered mail, except as provided in subdivision (3) of this subsection:
      1. of the grounds for an eviction proceeding;
      2. that an eviction proceeding may be commenced if the leaseholder does not pay the overdue rent within 20 days from the date of the mailing of the notice.
    3. A substantial violation of the lease terms of the mobile home park or an additional nonpayment of rent occurring within six months of the giving of the notice referred to in subdivision (2) of this subsection may result in immediate eviction proceedings.
    4. A substantial violation of the lease terms, other than an uncured nonpayment of rent, will be insufficient to support a judgment of eviction unless the proceeding is commenced within 60 days of the last alleged violation. A substantial violation of the lease terms based upon criminal activity will be insufficient to support a judgment of eviction unless the proceeding is commenced no later than 60 days after arraignment.
    5. [Repealed.]
  2. A leaseholder shall not be evicted when there is proof that the lease terms the leaseholder has been accused of violating are not enforced with respect to the other leaseholders or others on the park premises.
  3. A sale or change in the form of ownership of the mobile home park shall not be grounds for eviction.
  4. This section shall apply only to evictions undertaken by the park owner. Evictions of a mobile home resident by a mobile home owner who is not the park owner shall be governed by 9 V.S.A. § 4467 .
  5. A judgment order of eviction pursuant to this section shall provide that a leaseholder shall sell a mobile home or remove a mobile home from the mobile home park:
    1. within three months from the date of execution of a writ of possession pursuant to 12 V.S.A. chapter 169; or
    2. within another period ordered by the court in its discretion.
  6. A leaseholder evicted pursuant to this section shall continue to be responsible for lot rent that accrues until the mobile home is sold or removed from the mobile home park.
  7. A park owner shall serve notice of eviction proceedings pursuant to this section and 12 V.S.A. chapter 169 to the leaseholder and to any occupants known to the park owner residing in the mobile home.

HISTORY: Added 1973, No. 264 (Adj. Sess.), § 2; amended 1987, No. 252 (Adj. Sess.), § 5, eff. Aug. 1, 1988; 1989, No. 229 (Adj. Sess.), § 9; 1993, No. 141 (Adj. Sess.), § 1, eff. May 6, 1994; 2003, No. 104 (Adj. Sess.), § 8; 2007, No. 176 (Adj. Sess.), § 58; 2011, No. 137 (Adj. Sess.), § 2, eff. May 14, 2012; 2015, No. 8 , § 3.

History

Amendments

—2015. Subsecs. (e)-(g): Added.

—2011 (Adj. Sess.). Subdiv. (a)(4): Added the second sentence.

—2007 (Adj. Sess.). Substituted “leaseholder” for “mobile home resident” and “resident” throughout subsec. (a); deleted subdiv. (a)(5); substituted “leaseholder” for “mobile home resident”, “the leaseholder has been” for “he is”, and “leaseholders or others” for “mobile home residents or nonresidents” in subsec. (b); and amended subsec. (d) generally.

—2003 (Adj. Sess.). Subsec. (a): Deleted “only” preceding “be evicted” and inserted “only” following “be evicted”.

Subdiv. (a)(5): Substituted “that” for “which” preceding “would result in removal”, “18” for “12”, and “18-month” for “12-month”.

—1993 (Adj. Sess.). Added subsecs. (c) and (d).

—1989 (Adj. Sess.). Subdiv. (a)(5): Substituted “12” for “six” preceding “months” in the first sentence and “12-month” for “six-month” preceding “notice” in the third sentence.

—1987 (Adj. Sess.). Subdiv. (a)(5): Added.

1987 (Adj. Sess.) amendment. 1987, No. 252 (Adj. Sess.), § 7, provided that the amendment to this section by the act shall only apply to purchase and sale agreements executed after July 31, 1988.

CROSS REFERENCES

Action by mobile home park resident against park owner for violation of this section, see § 6205 of this title.

Application of laws governing eviction generally, see § 6204 of this title.

Illegal evictions of mobile home park residents, see § 6245 of this title.

Remedies for illegal evictions of mobile home park residents, see § 6246 of this title.

ANNOTATIONS

Constitutionality.

Application of eviction provision of Mobile Home Parks Act to mobile home renters did not violate Vermont Constitution; owners of mobile homes were not prevented from selling them, but rather would have to sell them subject to tenancy of renters, unless one of the grounds for eviction applied. State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

Applicability.

This section, requiring cause for eviction, was not rendered inapplicable to renters of mobile homes by 1988 statutory amendments; since eviction provision of Landlord and Tenant Act would permit eviction on grounds other than those stated in this section, the Landlord and Tenant Act was inconsistent with this section, and therefore did not apply to renters of mobile homes. State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

Construction with other law.

By allowing evictions only for cause, subsec. (a) of this section is a clear exception to general landlord and tenant law of Vermont, which allows evictions without cause in absence of a written rental agreement. State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

Notice.

Statute governing evictions from mobile home parks, which was ambiguous about what notice a landlord had to provide a mobile home park tenant prior to commencing eviction proceedings in the event of a substantial violation of the lease terms, was properly interpreted by the Department of Housing and Community Development to require prior notice unless the tenant had committed another violation within the last six months, and therefore, in the absence of such notice, dismissal of the landlord’s eviction action for failure to state a claim upon which relief could be granted was the proper remedy. Shires Hous., Inc. v. Brown, 2017 VT 60, 205 Vt. 186, 172 A.3d 1215, 2017 Vt. LEXIS 81 (2017).

In action by mobile home park resident arising from illegal eviction, the trial court did not err in dismissing defendants’ counterclaim for ejectment because they never proved that they sent a notice to the resident of the grounds for an eviction proceeding. Sweet v. Roy, 173 Vt. 418, 801 A.2d 694, 2002 Vt. LEXIS 65 (2002).

Purpose.

Eviction provision of Mobile Home Parks Act provides owners and renters of mobile homes, who tend to be lower-income groups that may have difficulty finding alternative housing, added security from arbitrary eviction, which is a sufficient rationale for treating mobile home renters differently from other renters. State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

Cited.

Cited in Russell v. Atkins, 165 Vt. 176, 679 A.2d 333, 1996 Vt. LEXIS 39 (1996); United Park Ass'n v. Ringuette, 168 Vt. 603, 719 A.2d 884, 1998 Vt. LEXIS 259 (1998) (mem.).

Law Reviews —

For note, “Vermont’s Efforts to Protect Mobile Home Park Tenants: Is There a Taking?,” see 16 Vt. L. Rev. 1027 (1992).

For article, “Security of Tenure for the Residential Tenant: An Analysis and Recommendations,” see 21 Vt. L. Rev. 1015 (1997).

§ 6237a. Mobile home park closures.

  1. At least 18 months prior to the closure of a mobile home park or any mobile home lot that will result in the eviction of a resident or a leaseholder or removal of a mobile home, a park owner shall give notice of the closure to each affected resident or leaseholder and to the Commissioner by certified mail. Upon request, the Commissioner may waive some or all of the 18-month notice period if the closure is necessary to ensure the health, safety, or welfare of park residents. No evictions may be commenced during the 18-month closure period except for nonpayment of rent or a substantial violation of the lease terms.
  2. Prior to issuing a closure notice pursuant to subsection (a) of this section, a park owner shall first issue a notice of intent to sell in accordance with section 6242 of this title that discloses the potential closure of the park. However, if the park owner sends a notice of closure to the residents and leaseholders without first providing the mobile home owners with a notice of intent to sell under section 6242 that discloses the potential closure of the park, then the park owner shall retain ownership of the land for five years after the date the closure notice was provided. If required, the park owner shall record the notice of the five-year restriction in the land records of the municipality in which the park is located. The park owner may apply to the Commissioner for relief from the notice and holding requirements of this subsection if the Commissioner determines that strict compliance is likely to cause undue hardship to the park owner or the leaseholders, or both. This relief shall not be unreasonably withheld.
  3. When a park owner gives notice of intent to sell pursuant to section 6242 of this title, any previous notice of closure and any evictions commenced pursuant to the closure notice are void.
  4. A park owner who gives notice of intent to sell pursuant to section 6242 of this title shall not give notice of closure until after:
    1. at least 45 days after giving notice of intent to sell; and
    2. if applicable, the Commissioner receives notice from the mobile home owners and the park owner that negotiations have ended following the 120-day negotiation period provided in subdivision 6242(c)(1) of this title.
  5. A park owner who closes a mobile home park within five years of providing closure notice by selling the land on which the park was located without complying with subsection (b) of this section shall be liable to the State in the aggregate amount of $10,000.00 or 50 percent of the gain realized by the park owner from the sale, whichever is greater, unless the Commissioner has granted relief from strict compliance pursuant to subsection (b) of this section.
  6. A park owner may bring an action for possession upon the expiration of the 18-month closure notice. The only defense to an action for possession in the case of a park closure is improper notice.

HISTORY: Added 2007, No. 176 (Adj. Sess.), § 59; amended 2011, No. 137 (Adj. Sess.), § 2, eff. May 14, 2012; 2015, No. 97 (Adj. Sess.), § 30.

History

Amendments

—2015 (Adj. Sess.). Subdiv. (d)(1): Added “and” after “to sell”.

—2011 (Adj. Sess.). Subsec. (b): Amended generally.

Subdiv. (d)(2): Substituted “120-day negotiation period” for “90-day negotiation period” at the end.

§ 6238. Charges and fees.

  1. A prospective leaseholder or other person may not be charged an entrance fee for the privilege of leasing or occupying a mobile home lot. A reasonable charge for the fair value of services performed in placing a mobile home on a lot shall not be considered an entrance fee.
  2. A qualified park owner may charge the initial lessee or occupant of an eligible site a site improvement fee.
    1. The term “qualified park owner” shall mean:
      1. a limited equity cooperative organized to provide low or moderate income housing as defined in 11 V.S.A. chapter 14; or
      2. a Section 501(c)(3) organization or its wholly owned subsidiary organized to preserve housing for low income families.
    2. The term “eligible site” shall mean a lawfully created mobile home site that becomes available for occupancy by a mobile home for the first time after June 1, 1993 and:
      1. is located in a mobile home park established in conformance with the requirements of this chapter after June 1, 1970; or
      2. is located in a mobile home park established prior to June 1, 1970 that registered with the Vermont Agency of Natural Resources as a preexisting mobile home park prior to July 1, 1989.
    3. A site improvement fee is a charge for the cost of establishing a designated mobile home site located within a mobile home park, including site clearing; grading; construction of a mobile home pad; construction of utility improvements such as those for water supply, sewage disposal, electricity, telephone, cable television, and gas; payment of municipal fees such as school impact fees and sewer connection charges; and payment of other costs associated with improvement of a site. A site improvement fee may not exceed $8,000.00.
    4. A mobile home park owner who has collected a site improvement fee may not terminate the park or change the use of any site that has paid the fee without offering to sell the park to the mobile home owners in accordance with the provisions of section 6242 of this title.

HISTORY: Added 1973, No. 264 (Adj. Sess.), § 2, eff. April 16, 1974; amended 1993, No. 96 , § 1; 2007, No. 176 (Adj. Sess.), § 60.

History

References in text.

Section 501(c)(3), referred to in subdiv. (b)(1)(B), is § 501(c)(3) of the Internal Revenue Code, which is codified as 26 U.S.C. § 501(c) (3).

Amendments

—2007 (Adj. Sess.). Substituted “leaseholder” for “resident” in subsec. (a) and “that” for “which” and “mobile home owners” for “leaseholders” in subdiv. (b)(4).

—1993. Designated the existing provisions of the section as subsec. (a) and added subsec. (b).

CROSS REFERENCES

Action by resident of a mobile home park against a park owner for a violation of this section, see § 6205 of this title.

ANNOTATIONS

Construction.

Whether mark-up on sales of mobile homes constituted an illegal entrance fee was a disputed question of material fact precluding summary judgment. Vermont Mobile Home Owners' Ass'n v. LaPierre, 94 F. Supp. 2d 519, 2000 U.S. Dist. LEXIS 5336 (D. Vt. 2000).

Cited.

Cited in State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

§ 6239. Goods and services.

A leaseholder shall not be restricted in his or her choice of vendors from whom he or she may purchase goods and services. This section shall not be construed to prohibit a mobile home park owner from contracting with any or all leaseholders for the sale, supply, or distribution of goods and services, but such contract shall not be required as a condition of entrance to the mobile home park.

HISTORY: Added 1973, No. 264 (Adj. Sess.), § 2, eff. April 16, 1974; amended 2007, No. 176 (Adj. Sess.), § 61.

History

Amendments

—2007 (Adj. Sess.). Substituted “leaseholder” and “leaseholders” for “mobile home resident” and “mobile home residents”, inserted “or her” following “his” and “or she” following “he” in the first sentence, and deleted “or operator” following “mobile home park owner”.

CROSS REFERENCES

Action by mobile home park resident against park owner for violation of this section, see § 6205 of this title.

§ 6240. Sale of homes located in parks.

  1. Prior to selling a mobile home located in a mobile home park, the mobile home owner shall notify the park owner by certified mail of the name and mailing address of the prospective purchaser. The seller may be held liable by the purchaser or prospective purchaser for failure to comply with this section.
  2. A purchaser or prospective purchaser of a mobile home located in a park shall not be refused entrance except for the inability of the purchaser and the purchaser’s household to meet the terms of the proposed lease or to qualify under a valid admission policy of the park. Upon approval for entrance into the mobile home park, the purchaser or prospective purchaser shall be offered a written lease pursuant to section 6236 of this title. If the purchaser or prospective purchaser does not notify the park owner in writing of any objections to the lease terms prior to occupancy of the mobile home park, the purchaser shall be deemed to have accepted the lease, regardless of whether the purchaser signs and returns a copy of the lease to the park owner. The seller’s failure to provide the notice required in subsection (a) of this section shall not be grounds to deny the purchaser or prospective purchaser’s application.
  3. A park owner shall not charge or collect any commission on the sale of a mobile home located in a park unless the park owner contracts to sell the home.

HISTORY: Added 1973, No. 264 (Adj. Sess.), § 2, eff. April 16, 1974; amended 2007, No. 176 (Adj. Sess.), § 62.

History

Amendments

—2007 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Action by mobile home park resident against park owner for violation of this section, see § 6205 of this title.

Leaseholder’s right to notification prior to park sale, see § 6242 of this title.

Sale of abandoned mobile home, see § 6249 of this title.

§ 6241. Access.

  1. A park owner may enter a mobile home lot in the park with the resident’s consent, which shall not be unreasonably withheld.
  2. A park owner may also enter a mobile home lot in the park between the hours of 7:00 a.m. and 7:00 p.m. on no less than 12 hours’ notice for any of the following purposes:
    1. to inspect the premises;
    2. to make necessary or agreed repairs, alterations, or improvements;
    3. to supply agreed services;
    4. to show the lot to prospective or actual purchasers, mortgagees, residents, workers, or contractors.
  3. A park owner may enter a mobile home lot without notice or permission if, in the course of performing repairs in the mobile home park, the owner discovers that it is necessary to enter a lot to complete the repairs, provided that the owner could not reasonably have foreseen the necessity to enter the lot at the time the repairs were commenced. A park owner shall attempt to obtain permission from the resident before entering the lot, at a minimum, by attempting to contact the resident at any telephone number the owner has for the resident and in person at the mobile home.
  4. A park owner may enter a mobile home or a mobile home lot in the park without notice or permission when the park owner reasonably believes that there is a likelihood of imminent injury to any person, damage to property, or interruption of utility services.

HISTORY: Added 1983, No. 235 (Adj. Sess.), § 3; amended 1993, No. 141 (Adj. Sess.), § 5, eff. May 6, 1994; 2007, No. 176 (Adj. Sess.), § 63.

History

Amendments

—2007 (Adj. Sess.). Substituted “resident’s” for “tenant’s” in subsec. (a) and “show” for “exhibit” and “residents” for “tenants” in subdiv. (b)(4).

—1993 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Action by mobile home park resident against park owner for violation of this section, see § 6205 of this title.

§ 6242. Mobile home owners’ right to notification prior to park sale.

  1. Content of notice.   A park owner shall give to each mobile home owner and to the Commissioner of Housing and Community Development notice by certified mail, return receipt requested, of his or her intention to sell the mobile home park. If the notice is refused by a mobile home owner or is otherwise undeliverable, the park owner shall send the notice by first-class mail to the mobile home owner’s last known mailing address. The requirements of this section shall not be construed to restrict the price at which the park owner offers the park for sale. The notice shall state all the following:
    1. that the park owner intends to sell the park;
    2. the price, terms, and conditions under which the park owner offers the park for sale;
    3. a list of the affected mobile home owners and the number of leaseholds held by each;
    4. the status of compliance with applicable statutes, rules, and permits, to the park owner’s best knowledge, and the reasons for any noncompliance; and
    5. that for 45 days following the notice, the park owner shall not make a final unconditional acceptance of an offer to purchase the park and that if within the 45 days the park owner receives notice pursuant to subsection (c) of this section that a majority of the mobile home owners intend to consider purchase of the park, the park owner shall not make a final unconditional acceptance of an offer to purchase the park for an additional 120 days, starting from the 46th day following notice, except one from a group representing a majority of the mobile home owners or from a nonprofit corporation approved by a majority of the mobile home owners.
  2. Resident intent to negotiate; timetable.   The mobile home owners shall have 45 days following notice under subsection (a) of this section in which to determine whether they intend to consider purchase of the park through a group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners. A majority of the mobile home owners shall be determined by one vote per leasehold and no mobile home owner shall have more than three votes or 30 percent of the aggregate park vote, whichever is less. During this 45-day period, the park owner shall not accept a final unconditional offer to purchase the park.
  3. Response to notice; required action.   If the park owner receives no notice from the mobile home owners during the 45-day period or if the mobile home owners notify the park owner that they do not intend to consider purchase of the park, the park owner has no further restrictions regarding sale of the park pursuant to this section. If, during the 45-day period, the park owner receives notice in writing that a majority of the mobile home owners intend to consider purchase of the park, then the park owner shall do all the following:
    1. not accept a final unconditional offer to purchase from a party other than leaseholders for 120 days following the 45-day period, a total of 165 days following the notice from the leaseholders;
    2. negotiate in good faith with the group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners concerning purchase of the park; and
    3. consider any offer to purchase from a group representing a majority of the mobile home owners or from a nonprofit corporation approved by a majority of the mobile home owners.
  4. Penalty.   A park owner who sells a mobile home park without complying with this section shall be liable to the mobile home owners in the aggregate amount of $10,000.00 or 50 percent of the gain realized by the park owner from the sale, whichever is greater. A sale, an offer to sell, or an attempt to sell a mobile home park without complying with this section shall also be subject to the remedies of section 6205 of this title, including actual and punitive damages.
  5. Exceptions.   The provisions of this section do not apply when the sale, transfer, or conveyance of the mobile home park is any one or more of the following:
    1. through a foreclosure sale;
    2. to a member of the park owner’s family or to a trust for the sole benefit of members of the park owner’s family;
    3. among the partners who own the mobile home park;
    4. incidental to financing the park;
    5. between joint tenants or tenants in common;
    6. pursuant to eminent domain;
    7. pursuant to a municipal tax sale.
  6. Requirement for new notice of intent to sell.
    1. Subject to subdivision (2) of this subsection, a notice of intent to sell issued pursuant to subsection (a) of this section shall be valid:
      1. for a period of one year from the expiration of the 45-day period following the date of the notice; or
      2. if the park owner has entered into a binding purchase and sale agreement with a group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners within one year from the expiration of the 45-day period following the date of the notice until the completion of the sale of the park under the agreement or the expiration of the agreement, whichever is sooner.
    2. During the period in which a notice of intent to sell is valid, a park owner shall provide a new notice of intent to sell, consistent with the requirements of subsection (a) of this section, prior to making an offer to sell the park or accepting an offer to purchase the park that is either more than five percent below the price for which the park was initially offered for sale or less than five percent above the final written offer from a group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners.
  7. “Good faith.”  A leaseholders group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners shall negotiate in good faith with the park owner for purchase of the park.

HISTORY: Added 1987, No. 252 (Adj. Sess.), § 6, eff. Aug. 1, 1988; amended 1989, No. 229 (Adj. Sess.), § 10; 1993, No. 141 (Adj. Sess.), §§ 6-8, eff. May 6, 1994; 2007, No. 176 (Adj. Sess.), § 64; 2011, No. 137 (Adj. Sess.), § 2, eff. May 14, 2012; 2019, No. 131 (Adj. Sess.), § 16.

History

Revision note

—2013. In subsec. (a), substituted “Housing and Community Development” for “Economic, Housing and Community Development” in light of Executive Order No. 3-56 (No. 01-13), effective April 12, 2013.

Amendments

—2019 (Adj. Sess.). Subsec. (a): In the introductory language, substituted “first-class” for “first class” in the second sentence and substituted “The requirements of this section shall not” for “Nothing herein shall” in the last sentence.

Subdiv. (a)(4): Substituted “rules” for “regulations”.

—2011 (Adj. Sess.). Section amended generally.

—2007 (Adj. Sess.). Section amended generally.

—1993 (Adj. Sess.) Subdiv. (a)(5): Inserted “starting from the 46th day following notice” preceding “except”.

Subdiv. (c)(1): Inserted “the 45-day period, a total of 135 days following” preceding “the notice”.

Subsec. (d): Added the second sentence.

—1989 (Adj. Sess.) Section amended generally.

Applicability of enactment.

1987, No. 252 (Adj. Sess.), § 7, provided that the section of the act enacting this section shall only apply to purchase and sale agreements executed after July 31, 1988.

ANNOTATIONS

Consumer fraud.

Because the owners of a mobile home park proposed both a condominium conversion and a sale of the park, they properly included both notice of their intention to sell the park pursuant to subsec. (a) of this section, and “written notice to vacate or purchase” pursuant to 27 V.S.A. § 1333(a) . Plaintiffs-tenants claimed that defendants-owners threatened to evict tenants who failed to arrange for the purchase of their lots, but because plaintiffs did not rely on, or sustain damages as a result of, the eviction notice, as required under 9 V.S.A. 2461(b), they did not have an actionable claim under the Consumer Fraud Act. Russell v. Atkins, 165 Vt. 176, 679 A.2d 333, 1996 Vt. LEXIS 39 (1996).

Designee nonprofit corporation.

As a general rule, settlement of a lawsuit by an agent binds the principal so long as the agent has authority to settle. Where, therefore, in an action by tenants of a mobile home park, their homeowners association, and their designee nonprofit corporation under this section against the owners of the park, where the association and the corporation voluntarily settled and dismissed their claims with prejudice, and the plaintiffs never challenged the association’s and the corporation’s authority to settle, plaintiffs were bound by the dismissal of the suit and could not, under the doctrine of res judicata, later bring a claim seeking specific performance of an alleged contract to sell the park. Russell v. Atkins, 165 Vt. 176, 679 A.2d 333, 1996 Vt. LEXIS 39 (1996).

Restraint on alienation.

There was no merit to a borrower’s argument that because of the difficulties in selling five mobile home parks, a requirement of total collateral substitution instead of partial substitution was tantamount to a total prohibition on alienation. The statutory waiting-period requirement was the same whether one park was sold or many, and the court did not believe that the statutory requirements—even those that give the leaseholders an opportunity to purchase the park—rendered sale impossible. R&G Props, Inc. v. Column Fin., Inc., 2008 VT 113, 184 Vt. 494, 968 A.2d 286, 2008 Vt. LEXIS 192 (2008).

Cited.

Cited in State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

Law Reviews —

For note, “Vermont’s Efforts to Protect Mobile Home Park Tenants: Is There a Taking?,” see 16 Vt. L. Rev. 1027 (1992).

§ 6243. Repealed.

History

Former § 6243. Former § 6243, relating to common interest ownership of mobile home parks, was derived from 1989, No. 229 (Adj. Sess.), § 11, and expired on July 1, 1994, pursuant to 1991, No. 152 (Adj. Sess.), § 3.

§ 6244. Security deposits.

  1. A security deposit is any advance, deposit, or prepaid rent that is refundable to a leaseholder at the termination or expiration of the occupancy. A security deposit is to secure the leaseholder’s obligation to pay rent and to maintain a rented mobile home or mobile home lot.
  2. The mobile home park owner may retain all or a portion of the security deposit for any of the following reasons:
    1. nonpayment of rent;
    2. damage to property of the park owner, unless the damage is the result of normal wear and tear or the result of actions or events beyond the control of the leaseholder;
    3. nonpayment of utility or other charges that the leaseholder was required to pay directly to the park owner or to a utility; or
    4. expenses for removal of articles abandoned by the leaseholder, including personal property, the mobile home, rubbish, and motor vehicles from the mobile home lot.
  3. A park owner shall return to the leaseholder the security deposit with a written statement itemizing any deductions within 14 days from the date on which the leaseholder:
    1. removes a mobile home from the park and terminates the lease for the lot on which the mobile home was located; or
    2. delivers to the park owner an executed bill of sale transferring ownership of a mobile home that is to remain in the park to an individual who has entered into a lease for the lot with the park owner; or
    3. has been removed from the park pursuant to a writ of possession.
  4. The park owner shall comply with this section by hand-delivering or mailing the statement and any payment required to the last known address of the leaseholder.
  5. If a park owner fails to return the security deposit with a statement within 14 days, the park owner forfeits the right to withhold any portion of the security deposit. If the failure is willful, the park owner shall be liable for double the amount wrongfully withheld, plus reasonable attorney’s fees and costs.
  6. Upon termination of the park owner’s interest in the park, the security deposit shall be transferred to the new park owner. The new park owner shall give the leaseholder actual notice of the new park owner’s name and address with a statement that the security deposit has been transferred to the new park owner.
  7. A municipality may adopt an ordinance governing security deposits on mobile homes or mobile home lots. The ordinance shall be supplemental to and not inconsistent with the minimum protections of the provisions of this section. The ordinance may not limit how a security deposit is held. The ordinance may authorize the payment of interest on a security deposit. The ordinance may provide that a housing board of review constituted pursuant to 24 V.S.A. § 5005 may hear and decide disputes related to security deposits upon request for a hearing by a park owner or leaseholder. The board’s actions shall be reviewable under 24 V.S.A. § 5006 .

HISTORY: Added 1993, No. 141 (Adj. Sess.), § 9, eff. May 6, 1994; amended 2007, No. 176 (Adj. Sess.), § 65; 2019, No. 131 (Adj. Sess.), § 16; 2021, No. 20 , § 49.

History

Amendments

—2021. Subdiv. (b)(3): Added “or” to the end of the subdivision.

—2019 (Adj. Sess.). Subsec. (e): In the second sentence, substituted “willful” for “wilful” and substituted “attorney’s” for “attorney”.

—2007 (Adj. Sess.). Section amended generally.

CROSS REFERENCES

Injunctions, see V.R.C.P. 65.

Resident’s obligations relating to use and maintenance of premises, see § 6261 of this title.

§ 6245. Illegal evictions.

  1. No park owner may willfully cause, directly or indirectly, the interruption or termination of any utility service to a mobile home except for temporary interruptions for necessary repairs.
  2. No park owner may directly or indirectly deny a leaseholder access to and possession of the leaseholder’s leased premises, except through proper judicial process.
  3. No park owner may directly or indirectly deny a leaseholder access to and possession of the leaseholder’s mobile home and personal property, except through proper judicial process.

HISTORY: Added 1993, No. 141 (Adj. Sess.), § 9, eff. May 6, 1994; amended 2007, No. 176 (Adj. Sess.), § 66; 2011, No. 137 (Adj. Sess.), § 2, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Subsec. (a): Substituted “willfully” for “wilfully”.

Subsec. (b): Substituted “possession of the leaseholder’s leased premises” for “possession of a mobile home” .

Subsec. (c): Substituted “mobile home and personal property” for “rented or leased property”.

—2007 (Adj. Sess.). Subsec. (a): Substituted “any utility service to a mobile home” for “any utility service to a resident”.

Subsec. (b): Substituted “resident leaseholder access to and possession of a mobile home” for “a resident access to and possession of the resident’s rented or leased premises”.

Subsec. (c): Substituted “leaseholder access to and possession of the leaseholder’s rented or leased property” for “resident’s access to and possession of the resident’s property”.

§ 6246. Remedies for illegal evictions.

  1. Any leaseholder who sustains damage or injury as a result of an illegal eviction, as defined in section 6245 of this title, may bring an action for injunctive relief, damages, costs, and reasonable attorney’s fees.
  2. A court may award reasonable attorney’s fees to the park owner if, upon motion and hearing, it is determined that the action was not brought in good faith and that the action was either frivolous or intended solely for harassment.

HISTORY: Added 1993, No. 141 (Adj. Sess.), § 9, eff. May 6, 1994; amended 2007, No. 176 (Adj. Sess.), § 67.

History

Amendments

—2007 (Adj. Sess.). Subsec. (a): Substituted “Any leaseholder” for “Any resident”.

§ 6247. Retaliatory conduct prohibited.

  1. A park owner may not retaliate by any of the following:
    1. establishing or changing terms of a rental agreement;
    2. bringing or threatening to bring an action against a resident who has done any of the following:
      1. complained in writing to a governmental agency charged with responsibility for enforcement of a building, housing, or health regulation of a violation applicable to the premises materially affecting health and safety;
      2. complained in writing to the park owner of a violation of this chapter;
      3. organized or become a member of a resident’s association or similar organization.
  2. If the park owner acts in violation of this section, the resident is entitled to recover damages and reasonable attorney’s fees and has a defense in any retaliatory action for possession.

HISTORY: Added 1993, No. 141 (Adj. Sess.), § 9, eff. May 6, 1994; amended 2007, No. 176 (Adj. Sess.), § 68.

History

Amendments

—2007 (Adj. Sess.). Subsec. (a): Amended generally.

§ 6248. Abandonment of mobile home in mobile home park.

  1. A resident or owner of a mobile home in a mobile home park shall be deemed to have abandoned the mobile home if all the following conditions exist:
      1. a reasonable person would believe that the mobile home is not occupied as a residence; (1) (A) a reasonable person would believe that the mobile home is not occupied as a residence;
      2. the rent for the lot is at least 30 days delinquent; and
      3. the park owner has attempted to contact the resident or owner at the resident or owner’s home, last known place of employment, and last known mailing address without success; or
    1. the owner of the mobile home has been evicted from the mobile home park pursuant to section 6237 of this title and the owner has failed to remove or sell the mobile home within three months after the execution of a writ of possession pursuant to 12 V.S.A. chapter 169 or as otherwise ordered by the court in the ejectment action.
  2. A mobile home park owner may not commence an action pursuant to section 6249 of this title to sell an abandoned mobile home on which there are delinquent property taxes until 20 days after the date the park owner sends notice of the park owner’s intent to commence the action to the town clerk and the tax collector of the town in which the mobile home is located by certified mail, return receipt requested.

HISTORY: Added 1993, No. 141 (Adj. Sess.), § 13, eff. May 6, 1994; amended 2015, No. 8 , § 4.

History

Amendments

—2015. Added the subdiv. (A)-(C) designations in subdiv. (a)(1); added subdiv. (a)(2); deleted former subsec. (b) and redesignated former subsec. (c) as present subsec. (b).

§ 6249. Sale of abandoned mobile home.

  1. A park owner may commence an action, which shall be entitled: In re: Abandoned Mobile Home of (name of owner), in the Civil Division of the Superior Court to obtain an order to sell the abandoned mobile home by filing a verified complaint that includes all the following information:
    1. the name of the park owner and name and location of the mobile home park;
    2. the name and last known mailing address of the owner of the mobile home;
    3. the name and the last known mailing address of the last resident of the mobile home;
    4. a description of the mobile home, including make, model, and serial number, if available; its location; and the amount of any security deposit held by the park owner;
    5. the names and addresses of creditors, holders of housing subsidy covenants, or others having an interest in the mobile home based on liens or notices of record in the town offices of the town in which the mobile home is located or the Office of the Secretary of State;
    6. the facts supporting the claim that the mobile home has been abandoned;
    7. the name of a person disinterested in the mobile home or mobile home park who is able to sell the mobile home at a public auction; and
    8. a statement of the amount of rent and other charges due or that will become due to the park owner.
  2. A park owner may request an order approving transfer of a mobile home that is unfit for human habitation to the park owner without a public sale by filing a verified complaint containing the information required in subsection (a) of this section and the facts supporting the claim that the mobile home is unfit for human habitation.
  3. When a verified complaint is filed under this section, the clerk of the Superior Court shall set a hearing on the complaint before a Superior judge. The hearing shall be held at least 15 days but no later than 30 days after the filing of the complaint.
  4. Within five days after filing the verified complaint, the park owner shall post a copy of the verified complaint and order for hearing on the mobile home and send a copy of the verified complaint and order for hearing, by certified mail, return receipt requested, to the mobile home owner’s last known mailing address; to the last resident of the mobile home at the resident’s last known mailing address; to each person identified in the verified complaint; and to the town clerk of the town in which the mobile home is located.
  5. The park owner shall publish the verified complaint and order for hearing in a newspaper of general circulation in the town where the mobile home is located. The notice shall be published no later than five calendar days before the date of hearing.
  6. If prior to or at the hearing any lien holder certifies to the court that the lien holder has paid to the park owner all lot rent due the park owner, and will commence or has commenced proceedings to enforce the lien and will continue to pay rent during the proceedings under this section, the court shall, upon confirmation of the representations of the lien holder, stay the action under this section pending completion of the lien holder’s action.
  7. At the hearing, the park owner shall prove ownership of the mobile home park; ownership of the mobile home; abandonment of the mobile home; the amount of rent and other charges due the park owner; the amount of town taxes, penalties, and interest owed; and the amount of attorney’s fees claimed. The park owner shall also prove compliance with the notice requirements of subsections (d) and (e) of this section.
  8. If the court finds that the park owner has complied with subsection (g) of this section, the court shall enter an order approving the sale of the mobile home at a public auction to be held within 15 days of the date of the order. The mobile home park owner shall send the order by first-class mail to the mobile home owner and all lien holders of record. The order shall require all the following:
    1. That the sale shall be conducted by the person identified in the verified complaint or some other person approved by the court.
    2. That notice of the sale be published in a newspaper of general circulation in the town where the mobile home is located and sent by first-class mail to the mobile home owner, the mobile home park owner, and all lien holders of record. The notice of sale shall be published no later than five calendar days before the date of sale.
    3. That the terms of sale provide for conveyance of the mobile home, together with any security deposit held by the park owner, by uniform mobile home bill of sale executed on behalf of the mobile home owner pursuant to the order of the court by the person authorized by the court, in “as is” condition, free and clear of all liens and other encumbrances of record.
    4. A minimum bid established by the court sufficient to cover the total costs listed in subdivisions (7)(A)-(D) of this subsection. The mobile home shall be sold to the highest bidder over the minimum bid set by the court.
    5. The successful bidder shall make full payment at the auction if the bid does not exceed $2,000.00. If the bid exceeds $2,000.00, the successful bidder shall provide a nonrefundable deposit at the time of the auction of at least $2,000.00 or 25 percent of the bid, whichever is greater, and shall make full payment within three working days after the auction.
    6. A successful bidder, if other than the park owner, shall remove the mobile home from the park within five working days after the auction unless the park owner permits removal of the mobile home at a later date.
    7. The person who conducted the public sale shall report to the court the results of the sale, the proposed distribution of the proceeds of the sale, and the bank in which any excess proceeds are deposited and shall send a copy of the report to the mobile home owner, the park owner, and all lien holders of record by certified mail, return receipt requested, within three working days after the sale. Anyone claiming impropriety in the conduct of the sale may file an objection with the court within seven days after the sale. The filing of an objection shall not invalidate the sale or delay transfer of ownership of the abandoned mobile home. If an objection is filed and if the court finds impropriety in the conduct of the sale, the court may order distribution of the proceeds of the sale as is fair, taking into account the impropriety. If no objection is filed with the court, on the eighth day after the sale, the proceeds shall be distributed as follows:
      1. to the person conducting the sale for costs of the sale;
      2. to the park owner for court costs, publication and mailing costs, and attorney’s fees incurred in connection with the action, in an amount approved by the court;
      3. to the park owner for rent and other charges in an amount approved by the court;
      4. to the town for taxes, penalties, and interest owed in an amount approved by the court; and
      5. the balance to a bank account in the name of the mobile home park owner as trustee, for the benefit of the mobile home owner and lien holders of record, to be distributed pursuant to further order of the court.
        1. If a park owner requests an order approving transfer of a mobile home to the park owner without a public sale, the court shall approve that order if it finds that the park owner has complied with subsection (g) of this section and has proved that the mobile home is unfit for human habitation. In determining whether a mobile home is unfit for human habitation, the court shall consider whether the mobile home:

          (1) contains functioning appliances and plumbing fixtures;

          (2) contains safe and functioning electrical fixtures and wiring;

          (3) contains a safe and functioning heating system;

          (4) contains a weather-tight exterior closure;

          (5) is structurally sound;

          (6) is reasonably free of trash, debris, filth, and pests.

          (j) A court order issued pursuant to subsection (i) of this section shall be effective upon issuance and provide for conveyance of the mobile home and any security deposit held by the park owner by uniform mobile home bill of sale executed on behalf of the mobile home owner in “as is” condition, free and clear of all liens and other encumbrances of record.

HISTORY: Added 1993, No. 141 (Adj. Sess.), § 14, eff. May 6, 1994; amended 2001, No. 101 (Adj. Sess.), §§ 1, 2, eff. May 12, 2002; 2011, No. 137 (Adj. Sess.), § 3, eff. May 14, 2012.

History

Revision note

—2014. In subsec. (a), added “the Civil Division of the” preceding “Superior Court” in light of 2009, No. 154 (Adj. Sess.).

Amendments

—2011 (Adj. Sess.). Subsec. (c): Substituted “15 days” for “30 days” and “30 days” for “45 days” in the second sentence.

Subsec. (d): Substituted “five days” for “10 days” in the first sentence.

Subsec. (e): Deleted “twice, at least ten days apart, with the second notice to be published” following “shall be published” in the second sentence.

Subsec. (h): Substituted “15 days” for “30 days” in the introductory paragraph.

Subdiv. (h)(2): Deleted “three times, at least five days apart with the last publication being” following “shall be published” in the second sentence.

Subdiv. (h)(7): Substituted “seven days” for “12 days” in the second sentence and “eighth day” for “15th day” in the last sentence.

—2001 (Adj. Sess.) Subsec. (g): Inserted “the amount of town taxes, penalties and interest owed” preceding “and the amount of attorney fees claimed” in the first sentence.

Subdiv. (h)(4): Substituted “(7)(A)-(D) of this subsection” for “(7)(A)-(C) of this subsection” in the first sentence.

Subdiv. (h)(7)(D): Added “in the amount approved by the court”.

CROSS REFERENCES

Habitability of mobile homes, see chapter 153, subchapter 3 of this title.

§ 6250. Repealed.

History

Former § 6250. Former § 6250, relating to mobile home lot rent appeals, was derived from (Adj. Sess), § 22, and expired on June 1, 1995.

§ 6251. Mobile home lot rent increase; notice; meeting.

  1. A mobile home park owner shall provide written notification on a form provided by the Department to the Commissioner and all the affected mobile home park leaseholders of any lot rent increase no later than 60 days before the effective date of the proposed increase. The notice shall include all the following:
    1. the amount of the proposed lot rent increase, including any amount of the increase that is attributable to a surcharge for any capital improvements of the mobile home park pursuant to subsection (b) of this section, the estimated cost of the capital improvements, and the proposed duration of the surcharge prorated in 12-month increments sufficient to recover the estimated cost of the capital improvements;
    2. the effective date of the increase;
    3. a copy of the mobile home park leaseholder’s rights pursuant to this section and sections 6252 and 6253 of this title; and
    4. the percentage of increase from the current base lot rent.
  2. If the mobile home park owner requests a lot rent increase that includes a surcharge for any capital improvements, which, for the purposes of this section, include replacement or repair of any major infrastructure systems that exceed $2,500.00, the mobile home park owner shall submit to the Commissioner an affidavit stating the estimated costs of the improvements, the expected date of completion of the improvements, and the time frame required for the surcharge to provide for recovery of the cost of the improvements. The lot rent surcharge shall terminate when the park owner has recovered the cost of the capital improvements. A lot rent surcharge for capital improvements shall be implemented to minimize the financial burden on the mobile home park leaseholders.
  3. If the mobile home park owner fails to notify either the mobile home park leaseholders or the Commissioner of a lot rent increase as required by subsection (a) of this section, the proposed lot rent increase shall be ineffective and unenforceable.

HISTORY: Added 1995, No. 33 , § 2, eff. June 1, 1995; amended 1997, No. 103 (Adj. Sess.), § 3, eff. April 23, 1998; 2011, No. 137 (Adj. Sess.), § 2, eff. May 14, 2012.

History

Amendments

—2011 (Adj. Sess.). Subdiv. (a)(1): Deleted “which includes interest” following “the estimated cost”.

Subdiv. (a)(4): Added.

—1997 (Adj. Sess.). Substituted “provide written notification on a form provided by the department to” for “notify” in the first sentence in the introductory language of subsec. (a); in subdiv. (a)(1), added the language beginning “including any amount of the increase that is attributable to a surcharge” following “rent increase”; in subdiv. (a)(3), substituted “this section and sections 6252 and 6253 of this title” for “ 10 V.S.A. § 6251 ”; deleted subdiv. (a)(4) relating to meeting within ten days after notice with leaseholders to discuss amount and reasons for lot rent increase if requested by at least two leaseholders; added subsec. (b) and deleted former subsec. (b) relating to scheduling the requested meeting, accessibility to all parties and attendance of specific parties; in subsec. (c), inserted “either” after “notify” and “or the commissioner” after “leaseholders”, and deleted “or if the mobile home park owner, the park operator or the park manager fails to attend the meeting required in subsection (b) of this section” after “of this section”.

§ 6252. Lot rent increase dispute; mediation.

  1. If the percentage of a proposed lot rent increase is more than one percentage point above the U.S. Consumer Price Index for all Urban Consumers, Housing Component, published by the U.S. Bureau of Labor Statistics in the periodical “Monthly Labor Review and Handbook of Labor Statistics” as established annually by the Department, and if, within 15 business days after receipt by the Commissioner of the notice required pursuant to subsection 6251(a) of this title, a majority of the affected leaseholders files with the Commissioner and the park owner a written petition that includes the name of the person who will act as the representative of the leaseholders, and a statement that they dispute the proposed lot rent increase, the Commissioner shall send a list of qualified professional mediators compiled by the Department in cooperation with park owners and leaseholders to the park owner and to the leaseholders’ representative. Within five business days of receipt of the list, the park owner and the leaseholders’ representative shall agree on a mediator from the list provided by the Commissioner and notify the Commissioner of the name, address, and telephone number of the mediator selected, accompanied by the mediator’s agreement to conduct the mediation. If the Commissioner has not been notified of a mediator as required by this subsection, the Commissioner shall appoint a mediator from the Department’s list. The mediator may not have any interest, direct or indirect, in the mobile home park at issue and shall disclose to the park owner, the leaseholders, and the Commissioner any experience as a mobile home park owner, resident, or leaseholder, or any other circumstance that may create a real or perceived conflict of interest. The Department shall pay the reasonable fees for professional mediation services based on a schedule established by rule of the Department.
  2. The mediator shall conduct one or more mediation sessions within the period that ends 10 days prior to the effective date of the proposed lot rent increase. The mediation shall include the mobile home park owner and the leaseholders, or their respective representatives, and shall attempt to resolve the dispute. No later than five days before the initial mediation session, the mobile home park owner shall provide to the mediator and the leaseholders’ representative all documents and information that the park owner considers relevant to support the proposed lot rent increase. The mobile home park owner shall have the burden of providing information to show that the proposed lot rent increase is reasonable. The mediator may also request any additional documents or information for the purposes of the mediation process. Any resolution of the dispute shall include an agreement regarding the amount of lot rent increase and the effective date. If the dispute is resolved, the mobile home park owner shall not be required to provide any additional notice in order for the lot rent increase to take effect pursuant to the resolution.
  3. The mediator shall issue to the parties and the Commissioner a report signed by the mediator and the parties regarding the outcome of the mediation. The report shall not be admitted into evidence and the mediator shall not be competent to testify in any subsequent action regarding the proposed lot rent increase.

HISTORY: Added 1995, No. 33 , § 2, eff. June 1, 1995; amended 1997, No. 103 (Adj. Sess.), § 4, eff. April 23, 1998; 2007, No. 176 (Adj. Sess.), § 69.

History

Revision note

—2020. Inserted “the” before “proposed lot rent increase” in the fourth sentence to correct an apparent typographical error.

Amendments

—2007 (Adj. Sess.). Subsec. (a): Inserted “affected” following “majority of the” and deleted “of the occupied leased lots” following “leaseholders” near the middle of the first sentence.

—1997 (Adj. Sess.). Deleted “exception committee” from the section heading and rewrote the section.

§ 6253. Lot rent increase abatement; civil action.

  1. If the parties are unable to resolve the disputed proposed lot rent increase pursuant to the process provided in section 6252 of this title, an action for abatement of some or all of the proposed lot rent increase based on a claim that the increase is clearly excessive may be initiated by a majority of the affected mobile home park leaseholders by filing a complaint in the Superior Court in the county in which the mobile home park is located within 30 days after the effective date of the proposed lot rent increase.
  2. Upon filing the complaint, the leaseholders shall pay the lot rent, including the proposed lot rent increase, to the park owner. The park owner shall pay the disputed portion of the proposed lot rent increase into court pending an order by the court.
  3. For the purposes of this section, a clearly excessive lot rent increase is an increase that is unreasonable based upon the park owner’s total reasonable or documented expenses, including consideration of debt service and a reasonable return to the mobile home park owner on investment with consideration being given to comparable investments.
  4. The court may grant a protective order for financial records to any party to this action.
  5. If the court finds that the proposed lot rent increase is clearly excessive, the court may order abatement of the proposed lot rent increase in full or in part.
  6. A lot rent increase shall be exempt from this section if it is an increase:
    1. that resulted from a completed sale of a mobile home park; and
    2. that was a condition of a bona fide purchase and sales agreement; and
    3. for which notice was given at least six months before the effective date of lot rent increase.
  7. The Commissioner may provide for legal representation for mobile home park leaseholders who pursue an action under this section pursuant to rules adopted by the Commissioner.

HISTORY: Added 1995, No. 33 , § 2, eff. June 1, 1995; amended 1997, No. 103 (Adj. Sess.), § 5, eff. April 23, 1998; 2007, No. 176 (Adj. Sess.), § 70.

History

Amendments

—2007 (Adj. Sess.). Subsec. (a): Substituted “a majority of the affected mobile home park leaseholders by filing a complaint” for “the number of affected mobile home park leaseholders that corresponds to a majority of the occupied leased lots filing a complaint”.

—1997 (Adj. Sess.). In subsec. (a), deleted “and the lot rent increase is more than ten percent for lot rent at or below the state median lot rent rate, as calculated by the department, or more than five percent for lot rent above the state median lot rent rate” after “of this title” and in subsec. (c), deleted “equity, or asset value” after “on investment” and “alternative and” before “comparable”.

§ 6254. Registration of mobile home parks; report.

  1. No later than September 1 each year, each park owner shall register with the Department on a form provided by the Department. The form shall include the following information:
    1. the name and address of the owner or owners of the mobile home park;
    2. the name and address of any corporation and principals of the corporation with an interest in the mobile home park;
    3. the name and address of any park manager;
    4. the name and address and location of the mobile home park;
    5. the duration of ownership of the park by the present owner;
    6. the date the mobile home park was established;
    7. the number of lots, including the number of vacant and occupied lots, in the park;
    8. the lot rent to be charged for each lot as scheduled for October 1 of that year, and the effective date of that lot rent charge;
    9. the services provided to the mobile home park leaseholders for payment of lot rent;
    10. additional charges for services paid by leaseholders in addition to lot rent;
    11. whether the mobile home park has a requirement that a mobile home must be purchased from a dealer designated by the mobile home park owner in order to be located in the park;
    12. the number of mobile homes moved into and out of the park during the previous year ending July 1; and
    13. any other relevant information requested on the form or by the Department.
  2. The Department shall:
    1. verify the information provided pursuant to subsection (a) of this section on a random basis;
    2. maintain a data base of the information provided; and
    3. report the resulting statistics and findings to the House Committee on General, Housing, and Military Affairs and the Senate Committee on Economic Development, Housing and General Affairs no later than February 1, 1996 and every three years thereafter on February 1.
  3. The Department may charge a mobile home park owner an annual fee of no more than $12.00 for each occupied leased lot in the park on September 1 of each year. The park owner may charge this fee to the affected mobile home park leaseholders. The fee shall be submitted to the Department with the registration form required in subsection (a) of this section. If a mobile home park owner charges the fee under this subsection, the fee shall not be deemed to be a lot rent increase and shall not be included in any calculation of a lot rent increase pursuant to section 6251 of this title. A mobile home park owner shall not be charged the fee under this subsection for any mobile home park in which all the mobile homes are owned by the mobile home park owner. The Commissioner may enforce filing of the registration form and payment of the fee under subsection 6205(a) of this title. A special fund shall be created for these fees to be used by the Department for its expenses in administering the laws regarding mobile home parks and to pay any fees required in the mediation process pursuant to section 6252 of this title and for legal representation for leaseholders pursuant to section 6253 of this title. This special fund shall be managed in accordance with 32 V.S.A. chapter 7, subchapter 5.

HISTORY: Added 1995, No. 33 , § 2, eff. June 1, 1995; amended 1995, No. 178 (Adj. Sess.), § 391, eff. May 22, 1996; 1997, No. 103 (Adj. Sess.), § 6, eff. April 23, 1998; 2007, No. 176 (Adj. Sess.), § 71; 2011, No. 137 (Adj. Sess.), § 2, eff. May 14, 2012; 2013, No. 191 (Adj. Sess.), § 5.

History

Amendments

—2013 (Adj. Sess.). Subsec. (c): Substituted “$12.00” for “$9.00” following “annual fee of no more than”, and deleted “of Housing and Community Affairs” following “to be used by the Department”.

—2011 (Adj. Sess.). Subdiv. (a)(8): Substituted “to be charged for each lot as scheduled for October 1 of that year” for “charged for each lot as of the preceding October 1”.

—2007 (Adj. Sess.). Section amended generally.

—1997 (Adj. Sess.). In subsec. (c), substituted “September 1 of each year” for “September 1, 1995, and September 1, 1996” at the end of the first sentence, deleted “on September 1, 1995 and September 1, 1996” at the end of the third sentence, and substituted “section 6252 of this title” for “ 10 V.S.A. § 6252 ” and “section 6253 of this title” for “ 10 V.S.A. § 6253 ” in the seventh sentence.

—1995 (Adj. Sess.) Subsec. (c): Added the seventh and eighth sentences.

Subsec. (c): Repeal of termination date. 1995, No. 33 , § 10 (b), eff. April 17, 1995, provided for the termination of subsec. (c) of this section on July 1, 1997; however, that provision was repealed by 1997, No. 59 , § 29(a), eff. June 30, 1997.

§ 6255. Repealed. 2001, No. 133 (Adj. Sess.), § 14.

History

Former § 6255. Former § 6255, relating to failed potable water supplies and failed wastewater systems, was derived from 1999, No. 161 (Adj. Sess.), § 1.

Subchapter 3. Habitability

§ 6261. Resident obligations; use and maintenance of premises.

  1. The resident shall not create or contribute to the noncompliance of the premises with applicable provisions of building, environmental, or housing and health rules. As used in this subchapter, the term “premises” means a mobile home lot and any part of a mobile home park.
  2. The resident shall conduct himself or herself and require other persons on the premises with the resident’s consent to conduct themselves in a manner that will not disturb other residents’ peaceful enjoyment of the premises.
  3. The resident shall not deliberately or negligently destroy, deface, damage, or remove any part of the premises or its fixtures, mechanical or utility systems, or furnishings or deliberately or negligently permit any person to do so.
  4. Unless inconsistent with a written rental agreement or otherwise provided by law, a resident may terminate a tenancy by actual notice given to the park owner at least one rental payment period prior to the termination date specified in the notice.
  5. If a resident acts in violation of this section, the park owner is entitled to recover damages, costs, and reasonable attorney’s fees, and the violation shall be grounds for termination under section 6237 of this title.

HISTORY: Added 1993, No. 141 (Adj. Sess.), § 11, eff. May 6, 1994; amended 2019, No. 131 (Adj. Sess.), § 17.

History

Amendments

—2019 (Adj. Sess.). Subsec. (a): Substituted “rules” for “regulations” in the first sentence, and in the second sentence, substituted “As used in” for “For purposes of” and substituted “means” for “shall mean”.

§ 6262. Park owner obligations; warranty of habitability; rules.

  1. In any lot rental agreement, the park owner shall be deemed to covenant and warrant to deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean, and fit for human habitation. This warranty requires the park owner to provide adequate and reliable utility services, including safe electrical service, potable water, and sewage disposal to a location on each lot from which these utilities can be connected to the mobile home. The warranty also requires the park owner to ensure that the roads, common areas, and facilities within the mobile home park are safe and fit for the purpose for which they were reasonably intended.
  2. The Department, in cooperation with the Agency of Natural Resources, the Department of Public Safety, and the Department of Health, shall, by rule, adopt standards for safety, cleanliness, and fitness for human habitation regarding the rental of a mobile home lot within a mobile home park.
  3. No rental agreement shall contain any provision by which the leaseholder waives the protections of the implied warranty of habitability. Any such waiver shall be deemed contrary to public policy and shall be unenforceable and void.

HISTORY: Added 1993, No. 141 (Adj. Sess.), § 11a, eff. May 6, 1994; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2007, No. 176 (Adj. Sess.), § 72; 2015, No. 8 , § 2.

History

Revision note

—2006. In subsec. (b), substituted “public safety” for “labor and industry” pursuant to No. 141 of 2003 (Adj. Sess.) that transferred the Division of Fire Safety from the Department of Labor and Industry to the Department of Public Safety.

Amendments

—2007 (Adj. Sess.). Subsec. (c): Substituted “leaseholder” for “resident” in the first sentence.

§ 6263. Habitability; leaseholder remedies.

    1. If the mobile home park owner fails to comply with the obligation of habitability, the park owner shall be deemed to have notice of the noncompliance if the park owner receives actual notice of the noncompliance from the leaseholder, a governmental entity, or a qualified independent inspector. (a) (1) If the mobile home park owner fails to comply with the obligation of habitability, the park owner shall be deemed to have notice of the noncompliance if the park owner receives actual notice of the noncompliance from the leaseholder, a governmental entity, or a qualified independent inspector.
    2. If the park owner has received notice from any of those sources and fails to make repairs within a reasonable time and the noncompliance materially affects health and safety, the leaseholder may pursue any of the following remedies:
      1. withhold payment of lot rent during the period of the noncompliance;
      2. obtain injunctive relief;
      3. recover damages, costs, and reasonable attorney’s fees; or
      4. terminate the rental agreement on reasonable notice.
    1. For purposes of subdivision (a)(2) of this section, a mobile home park owner’s failure to maintain the roads within a mobile home park in a condition that reasonably ensures access by emergency vehicles shall be deemed noncompliance that materially affects health and safety. (b) (1) For purposes of subdivision (a)(2) of this section, a mobile home park owner’s failure to maintain the roads within a mobile home park in a condition that reasonably ensures access by emergency vehicles shall be deemed noncompliance that materially affects health and safety.
    2. This subsection does not require a mobile home park owner to create a new road or other improvement, or to modify an existing road or other improvement, within an existing mobile home park.
  1. The remedies under this section are not available to a leaseholder if the noncompliance was caused by the negligent or deliberate act or omission of the leaseholder or of a person on the premises with the leaseholder’s consent.

HISTORY: Added 1993, No. 141 (Adj. Sess.), § 11, eff. May 6, 1994; amended 2007, No. 176 (Adj. Sess.), § 73; 2015, No. 8 , § 2.

History

Amendments

—2015. Added the subdiv. designations in subsec. (a); added subsec. (b), and redesignated former subsec. (b) as present subsec. (c).

—2007 (Adj. Sess.). Substituted “leaseholder” for “tenant” in the section heading; substituted “leaseholder” for “resident” and “leaseholder’s” for “resident’s” throughout the section; and inserted “park” preceding “owner” in the second sentence of subsec. (a).

CROSS REFERENCES

Prohibition against retaliatory conduct of mobile home park owner, see § 6247 of this title.

§ 6264. Minor defects; repair and deduct.

    1. If the park owner fails to repair a minor defect or noncompliance with this chapter or noncompliance with a material provision of the rental agreement within 30 days of receipt of written notice, the leaseholder may repair the defect or noncompliance and deduct from the rent the actual and reasonable cost, not to exceed one-half of one month’s lot rent. (a) (1) If the park owner fails to repair a minor defect or noncompliance with this chapter or noncompliance with a material provision of the rental agreement within 30 days of receipt of written notice, the leaseholder may repair the defect or noncompliance and deduct from the rent the actual and reasonable cost, not to exceed one-half of one month’s lot rent.
    2. No major work on water, sewer, or electrical systems may be performed under this section.
    3. The leaseholder shall provide the owner with written notice of the cost of the repair or service when the cost is deducted from the rent.
    4. The leaseholder shall be responsible for any damage caused by the repair or attempts to repair.
  1. The remedies under this section are not available to a leaseholder if the noncompliance was caused by the negligent or deliberate act or omission of the leaseholder or a person on the premises with the leaseholder’s consent.

HISTORY: Added 1993, No. 141 (Adj. Sess.), § 11, eff. May 6, 1994; amended 2007, No. 176 (Adj. Sess.), § 74; 2015, No. 8 , § 2.

History

Amendments

—2015. Subsec. (a): Added the subdiv. 1 through 4 designations.

—2007 (Adj. Sess.). Substituted “leaseholder” for “resident” and “leaseholder’s” for “resident’s” throughout the section.

§ 6265. Condemnation and relocation of residents.

  1. The owner of a lot or rented mobile home that is condemned by a governmental agency due to the willful failure or refusal of the owner to comply with any obligations imposed by law shall provide for reasonable relocation costs of affected leaseholders and residents, except when the owner can demonstrate that he or she has no financial capacity to comply. The affected leaseholders and residents shall have the right to recover the reasonable costs of relocation, including court costs and reasonable attorney fees. The Agency of Natural Resources shall grant to the owner in a timely fashion all permits necessary to correct violations under this subchapter.
  2. The Commissioner may require a park owner who commences a closure of a mobile home park pursuant to section 6237a of this title within one year of receiving from a State or municipal enforcement official a notice of a violation of health, safety, or environmental laws or of section 6262 of this title to pay reasonable relocation costs not to exceed $3,500.00 to each affected leaseholder, except when the park owner can demonstrate that he or she has no financial capacity to comply.

HISTORY: Added 1993, No. 141 (Adj. Sess.), § 11, eff. May 6, 1994; amended 2007, No. 176 (Adj. Sess.), § 75.

History

Amendments

—2007 (Adj. Sess.). Designated existing provisions of the section as subsec. (a), amended subsec. (a) generally, and added subsec. (b).

§ 6266. Sale of mobile home park; health and safety compliance.

  1. The State, a political subdivision of the State, or any local governmental entity that has lawfully issued and served on the owner of a mobile home park an order that is based on a finding that the premises of the mobile home park are in violation of any State, or local health, safety, or environmental law or regulation and requires the owner to bring the park into compliance shall record in the land records of any municipality in which the mobile home park is located, the following:
    1. the order;
    2. the health, safety, or environmental laws or regulations that are the basis of the order;
    3. the manner in which the park is in violation; and
    4. the name, address, and telephone number of a person who can provide additional information about the order and the noncompliance of the mobile home park.
  2. An order issued pursuant to subsection (a) of this section shall include the notice to the owner of the mobile home park that the order will be recorded in the land records of any municipality in which the park is located.
  3. If an order has been recorded pursuant to subsection (a) of this section, the issuing authority, after determining that the mobile home park is in compliance with the order, shall record a notice of compliance in any land records in which the order was recorded.
  4. Prior to any transfer of the mobile home park, the owner shall disclose to the transferee the following:
    1. the results of the most recent sanitary survey conducted by the Agency of Natural Resources and all drinking water tests required to be performed on the mobile home park within the previous 36 months;
    2. all State and local governmental permits relating to the operation of the mobile home park, including its water and sewage systems.

HISTORY: Added 1995, No. 127 (Adj. Sess.), § 1.

Chapter 155. Acquisition of Interests in Land by Public Agencies

History

Policy and findings. 1969, No. 229 (Adj. Sess.), § 1 provided:

“(a) The conservation of Vermont’s agriculture, forest, and undeveloped residential land is and will be of primary importance to the economic growth of the state. Vermont’s scenic undeveloped land attracts the construction and expansion of recreational, commercial and industrial facilities, thereby creating new opportunities for investment and employment.

“(b) In the best interests of all of its citizens, Vermont should encourage and assist the preservation and maintenance in present use of its agricultural, forest, and other undeveloped land, in order to protect its rural communities from such development which will add to the burden of taxes on their residents, in order to conserve the increasingly valuable scenic and other natural resources of this state, and in order to maintain for the benefit of future generations the essential characteristics of the Vermont countryside.

“(c) In many instances the purpose of this act may be achieved to the best advantage of both the citizens of the state and the owner of the particular property if some of the rights and interests in land, including the right of enjoyment and continuation of its present agricultural, forest, or residential use, are retained by the owner thereof, after selling or otherwise transferring to a municipality or to the appropriate agency of the state those rights and interests which may be of no actual worth to the owner in light of his prospective use of his land but which represent a material portion of the fair market value of the property for purposes of property tax appraisal.”

Law Reviews —

For note, “Changing Vermont’s Current Use Appraisal Program to Provide Property Tax Incentives for Conservation Easements,” see 17 Vt. L. Rev. 165 (1992).

For note relating to preservation of farmlands, see 11 Vt. L. Rev. 603 (1986).

§ 6301. Purpose.

It is the purpose of this chapter to encourage and assist the maintenance of the present uses of Vermont’s agricultural, forest, and other undeveloped land and to prevent the accelerated residential and commercial development thereof; to preserve and to enhance Vermont’s scenic natural resources; to strengthen the base of the recreation industry and to increase employment, income, business, and investment; to enable the citizens of Vermont to plan its orderly growth in the face of increasing development pressures in the interests of the public health, safety, and welfare; and to encourage the use of conservation and preservation tools to support farm, forest, and related enterprises, thereby strengthening Vermont’s economy to improve the quality of life for Vermonters and to maintain the historic settlement pattern of compact village and urban centers separated by rural countryside.

HISTORY: Added 1969, No. 229 (Adj. Sess.), § 2; amended 2011, No. 118 (Adj. Sess.), § 2.

History

Revision note—

Reference to “present” preceding “the accelerated residential and commercial development thereof;” changed to “prevent” to correct an apparent typographical error.

Amendments

—2011 (Adj. Sess.). Added “and to encourage the use of conservation and preservation tools to support farm, forest, and related enterprises, thereby strengthening Vermont’s economy to improve the quality of life for Vermonters, and to maintain the historic settlement pattern of compact village and urban centers separated by rural countryside” at the end of the section.

ANNOTATIONS

Posting against hunting and trapping.

The fact that the list in the statute authorizing that acquisition of interests in land by public agencies includes the preservation and enhancement of Vermont’s scenic natural resources, among other related interests, seems sufficient to justify including the posting of land against hunting and trapping among the permissible proceedings a municipality may take to protect an interest in land. Hunters, Anglers & Trappers Association of Vermont, Inc. v. Winooski Valley Park District, 2006 VT 82, 181 Vt. 12, 913 A.2d 391, 2006 Vt. LEXIS 317 (2006).

Because a union municipal district owned or leased all of the land within its boundaries, its management practices had the effect of banning hunting and trapping throughout those boundaries, but the Legislature has not prohibited the district from managing its land in that way. Thus, the district’s actions in posting its own land to ban hunting and trapping were not only affirmatively authorized by the Legislature, but also free of any statutory or constitutional prohibition. Hunters, Anglers & Trappers Association of Vermont, Inc. v. Winooski Valley Park District, 2006 VT 82, 181 Vt. 12, 913 A.2d 391, 2006 Vt. LEXIS 317 (2006).

Law Reviews —

Taxation of Preservation Interests as Property in Vermont, see 5 Vt. L. Rev. 161 (1980).

§ 6301a. Definitions.

As used in this chapter:

  1. “State agency” means the Agency of Natural Resources or any of its departments, Agency of Transportation, Agency of Agriculture, Food and Markets, or Vermont Housing and Conservation Board.
  2. “Qualified organization” means:
    1. an organization qualifying under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, which is not a private foundation as defined in Section 509(a) of the Internal Revenue Code, and which has been certified by the Commissioner of Taxes as being principally engaged in the preservation of undeveloped land for the purposes expressed in section 6301 of this title.
    2. an organization qualifying under Section 501(c)(2) of the Internal Revenue Code of 1986, as amended, provided such organization is controlled exclusively by an organization or organizations described in subdivision (2)(A) of this section.
  3. “Taxation” and “tax” means ad valorem taxes levied by the State and its municipalities.

HISTORY: Added 1987, No. 200 (Adj. Sess.), § 42; amended 1989, No. 256 (Adj. Sess.), § 10(a), eff. Jan. 1, 1991; 2003, No. 42 , § 2, eff. May 27, 2003.

History

References in text.

Sections 501 and 509 of the Internal Revenue Code of 1986, referred to in this section, are codified as 26 U.S.C. §§ 501 and 509, respectively.

Amendments

—2003. Subdiv. (1): Substituted “agency of agriculture, food and markets” for “department of agriculture, food and markets”.

—1989 (Adj. Sess.). Subdiv. (1): Substituted “department of agriculture, food and markets” for “department of agriculture”.

§ 6302. Power to acquire.

  1. In order to carry out the purposes set forth in section 6301 of this title, any owner of real property located within this State or of any right or interest in real property located within this State may sell, donate, devise, exchange, or transfer that real property or any right or interest in real property located within this State to a municipality of this State, a State agency, or a qualified organization. A municipality of this State by the action of its legislative body or a State agency may acquire such real property or any right and interest in real property located within this State by purchase with any authorized funds, or by donation, devise, exchange, or transfer, all as herein provided.
  2. For the purposes of this chapter, “real property” includes (without limitation) areas covered by water, areas beneath the surface of the ground, air space, and any buildings, other structures, and other improvements, and “real estate” as the same is defined in 1 V.S.A. § 132 .
  3. The General Assembly hereby declares that the acquisition of real property or any right and interest in real property located within this State, for the purposes expressed in section 6301 of this title, constitutes a public use and a public purpose for which public funds may be expended or advanced.
  4. Prior to the acquisition of any right or interest in real property by a State agency, the State agency shall submit a report thereon to the legislative body of the municipality concerned, setting forth the location of the real property, the characteristics of the right or interest to be acquired, and the consideration to be given therefor.

HISTORY: Added 1969, No. 229 (Adj. Sess.), § 3; amended 1983, No. 71 , § 1; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1987, No. 76 , § 18; 1987, No. 200 (Adj. Sess.), § 43; 2019, No. 131 (Adj. Sess.), § 18.

History

Amendments

—2019 (Adj. Sess.). Subsec. (a): Substituted “in real property located within this State” for “therein”.

Subsec. (c): Substituted “in real property located within this State” for “therein”.

—1987 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (d): Amended generally.

—1987. Subsec. (a): Substituted “environmental conservation” for “water resources and environmental engineering” following “fish and wildlife, and”.

—1983 (Adj. Sess.). Subsec. (a): Substituted “fish and wildlife” for “fish and game”.

—1983. Subsec. (a): Inserted “agriculture” following “departments of”.

§ 6303. Interests that may be acquired.

  1. The rights and interests in real property that may be acquired, used, encumbered, and conveyed by a municipality, State agency, or qualified organization shall include the following:
    1. Fee simple.
    2. Fee simple subject to right of occupancy and use, which may be defined as full and complete title subject only to a right of occupancy and use of the subject real property or part thereof by the grantor for residential or agricultural purposes, subject to the provisions of section 6304 of this title and to such other terms as the legislative body of the municipality, the qualified organization, or the State agency may fix.
    3. Fee simple and resale of rights and interests, which may be defined as the acquisition of real property in fee simple and the subsequent reconveyance of rights and interests in such property to the former owner or to others, subject to the provisions of section 6304 of this title and to specified covenants, restrictions, conditions, or affirmative requirements fixed by the legislative body of the municipality, the qualified organization, or the State agency in its discretion and designed to accomplish the purposes set forth in section 6301 of this title.
    4. Fee simple and lease back, which may be defined as the acquisition of real property in fee simple and the lease for the life of a person or for a term of years of rights and interests in the real property, subject to the provisions of section 6304 of this title and to specified covenants, restrictions, conditions, or affirmative requirements fixed by the legislative body of the municipality, the qualified organization, or the State agency in its discretion and designed to accomplish the purposes set forth in section 6301 of this title.
    5. Less than fee simple.  The acquisition and retention of any rights and interests in real property less than fee simple.
    6. Lease.  The lease of land or rights and interests in land for a term, with or without an option to purchase.
    7. Preemptive rights and options to purchase. The acquisition of preemptive rights such as a right of first refusal or an option to purchase land or rights and interests in the land.
  2. The legislative body of a municipality, a State agency, or a qualified organization, as the case may be, shall determine the types of rights and interests in real property to be acquired, including licenses, equitable servitudes, profits, rights under covenants, easements, development rights, or any other rights and interests in real property of whatever character.
  3. Where less than fee simple ownership is acquired or retained, such right and interest may, in the discretion of the legislative body of the municipality, the State agency, or the qualified organization, include a right to enter in order to accomplish the purposes of section 6301 of this title.

HISTORY: Added 1969, No. 229 (Adj. Sess.), § 4; amended 1987, No. 200 (Adj. Sess.), § 44; 2011, No. 118 (Adj. Sess.), § 7; 2019, No. 131 (Adj. Sess.), § 19.

History

Amendments

—2019 (Adj. Sess.). Subsec. (a): Substituted “that” for “which” in the introductory language; substituted “in the real property” for “therein” in subdiv. (a)(4); and substituted “in the land” for “therein” in subdiv. (a)(7).

—2011 (Adj. Sess.). Subsec. (a): Inserted a comma following “state agency” in the introductory paragraph.

Subdiv. (a)(7): Substituted “Preemptive rights and options to purchase” for “Option to purchase”.

—1987 (Adj. Sess.). Subsec. (a): Substituted “state agency or qualified organization” for “or by a department” following “municipality” in the introductory paragraph and “the qualified organization, or the state agency” for “or department” following “municipality” in subdivs. (2)-(4).

Subsec. (b): Substituted “a state agency or a qualified organization” for “or a department” following “municipality”.

Subsec. (c): Substituted “the state agency or the qualified organization” for “or the department” following “municipality”.

§ 6304. Sales of land.

In any case where rights and interests in real property have been reconveyed or leased back to a person by a municipality or a department, the use of land subject in the reconveyance or lease back shall not be changed, and no residential, industrial, or commercial construction except for the use of the owner or his or her family shall be undertaken, except with the consent of the legislative body of the municipality or the department or except as specifically provided in the instrument evidencing the reconveyance or lease. In the event of the termination of any rights or interests of such person, the legislative body of the municipality or the department shall pay to such person an amount equal to the fair market value of that portion of such right that remained unexpired on the date of such termination, unless such termination is caused by the breach by such person of a term of the instrument by which he or she acquired such right or interest. In any case of acquisition subject to a right of occupancy and use, or acquisition and reconveyance, or acquisition and lease, under subsection 6303(a) of this title, the legislative body or department shall give priority to the grantor thereof in selecting the grantee or lessee, as the case may be.

HISTORY: Added 1969, No. 229 (Adj. Sess.), § 5; amended 2019, No. 131 (Adj. Sess.), § 20.

History

Amendments

—2019 (Adj. Sess.). Substituted “in the reconveyance or lease back” for “thereto” in the first sentence, and in the second sentence, substituted “that” for “which” and inserted “or she” following “which he”.

§ 6305. Exchanges of land.

In exercising its authority to acquire property by exchange, a department may accept real property and rights and interests in the real property, and may convey to the grantor of such real property or rights and interests in the real property any State-owned property under the jurisdiction of the department, but only with the favorable advice and recommendation of the Interagency Committee on Natural Resources. In effecting such exchanges, the department may also utilize for exchange purposes any privately owned land and rights and interests in the land donated or made available to it for such purpose of an exchange. The land and rights and interests thus exchanged shall be approximately equal in fair market value, provided that the department may accept cash from or pay cash to the grantor in such an exchange, in order to equalize the value of the property and rights and interests in the property being exchanged. Notwithstanding any other provisions of law and with the approval of the Interagency Committee on Natural Resources, State real property and rights and interests in the property may, with the authorization of the department or other agency having custody thereof, be transferred without consideration to the jurisdiction of a department designated under section 6302 of this title for use in carrying out the provisions of this chapter.

HISTORY: Added 1969, No. 229 (Adj. Sess.), § 6; amended 2019, No. 131 (Adj. Sess.), § 21.

History

Editor’s note—

The interagency committee on natural resources, referred to in this section, no longer exists. Sections 21-23 of this title, relating to establishment, members and duties of the committee, were repealed by 1979, No. 159 (Adj. Sess.), § 21. The primary duties of the committee, as set out in former § 23 of this title, are now performed by the secretary of natural resources. See § 2825(a) of Title 3.

Amendments

—2019 (Adj. Sess.). Substituted “in the real property” for “therein” twice in the first sentence, substituted “in the land” for “therein” in the second sentence, substituted “in the property” for “therein” in the third sentence, and substituted “in the property may” for “therein” in the fourth sentence.

§ 6306. Exemption from taxation.

  1. The rights and interests in real property acquired by a municipality or State agency under the authority of this chapter shall be considered as municipal or State-owned land, as the case may be, with respect to taxation and State reimbursement in lieu of taxes.
    1. The Commissioner of Taxes may certify that real property acquired by a qualified organization under this chapter is being held and maintained for the purposes expressed in section 6301 of this title.  As a condition of that certification, the Commissioner may require that the qualified organization provide adequate assurances that the property is being so held and maintained, including written agreements with the Department of Taxes, deeds, covenants, or other conveyances.  Property that is so certified: (b) (1) The Commissioner of Taxes may certify that real property acquired by a qualified organization under this chapter is being held and maintained for the purposes expressed in section 6301 of this title.  As a condition of that certification, the Commissioner may require that the qualified organization provide adequate assurances that the property is being so held and maintained, including written agreements with the Department of Taxes, deeds, covenants, or other conveyances.  Property that is so certified:
      1. if in the nature of an interest in fee simple, shall be assessed on the basis of its actual use or may be enrolled by the qualifying organization in a current use program under 32 V.S.A. chapter 124; or
      2. shall be exempt from assessment and taxation, if in the nature of an interest other than fee simple.
    2. For purposes of this section, where a qualified organization holds a lease in the property for a term greater than ten years, including renewal terms, or holds such other interests as the Commissioner shall determine to be substantially equivalent to an interest in fee simple, the organization shall be deemed to hold an interest in fee simple.
    3. A certification granted to a qualified agency shall first affect the April 1 grand list following the date that all information deemed necessary by the Commissioner has been provided by the qualified organization.
  2. After acquisition by a municipality, State agency, or qualified organization of a right or interest in real property under the authority of this chapter, the owner of any remaining right or interest in the real property not so acquired shall be taxed, under the applicable provisions of 32 V.S.A. chapter 123, only upon the value of those remaining rights or interests to which he or she retains title. The State agency or qualified organization, and the Department of Taxes, shall cooperate with that owner and with the town assessing such tax in the determination of the fair market value of any such remaining right or interest.
  3. Property held by a qualified organization and taxed or exempted under subsection (b) of this section shall be subject to a conversion tax if the Commissioner determines that it is no longer being held and maintained for the purposes expressed in section 6301 of this title.  The amount of the conversion tax shall be five times the amount of the taxes avoided by reason of the exemption in the most recent year.  The conversion tax shall be paid to the municipality in which the property is located.

HISTORY: Added 1969, No. 229 (Adj. Sess.), § 7; amended 1987, No. 200 (Adj. Sess.), § 45; 1997, No. 60 , § 68c; 2013, No. 73 , § 26, eff. June 5, 2013; 2019, No. 131 (Adj. Sess.), § 22.

History

Amendments

—2019 (Adj. Sess.). Subsec. (c): Substituted “in the real property” for “therein” in the first sentence.

—2013. Subdiv. (b)(3): Added.

—1997. Subdiv. (b)(1): Amended generally.

—1987 (Adj. Sess.). Section amended generally.

§ 6307. Enforcement.

  1. Injunction.   In any case where rights and interests in real property are held by a municipality, State agency, or qualified organization under the authority of this chapter, the legislative body of the municipality, the State agency, or the qualified organization may institute injunction proceedings to enforce the rights of the municipality, State agency, or qualified organization, in accordance with the provisions of this chapter, and may take all other proceedings as are available to an owner of real property under the laws of this State to protect and conserve its right or interest.
  2. Liquidated damages.   Any contract or deed establishing or relating to the sale or transfer of rights or interests in real property under the authority of this chapter may provide for specified liquidated damages, actual damages, costs, and reasonable attorney’s fees in the event of a violation of the rights of the municipality, State agency, or qualified organization under the municipality or State agency.
  3. Conservation rights.   The holder of conservation rights and interests may seek injunctive relief and damages against any person who damages the holder’s rights and interests, irrespective of whether the owner of the land is a party to the proceeding. This subsection shall not affect any right of the owner of the land to join or intervene in any proceeding.

HISTORY: Added 1969, No. 229 (Adj. Sess.), § 8; amended 1987, No. 200 (Adj. Sess.), § 46; 2011, No. 118 (Adj. Sess.), § 3; 2019, No. 131 (Adj. Sess.), § 23.

History

Amendments

—2019 (Adj. Sess.). Subsec. (b): Substituted “under the municipality or State agency” for “thereunder” at the end.

—2011 (Adj. Sess.). Subsec. (c): Added.

—1987 (Adj. Sess.). Subsec. (a): Substituted “state agency or qualified organization” for “or department” preceding “under the authority” and for “or state” preceding “in accordance” and substituted “the state agency or the qualified organization” for “or the department” preceding “may institute”.

Subsec. (b): Inserted “actual damages, costs and reasonable attorney fees” following “liquidated damages” and substituted “state agency or qualified organization” for “or department” following “municipality”.

CROSS REFERENCES

Injunctions generally, see V.R.C.P. 65.

§ 6308. Rights in perpetuity unless limited.

  1. If the legislative body of a municipality in the case of municipal rights or interests, or a State agency in the case of State-owned rights or interests, finds that the retention of the rights or interests is no longer needed to carry out the purposes of this chapter, the rights or interests may be released and conveyed to the co-owner, to another public agency, to another party holding other rights or interests in the land, or to a third party. Where the conveyance is to a party other than another public agency or qualified organization, the municipality or State agency shall receive adequate compensation from that party for the conveyance of the rights or interests.
  2. The conveyance of rights or interests in real property less than fee simple made under the authority of this chapter shall be perpetual, except if the conveyance is limited by its terms to a specific period.

HISTORY: Added 1969, No. 229 (Adj. Sess.), § 9; amended 1975, No. 186 (Adj. Sess.); 1987, No. 200 (Adj. Sess.), § 47; 2011, No. 118 (Adj. Sess.), § 4.

History

Amendments

—2011 (Adj. Sess.). Substituted “Rights in perpetuity unless limited” for “Termination of rights” in the section heading, and rewrote subsec. (b).

—1987 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Inserted “qualified organizations” following “municipalities”.

—1975 (Adj. Sess.). Subsec. (b): Substituted “wherever possible, in order to promote the interests of the state, municipalities, or private landowners involved, agreements” for “any agreement” preceding “for the conveyance” and added “except where both parties agree, such agreements may provide for the conveyance of rights and interests in perpetuity” following “a specified number of years”.

§ 6309. Agency of Agriculture, Food and Markets; leases.

In the event that real property acquired by the Agency of Agriculture, Food and Markets is leased to a lessee other than a governmental entity of the State of Vermont, the lessee shall be taxed on the fair market value or the use value under the provisions of 32 V.S.A. chapter 124 of the property by the municipality in which it is located.

HISTORY: Added 1983, No. 71 , § 2; amended 1989, No. 256 (Adj. Sess.), § 10(a), eff. Jan. 1, 1991; 2003, No. 42 , § 2, eff. May 27, 2003.

History

Amendments

—2003. Substituted “agency of agriculture, food and markets” for “department of agriculture, food and markets” in the section heading and text.

—1989 (Adj. Sess.). Substituted “department of agriculture, food and markets” for “department of agriculture” in the section heading and in the text of the section.

§ 6310. Conservation easement holder; nonmerger.

If a holder of a conservation easement is or becomes the owner in fee simple of property subject to the easement, the easement shall continue in effect and shall not be extinguished.

HISTORY: Added 2015, No. 51 , § F.8.

§ 6311. Conservation rights and interests; tax liens.

A tax lien shall not affect conservation rights and interests if the tax lien attaches to the subject property under 32 V.S.A. § 5061 subsequent to the recording of the conservation rights and interests in the municipal land records.

HISTORY: Added 2015, No. 84 (Adj. Sess.), § 1.

Chapter 156. Champion Land Transaction Citizen Advisory Council

History

Former chapter 156. Former chapter 156, relating to the Champion Land Transaction Citizen Advisory Council, and consisting of former §§ 6407-6409, was derived from 1999, No. 1 , § 87b and repealed by 2021, No. 52 , § 8.

§§ 6407-6409. Repealed. 2021, No. 52, § 8, effective June 3, 2021.

History

Former §§ 6407-6409. Former § 6407, relating to creation of the Champion Land Transaction Citizen Advisory Council, was derived from 1999, No. 1 , § 87b.

Former § 6408, relating to functions of Council, was derived from 1999, No. 1 , § 87b.

Former § 6409, relating to members and organization of Council, was derived from 1999, No. 1 , § 87b.

Chapter 157. Storage of Radioactive Material

CROSS REFERENCES

Disposal of low-level radioactive waste, see chapter 161 of this title.

Texas Low-Level Radioactive Waste Disposal Compact, see chapter 162 of this title.

Subchapter 1. Radioactive Waste Facility Siting

History

Amendments

—1985 (Adj. Sess.) 1985, No. 195 (Adj. Sess.), § 2, eff. May 14, 1986, designated the existing provisions of this chapter, comprising §§ 6501-6506, as subchapter 1 and added the subchapter heading.

§ 6501. Storage of radioactive material.

  1. No facility for deposit, storage, reprocessing, or disposal of spent nuclear fuel elements or radioactive waste material shall be constructed or established in the State of Vermont unless the General Assembly first finds that it promotes the general good of the State and approves, through either bill or joint resolution, a petition for approval of the facility.  No facility for the incineration of low-level radioactive waste, as defined in subdivision 7001(7) of this title, shall be constructed or established without a similar finding and approval.
  2. The construction or establishment after July 1, 1980 of a low-level, temporary storage facility is exempted from subsection (a) of this section.  For the purposes of this subsection, the term “low-level, temporary storage” means storage of material:
    1. that is produced by research, educational, industrial, or medical uses not involving a fission reactor; and
    2. that has an overall radioactivity level, before any dilution, of less than one curie per cubic foot; and
    3. that either:
      1. is awaiting transfer to a commercial disposal site; or
      2. is of a material that spontaneously decreases its radioactivity level by one-half in 90 days or less.

HISTORY: Added 1977, No. 77 , § 1, eff. April 26, 1977; amended 1979, No. 191 (Adj. Sess.), § 1; 1989, No. 296 (Adj. Sess.), § 8, eff. June 29, 1990.

History

Amendments

—1989 (Adj. Sess.). Subsec. (a): Added the second sentence.

—1979 (Adj. Sess.). Designated existing provisions of section as subsec. (a), deleted the comma following “reprocessing” and “high level” preceding “radioactive waste material”, and added subsec. (b).

CROSS REFERENCES

Exemption for temporary storage by Vermont Yankee Nuclear Power Corporation, see § 6505 of this title.

Radioactive waste defined, see § 6506 of this title.

§ 6502. Petition procedure.

  1. A petition for approval by the General Assembly of a facility under section 6501 of this title shall be submitted to the Speaker of the House and the President of the Senate.  The petition shall be referred forthwith to the Joint Energy Committee.
  2. The Committee shall hold a public hearing on each petition for approval.  Notice of the public hearing shall be published two weeks successively in a newspaper of general circulation in the county in which the proposed facility is to be located, the last publication to be at least 12 days before the day appointed for the hearing.  Any agency or person may submit recommendations relating to the proposed facility to the Committee.  The Committee shall be authorized to examine all records and information relevant to the petition in the possession of the petitioner or any State agency.
  3. Upon receipt of the petition, notice shall be given by the Committee to the Chair of the Public Utility Commission, the Commissioner of Health, the Secretary of Natural Resources, and the Attorney General.  Each public official so notified shall, prior to the public hearing under subsection (b) of this section, submit to the Committee his or her agency’s evaluation of the impact of the facility on the State and any other information deemed relevant to the petition.
  4. Notice, by certified mail, shall be given to the chair or director of the municipal and regional planning commissions and the selectboard for each town in which the proposed facility is to be located and each contiguous town not less than 30 days prior to the public hearing under subsection (b) of this section.

HISTORY: Added 1977, No. 77 , § 1, eff. April 26, 1977; amended 1979, No. 191 (Adj. Sess.), § 2; 1987, No. 76 , § 18; 2013, No. 161 (Adj. Sess.), § 72.

History

Revision note

—2017. In subsec. (c), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

—2014. In accordance with 2013, No. 161 (Adj. Sess.), § 72; in subsec. (c): Substituted “chair” for “chairman”, and in subsec. (d), substituted “chair” for “chairman” and “selectboard” for “board of selectmen”.

Amendments

—1987. Subsec. (c): Substituted “agency of natural resources” for “agency of environmental conservation”.

—1979 (Adj. Sess.). Subsec. (a): Deleted “in the event that the joint energy committee to be established by Senate bill 44 of the 1977 session of the general assembly is in existence on the date of receipt of the petition” preceding “the petition shall be referred” in the second sentence and deleted the third sentence.

§ 6503. Legislative approval.

  1. The Committee shall report to the General Assembly its recommendation to approve or not to approve the petition for the facility together with such additional information and comment it deems appropriate.
  2. Any bill or joint resolution approving a facility under section 6501 of this title shall include findings that the proposed facility:
    1. will promote the general welfare and will not have an undue adverse effect on health, safety, aesthetics, historic sites, air and water purity, the natural environment, and the economy; and
    2. will not unduly interfere with the orderly development of the region with due consideration having been given to the recommendations of the municipal and regional planning commissions and the municipal legislative bodies.
  3. Unless the proposed facility is approved by the General Assembly, no State officer, agency, or department shall undertake to approve or license the proposed facility or undertake to cause or obtain the approval or licensing from any other state or federal governmental agency or board.  The appropriate State officers and agencies shall use every proper and available legal means to prevent siting and licensing of such facility until the approval of the General Assembly is obtained.
  4. No temporary storage facility that is a part of a nuclear fission plant approved by the General Assembly pursuant to 30 V.S.A. § 248(e) shall be required to obtain the additional approval required by this section.

HISTORY: Added 1977, No. 77 , § 1, eff. April 26, 1977; amended 2013, No. 142 (Adj. Sess.), § 23; 2015, No. 131 (Adj. Sess.), § 22.

History

Revision note

—2006. In subsec. (d), substituted “section 248(e) of Title 30” for “section 248(c) of Title 30” to conform reference to text of section 248, as amended.

Amendments

—2015 (Adj. Sess.). Subsec. (a): Deleted the final sentence, which read, “The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection.”.

—2013 (Adj. Sess.). Subsec. (a): Added the second sentence.

§ 6504. Repealed. 1979, No. 191 (Adj. Sess.), § 5.

History

Former § 6504. Former § 6504, relating to a joint legislative committee on radioactive material, was derived from 1977, No. 77 , § 1.

§ 6505. Exemption.

This subchapter does not apply to any temporary storage by Vermont Yankee Nuclear Power Corporation of spent nuclear fuel elements or other radioactive waste at its present site.

HISTORY: Added 1979, No. 191 (Adj. Sess.), § 3; amended 1985, No. 195 (Adj. Sess.), § 3, eff. May 14, 1986.

History

Amendments

—1985 (Adj. Sess.). Substituted “subchapter” for “chapter”.

§ 6506. Definitions.

As used in this chapter, “radioactive waste” means waste material:

  1. technologically enhanced for the purpose of increasing the concentration of radioactive elements; or
  2. contaminated with such technologically enhanced material to a radioactive level above background.

HISTORY: Added 1979, No. 191 (Adj. Sess.), § 4.

§ 6507. Scope of State regulation of radioactive materials and waste.

  1. This section applies to:
    1. waste or material, generated within the United States, with respect to which all of the following apply:
      1. it is radioactive waste or radioactive materials classified as radioactive waste by the U.S. Nuclear Regulatory Commission (NRC) as of January 1, 1989;
        1. it is radioactive waste or radioactive materials that were not eligible and approved for special disposal provisions under the NRC regulations in effect as of January 1, 1989; or (B) (i) it is radioactive waste or radioactive materials that were not eligible and approved for special disposal provisions under the NRC regulations in effect as of January 1, 1989; or
        2. it is radioactive waste or radioactive materials that have not been determined to be approvable for special disposal under NRC regulations in effect as of January 1, 1989, even though the determination is made after that date; and
      2. it was generated or utilized by any government agency or pursuant to a government contract or license;
    2. waste or material generated outside the United States with respect to which all of the following apply:
      1. it is radioactive waste or radioactive materials that would have been classified as radioactive waste or radioactive materials by the NRC as of January 1, 1989, if it had been generated within the United States;
        1. it is radioactive waste or radioactive materials that would not have been eligible and approved for special disposal provisions under NRC regulations in effect as of January 1, 1989, if it had been generated within the United States; or (B) (i) it is radioactive waste or radioactive materials that would not have been eligible and approved for special disposal provisions under NRC regulations in effect as of January 1, 1989, if it had been generated within the United States; or
        2. it is radioactive waste or radioactive materials that have not been determined to be approvable for special disposal under those regulations in effect as of January 1, 1989, had it been generated within the United States, even though the determination is made after that date.
  2. Waste or materials covered by subsection (a) of this section shall not be treated, recycled, stored, or disposed of except at a facility with a specific license, whether or not that radioactive waste or those materials, since January 1, 1989, have been deregulated or declared exempt from regulatory control by the NRC or other federal agencies.

HISTORY: Added 1989, No. 242 (Adj. Sess.), § 1.

§§ 6508, 6509. [Reserved for future use.]

§§ 6510-6512. Repealed. 1989, No. 296 (Adj. Sess.), § 4, eff. June 29, 1990.

History

Former §§ 6510-6512. Former §§ 6510-6512, relating to advisory commission on low-level radioactive waste, were derived from 1985, No. 195 (Adj. Sess.), § 1 and amended by 1987, No. 76 , § 18. For present provisions relating to disposal of low-level radioactive waste, see § 7001 et seq. of this title.

Subchapter 2. Dry Cask Storage Authorization of 2005

§ 6521. Findings.

The General Assembly finds:

  1. The Vermont Yankee nuclear power station (Vermont Yankee) in Vernon provides a very large fraction of the State’s power supply and is by far the largest power plant operating in the State.
  2. Whether the plant runs to the end of its current license, is relicensed by the federal government, or is required to shut down on short notice, that large fraction of the State’s supply will need to be replaced.
  3. The State’s future power supply should be diverse, reliable, economically sound, and environmentally sustainable.
  4. In order to make a smooth transition to the future, the State needs to accelerate Vermont’s investment in electricity resources that are economically and environmentally sound and that can be acquired in modest increments.
  5. In making this transition, there is a great value in investing in renewable energy sources; efficient, combined heat and power facilities; and energy efficiency.
  6. In support of these objectives, the General Assembly and Public Service Board have:
    1. Created the Statewide Energy Efficiency Fund and authorized significant ratepayer charges to support cost-effective investments in end-use energy efficiency resources.
    2. Provided significant support for renewable resources through the creation of a statewide purchasing pool with long-term contracts for qualifying facilities, and a renewable portfolio standard, and are creating a related program to accelerate investments in new renewable and combined-heat and power projects.
    3. Assured that these resources are supported financially by Vermont’s utilities and ratepayers, including the former owners of Vermont Yankee.
  7. In addition to these existing mechanisms, there is a need for a Clean Energy Development Fund to support investment in clean energy resources in order to permit adequate power supply diversity.

HISTORY: Added 2005, No. 74 , § 2.

History

Editor’s note

—2017. In subdiv. (6), the name “Public Service Board” is retained for the historical accuracy of a description of past actions. 2017, No. 53 , § 9 changed the name of this board to the Public Utility Commission.

§ 6522. Public Utility Commission review of proposals for new storage facilities for spent nuclear fuel.

  1. Neither the owners of Vermont Yankee nor their successors and assigns shall commence construction or establishment of any new storage facility for spent nuclear fuel before receiving a certificate of public good from the Public Utility Commission pursuant to 30 V.S.A. § 248 . Standards generally applicable to substantial modification of facilities with certificates of public good under 30 V.S.A. § 248 shall apply to any future alterations of any permitted facility.
  2. In addition to all other applicable criteria of 30 V.S.A. § 248 , before granting a certificate of public good for a new or altered spent nuclear fuel facility, the Public Utility Commission shall find that:
    1. Adequate financial assurance exists for the management of spent fuel at Vermont Yankee for a time period reasonably expected to be necessary, including through decommissioning, and for as long as it is located in the State.
    2. The applicant has made commitments to remove all spent fuel from Vermont to a federally certified long-term storage facility in a timely manner, consistent with applicable federal standards.
    3. The applicant has developed and will implement a spent fuel management plan that will facilitate the eventual removal of those wastes in an efficient manner.
    4. The applicant is in substantial compliance with any memoranda of understanding entered between the State and the applicant.
  3. In addition, the following limiting conditions shall apply:
    1. Any certificate of public good issued by the Commission shall permit storage only of spent fuel that is derived from the operation of Vermont Yankee and not from any other source.
    2. Any certificate of public good issued by the  Commission shall limit the cumulative total amount of spent fuel stored at Vermont Yankee to the amount derived from the operation of the facility up to, but not beyond, March 21, 2012, the end of the current operating license. Authorized capacity may include on-site storage capacity to accommodate full core offload or any order or requirement of the Nuclear Regulatory Commission with respect to the fuel derived from these operations.
    3. The requirement to obtain a certificate of public good from the Commission for this purpose applies to Vermont Yankee, regardless of who owns the facility, and the conditions of the certificate of public good and the requirements of this subchapter will apply to any future owner.
    4. Compliance with the provisions of this subchapter shall constitute compliance with the provisions of this chapter that require that approval be obtained from the General Assembly before construction or establishment of a facility for the deposit or storage of spent nuclear fuel, but only to the extent specified in this subchapter or authorized under this subchapter. The Public  Utility Commission is authorized to hear and issue a certificate of public good for such a facility under 30 V.S.A. § 248 to the extent specified or authorized in this subchapter. Other agencies of the State also may receive and act on applications related to the construction or establishment of such a facility, provided that any approval for such a facility applies only to the extent specified or authorized in this subchapter. Storage of spent fuel derived from the operation of Vermont Yankee after March 21, 2012 shall require the approval of the General Assembly under this chapter.
    5. Compliance with the provisions of this subchapter shall not confer any expectation or entitlement to continued operation of Vermont Yankee following the expiration of its current operating license on March 21, 2012. Before the owners of the generation facility may operate the generation facility beyond that date, they must first obtain a certificate of public good from the Public Utility Commission under Title 30.

HISTORY: Added 2005, No. 74 , § 2.

History

Revision note

—2017. In the section heading and in subsecs. (a) and (b) and subdivs. (c)(4) and (c)(5), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

In subdivs. (c)(1), (c)(2) and (c)(3), substituted “Commission” for “Board” in accordance with 2017, No. 53 , § 12.

ANNOTATIONS

Federal preemption.

In a dispute involving the continued operation of a Vermont nuclear power plant, Act 160, 2006 Vt. Acts & Resolves 204 and a single provision of Act 74, 2005 Vt. Acts & Resolves 599, requiring affirmative legislative approval under 10 V.S.A. § 6522(b)(4) for storage of spent nuclear fuel at the Vermont Yankee nuclear plant after March 21, 2012, were held preempted by the Atomic Energy Act, 42 U.S.C.S. § 2011 et seq. Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393, 2013 U.S. App. LEXIS 16810 (2d Cir. 2013).

§§ 6523, 6524. Recodified. 2011, No. 47, § 20m. [Repealed]

History

Recodification of sections. 2011, No. 47 , § 20m(a) provides: “ 10 V.S.A. §§ 6523 and 6524 are recodified respectively as 30 V.S.A. §§ 8015 and 8016. The office of legislative council shall revise accordingly any references to these statutes contained in the Vermont Statutes Annotated. Any references in session law to these statutes as previously codified shall be deemed to refer to the statutes as recodified by this act.”

Chapter 158. Fragile Areas Registry

History

Revision note—

Chapter was enacted as “chapter 157, §§ 6501-6505” but was renumbered as “chapter 158, §§ 6551-6555” to avoid conflict with existing chapter 157.

§ 6551. Definitions.

As used in this chapter:

  1. “Fragile area” means an area of land or water that has unusual or significant flora, fauna, geological, or similar features of scientific, ecological, or educational interest.
  2. “Register” means the fragile areas register that lists those fragile areas designated by the Secretary.
  3. “Secretary” means the Secretary of the Agency of Natural Resources.
  4. “Adjacent” means those lands and waters directly abutting a site on the register, including lands and waters separated from the site by highways or bodies of water where such separated lands and waters are an integral part of the site’s ecosystem.
  5. “Registry” means the act of voluntary agreement between the owner of a fragile area and the Secretary for designation of the fragile area and its placement on the register of fragile areas.
  6. “Register of fragile areas” means the listing of fragile areas that are being managed by the owner of the fragile area according to guidelines adopted by the Secretary.

HISTORY: Added 1977, No. 129 (Adj. Sess.), § 1; amended 1987, No. 76 , § 18; 1989, No. 207 (Adj. Sess.), § 1.

History

Amendments

—1989 (Adj. Sess.). Added subdivs. (5) and (6).

—1987. Subdiv. (3): Substituted “agency of natural resources” for “agency of environmental conservation”.

§ 6552. Fragile areas.

  1. The Secretary shall consider for designation on a register of fragile areas only a site that:
    1. is a significant statewide scientific, ecological, or educational value; or
    2. is exemplary for the purposes of education or research in the natural sciences; or
    3. has rare, remnant, or other unusual plants or animals or contains endangered species as determined by the Secretary under chapter 123 of this title; or
    4. contains a necessary habitat as that term is defined in section 5401 of this title.
  2. To assist in the designation, the Secretary shall seek the advice of a fragile areas committee comprising five members, one from each of the following disciplines: zoology, botany, plant community ecology, geology, and wildlife.
  3. Prior to designating a fragile area on the register, the Secretary shall:
    1. document the technical and scientific basis for the designation;
    2. contact each owner of the fragile area to inform the owner of the significance of the fragile area and to achieve voluntary agreement from the owner to protect and manage the fragile area according to stewardship guidelines adopted by the Secretary;
    3. provide information and assistance to each owner of the fragile area concerning the identification, protection, and management of the fragile area.

HISTORY: Added 1977, No. 129 (Adj. Sess.), § 1; amended 1989, No. 207 (Adj. Sess.), § 2.

History

Amendments

—1989 (Adj. Sess.). Subsec. (a): Substituted “chapter 123 of this title” for “chapter 79 of Title 13” following “under” in subdiv. (3), deleted “wildlife” preceding “habitat”, and substituted “section 5401” for “section 6001(12)” preceding “of this title” in subdiv. (4).

Subsec. (b): Substituted “a fragile areas committee comprised of five members, one from each of the following disciplines: zoology, botany, plant community ecology, geology, and wildlife” for “at least five scientists, familiar with Vermont fragile areas, from the fields of biology, botany, geology and wildlife” following “advice of”.

Subsec. (c): Rewrote subdivs. (2) and (3).

§ 6553. Powers of the Secretary.

  1. The Secretary shall:
    1. establish and maintain a register of fragile areas, including status, current ownership, and size of each area; and
    2. adopt stewardship guidelines for maintenance and protection of registered fragile areas on private and State-owned lands.
  2. Actions by the Secretary shall be made pursuant to 3 V.S.A. chapter 25.

HISTORY: Added 1977, No. 129 (Adj. Sess.), § 1; amended 1989, No. 207 (Adj. Sess.), § 3.

History

Amendments

—1989 (Adj. Sess.). Subsec. (a): Inserted “including status, current ownership, and size of each area” following “fragile areas” in subdiv. (1) and rewrote subdiv. (2).

Subsec. (c): Repealed.

§ 6554. Impact statement.

A State agency, municipality, or organization, before making a capital improvement, which is funded in whole or in part by federal or State money, within or adjacent to a fragile area on public land shall, in compliance with rules adopted pursuant to 42 U.S.C. § 3334, attach to the notice of intent for the State clearinghouse a statement of the impact of the proposed action on the fragile area.

HISTORY: Added 1977, No. 129 (Adj. Sess.), § 1; amended 1989, No. 207 (Adj. Sess.), § 4; 2015, No. 97 (Adj. Sess.), § 31.

History

Amendments

—2015 (Adj. Sess.). Deleted “4231, and 4332” following “§ 3334”.

—1989 (Adj. Sess.). Inserted “or state” following “federal” and “on public land” preceding “shall, in compliance”.

§ 6555. Cooperation of agencies.

State agencies shall:

  1. notify the Secretary before altering or transferring any publicly owned property that is listed in the register; and
  2. provide for the maintenance or protection of State-owned properties listed in the register.

HISTORY: Added 1977, No. 129 (Adj. Sess.), § 1; amended 1989, No. 207 (Adj. Sess.), § 6.

History

Amendments

—1989 (Adj. Sess.). Deleted “and regional planning commissions” following “agencies” in the introductory clause.

§ 6556. Terms of fragile areas registry.

  1. If the owner agrees to register a tract of land, and the Secretary so designates the tract a fragile area, the owner shall receive a certificate and stewardship guidelines to protect and manage the area.
  2. The agreement may be terminated by either party by written notice to the other.  The owner, upon termination, shall surrender the certificate.
  3. The agreement shall be terminated when the owner of a registered fragile area sells, conveys, or otherwise transfers ownership or interest in the land containing the fragile area to another party, unless the new owner requests to remain on the register.
  4. The name, location, and other information relating to the fragile area will be kept confidential if the owner so desires.

HISTORY: Added 1989, No. 207 (Adj. Sess.), § 5.

Chapter 159. Waste Management

History

Amendments

—1983 (Adj. Sess.). 1983, No. 148 (Adj. Sess.), § 11, deleted “Solid” preceding “Waste Management”.

CROSS REFERENCES

Disposal of low-level radioactive waste, see chapter 161 of this title.

Enforcement of environmental laws generally, see chapter 201 of this title.

Enforcement of municipal solid waste ordinances, see 24 V.S.A. chapter 61, subchapter 12.

Hazardous waste generation tax, see 32 V.S.A. chapter 237.

Loans to municipalities for planning and construction of solid waste handling and disposal facilities, see 24 V.S.A. chapter 120.

Municipal regulation of rubbish and garbage generally, see 24 V.S.A. chapter 61, subchapter 8.

Texas Low-Level Radioactive Waste Disposal Compact, see chapter 162 of this title.

Waste facility franchise tax, see 32 V.S.A. chapter 151, subchapter 13.

ANNOTATIONS

The purpose of Act 250 is not to supersede local regulation of land development; although the act gives to the environmental board, and the supreme court on appeal from the board’s decisions, the power to override a town’s implementation of its own plan, this power should be exercised only when the local construction of the town plan is plainly erroneous. In re Kisiel, 172 Vt. 124, 772 A.2d 135, 2000 Vt. LEXIS 386 (2000).

Cited.

Cited in Central Vermont Quality Services, Inc. v. City of Rutland, 780 F. Supp. 218, 1991 U.S. Dist. LEXIS 19186 (D. Vt. 1991).

Law Reviews —

For note, “Solid Waste Source Reduction and the Product Ban: A Commerce Clause Violation?,” see 13 Vt. L. Rev. 691 (1989).

Subchapter 1. General Provisions

History

Amendments

—1989 (Adj. Sess.). Act No. 282 (Adj. Sess.), § 16, eff. June 22, 1990, designated the existing provisions of the chapter as subchapter 1 and added the subchapter heading.

ANNOTATIONS

Cited.

Cited in Valley Disposal, Inc. v. Central Vermont Solid Waste Management District, 31 F.3d 89, 1994 U.S. App. LEXIS 20683 (2d Cir. 1994).

§ 6601. Declaration of policy and purpose.

  1. The developed world continues to pollute the environment and add to the depletion of the world’s resources by burning and burying resources as waste.  Furthermore, inefficient and improper methods of managing solid and hazardous waste result in scenic blights, hazards to the public health, cause pollution of air and water resources, increase the numbers of rodents and vectors of disease, have an adverse effect on land values, create public nuisances, and otherwise interfere with proper community life and development.
  2. The overall problems of solid waste management have become a matter statewide in scope and in concern and necessitate State action through planning, financial, and technical assistance and regulation to reduce the amount of waste generated and to promote environmentally acceptable and economical means of waste management.
  3. The generators of waste should pay disposal costs that reflect the real costs to society of waste management and disposal.
  4. [Repealed.]
  5. It is the purpose of this chapter that the State provide technical and financial leadership to municipalities for the siting of solid waste management facilities and the implementation of a program for the management and reduction of wastes that over the long term is sustainable, environmentally sound, and economically beneficial and that encourages innovation and individual responsibility.  The Program should give priority to reducing the waste stream through recycling and through the reduction of nonbiodegradable and hazardous ingredients.

HISTORY: Added 1977, No. 106 , § 1; amended 1987, No. 78 , § 1.

History

Amendments

—1987. Section amended generally.

ANNOTATIONS

Fees.

Solid waste management district had authority under its charter to set fees for solid waste disposal within its district. Northwest Vermont Solid Waste Management District v. Central Vermont Solid Waste Management District, 159 Vt. 61, 614 A.2d 816, 1992 Vt. LEXIS 98 (1992).

Where solid waste management district’s charter provided that it could establish tipping fees for purpose of generating revenues, tipping fees for disposal of solid waste within its district were permissible as a tax. Northwest Vermont Solid Waste Management District v. Central Vermont Solid Waste Management District, 159 Vt. 61, 614 A.2d 816, 1992 Vt. LEXIS 98 (1992).

Purpose.

Vermont legislature has authorized municipalities to enter into contracts with a waste disposal district for the siting and management of landfills; it is the legislature’s intent to support long-term contracts between municipalities and third parties for the management of waste disposal. Indeed, the purpose of the applicable statutes is to encourage towns to develop long-term plans for the disposal of solid waste that are safe, efficient, and environmentally sound. Gade v. Chittenden Solid Waste Dist., 2009 VT 107, 187 Vt. 7, 989 A.2d 491, 2009 Vt. LEXIS 131 (2009).

Criminalizing violations of Agency of Natural Resources regulations gives 10 V.S.A. chapter 159 its intended effect—a comprehensive cradle-to-grave waste management system with guidelines and incentives to ensure individual responsibility. State v. Ben-Mont Corp., 163 Vt. 53, 652 A.2d 1004, 1994 Vt. LEXIS 160 (1994).

Cited.

Cited in Central Vermont Quality Services, Inc. v. City of Rutland, 780 F. Supp. 218, 1991 U.S. Dist. LEXIS 19186 (D. Vt. 1991); Valley Disposal, Inc. v. Central Vermont Solid Waste Management District, 31 F.3d 89, 1994 U.S. App. LEXIS 20683 (2d Cir. 1994); Chittenden Solid Waste District v. Hinesburg Sand & Gravel Co., 169 Vt. 153, 730 A.2d 614, 1999 Vt. LEXIS 78 (1999); State v. Carroll, 171 Vt. 395, 765 A.2d 500, 2000 Vt. LEXIS 321 (2000).

§ 6602. Definitions.

As used in this chapter:

  1. “Secretary” means the Secretary of Natural Resources or his or her duly authorized representative.
  2. “Solid waste” means any discarded garbage; refuse; septage; sludge from a waste treatment plant, water supply plant, or pollution control facility; and other discarded material, including solid, liquid, semi-solid, or contained gaseous materials resulting from industrial, commercial, mining, or agricultural operations and from community activities but does not include animal manure and absorbent bedding used for soil enrichment; high carbon bulking agents used in composting; or solid or dissolved materials in industrial discharges that are point sources subject to permits under the Water Pollution Control Act, chapter 47 of this title.
  3. “Generator” means any person, by site, whose act or process produces hazardous waste or whose act first causes a hazardous waste to become subject to regulation.
  4. “Hazardous waste” means any waste or combination of wastes of a solid, liquid, contained gaseous, or semi-solid form, including those that are toxic, corrosive, ignitable, reactive, strong sensitizers, or that generate pressure through decomposition, heat, or other means, that in the judgment of the Secretary may cause or contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness, taking into account the toxicity of such waste, its persistence and degradability in nature, and its potential for assimilation, or concentration in tissue, and other factors that may otherwise cause or contribute to adverse acute or chronic effects on the health of persons or other living organisms, or any matter that may have an unusually destructive effect on water quality if discharged to ground or surface waters of the State. All special nuclear, source, or by-product material, as defined by the Atomic Energy Act of 1954 as subsequently amended and codified in 42 U.S.C. § 2014, is specifically excluded from this definition.
  5. “Hazardous waste management” means the systematic and comprehensive management of the generation, storage, transport, treatment, including recycling and recovery, or disposal of hazardous waste materials.
  6. “Person” means any individual, partnership, company, corporation, association, unincorporated 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.
  7. “Storage” means the actual or intended containment of wastes, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such wastes.
  8. “Transport” or “transportation” means the movement of wastes by air, rail, highway, or water.
  9. “Treatment” means any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous or solid waste, so as to neutralize such waste, or so as to recover energy or material resources from the waste, or so as to render such waste safer for transport, amenable for recovery, amenable for storage, or reduced in volume, or for hazardous wastes, so as to render such waste non-hazardous.
  10. “Facility” means all contiguous land, structures, other appurtenances, and improvements on the land, used for treating, storing, or disposing of waste. A facility may consist of several treatment, storage, or disposal operational units.
  11. “Sanitary landfill” means a land disposal site employing an engineered method of disposing of solid waste on land in a manner that minimizes environmental hazards by spreading the solid waste in thin layers, compacting the solid waste to the smallest practical volume, and applying and compacting cover material at the end of each operating day.
  12. “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking, emitting, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any ground or surface waters.
  13. “Waste” means a material that is discarded or is being accumulated, stored, or physically, chemically, or biologically treated prior to being discarded or has served its original intended use and is normally discarded or is a manufacturing or mining by-product and is normally discarded.
  14. “Economic poison” means
    1. any substance produced, distributed, or used as a plant regulator, defoliant, or desiccant;
    2. any substance produced, distributed, or used for preventing, destroying, or repelling any insects, rodents, nematodes, fungi, weeds, or other forms of plant or animal life or viruses, except viruses on or in living human or other animals, which the Commissioner shall declare to be a pest.
  15. [Repealed.]
    1. “Hazardous material” means all petroleum and toxic, corrosive, or other chemicals and related sludge included in any of the following: (16) (A) “Hazardous material” means all petroleum and toxic, corrosive, or other chemicals and related sludge included in any of the following:
      1. any substance defined in section 101(14) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980;
      2. petroleum, including crude oil or any fraction thereof;
      3. hazardous wastes, as determined under subdivision (4) of this section; or
      4. a chemical or substance that, when released, poses a risk to human health or other living organisms and that is listed by the Secretary by rule.
    2. “Hazardous material” does not include herbicides and pesticides when applied consistent with good practice conducted in conformity with federal, State, and local laws, rules, and regulations and according to manufacturer’s instructions. Nothing in this subdivision shall affect the authority granted and the limitations imposed by section 6608a of this title.
  16. “Release” means any intentional or unintentional action or omission resulting in the spilling, leaking, pumping, pouring, emitting, emptying, dumping, or disposing of hazardous materials into the surface or groundwaters, or onto the lands in the State, or into waters outside the jurisdiction of the State when damage may result to the public health, lands, waters, or natural resources within the jurisdiction of the State. “Release” also means the intentional or unintentional action or omission resulting in the spilling, leaking, emission, or disposal of polychlorinated biphenyls (PCBs) from building materials in a building or structure.
  17. “Administrative costs” mean those additional costs incurred by an applicant to directly manage the specific planning or implementation project approved in the assistance application.
  18. “Implementation plan” means that plan that is adopted to be consistent with the State solid waste management plan. This plan must include all the elements required for consistency with the State plan and an applicable regional plan and shall be approved by the Secretary. This implementation plan is the basis for State certification of facilities under subsection 6605(c) of this title.
  19. “Regional plan” means that plan that is prepared and adopted in accordance with the provisions of 24 V.S.A. § 4348 .
  20. “Municipal plan” means that plan that is prepared and adopted in accordance with the provisions of 24 V.S.A. § 4385 .
  21. [Repealed.]
  22. “Secured lender” means a person who holds indicia of ownership in a facility, furnished by the owner or person in lawful possession, primarily to ensure the repayment of a financial obligation. Such indicia include interests in real or personal property that are held as security or collateral for repayment of a financial obligation such as a mortgage, lien, security interest, assignment, pledge, surety bond, or guarantee and include participation rights, held by a financial institution solely for legitimate commercial purposes, in making or servicing loans. The term “secured lender” includes a person who acquires indicia of ownership by assignment from another secured lender.
  23. “Municipal solid waste” means combined household, commercial, and industrial waste materials generated in a given area.
  24. “Compost” means a stable humus-like material produced by the controlled biological decomposition of organic matter through active management, but shall not mean sewage, septage, or materials derived from sewage or septage.
  25. “Household hazardous waste” means any waste from households that would be subject to regulation as hazardous wastes if it were not from households.
  26. “Closed-loop recycling” means a system in which a product made from one type of material is reclaimed and reused in the production process or the manufacturing of a new or separate product.
  27. “Commercial hauler” means any person that transports:
    1. regulated quantities of hazardous waste; or
    2. solid waste for compensation in a motor vehicle having a rated capacity of more than one ton.
  28. “Mandated recyclable” means the following source-separated materials: aluminum and steel cans; aluminum foil and aluminum pie plates; glass bottles and jars from foods and beverages; polyethylene terephthalate (PET) plastic bottles or jugs; high density polyethylene (HDPE) plastic bottles and jugs; corrugated cardboard; white and colored paper; newspaper; magazines; catalogues; paper mail and envelopes; boxboard; and paper bags.
  29. “Leaf and yard residual” means source-separated, compostable untreated vegetative matter, including grass clippings, leaves, kraft paper bags, and brush, that is free from noncompostable materials. It does not include such materials as pre- and postconsumer food residuals, food processing residuals, or soiled paper.
  30. “Food residual” means source-separated and uncontaminated material that is derived from processing or discarding of food and that is recyclable, in a manner consistent with section 6605k of this title. Food residual may include preconsumer and postconsumer food scraps. “Food residual” does not mean meat and meat-related products when the food residuals are composted by a resident on site.
  31. “Source-separated” or “source separation” means the separation of compostable and recyclable materials from noncompostable, nonrecyclable materials at the point of generation.
  32. “Wood waste” means trees, untreated wood, and other natural woody debris, including tree stumps, brush and limbs, root mats, and logs.
  33. “Participation in management” means, for the purpose of subsection 6615(g) of this title, a secured lender’s or fiduciary’s actual participation in the management or operational affairs of a facility. It does not mean a secured lender’s or fiduciary’s mere capacity to influence, or unexercised right to control, facility operations. A secured lender or fiduciary shall be considered to have participated in management if the secured lender or fiduciary:
    1. exercises decision-making control over environmental compliance related to the facility, such that the secured lender or fiduciary has undertaken responsibility for hazardous materials handling or disposal practices related to the facility; or
    2. exercises control at a level comparable to that of a manager of the facility, such that the secured lender or fiduciary has assumed or manifested responsibility:
      1. for the overall management of the facility encompassing day-to-day decision making with respect to environmental compliance; or
      2. over all or substantially all of the operational functions, as distinguished from financial or administrative functions, of the facility other than the function of environmental compliance.
  34. “Regional development corporation” means a nonprofit corporation organized in this State whose principal purpose is to promote, organize, or accomplish economic development, including providing planning and resource development services to local communities, supporting existing industry, assisting the growth and development of new and existing small businesses, and attracting industry or commerce to a particular economic region of the State.
  35. “Regional planning commission” means a planning commission created for a region established under 24 V.S.A. chapter 117, subchapter 3.
  36. “Background concentration level” means the concentration level of PAHs, arsenic, or lead in soils, expressed in units of mass per mass, that is attributable to site contamination caused by atmospheric deposition or is naturally occurring and determined to be representative of statewide or regional concentrations through a scientifically valid means as determined by the Secretary.
  37. “Commencement of construction” means the construction of the first improvement on the land or to any structure or facility located on the land. “Commencement of construction” shall not mean soil testing or other work necessary for assessment of the environmental conditions of the land and subsurface of the land.
  38. “Development soils” means unconsolidated mineral and organic matter overlying bedrock that contains PAHs, arsenic, or lead in concentrations that:
    1. exceed the relevant soil screening level for residential soil;
    2. when managed in compliance with section 6604c, 6605, or 6605c of this title:
      1. pose no greater risk than the Agency-established soil screening value for the intended reuse of the property; and
      2. pose no unreasonable risk to human health through a dermal, inhalation, or ingestion exposure pathway;
    3. do not leach compounds at concentrations that exceed groundwater enforcement standards; and
    4. do not result in an exceedance of Vermont groundwater enforcement standards.
  39. “Development soils concentration level” means those levels of PAHs, arsenic, or lead expressed in units of mass per mass, contained in the development soils.
  40. “Downtown development district” shall have the meaning stated in 24 V.S.A. § 2791(4) .
  41. “Growth center” shall have the meaning stated in 24 V.S.A. § 2793c .
  42. “Neighborhood development area” shall have the meaning stated in 24 V.S.A. § 2793e .
  43. “Origin site” means a location where development soils originate.
  44. “PAHs” means polycyclic aromatic hydrocarbons.
  45. “Receiving site” means a location where development soils are deposited.
  46. “Receiving site concentration level” means those levels of PAHs, arsenic, or lead, expressed in units of mass per mass, that exist in soils at a receiving site.
  47. “TIF district” means a Tax Increment Financing District created by a municipality pursuant to 24 V.S.A. § 1892 .
  48. “Village center” shall have the meaning stated in 24 V.S.A. § 2791(10) .

HISTORY: Added 1977, No. 106 , § 1; amended 1979, No. 195 (Adj. Sess.), § 3, eff. May 6, 1980; 1981, No. 102 , § 2; 1983, No. 148 (Adj. Sess.), § 1; 1985, No. 70 , § 3, eff. May 20, 1985; 1985, No. 231 (Adj. Sess.), § 3; 1987, No. 76 , § 18; 1989, No. 30 , § 1, eff. April 27, 1989; 1989, No. 281 (Adj. Sess.), § 1, eff. June 22, 1990; 1989, No. 282 (Adj. Sess.), § 9, eff. June 22, 1990; 1993, No. 29 , § 2, eff. May 26, 1993; 2003, No. 115 (Adj. Sess.), § 60, eff. Jan. 31, 2005; 2005, No. 65 , § 2; 2007, No. 130 (Adj. Sess.), § 9, eff. May 12, 2008; 2009, No. 41 , § 1; 2009, No. 146 (Adj. Sess.), § F10; 2011, No. 148 (Adj. Sess.), § 1; 2013, No. 55 , § 11; 2015, No. 52 , § 2, eff. June 5, 2015; 2017, No. 55 , §§ 3, 4, eff. June 2, 2017; 2017, No. 113 (Adj. Sess.), § 46; 2019, No. 131 (Adj. Sess.), § 24; 2021, No. 74 , § E.709.3.

History

References in text.

Section 101(14) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, referred to in subdiv. (16)(A)(i), is codified as 42 U.S.C. § 9601(14).

Revision note—

Redesignated subdiv. (19), as added by 1989, No. 282 (Adj. Sess.), § 9, as subdiv. (22), to avoid a conflict with existing subdivs. (19)-(21), as added by 1989, No. 281 (Adj. Sess.), § 1.

Amendments

—2021. Subdiv. (17): Added the last sentence.

—2019 (Adj. Sess.). Subdiv. (16)(B): Inserted “rules,” in the first sentence.

—2017 (Adj. Sess.) Subdiv. (4): Substituted “as subsequently amended and” for “and amendments thereto,” in the second sentence.

—2017. Subdiv. (12): Inserted “emitting,” following “leaking”.

Subdiv. (16)(A)(iv): Added.

—2015. Subdivs. (37)-(49): Added.

—2013. Subdiv. (1): Substituted “Secretary of Natural Resources” for “secretary of the agency of natural resources”.

Subdiv. (4): Deleted “but not limited to” preceding “those”.

Subdivs. (34)-(36): Added.

—2011 (Adj. Sess.). Added “or her” in subdiv. (1); added commas after “discarded material” in subdiv. (2) and after “chemically” in subdiv. (13); and added “and an applicable regional plan and shall be approved by the secretary” in the second sentence in subdiv. (19).

Subdivs. (27)-(33): Added.

—2009 (Adj. Sess.) Subdiv. (26): Added.

—2009. Subdiv. (25): Added.

—2007 (Adj. Sess.) Subdiv (2): Inserted “high carbon bulking agents used in composting;” following “soil enrichment;”.

—2005. Subdiv. (24): Added.

—2003 (Adj. Sess.). Subdivs. (15), (22): Deleted.

—1993. Subdiv. (23): Added.

—1989 (Adj. Sess.). Act No. 281 added subdivs. (19) through (21).

Act No. 282 added subdiv. (19).

—1989. Subdiv. (18): Added.

—1987. Subdiv. (1): Substituted “agency of natural resources” for “agency of environmental conservation”.

—1985 (Adj. Sess.). Subdiv. (2): Inserted “discarded” preceding “garbage”.

—1985. Subdiv. (16): Added.

Subdiv. (17): Added.

—1983 (Adj. Sess.). Subdiv. (4): Inserted “including but not limited to those which are toxic, corrosive, ignitable, reactive, strong sensitizers, or which generate pressure through decomposition, heat or other means” following “form” in the first sentence, deleted the former second and third sentences, and added the present second sentence.

Subdiv. (5): Inserted “generation” preceding “storage” and “including” preceding “recycling” and “and” thereafter.

Subdiv. (8): Inserted “or ‘transportation”’ preceding “means the movement of wastes” and substituted “by air, rail, highway, or water” for “from the point of generation to any intermediate points, and finally to the point of ultimate storage or disposal” thereafter.

Subdiv. (9): Inserted “or solid waste” preceding “so as to neutralize” and “or for hazardous wastes, so as to render such waste non-hazardous” following “volume”, and deleted “non-hazardous” preceding “safer”.

Subdiv. (13): Amended generally.

—1981. Subdiv. (3): Amended generally.

Subdiv. (6): Amended generally.

Subdiv. (10): Amended generally.

Subdiv. (12): Amended generally.

—1979 (Adj. Sess.). Subdiv. (15): Added.

Legislative intent. 2013, No. 55 , § 10 provides: “For the purposes of Secs. 10 through 13 [which amended this section and 10 V.S.A. §§ 6615 and enacted 6615a] of this act, it is the intent of the General Assembly that:

“(1) It is appropriate to confer a limited defense to liability for hazardous material cleanup when a municipality, regional development corporation, or regional planning commission conforms to the requirements of 10 V.S.A. § 6615(d)(3) , in the case of municipalities, and 10 V.S.A. § 6615(d)(4) .

“(2) It is of vital importance for purchasers of commercial properties to conduct environmental site assessments that conform to statutorily recognized standards.

“(3) In construing the defense to liability established pursuant to 10 V.S.A. § 6615(f) , the courts of this State shall be guided by the construction of similar terms contained in 42 U.S.C. § 9601(35)(A)(i) and (B), as amended, and the courts of the United States.

“(4) It is appropriate to confer limited defense to liability for secured lenders and fiduciaries under state law that is equivalent to liability under federal law.

“(5) In construing the defense to liability established pursuant to 10 V.S.A. § 6615(g) , the courts of this State will be guided by the construction of similar terms contained in 42 U.S.C. §§ 9601(20)(F) and 9607(n), as amended, and the courts of the United States.”

ANNOTATIONS

Construction.

Construction of statutes which would have unreasonable result of limiting functions of Secretary of Agency of Natural Resources’ delegated representative in many environmental programs should be avoided; separate provision granting similar authorization to Secretary is merely superfluous. Secretary v. Henry, 161 Vt. 556, 641 A.2d 1345, 1994 Vt. LEXIS 38 (1994).

Cited.

Cited in Pownal Development Corp. v. Pownal Tanning Co., 171 Vt. 360, 765 A.2d 489, 2000 Vt. LEXIS 314 (2000); State v. CNA Insurance Cos., 172 Vt. 318, 779 A.2d 662, 2001 Vt. LEXIS 187 (2001); Agency of Natural Resources v. Towns, 173 Vt. 552, 790 A.2d 450, 2001 Vt. LEXIS 290 (2001); Agency of Natural Res. v. Weston, 2003 VT 58, 175 Vt. 573, 830 A.2d 92, 2003 Vt. LEXIS 140 (2003) (mem.).

§ 6603. Secretary; powers.

In addition to any other powers conferred on him or her by law, the Secretary shall have the power to:

  1. Adopt, amend, and repeal rules pursuant to 3 V.S.A. chapter 25 implementing the provisions of this chapter.
  2. Issue compliance orders as may be necessary to effectuate the purposes of this chapter and enforce the same by all appropriate administrative and judicial proceedings.
  3. Encourage local units of government to manage solid waste problems within their respective jurisdictions or by contract on a cooperative regional or interstate basis.
  4. Provide technical assistance to municipalities.
  5. Contract in the name of the State for the service of independent contractors under bond, or with an agency or department of the State, or a municipality, to perform services or to provide facilities necessary for the implementation of the State plan, including the transportation and disposition of solid waste.
  6. Accept, receive, and administer grants or other funds or gifts from public and private agencies, including the federal government, for the purpose of carrying out any of the functions of this chapter. This would include the ability to convey such grants or other funds to municipalities or other instruments of State or local government.
  7. Prepare a report that proposes methods and programs for the collection and disposal of household quantities of hazardous waste. The report shall compare the advantages and disadvantages of alternate programs and their costs. The Secretary shall undertake a voluntary pilot project to determine the feasibility and effectiveness of such a program when in the Secretary’s opinion such can be undertaken without undue risk to the public health and welfare. Such pilot program may address one or more forms of hazardous waste.
  8. Provide financial assistance to municipalities.
  9. Manage the hazardous wastes generated, transported, treated, stored, or disposed in the State by administering a regulatory and management program that, at a minimum, meets the requirements of subtitle C of the Resource Conservation and Recovery Act of 1976 and amendments thereto, codified as 42 U.S.C. Chapter 82, subchapter 3, and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.
  10. Require a facility permitted under section 6605 of this title or a transporter permitted under section 6607 of this title to explain its rate structure for different categories of waste to ensure that the rate structure is transparent to residential consumers.

HISTORY: Added 1977, No. 106 , § 1; amended 1983, No. 148 (Adj. Sess.), § 2; 1989, No. 30 , § 2, eff. April 27, 1989; 2011, No. 148 (Adj. Sess.), § 3.

History

References in text.

The Comprehensive Environmental Response, Compensation and Liability Act of 1980, referred to in subdiv. (9), is codified as 42 U.S.C. § 9601 et seq.

Amendments

—2011 (Adj. Sess.). Added “or her” in the introductory language; and substituted “3 V.S.A. chapter 25” for “chapter 25 of Title 3” in subdiv. (1).

Subdivs. (9) and (10): Added.

—1989. Subdiv. (8): Added.

—1983 (Adj. Sess.). Subdiv. (7): Added.

ANNOTATIONS

Contracts.

Vermont legislature has authorized municipalities to enter into contracts with a waste disposal district for the siting and management of landfills; it is the legislature’s intent to support long-term contracts between municipalities and third parties for the management of waste disposal. Indeed, the purpose of the applicable statutes is to encourage towns to develop long-term plans for the disposal of solid waste that are safe, efficient, and environmentally sound. Gade v. Chittenden Solid Waste Dist., 2009 VT 107, 187 Vt. 7, 989 A.2d 491, 2009 Vt. LEXIS 131 (2009).

Town’s ability to pledge its cooperation to further the goals of a host town agreement with a solid waste district was implicit in the town’s statutorily authorized ability to exercise its powers to contract with third parties for the siting, construction, and operation of waste disposal facilities. Gade v. Chittenden Solid Waste Dist., 2009 VT 107, 187 Vt. 7, 989 A.2d 491, 2009 Vt. LEXIS 131 (2009).

All that a town did was promise to support a solid waste district in its permit applications and give its warranty of good faith with regard to the town plan; the agreement did not promise the success of these applications and explicitly left all independent permitting procedures intact. The town’s actions did not amount to a delegation of any legislatively derived power; further, the town was exercising the very power that the legislature explicitly intended it to exercise. Gade v. Chittenden Solid Waste Dist., 2009 VT 107, 187 Vt. 7, 989 A.2d 491, 2009 Vt. LEXIS 131 (2009).

§ 6603a. Repealed. 1989, No. 30, § 3.

History

Former § 6603a. Former § 6603a, relating to applications for planning grants, was derived from 1987, No. 78 , § 4.

§ 6603b. Repealed. 1993, No. 59, § 24; No. 81, § 7(a), eff. Dec. 31, 1993.

History

Former § 6603b. Former § 6603b, relating to planning grant awards, was derived from 1987, No. 78 , § 5 and amended by 1989, No. 30 , § 4; 1989, No. 276 (Adj. Sess.), § 34 and No. 281 (Adj. Sess.), § 2.

Effect of repeal on administration of existing rules. 1993, No. 81 , § 7(a), which provided for the repeal of this section on Dec. 31, 1993, provided further that the secretary of natural resources may administer existing rules adopted under this section to the extent necessary to administer grants already awarded thereunder.

§ 6603c. Implementation grants and loans for waste management.

    1. The Secretary may issue grants to a municipality or a group of municipalities organized as a solid waste management district or acting through or as a regional planning commission for up to 40 percent of the cost of construction of facilities proposed in or equipment required: (a) (1) The Secretary may issue grants to a municipality or a group of municipalities organized as a solid waste management district or acting through or as a regional planning commission for up to 40 percent of the cost of construction of facilities proposed in or equipment required:
      1. to implement a utility and facility element, as defined in 24 V.S.A. § 4348a , for waste stream reduction facilities that precede refuse disposal, which the Secretary finds is consistent with the State Waste Management Plan; or
      2. to implement a solid waste management plan that the Secretary has determined is consistent with the provisions of the State Waste Management Plan, is in conformance with any regional or adopted municipal plan, and is consistent with the requirements of this chapter.
    2. Grants shall not be available under this section for sanitary landfills or incineration facilities.
    3. Effective January 1, 1994, the costs of design for eligible projects shall be eligible for grants under this section.
    1. A municipality or group of municipalities organized as a solid waste management district or acting through or as a regional planning commission may apply to the Secretary for grants under this section. The Secretary may review and award grants, according to the priorities established in this section, to the extent that funds are available. Grants awarded under subdivision (c)(2) of this section shall be made on a quarterly basis to the extent funds are available. The application shall be in a form prescribed by the Secretary and shall include: (b) (1) A municipality or group of municipalities organized as a solid waste management district or acting through or as a regional planning commission may apply to the Secretary for grants under this section. The Secretary may review and award grants, according to the priorities established in this section, to the extent that funds are available. Grants awarded under subdivision (c)(2) of this section shall be made on a quarterly basis to the extent funds are available. The application shall be in a form prescribed by the Secretary and shall include:
      1. a complete description of the project and its purpose;
      2. an explanation of the role of the project in the regional, district, or municipal solid waste management plan and how and when the plan will be implemented;
      3. the cost of the project and the amount of the grant requested;
      4. evidence that all funding required for implementation of the plan, beyond that provided by this chapter, has been obtained or will be available through user fees or other sources; and
      5. evidence that private alternatives have been considered.
    2. In making grants to projects eligible under this section, the Secretary shall give priority to proposals that are certified by the Commissioner of Health as being necessary to eliminate a hazard to human health and to those that are determined by the Secretary as being able effectively to accomplish the priorities set forth in subdivision 6604(a)(1) of this chapter.
    3. No grant awards shall be made by the Secretary until all permits or other authority for the proposed project have been obtained.
  1. When making grants, the Secretary shall require cost accounting procedures and other fiscal elements necessary for proper administration of the grant.
    1. Upon selection of a recipient, award of the grant, and initiation of construction, the Secretary may make periodic grant payments based on certification by the grantee showing that costs for which reimbursement is requested have been incurred and paid by the grantee. The recipient shall provide supporting evidence of payment upon the request of the Department. Partial payments shall be made not more frequently than monthly. Interest costs incurred in local short-term borrowing of the grant amount shall be reimbursed as part of the grant. After the project has been completed, the applicant has taken other necessary action, and the costs have been audited by the Secretary or an independent auditor, the Secretary shall certify the remainder of the award to the Commissioner of Finance and Management who shall issue a warrant for payment.
    2. The Secretary shall make grants under this section according to the following priorities:
      1. Any project that as of July 1, 1993 has received a positive bond vote or similar approval receives highest priority.
      2. Any project that is included in an adopted solid waste implementation plan approved by the Agency by July 1, 1993, which meets all the requirements for implementation grant funding by December 31, 1993, receives high priority. However, if a district does not come into existence until after July 1, 1993, it shall be eligible for funds under this section, if within 24 months from the date of its existence it adopts an implementation plan and obtains approval of that plan.
      3. Any project that does not meet the criterion of subdivision (2)(A) or (B) of this subsection (c) must be included in an approved solid waste implementation plan and is subject to the following priority list in descending order:
        1. projects to manage toxic material, unregulated hazardous waste, and hazardous household waste;
        2. projects eligible for grants under subsection 6622(d) of this title to manage other materials not appropriate for landfilling or incineration;
        3. other projects to manage other materials not appropriate for landfilling or incineration.
    3. The Secretary may adopt rules consistent with this chapter that are necessary for proper administration of this section.
  2. The Secretary may authorize low-interest loans from the Vermont Solid Waste Revolving Fund, as provided in 24 V.S.A. chapter 120, for the construction of facilities proposed in, or equipment required to implement a utility and facility element, as defined in 24 V.S.A. § 4348a , for refuse disposal, which the Secretary finds is consistent with the State Waste Management Plan, or to implement a plan approved by the Agency of Natural Resources.

HISTORY: Added 1987, No. 78 , § 6; amended 1989, No. 30 , § 5, eff. April 27, 1989; 1989, No. 276 (Adj. Sess.), § 35, eff. June 20, 1990; 1993, No. 81 , § 1; 1995, No. 62 , § 45, eff. April 26, 1995; 1995, No. 185 (Adj. Sess.), § 54, eff. May 22, 1996; 2015, No. 97 (Adj. Sess.), § 32; 2019, No. 131 (Adj. Sess.), § 25; 2021, No. 20 , § 50.

History

Amendments

—2021. Subdiv. (c)(2)(C): Added “the” preceding “criterion.”

—2019 (Adj. Sess.). Subdiv. (b)(1): Deleted “(C)(iii)” following “subdivision (c)(2)”.

—2015 (Adj. Sess.). Subsec. (d): Deleted “under subsection 6603b(a)” following “Agency of Natural Resources”.

—1995 (Adj. Sess.) Subdiv. (b)(1): Deleted “on a quarterly basis” preceding “to the extent that funds” in the second sentence and added the third sentence.

—1995. Subdiv. (a)(1)(B): Amended generally.

—1993. Subsec. (a): Amended generally.

Subdiv. (b)(1): Inserted “or acting through or as a regional planning commission” preceding “may apply” in the first sentence, and added a new second sentence in the introductory paragraph, inserted “district or municipal” following “regional” in subdiv. (B), deleted “and” at the end of subdiv. (C), made a minor change in punctuation and added “and” at the end of subdiv. (D), and added subdiv. (E).

Subdiv. (c)(2): Amended generally.

—1989 (Adj. Sess.) Subdiv. (c)(1): Rewrote the first sentence and added the second through fourth sentences.

—1989. Subsec. (a): Deleted “of development and community affairs” preceding “may issue” and substituted “finds is” for “of natural resources certifies as being” preceding “consistent” and “approved” for “certified” following “implement a plan” in the first sentence.

Subdiv. (b)(1): Deleted “of development and community affairs” following “Secretary” and “after all permits or other authority necessary for the project proposed have been obtained” following “section” in the first sentence.

Subdiv. (b)(2): Deleted “of development and community affairs” preceding “shall give priority” and substituted “determined by the Secretary” for “certified by the Secretary of natural resources” preceding “as being able”.

Subdiv. (b)(3): Added.

Subsec. (c): Deleted “of development and community affairs” preceding “shall require” in the introductory paragraph and preceding “shall certify” in subdiv. (1) and substituted “90” for “75” thereafter in that subdiv., deleted “of development and community affairs” preceding “shall make” and “of the agency of natural resources” preceding “and to the extent” in subdiv. (2), and substituted “may” for “of the agency of development and community affairs, and where appropriate the Secretary of the agency of natural resources, shall” preceding “adopt” in subdiv. (3).

Subsec. (d): Deleted “of development and community affairs” preceding “may authorize,” substituted “finds is” for “of natural resources certifies as being” preceding “consistent”, and “approved” for “certified” following “implement a plan”.

§ 6603d. User fee implementation assistance.

  1. The Secretary shall issue a grant to a municipality or a group of municipalities organized as a solid waste management district to develop and implement a system of user fees for municipally operated solid waste management facilities. Priority consideration shall be given to a municipality or a group of municipalities organized as a solid waste district that use privately owned or operated facilities for disposal of their solid waste. Within the amounts appropriated for this purpose, grants may be made for up to 100 percent of the costs of implementing a system of user fees.
  2. After July 1, 1988, each municipality or solid waste district that pays a tax pursuant to 32 V.S.A. § 5952 shall be entitled to retain five percent of the amount due in order to defray costs of tax administration.

HISTORY: Added 1987, No. 78 , § 7; amended 1989, No. 30 , § 6, eff. April 27, 1989; 2019, No. 131 (Adj. Sess.), § 26.

History

Amendments

—2019 (Adj. Sess.). Subsec. (a): Substituted “a municipality or a group of municipalities organized as a solid waste district that” for “the above entities which” in the second sentence.

—1989. Subsec. (a): Deleted “of development and community affairs” preceding “shall issue” in the first sentence.

ANNOTATIONS

Contracts.

Town’s ability to pledge its cooperation to further the goals of a host town agreement with a solid waste district was implicit in the town’s statutorily authorized ability to exercise its powers to contract with third parties for the siting, construction, and operation of waste disposal facilities. Gade v. Chittenden Solid Waste Dist., 2009 VT 107, 187 Vt. 7, 989 A.2d 491, 2009 Vt. LEXIS 131 (2009).

All that a town did was promise to support a solid waste district in its permit applications and give its warranty of good faith with regard to the town plan; the agreement did not promise the success of these applications and explicitly left all independent permitting procedures intact. The town’s actions did not amount to a delegation of any legislatively derived power; further, the town was exercising the very power that the legislature explicitly intended it to exercise. Gade v. Chittenden Solid Waste Dist., 2009 VT 107, 187 Vt. 7, 989 A.2d 491, 2009 Vt. LEXIS 131 (2009).

§ 6603e. Repealed. 1995, No. 189 (Adj. Sess.), § 8.

History

Former § 6603e. Former § 6603e, relating to technical advisory committee on solid waste, was derived from 1987, No. 78 , § 1a.

§ 6603f. Repealed. 1993, No. 59, § 24; No. 81, § 7(b).

History

Former § 6603f. Former § 6603f, relating to interim grants and loans for waste management, was derived from 1987, No. 275 (Adj. Sess.) and amended by 1989, No. 30 , § 7; 1989, No. 276 (Adj. Sess.), § 16a; and No. 281 (Adj. Sess.), § 3.

§ 6603g. Hazardous Waste Facility Grant Program.

The Secretary shall administer a grant program under this section for any municipality that has received a notice of intent to construct a hazardous waste management facility under section 6606a of this title. The grant, not to exceed $75,000.00 and not to exceed 75 percent of the accepted estimated costs, may be used by the proposed host municipality to provide technical assistance and to otherwise assist the community to effectively assess the impacts of an existing application for a local permit for a hazardous waste treatment or disposal facility.

HISTORY: Added 1989, No. 282 (Adj. Sess.), § 10, eff. June 22, 1990.

§ 6603h. Host community fee.

A municipality in which a facility certified under this chapter is located may negotiate a compensatory host payment from a solid waste district, a regional planning commission, the owner of the facility, or any combination of these.

HISTORY: Added 1991, No. 60 , § 1.

ANNOTATIONS

Contracts.

Town’s ability to pledge its cooperation to further the goals of a host town agreement with a solid waste district was implicit in the town’s statutorily authorized ability to exercise its powers to contract with third parties for the siting, construction, and operation of waste disposal facilities. Gade v. Chittenden Solid Waste Dist., 2009 VT 107, 187 Vt. 7, 989 A.2d 491, 2009 Vt. LEXIS 131 (2009).

All that a town did was promise to support a solid waste district in its permit applications and give its warranty of good faith with regard to the town plan; the agreement did not promise the success of these applications and explicitly left all independent permitting procedures intact. The town’s actions did not amount to a delegation of any legislatively derived power; further, the town was exercising the very power that the legislature explicitly intended it to exercise. Gade v. Chittenden Solid Waste Dist., 2009 VT 107, 187 Vt. 7, 989 A.2d 491, 2009 Vt. LEXIS 131 (2009).

§ 6603i. Landfill closure grants.

  1. The Secretary is authorized to award grants to municipalities and solid waste management districts for the portion of the cost of closure of unlined landfills receiving municipal solid waste located within the municipality or district. These grants shall be available to assist in the closure of any existing unlined landfills accepting solid waste as of June 9, 1992.
  2. The amount of any grants made under this section shall not exceed the actual costs of closure of the facility, minus an amount equal to the total tonnage of waste disposed at the facility between July 1, 1989 and the last date of acceptance of solid waste for disposal at the facility, multiplied by $24.00 per ton.  Eligible closure costs shall include all necessary construction costs, a reasonable cost for engineering oversight, and an amount, not to exceed five percent or $50,000.00, whichever is less, of the construction costs, to cover the legal, administrative, and fiscal costs.

HISTORY: Added 1991, No. 256 (Adj. Sess.), § 29, eff. June 9, 1992; amended 2005, No. 215 (Adj. Sess.), § 214; 2019, No. 131 (Adj. Sess.), § 27.

History

Amendments

—2019 (Adj. Sess.). Subsec. (a): Substituted “June 9, 1992” for “the effective date of this act” in the second sentence.

—2005 (Adj. Sess.). Subsec. (a): Deleted “which are required to close in accordance with subsection 6605a(c) of this title or section 6605c of this title, or to assist in the closure of unlined landfills which ceased accepting solid waste prior to the effective date of this act, as defined by rule of the secretary” following “date of this act” in the second sentence.

§ 6603j. Curbside collection of waste oil.

  1. Municipalities that have more than 4,000 residents or that have mandatory curbside collection of recyclables shall be eligible for State grants under this section if they implement a program for the curbside collection of used oil by July 1, 1996. A private hauler that, by July 1, 1996, implements or participates in a program for the curbside collection of used oil shall be eligible if the private hauler serves a community or group of communities with a population of more than 4,000 or serves a community with mandatory curbside collection of recyclables. Eligibility in all cases shall depend upon the municipality’s or the hauler’s compliance with all State program requirements and upon the taking of all necessary precautions to minimize contamination while collecting used oil.
  2. Municipalities that provide curbside collection services as specified in subsection (a) of this section and private haulers that provide such services may apply to the Secretary for grants under this subsection. Financial assistance may be provided in the form of grants to compensate up to 60 percent of the costs incurred:
    1. to retrofit collection vehicles to collect used oil at the curb (in an amount not to exceed $360.00 per truck); and
    2. to purchase pumps necessary to transfer oil from collection vehicles to the larger aggregation container (in an amount not to exceed $300.00 per pump) as part of the operations of a used oil collection program that is part of the State program.
  3. Funding for this program shall come from the Petroleum Cleanup Fund, from which funds may be disbursed for this purpose in addition to those purposes authorized under 10 V.S.A. § 1941 . The Secretary shall allocate grants under this section in amounts totaling not more than $20,000.00 per year after consulting with the technical advisory committee on solid waste and after establishing equitable limits on the number of grants that may be awarded, under this section, to particular areas of the State.
  4. Recipients of grants under this section, for a period of three years from the date of receipt of the grant, shall be required to provide to their customers, on a quarterly basis, information that encourages those customers to participate in the curbside used oil collection program.
  5. The Secretary may adopt rules establishing criteria for eligible collection programs and rules to manage grant allocation under this section.

HISTORY: Added 1993, No. 220 (Adj. Sess.), § 1.

CROSS REFERENCES

Burning waste oil in small equipment, see § 576 of this title.

§ 6604. Solid waste management plan.

  1. No later than November 1, 2013, the Secretary shall adopt, after notice and public hearing pursuant to 3 V.S.A. chapter 25, a solid waste management plan that sets forth a comprehensive statewide strategy for the management of waste.
    1. The plan shall promote the following priorities, as found appropriate for certain waste streams, based on data obtained by the Secretary as part of the analysis and assessment required under subdivision (2) of this subsection:
      1. the greatest feasible reduction in the amount of waste generated;
      2. materials management, which furthers the development of products that will generate less waste;
      3. the reuse and closed-loop recycling of waste to reduce to the greatest extent feasible the volume remaining for processing and disposal;
      4. the reduction of the State’s reliance on waste disposal to the greatest extent feasible;
      5. the creation of an integrated waste management system that promotes energy conservation, reduces greenhouse gases, and limits adverse environmental impacts;
      6. waste processing to reduce the volume or toxicity of the waste stream necessary for disposal.
    2. The plan shall be revised at least once every five years and shall include:
      1. An analysis of the volume and nature of wastes generated in the State, the source of the waste, and the current fate or disposition of the waste. Such an analysis shall include a waste composition study conducted in accordance with generally accepted practices for such a study.
      2. An assessment of the feasibility and cost of diverting each waste category from disposal, including, to the extent the information is available to the Agency, the cost to stakeholders, such as municipalities, manufacturers, and customers. As used in this subdivision (a)(2), “waste category” means:
        1. marketable recyclables;
        2. leaf and yard residuals;
        3. food residuals;
        4. construction and demolition residuals;
        5. household hazardous waste; and
        6. additional categories or subcategories of waste that the Secretary identifies that may be diverted to meet the priorities set forth under subdivision (a)(1) of this section.
      3. A survey of existing and potential markets for each waste category that can be diverted from disposal.
      4. Measurable goals and targets for waste diversion for each waste category.
      5. Methods to reduce and remove material from the waste stream, including commercially generated and other organic wastes, used clothing, and construction and demolition debris, and to separate, collect, and recycle, treat, or dispose of specific waste materials that create environmental, health, safety, or management problems, including tires, batteries, obsolete electronic equipment, and unregulated hazardous wastes. These portions of the plans shall include strategies to assure recycling in the State and to prevent the incineration or other disposal of marketable recyclables.
      6. A coordinated education and outreach component that advances the objectives of the plan, including the source separation requirements, generator requirements to remove food residuals, and the landfill disposal bans contained within this chapter.
      7. Performance and accountability measures to ensure that implementation plans are effective in meeting the requirements of this section.
      8. An assessment of facilities and programs necessary at the State, regional, or local level to achieve the priorities identified in subdivision (a)(1) of this section and the goals established in the plan. These portions of the plan shall be based, in part, on an assessment of the status, capacity, and life expectancy of existing solid waste facilities, and they shall include siting criteria for waste management facilities and shall establish requirements for full public involvement.
  2. The Secretary shall hold public hearings, conduct analyses, and make recommendations to the House Committee on Natural Resources, Fish, and Wildlife and the Senate Committee on Natural Resources and Energy regarding the volume, amount, and toxicity of the waste stream. In this process, the Secretary shall consult with manufacturers of commercial products and of packaging used with commercial products, retail sales enterprises, health and environmental advocates, waste management specialists, the general public, and State agencies. The goal of the process is to ensure that packaging used and products sold in the State are not an undue burden to the State’s ability to manage its waste. The Secretary shall seek voluntary changes on the part of the industrial and commercial sector in both their practices and the products they sell, so as to serve the purposes of this section. In this process, the Secretary may obtain voluntary compliance schedules from the appropriate industry or commercial enterprise and shall entertain recommendations for alternative approaches. The Secretary shall report at the beginning of each biennium to the House Committee on Natural Resources, Fish, and Wildlife and the Senate Committee on Natural Resources and Energy with any recommendations or options for legislative consideration. At least 45 days prior to submitting the report, the Secretary shall post any recommendations within the report to the Agency’s website for notice and comment.
    1. In carrying out the provisions of this subsection, the Secretary first shall consider ways to keep hazardous material; toxic substances, as that term is defined in subdivision 6624(7) of this title; and nonrecyclable, nonbiodegradable material out of the waste stream, as soon as possible. In this process, immediate consideration shall be given to the following:
      1. evaluation of products and packaging that contain large concentrations of chlorides, such as packaging made with polyvinyl chloride (PVC);
      2. evaluation of polystyrene packaging, particularly that used to package fast food on the premises where the food is sold;
      3. evaluation of products and packaging that bring heavy metals into the waste stream, such as disposable batteries, paint and paint products and containers, and newspaper supplements and similar paper products;
      4. identification of unnecessary packaging, which is nonrecyclable and nonbiodegradable.
    2. With respect to the items listed in subdivision (1) of this subsection, the Secretary shall consider the following:
      1. product and packaging bans, products or packaging that ought to be exempt from such bans, the existence of less burdensome alternatives, and alternative ways that a ban may be imposed;
      2. tax incentives, including the following options:
        1. product taxes, based on a sliding scale, according to the degree of undue harm caused by the product, the existence of less harmful alternatives, and other relevant factors;
        2. taxes on all nonrecyclable, nonbiodegradable products or packaging;
      3. deposit and return legislation for certain products.
  3. A portion of the State’s Solid Waste Management Plan shall set forth a comprehensive statewide program for the collection, treatment, beneficial use, and disposal of septage and sludge. The Secretary shall work cooperatively with the Department of Health and the Agency of Agriculture, Food and Markets in developing this portion of the Plan and the rules to carry it out, both of which shall be consistent with or more stringent than that prescribed by section 405 of the Clean Water Act (33 U.S.C. § 1251 et seq.). In addition, the Secretary shall consult with local governmental units and the interested public in the development of the plans. The sludge management plan and the septage management plan shall be developed and adopted by January 15, 1987. In the development of these portions of the plan, consideration shall be given to, but shall not be limited to, the following:
    1. the varying characteristics of septage and sludge;
    2. its value as a soil amendment;
    3. the need for licensing or other regulation of septage and sludge handlers;
    4. the need for seasonal storage capability;
    5. the most appropriate burdens to be borne by individuals, municipalities, and industrial and commercial enterprises;
    6. disposal site permitting procedures;
    7. appropriate monitoring and reporting requirements;
    8. actions that can be taken through existing State programs to facilitate beneficial use of septage and sludge;
    9. the need for regional septage facilities;
    10. an appropriate public information program; and
    11. the need for and proposed nature and cost of appropriate pilot projects.
  4. Although the plan adopted under this section and any amendments to the plan shall be adopted by means of a public process that is similar to the process involved in the adoption of administrative rules, the plan, as initially adopted or as amended, shall not be a rule.

HISTORY: Added 1977, No. 106 , § 1; amended 1985, No. 190 (Adj. Sess.), § 1, eff. May 14, 1986; 1987, No. 78 , § 2; 1987, No. 246 (Adj. Sess.), § 3, eff. June 13, 1988; 1989, No. 218 (Adj. Sess.), § 7, eff. Oct. 1, 1990; 1989, No. 256 (Adj. Sess.), § 10(a), eff. Jan. 1, 1991, No. 282 (Adj. Sess.), § 11, eff. June 22, 1990; 2003, No. 42 , § 2, eff. May 27, 2003; 2007, No. 209 (Adj. Sess.), § 6; 2011, No. 148 (Adj. Sess.), § 2; 2015, No. 97 (Adj. Sess.), § 33; 2017, No. 113 (Adj. Sess.), § 47.

History

References in text.

Section 405 of the Clean Water Act, referred to in subsec. (c), is codified as 33 U.S.C. § 1345.

Amendments

—2017 (Adj. Sess.). Subsec. (b): Amended generally.

—2015 (Adj. Sess.). Subdiv. (b)(2): Substituted “items listed in the subdivision (1) of this subsection” for “above” following “With respect to the”.

—2011 (Adj. Sess.). Section amended generally.

—2007 (Adj. Sess.). Subsec. (a): Amended generally.

—2003. Subsec. (d): Substituted “agency of agriculture, food and markets” for “department of agriculture, food and markets” in the second sentence.

—1989 (Adj. Sess.). Act No. 282 substituted “plans” for “plan” following “management” in the section heading.

Subsec. (a): Act No. 282 inserted “solid” preceding “waste management” in the first sentence and rewrote the second sentence of the introductory paragraph, substituted “plans” for “plan” in the introductory clauses of subdivs. (1) and (2), inserted “or toxicity of the waste stream” preceding “necessary” in subdiv. (1)(C), and substituted “these portions of the plans” for “this portion of the plan” at the beginning of the second sentence and “they” for “it” at the beginning of the third sentence of subdiv. (2)(A), and “these portions” for “this portion” preceding “of the plan” and “they” for “it” preceding “shall include” and deleted “solid” preceding “waste” in the second sentence of subdiv. (2)(B).

Subsec. (b): Act No. 282 substituted “administering” for “administrating” preceding “a regulatory”, inserted “and management” thereafter, and “and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended” following “subchapter 3” in the introductory paragraph; deleted the former first sentence of subdiv. (1); and added “report on” preceding “disposal” in the heading of subdiv. (2).

Subsec. (d): Act No. 256 substituted “department of agriculture, food and markets” for “department of agriculture” in the second sentence.

Subsec. (e): Added by Act No. 218.

Act No. 282 purported to add subsec. (e), effective Oct. 1, 1990; however, that subsec. had previously been added by Act No. 218.

—1987 (Adj. Sess.). Subsec. (a): At the end of the first sentence, added “including whey” following “management of waste”.

—1987. Rewrote subsecs. (a)-(c).

—1985 (Adj. Sess.). Subsec. (d): Added.

ANNOTATIONS

Fees.

Solid waste management district had authority under its charter to set fees for solid waste disposal within its district. Northwest Vermont Solid Waste Management District v. Central Vermont Solid Waste Management District, 159 Vt. 61, 614 A.2d 816, 1992 Vt. LEXIS 98 (1992).

Where solid waste management district’s charter provided that it could establish tipping fees for purpose of generating revenues, tipping fees for disposal of solid waste within its district were permissible as a tax. Northwest Vermont Solid Waste Management District v. Central Vermont Solid Waste Management District, 159 Vt. 61, 614 A.2d 816, 1992 Vt. LEXIS 98 (1992).

Cited.

Cited in Central Vermont Quality Services, Inc. v. City of Rutland, 780 F. Supp. 218, 1991 U.S. Dist. LEXIS 19186 (D. Vt. 1991).

Law Reviews —

For note, “Slowing the Rush to Burn: The Need to Revise Federal Municipal Solid Waste Policy to Prioritize Recycling over Incineration”, see 19 Vt. L. Rev. 891 (1995).

§ 6604a. Contaminated soils.

  1. The Secretary of the Agency of Natural Resources, in consultation with the Commissioner of the Department of Health and the Secretary of the Agency of Agriculture, Food and Markets, shall develop a plan for the receipt, treatment, and disposal, at one or more sites owned by the State, of soils contaminated within the State by petroleum products or other contaminants that require a comparable treatment technology, as may be determined by the Secretary.  The plan shall be submitted to the General Assembly on or before January 15, 1989.  In developing the plan, the Secretary shall:
    1. estimate the volumes of such contaminated soils expected to require disposal;
    2. define the characteristics of the wastes to be received;
    3. recommend the treatment process or processes to be used;
    4. establish the health and environmental standards to be applied to the operation;
    5. describe the monitoring and recording requirements for the operation;
    6. recommend ways to assure public access to the results of monitoring and to all records of the operation;
    7. define the characteristics of sites suitable for this purpose and identify one or more sites in public or private ownership that appear to meet the criteria;
    8. project the environmental and economic advantage to the State as well as to affected private parties in providing this treatment and disposal capability;
    9. analyze the feasibility and advisability of using lands currently owned by the State, compared to acquiring new lands;
    10. estimate the costs of developing and operating a site for this purpose;
    11. compare the advantages and disadvantages of State or private operation;
    12. consider the advisability of amending chapter 151 of this title to require that any site developed for the purposes of this section be subject to review under that chapter;
    13. propose fees to be charged for this service to offset all or a part of the costs to the State, including the costs of appropriate financial assurances;
    14. provide other relevant information to carry out the purpose of this section; and
    15. evaluate the feasibility of using certain contaminated soils in the manufacture of asphalt or other road construction material.
  2. The Secretary is authorized, for three years commencing on May 14, 1986, to permit a limited number of small on-site treatment and disposal operations for petroleum fuels, commensurate with the intent of this section, when in the Secretary’s opinion the public health and safety will not be adversely affected.  All pertinent information gathered regarding permits granted and the surveillance, monitoring, and operation of these test sites shall be public information. On-site treatment and disposal operations together with necessary associated transportation of contaminated soils are not required to comply with sections 6606 and 6607 of this chapter.

HISTORY: Added 1985, No. 189 (Adj. Sess.), § 1, eff. May 14, 1986; amended 1987, No. 76 , § 18; 1987, No. 85 , § 3, eff. June 9, 1987; 1989, No. 256 (Adj. Sess.), § 10(a), eff. Jan. 1, 1991; 2003, No. 42 , § 2, eff. May 27, 2003.

History

Revision note—

Substituted “May 14, 1986” for “the effective date of this act” in the first sentence of subsec. (b) for purposes of clarity.

Amendments

—1989 (Adj. Sess.). Subsec. (a): Substituted “department of agriculture, food and markets” for “department of agriculture” in the first sentence of the introductory paragraph.

—1987. Subsec. (a): Act No. 85 substituted “1989” for “1987” following “January 15” at the end of the second sentence.

Act No. 76 substituted “agency of natural resources” for “agency of environmental conservation” in the first sentence.

Subsec. (b): Act No. 85 substituted “three years” for “one year” preceding “commencing on” at the beginning of the first sentence and added the third sentence.

§ 6604b. Testing of solid wastes prior to beneficial use on land or distribution and marketing.

  1. The Secretary of Natural Resources, in consultation with the Secretary of Agriculture, Food and Markets and with the Commissioner of Health, shall adopt rules to establish a testing program for all sewage sludge, or similar liquid wastes, prior to their beneficial use on land or prior to distribution and marketing of those wastes in liquid or solid form. The testing program shall establish a process for the determination of minimum testing frequencies and specific parameters for which analysis must be completed and shall detail procedures by which samples are collected, stored, and tested.
  2. In establishing the process for the determination of test parameters and frequency, the rules shall take into account the size and complexity of the facility, the nature of the service area or collection system, including industrial contributions, the frequency of sewage sludge use on the land, and any existing data that is pertinent to the facility.
  3. Rules regarding the application of waste to fields shall take into consideration the characteristics of the specific waste involved and shall calculate the heavy metal or micronutrient soil holding capacity based on a pH of 5.5 for the soil type at the application site, as appropriate.
  4. A person subject to this section shall make all analytical results derived from the testing program provided for in this section available to the public upon request.

HISTORY: Added 1991, No. 157 , § 1, eff. May 5, 1992; amended 2003, No. 42 , § 2, eff. May 27, 2003.

History

Amendments

—2003. Subsec. (a): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” in the first sentence.

§ 6604c. Management of development soils.

  1. -(c) [Repealed.]

    (d) On or before July 1, 2017, the Secretary shall adopt rules that allow for the management of excavated soils requiring disposal that contain PAHs, arsenic, or lead in a manner that ensures protection of human health and the environment and promotes Vermont’s traditional settlement patterns in compact village or city centers. At a minimum, the rules shall:

    1. include statewide or regional background concentration levels for PAHs, arsenic, and lead that are representative of typical soil concentrations and found throughout existing development areas;
    2. specify that development soils with concentration levels equal to or lower than the background concentration levels established by the Secretary shall not be defined as or required to be treated as solid waste;
    3. include criteria for determining site-specific maximum development soil concentration levels for PAHs, arsenic, and lead;
    4. in addition to disposal at a certified waste facility, adopt a process for the management or disposal of development soils that have concentration levels that exceed residential soil screening levels, but are below the site-specific maximum development soils concentration levels;
    5. adopt a process to preapprove sites to receive development soils from multiple developments; and
    6. be designed to provide that the criteria established under subdivision (3) of this subsection and the process developed under subdivision (4) of this subsection shall be no less protective of human health and the environment than the standard for development soils and the process established under subsection (b) of this section.

      (e) At any time, the Secretary may adopt by rule background and maximum concentration levels for other potentially hazardous material in soils such that the development soils containing these other materials would be categorized and treated according to the rules adopted by the Secretary under subsection (d) of this section.

HISTORY: Added 2015, No. 52 , § 3, eff. June 5, 2015; amended 2015, No. 150 (Adj. Sess.), § 37a, eff. May 31, 2016; 2019, No. 131 (Adj. Sess.), § 28.

History

Amendments

—2019 (Adj. Sess.). Subdiv. (d)(4): Substituted “a process” for “procedures”.

—2015 (Adj. Sess.). Subsec. (d): Substituted “July 1, 2017” for “July 1, 2016”.

Categorical solid waste certification. 2015, No. 52 , § 5, effective June 5, 2015, provides: “Development soils as defined in 10 V.S.A. § 6602(39) shall be eligible for disposal at a categorical disposal facility certified by the Secretary of Natural Resources for the disposal of development soils pursuant to 10 V.S.A. § 6605c .”

Management of development soils as an alternative daily cover. 2015, No. 52 , § 6, effective June 5, 2015, provides: “Development soils as defined in 10 V.S.A. § 6602(39) shall be eligible to be used as alternative daily cover at a solid waste facility certified pursuant to 10 V.S.A. § 6605 .”

§ 6605. Solid waste management facility certification.

    1. No person shall construct, substantially alter, or operate any solid waste management facility without first obtaining certification from the Secretary for such facility, site, or activity, except for sludge or septage treatment or storage facilities located within the fenced area of a domestic wastewater treatment plant permitted under chapter 47 of this title. This exemption for sludge or septage treatment or storage facilities shall exist only if: (a) (1) No person shall construct, substantially alter, or operate any solid waste management facility without first obtaining certification from the Secretary for such facility, site, or activity, except for sludge or septage treatment or storage facilities located within the fenced area of a domestic wastewater treatment plant permitted under chapter 47 of this title. This exemption for sludge or septage treatment or storage facilities shall exist only if:
      1. the treatment facility does not use a process to reduce pathogens further in order to qualify for marketing and distribution; and
      2. the facility is not a drying bed, lagoon, or nonconcrete bunker; and
      3. the owner of the facility has submitted a sludge and septage management plan to the Secretary and the Secretary has approved the plan. Noncompliance with an approved sludge and septage management plan shall constitute a violation of the terms of this chapter, as well as a violation under chapters 201 and 211 of this title.
    2. Certification shall be valid for a period not to exceed 10 years.
  1. Certification for a solid waste management facility, where appropriate, shall:
    1. Specify the location of the facility, including limits on its development.
    2. Require proper operation and development of the facility in accordance with the engineering plans approved under the certificate.
      1. Specify the projected amount and types of waste material to be disposed of at the facility, which, in case of landfills and incinerators, shall include the following: (3) (A) Specify the projected amount and types of waste material to be disposed of at the facility, which, in case of landfills and incinerators, shall include the following:
        1. if the waste is being delivered from a municipality that has an approved implementation plan, hazardous materials and recyclables shall be removed from the waste according to the terms of that implementation plan;
        2. except as provided in subdivision (B) of this subdivision (3), if the waste is being delivered from a municipality that does not have an approved implementation plan, leaf and yard residuals shall be removed from the waste stream, and 100 percent of each of the following shall be removed from the waste stream: mandated recyclables, hazardous waste from households, and hazardous waste from small quantity generators.
      2. If waste delivered to the facility is process residuals from a material recovery facility, the facility receiving the waste shall not be required to remove 100 percent of mandated recyclables from the process residuals if the facility receiving the waste has a plan approved by the Secretary to remove mandated recyclables from the process residuals to the maximum extent practicable.
    3. Specify the type and numbers of suitable pieces of equipment that will operate the facility properly.
    4. Contain provisions for air, groundwater, and surface water monitoring throughout the life of the facility and provisions for erosion control, capping, landscaping, drainage systems, and monitoring systems for leachate and gas control.
    5. Contain such additional conditions, requirements, and restrictions as the Secretary may deem necessary to preserve and protect the public health and the air, groundwater, and surface water quality. This may include requirements concerning reporting, recording, and inspections of the operation of the site.
  2. The Secretary shall not issue a certification for a new facility or renewal for an existing facility, except for a sludge or septage land application project, unless it is included in an implementation plan adopted pursuant to 24 V.S.A. § 2202a , for the area in which the facility is located.
  3. New landfills placed in operation after July 1987 shall be lined and shall collect and treat leachate. Except as provided in section 6614 of this title, or if, pursuant to information obtained through the pilot projects completed under subsection 6604(b) of this title or from other sources, the Secretary identifies particular waste components that will not be the source of leachate harmful to health or the environment, the Secretary may waive the requirements for liners in landfills or portions of landfills designated solely to receive these wastes. Solid waste shall be included among these waste components that will not be the source of harmful leachate, in situations where all of the following apply:
    1. material to be landfilled has been subjected to a hazardous waste collection, diversion, and inspection program that removes at least 90 percent of the hazardous and toxic waste, including that classified as hazardous household waste and including that generated by small quantity generators;
    2. material to be landfilled has had at least 90 percent of the compostable material and marketable recyclables removed by source separation or by a combination of source separation and mechanical separation;
    3. the municipality in which the landfill or any portion of the landfill exists has permission of the facility operator to monitor landfill operations during operating hours, by means of a person appointed or hired by town officials or elected by the voters of the municipality.
  4. Ash from waste incineration facilities shall be disposed of only in lined facilities, unless recycled in a manner approved by the Secretary.
  5. When an application for a certification is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title.
    1. Notwithstanding any contrary provision of this section, the Secretary may authorize the land disposal or management of sludge or septage by an applicant at any certified site or facility with available capacity, provided the Secretary finds: (g) (1) Notwithstanding any contrary provision of this section, the Secretary may authorize the land disposal or management of sludge or septage by an applicant at any certified site or facility with available capacity, provided the Secretary finds:
      1. that the applicant needs to dispose of accumulated sludge or septage promptly, and that delay would likely cause public health, or environmental damage, or nuisance conditions, or would result in excessive and unnecessary cost to the public, and that the applicant has lost authority to use previously certified sites through no act or omission of the applicant; and
      2. that at the certified site or facility to be used:
        1. the certificate holder agrees in writing to allow use of the site or facility by the applicant;
        2. management of the applicant’s sludge or septage is compatible with the site or facility certificate;
        3. all terms and conditions of the original certification will continue to be met with addition of the applicant’s sludge or septage; and
        4. beginning January 1, 2013, any sludge or septage applied to land shall be applied according to a nutrient management plan approved by the Secretary.
    2. Issuance of an approval under this subsection shall comply with section 7716 of this title.
  6. The Secretary shall not issue a certification to a new nonmunicipal facility, or recertify an existing nonmunicipal facility, without first determining that the applicant meets the requirements established in subdivisions 6605f(a)(1) and (2) of this title.
  7. In lieu of obtaining a certification for the long-term maintenance and postclosure care of the facility, the Secretary shall adopt rules to ensure the proper maintenance and postclosure care of facilities that disposed of municipal solid waste and any other waste stream designated by the Secretary. These rules shall require that the facility owner and operator maintain financial responsibility as required under section 6611 of this title for the period of time determined necessary to protect public health and the environment. These rules may include requirements for monitoring at a facility, monitoring requirements for surface water or groundwater in the vicinity of the facility, monitoring of leachate and gas control, physical maintenance of the facility, and corrective action for any release of a solid waste from the facility.
  8. A facility certified under this section that offers the collection of municipal solid waste shall:
    1. Beginning on July 1, 2014, collect mandated recyclables separate from other solid waste and deliver mandated recyclables to a facility maintained and operated for the management and recycling of mandated recyclables. A facility shall not be required to accept mandated recyclables from a commercial hauler.
    2. Beginning on July 1, 2015, collect leaf and yard residuals between April 1 and December 15 separate from other solid waste and deliver leaf and yard residuals to a location that manages leaf and yard residuals in a manner consistent with the priority uses established under subdivisions 6605k(a)(3)-(5) of this title.
    3. Beginning on July 1, 2017, collect food residuals separate from other solid waste and deliver food residuals to a location that manages food residuals in a manner consistent with the priority uses established under subdivisions 6605k(a)(2)-(5) of this title.
  9. The Secretary may, by rule, adopt exemptions to the requirements of subsection (j) of this section, provided that the exemption is consistent with the purposes of this chapter and the objective of the State plan.
  10. A facility certified under this section may incorporate the cost of the collection of mandated recyclables into the cost of the collection of municipal solid waste and may adjust the charge for the collection of municipal solid waste. A facility certified under this section may charge a separate fee for the collection of mandated recyclables, leaf and yard residuals, or food residuals.
  11. Mandated recyclables, leaf and yard residuals, or food residuals collected as part of a litter collection event operated or administered by a nonprofit organization or municipality shall be exempt from the requirements of subdivision (b)(3)(B) and subsection (j) of this section.
  12. A farm producing compost under subdivision 6001(22)(H) of this title is exempt from the requirements of this section.

HISTORY: Added 1977, No. 106 , § 1; amended 1979, No. 195 (Adj. Sess.), § 6, eff. May 6, 1980; 1987, No. 78 , § 8; 1989, No. 281 (Adj. Sess.), § 4, eff. June 22, 1990; 1991, No. 157 (Adj. Sess.), § 2, eff. May 5, 1992; 1991, No. 202 (Adj. Sess.), § 1, eff. May 27, 1992; 1993, No. 81 , § 2; 1993, No. 157 (Adj. Sess.), § 2, eff. June 7, 1994; 1993, No. 233 (Adj. Sess.), § 61, eff. June 21, 1994; 1997, No. 51 , § 3; 2001, No. 149 (Adj. Sess.), § 87, eff. June 27, 2002; 2009, No. 146 (Adj. Sess.), § F11; 2011, No. 138 (Adj. Sess.), § 31, eff. May 14, 2012; 2011, No. 148 (Adj. Sess.), § 4; 2013, No. 175 (Adj. Sess.), § 4; 2015, No. 95 (Adj. Sess.), § 1, eff. May 10, 2016; 2015, No. 150 (Adj. Sess.), § 25, eff. Jan. 1, 2018; 2017, No. 208 (Adj. Sess.), § 1, eff. May 30, 2018; 2021, No. 41 , § 4, eff. May 20, 2021.

History

Revision note—

Redesignated subsec. (g) as added by 1993, No. 157 (Adj. Sess.), § 2, as subsec. (h) to avoid conflict with subsec. (g) as previously added by 1993, No. 233 (Adj. Sess.), § 61, eff. June 21, 1994.

Amendments

—2021. Subsec. (n): Added.

—2017 (Adj. Sess.). Section amended generally.

—2015 (Adj. Sess.). Subsec. (f): Rewritten by Act No. 150.

Subsec. (g): Act 150 substituted “contrary provision” for “other provision” in (g)(1) and rewrote (g)(2).

Subdivs. (j)(1)-(j)(3): Inserted “on” following “Beginning” by Act No. 95.

Subsec. (m): Added by Act No. 95.

—2013 (Adj. Sess.). Subsec. (j): Inserted “municipal” preceding “solid waste”.

Subsec. ( l ): Inserted “municipal” preceding “solid waste” throughout.

—2011 (Adj. Sess.). Acts 138 and 148 amended the section generally.

—2009 (Adj. Sess.) Subdiv. (a)(2): Substituted “ten years” for “five years” and added “except that a certification issued to a sanitary landfill or a household hazardous waste facility under this section shall be for a period not to exceed five years”.

Subdiv. (b)(5): Deleted “and for a reasonable time after closure of the facility” following “life of the facility”.

Subsec. (i): Added.

—2001 (Adj. Sess.) Subsec. (d): Substituted “Except as provided in section 6614 of this title, or if,” for “If” at the beginning of the second sentence, and substituted “subsection 6604(b)” for “section 6604(b)”.

—1997. Subsec. (a): Amended generally.

—1993 (Adj. Sess.). Subsec. (g): Added by Act No. 157.

Subsec. (g): Added by Act No. 233.

—1993. Subdiv. (b)(3): Amended generally.

—1991 (Adj. Sess.). Subsec. (c): Amended generally by Act No. 202.

Subsec. (d): Act No. 202 added the third sentence of the introductory paragraph.

Subsec. (f): Added by Act No. 157.

—1989 (Adj. Sess.). Subsec. (c): Substituted “an implementation” for “a” following “included in” and added “and unless it is in conformance with any municipal or regional plan adopted in accordance with 24 V.S.A. chapter 117” following “state plan” in the first sentence, substituted “an implementation” for “a” following “included in” in the second sentence, and added the third sentence.

—1987. Section amended generally.

—1979 (Adj. Sess.). Subsec. (c): Added.

CROSS REFERENCES

Interim certification of solid waste management facilities, see § 6605b of this title.

Proof of financial responsibility of facility operator, see § 6611 of this title.

ANNOTATIONS

Application.

Where defendant was determined to have operated a solid waste management facility without proper certification, an administrative order of the Agency of Natural Resources directing him to clean up the site did not violate the prohibition of retroactive laws because this section, defining the substantive violation, had not changed substantially up until the time at which the Agency issued the order. Agency of Natural Resources v. Towns, 173 Vt. 552, 790 A.2d 450, 2001 Vt. LEXIS 290 (2001) (mem.).

Lined and unlined landfills.

Collateral estoppel does not bar the plaintiff’s claim of action concerning lined landfills; similar litigation was focused on unlined landfills but Vermont statutes make a distinction between the two, and such distinction is relevant enough to preserve plaintiff’s claim. Valley Disposal, Inc. v. Central Vermont Solid Waste Management District, 31 F.3d 89, 1994 U.S. App. LEXIS 20683 (2d Cir. 1994).

Regional plan.

Solid waste management district’s preparation and adoption of its regional plan for disposal of solid waste provided a service to all generators who disposed of waste in its district by making disposal and other waste management facilities available for their use. Northwest Vermont Solid Waste Management District v. Central Vermont Solid Waste Management District, 159 Vt. 61, 614 A.2d 816, 1992 Vt. LEXIS 98 (1992).

Violations.

Defendant failed in his argument that he was engaged in the recovery and reuse of construction and demolition materials for landfill, and not the disposal or discarding of solid waste in a solid waste disposal facility, because, by dumping refuse which fell within the definition of solid waste into his backyard, he discarded the material into the waste stream by finally disposing of it there, and his actions fell squarely within the language of the statute. Agency of Natural Resources v. Towns, 173 Vt. 552, 790 A.2d 450, 2001 Vt. LEXIS 290 (2001) (mem.).

Cited.

Cited in Morean-Usher v. Town of Whitingham, 158 Vt. 378, 610 A.2d 1108, 1992 Vt. LEXIS 62 (1992); Valley Disposal, Inc. v. Central Vermont Solid Waste Management District, 31 F.3d 89, 1994 U.S. App. LEXIS 20683 (2d Cir. 1994); Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997); Agency of Natural Resources v. Towns, 168 Vt. 449, 724 A.2d 1022, 1998 Vt. LEXIS 227 (1998).

§ 6605a. Review of existing landfills.

  1. By July 1, 1990, the Secretary of Natural Resources shall complete a review of each landfill that is operating or certified as of July 1, 1987, to determine whether it should be closed or continue to operate and whether remedial action is necessary.  The review shall assess:
    1. The impact of the landfill on groundwater, surface water, and air quality.
    2. The operating history and compliance status of the landfill.
    3. The potential of the landfill to affect the public health taking into account:
      1. the proximity of drinking water supplies or buildings in regular use;
      2. the nature and extent of actual or expected air and water contamination;
      3. the ownership and use of surrounding land; and
      4. the size, age, capacity, and use of the landfill.
  2. Within 120 days after the review is completed, the Secretary shall propose to certify the landfill or to grant an interim certification pursuant to section 6605b of this title to close or upgrade the landfill.  A landfill shall be closed or remedial action shall be required if the Secretary finds that it has caused or is likely to cause a significant risk to public health or the environment.
  3. No later than July 1, 1991 the operating portion of each landfill shall be lined, if required under the provisions of subsection 6605(d) of this title, except that those in operation as of July 1, 1987 that are certified to receive or actually receive less than 1,000 tons of municipal waste per year may be exempted from this requirement according to the provisions of subsection (d) of this section, or if, considering the factors established in subdivision (a)(3) of this section, the Secretary finds that they will not create a significant risk to public health and that they will not cause irreparable harm to the environment. Violations of secondary safe drinking water standards, standing alone, will not be construed under this subsection or under subsection 6605(b) of this title to constitute significant risks to public health or to cause irreparable harm to the environment. Where the Secretary has determined, by clear and convincing evidence, that the operation of a solid waste landfill, or the existence of a solid waste landfill closed after July 1, 1987, has increased the level of any secondary drinking water quality contaminant, in the downgradient groundwater, so that the resulting water quality exceeds the secondary drinking water standards, the Secretary shall require the operator of the landfill facility to institute remedial activities. These remedial activities may include the installation of water treatment systems to remove secondary contaminants from the affected drinking water supplies, or the replacement of the contaminated drinking water source or sources.
  4. The Secretary may authorize continued operation of a municipally owned unlined landfill that is in operation on July 1, 1992 and that will receive less than 1,000 tons per year of waste for disposal, if the legislative body of the municipality has voted to continue to operate the landfill and if the Secretary has approved a plan submitted by the municipality that shall be implemented by October 1, 1992, which demonstrates how approximately 90 percent of yard waste and hazardous waste from households and small quantity generators, along with a substantial portion of marketable recyclables, will be removed from the waste stream before disposal. Approval under this section shall exempt the landfill from compliance with those provisions of the solid waste rules that require a minimum vertical separation to bedrock of 10 feet, that require a minimum of six feet vertical separation from the high seasonal water table, and that require a minimum distance of 300 feet to the waters of the State. Violations of secondary safe drinking water standards, standing alone, will not be construed under this subsection or under subsection 6605(b) of this title to allow or require the Secretary to deny approval of landfills regulated under this subsection. Where the Secretary has determined, by clear and convincing evidence, that the operation of a solid waste landfill, or the existence of a solid waste landfill closed after July 1, 1987, has increased the level of any secondary drinking water quality contaminant in the downgradient groundwater so that the resulting water quality exceeds the secondary drinking water standards, the Secretary shall require the operator of the landfill facility to institute remedial activities. These remedial activities may include the installation of water treatment systems to remove secondary contaminants from the affected drinking water supplies, or the replacement of the contaminated drinking water source or sources.

HISTORY: Added 1987, No. 78 , § 9; amended 1991, No. 202 (Adj. Sess.), § 11, eff. May 27, 1992; 1993, No. 232 (Adj. Sess.), § 43, eff. March 15, 1995.

History

Revision note—

Substituted “July 1, 1987” for “the effective date of this act” following “certified as of” in the first sentence of the introductory paragraph of subsec. (a) and preceding “that are certified” in subsec. (c) for purposes of clarity.

Amendments

—1993 (Adj. Sess.). Subsec. (c): Added the second, third, and fourth sentences.

Subsec. (d): Added the third, fourth, and fifth sentences.

—1991 (Adj. Sess.). Subsec. (c): Inserted “according to the provisions of subsection (d) of this section, or” preceding “if, considering”.

Subsec. (d): Added.

CROSS REFERENCES

Landfill closure grants, see § 6603i of this title.

ANNOTATIONS

Construction.

Claim by operator of lined landfill that actions of municipal district with right to provide solid waste services within its district were ultra vires was not precluded by doctrine of collateral estoppel where prior Vermont court determination in action by operator of unlined landfill was determined not ultra vires. Valley Disposal, Inc. v. Central Vermont Solid Waste Management District, 31 F.3d 89, 1994 U.S. App. LEXIS 20683 (2d Cir. 1994).

§ 6605b. Interim certification.

  1. A person who does not qualify for a solid waste management facility certification under section 6605 of this title may be issued an interim certification.  The Secretary may require the applicant to submit any additional information that the Secretary considers necessary, and may refuse to grant the interim certification until the information is furnished and evaluated.
  2. The Secretary shall not issue an interim certification without affirmatively finding:
    1. that the operation of the solid waste management facility is necessary and will result in some public benefit;
    2. that there is no present, reasonable, alternative means for waste disposal;
    3. that the applicant needs to operate the facility for a period of time necessary to complete research, planning, construction, installation, or operation of an approved facility or to close the existing facility;
    4. that the operation of the facility will not create an unreasonable risk to the public health nor be unreasonably destructive to the environment;
    5. that the operation of the facility is consistent with an approved plan, for the area in which the facility is located, or the State Solid Waste Management Plan; and
    6. that the applicant, if other than a municipality, meets the requirements established in subdivisions 6605f(a)(1) and (2) of this title.
  3. Any interim certificate issued shall:
    1. specify the location of the facility, including limits on its development;
    2. require proper operation of the facility;
    3. specify the amounts and types of waste material to be disposed of at the facility, which, in case of landfills and incinerators, shall include the following;
      1. if the waste is being delivered from a municipality that has an approved implementation plan, hazardous materials and recyclables shall be removed from the waste according to the terms of that implementation plan,
      2. if the waste is being delivered from a municipality that does not have an approved implementation plan, yard waste shall be removed from the waste stream, as shall a minimum of approximately 75 percent of each of the following: marketable recyclables, hazardous waste from households, and hazardous waste from small quantity generators;
    4. specify the type and numbers of suitable pieces of equipment that will operate the facility properly;
    5. contain provisions for air, groundwater, and surface water monitoring;
    6. specify a schedule by which an applicant shall meet all requirements for full certification or proper closure;
    7. be valid only for the period of time, not to exceed two years, necessary for an applicant to meet the requirements of full certification or closure, and shall not be renewed more than once; and
    8. contain such additional conditions, requirements, and restrictions as the Secretary may deem necessary to preserve and protect the public health and the environment.

HISTORY: Added 1987, No. 78 , § 10; amended 1991, No. 202 (Adj. Sess.), § 2, eff. May 27, 1992; 1993, No. 81 , § 3; 1993, No. 157 (Adj. Sess.), § 3.

History

Amendments

—1993 (Adj. Sess.). Subsec. (b): Deleted “and” following “environment” in subdiv. (4), added “and” following “plan” and made a minor change in punctuation in subdiv. (5), and added subdiv. (6).

—1993. Subdiv. (c)(3): Amended generally.

—1991 (Adj. Sess.). Subdiv. (b)(5): Inserted “for the area in which the facility is located” following “approved plan”.

ANNOTATIONS

Purpose.

The nature and purpose of Act 250 is to protect and conserve the environment of the state and to insure that lands slated for development are devoted to uses which are not detrimental to the public welfare and interest; any economic issues implicated by Act 250 and subdivs. (b)(1) and (2) of this section are for the protection of the general public, and since the general public would not have party status in this litigation, and appellant’s interests are no different than those of the general public, party status was properly denied. In re Chittenden Recycling Services, 162 Vt. 84, 643 A.2d 1204, 1994 Vt. LEXIS 53 (1994).

Although subdivs. (b)(1) and (2) of this section set forth certification criteria that touch on economics, those statutes were created to protect the general public, not competitors like the appellant. In re Chittenden Recycling Services, 162 Vt. 84, 643 A.2d 1204, 1994 Vt. LEXIS 53 (1994).

§ 6605c. Solid waste categorical certifications.

  1. Notwithstanding sections 6605, 6605f, and 6611 of this title, no person may construct, substantially alter, or operate any categorical solid waste facility without first obtaining a certificate from the Secretary. Certificates shall be valid for a period not to exceed 10 years.
  2. The Secretary may, by rule, list certain solid waste categories as eligible for certification pursuant to this section:
    1. Solid waste categories to be deposited in a disposal facility shall not be a source of leachate harmful to human health or the environment.
    2. Solid waste categories to be managed in a composting facility shall not present an undue threat to human health or the environment.
    3. Recyclable materials either recycled or prepared for recycling at a recycling facility.
  3. Certifications for a solid waste management facility pursuant to this section where appropriate shall:
    1. Specify the location of the facility, including limitations on its development.
    2. Require proper operation and development of the facility in accordance with facility management plans approved under the certificate.
    3. Specify the projected amount and types of waste to be managed or disposed at the facility.
    4. Contain additional conditions, requirements, and restrictions, as the Secretary may deem necessary to preserve and protect the public health and the air, groundwater, and surface water quality. This may include requirements concerning recording, reporting, and inspection of the operation of the facility.
  4. When an application for a certification is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title.
  5. This section shall not apply to the storage, treatment, or disposal of:
    1. Municipal solid waste.
    2. Sludge.
    3. Septage.
    4. Mineral processing waste. For purposes of this section, mineral processing waste means solid waste from an industrial or manufacturing facility that processes materials from a mining activity and where chemicals, as defined by the Secretary by rule, are intentionally added as a part of that processing.

HISTORY: Added 1989, No. 61 , § 3, eff. May 22, 1989; amended 1989, No. 286 (Adj. Sess.), § 7; 2005, No. 65 , § 3; 2011, No. 148 (Adj. Sess.), § 5; 2013, No. 175 (Adj. Sess.), § 5; 2015, No. 150 (Adj. Sess.), § 26, eff. Jan. 1, 2018.

History

Amendments

—2015 (Adj. Sess.). Subsec. (d): Rewritten.

—2013 (Adj. Sess.). Subsec. (a): Substituted “10 years” for “five years” at the end.

—2011 (Adj. Sess.). Rewrote subdiv. (b)(3).

—2005. Section amended generally.

—1989 (Adj. Sess.). Subsec. (d): Added.

CROSS REFERENCES

Conditions for issuance of order extending landfill closure deadline beyond July 1, 1992, see § 6605e of this title.

Landfill closure grants, see § 6603i of this title.

ANNOTATIONS

Cited.

Cited in Valley Disposal, Inc. v. Central Vermont Solid Waste Management District, 31 F.3d 89, 1994 U.S. App. LEXIS 20683 (2d Cir. 1994).

§ 6605d. Provisional certification.

  1. Notwithstanding the requirements of sections 6605, 6605a, and 6605b of this title, a provisional certification may be issued under this section for a solid waste landfill.  A provisional certification may modify a landfill certification or other authorization.  The Secretary shall inform interested persons as to where disposal capacity exists and shall encourage development of provisional certification applications that are logical, considering transportation requirements, the needs of the solid waste management districts and the municipalities that are not district members, and other relevant factors.
  2. The Secretary shall not issue a provisional certification without affirmatively finding that:
    1. The solid waste management facility is an existing unlined landfill and that solid waste has been disposed of at the facility prior to January 1, 1990 in the cell or area for which provisional certification is proposed.
    2. There is a compelling public need for the proposed provisional certification because it will:
      1. provide disposal capacity required by other specified municipalities; and
      2. provide additional funds necessary for proper operation and closure; and
      3. produce contours as specified in an approved closure plan.
    3. Measures will be taken to prevent or reduce any undue adverse impacts on the criteria specified in subdivision (c)(5) of this section.
  3. A provisional certification shall:
    1. Not approve, or otherwise allow, any horizontal expansion into, or use of, unused unlined cells or areas of the landfill.
    2. Contain conditions, requirements, or restrictions as set out in subsection 6605(b) of this title, for any aspect of the management of the facility affected by the provisional certification, except that a provisional certification shall not include the recycling requirements established in subdivision 6605(b)(3)(B) of this title. The hazardous waste requirements established in subdivision 6605(b)(3)(B) shall be satisfied if the certification prohibits disposal of the following: automobile lead-acid batteries, nickel cadmium batteries, waste oil and oil filters, electric fluorescent light ballasts and capacitors containing PCBs, oil-based and latex paint, paint thinner and remover, stains and varnishes, other household hazardous waste, and all regulated and unregulated nonresidential hazardous waste.
    3. Contain a requirement that the facility is operated in a manner that assures adequate compaction rates for the additional waste and a requirement that the facility submit a plan for recycling.  The Secretary shall ensure that the recycling plan provides for a maximum amount of recycling, as soon as is practical, considering the time constraints inherent in provisional certification.
    4. Contain a requirement, if the facility is purchased by a solid waste management district after July 1, 1990, or is owned by a private entity, that a surcharge of two dollars per ton be imposed on all additional waste allowed by the provisional certification.  The surcharge shall be collected by the owner or operator of the facility and remitted quarterly to the city, town, or gore in which the facility is located.
    5. Contain conditions, requirements, or restrictions to prevent or reduce any adverse impacts on the public health or the environment caused by the additional waste, as well as measures regarding water pollution, air pollution, traffic, noise, litter, soil erosion, and visual screening as defined by the relevant criteria in subsection 6086(a) of this title.
    6. Contain such additional conditions, requirements, or restrictions as are necessary to preserve and protect the public health and the air, groundwater, and surface water quality, and that shall include requirements for reporting, record keeping, and inspections, and, where practical, shall include requirements with respect to hazardous waste generated by small quantity generators of hazardous waste.
    7. Contain a reasonable schedule for compliance with the financial responsibility requirements of section 6611 of this title.
    8. Contain a requirement that the unlined landfill cease accepting waste as of July 1, 1992 or earlier, pursuant to an approved closure plan.
    9. Notwithstanding the provisions of subdivision (8) of this subsection, any person operating a facility under a provisional certification may apply to the Secretary for a six-month extension of the landfill closure deadline, provided that application is received by July 1, 1991.  In order to qualify for an extension, the applicant must demonstrate the inability to contract for sufficient capacity sharing to complete closure by the July 1, 1992 deadline, and good faith efforts to share sufficient capacity to ensure closure by July 1, 1992.  The Secretary shall evaluate requests for extension on a case by case basis, but in no event shall the Secretary extend the closure deadline for any landfill beyond December 31, 1992.
    10. Notwithstanding the provisions of subdivisions (8) and (9) of this subsection, a provisional certification for an unlined landfill owned and operated by a solid waste district as of April 1, 1990 may be issued for no longer than the time period necessary to complete closure and the siting of a new facility.  To qualify under this provision an applicant must provide a plan, including an estimated closure date, that will enable the environmentally sound closure of an existing landfill and the timely siting of a new facility.  The applicant shall demonstrate through negotiated contracts that at least 150,000 cubic yards of capacity will be shared with other Vermont communities to complete the closure of the existing landfill by that date.  On request of a municipality to participate in the shared capacity to be provided by the applicant, the applicant shall share that capacity on the same terms as those negotiated with other municipalities, provided that the Secretary determines that inclusion of the requesting municipality is a logical result, considering transportation requirements, the needs of solid waste management districts and municipalities that are not district members, and other relevant factors.
  4. The owner and operator of a facility seeking provisional certification shall submit an application on a form provided by the Secretary.  Except for applicants receiving certification under subdivision (c)(10) of this section, the Secretary shall require the applicant to submit negotiated contracts that demonstrate sufficient capacity sharing to complete closure by July 1, 1992 or earlier.  The Secretary may require an applicant for provisional certification to submit whatever information the Secretary considers necessary to evaluate the application.  If the information is not provided as requested, the certification may be denied or it may be delayed until the information is furnished and evaluated.
  5. When an application for a provisional certification is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title.
  6. Any provisional certification may be issued immediately after the end of the public comment period, but its effective date may not be less than five calendar days after the end of the public comment period.
  7. [Repealed.]
  8. If the Secretary finds that emergency action is required for the disposal of solid waste in Vermont facilities, the Secretary may issue an emergency provisional certification. Notwithstanding any contrary requirement of chapter 170 of this title, notice of a proposed emergency provisional certification shall be published at least seven calendar days prior to the meeting and the public comment period shall end no sooner than three calendar days after the meeting. An emergency provisional certification granted in accordance with this subsection shall be issued no more than once and shall terminate 60 days after issuance, unless the Secretary reissues the certification under this section as a provisional certification. Except as otherwise required by this subsection, an emergency provisional certification shall be subject to requirements that apply to provisional certification.
  9. No person shall substantially alter the operation, use, construction, management, or geographic service area of a solid waste management facility without first obtaining a certification approving that alteration, under this section or section 6605 or 6605b of this title, as appropriate. A service area established in a provisional certification issued under this section, upon request of the operator of the facility, shall be amended to allow the facility to accept solid waste, including construction and demolition debris originating from any source, if necessary to achieve appropriate closure grade by October, 1995.
  10. [Repealed.]

HISTORY: Added 1989, No. 218 (Adj. Sess.), § 1; amended 1993, No. 208 (Adj. Sess.), § 6; 2015, No. 150 (Adj. Sess.), § 27, eff. Jan. 1, 2018.

History

Amendments

—2015 (Adj. Sess.). Subsec. (e): Rewritten.

Subsecs. (g) and (j): Repealed.

Subsec. (h): Substituted “Notwithstanding any contrary requirement of chapter 170 of this title, notice” for “Notice” in the second sentence.

—1993 (Adj. Sess.). Subdiv. (c)(2): Added “except that a provisional certification shall not include the recycling requirements established in subdivision 6605(b)(3)(B) of this title” following “certification” in the first sentence and added the second sentence.

Subsec. (i): Added the second sentence.

§ 6605e. Closure extension orders.

  1. Notwithstanding other provisions of this chapter, the Secretary, until December 31, 1992, may issue landfill closure extension orders pursuant to section 8008a of this title for the purpose of extending the July 1, 1992 landfill closure date for existing, operating, unlined landfills receiving waste as of January 1, 1992. This extension may run until October 9, 1993. An owner or operator making a request for this extension must file an application containing information supporting findings required by this section, prior to July 1, 1992. This extension may be granted:
    1. in order to bring the level of disposed waste up to the minimum acceptable closure grade, as established by rule, or
    2. where the solid waste management district, or municipality that is not a member of a district, from which the waste originates has adopted a solid waste implementation plan or an interim management plan for management of solid waste generated within that planning entity’s area. The plan shall identify a proposed lined landfill disposal facility or a proposed combination of lined and inert landfill capability, the latter created according to the provisions of subsection 6605(d) of this title, and shall include a realistic schedule for the use, by no later than October 9, 1993, of this new facility by this planning entity.
  2. The Secretary may issue an order under subsection (a) of this section, upon finding:
    1. that the continued use of the unlined facility is necessary. Before finding that continued use of an unlined facility is necessary, with respect to a facility qualifying for an exemption under subdivision (a)(2) of this section, the Secretary shall first find that the planning entity lacks a lined landfill alternative that is reasonably available;
    2. that continued use of unlined capacity will not result in any horizontal expansion of waste disposal beyond areas where waste disposal has taken place legally, prior to July 1, 1992;
    3. that the existing landfill does not currently create significant environmental harm nor will the proposed continued use of the landfill for the period of the extension be likely to create significant environmental harm;
    4. that the facility is not causing any present contamination of an existing water supply and it is reasonable to expect that the facility will not cause such contamination during the period of the closure order. For the purposes of this subdivision, contamination is defined as exceeding any primary safe drinking water standard that has been promulgated by the U.S. Environmental Protection Agency;
    5. that the continued use of the unlined facility will not create undue adverse effects related to water pollution, air pollution, traffic, noise, litter, soil erosion, and visual conditions, as defined by the relevant criteria in subsection 6086(a) of this title;
    6. that any vertical expansion will not result in final grades in excess of those allowed under the solid waste management rules;
    7. that the owner and operator have demonstrated compliance with the financial responsibility requirements of the solid waste management rules, which in the case of municipalities shall mean having secured the local cost of closure by affirmative bond vote, reserve fund, or escrow account; and
    8. that the owner or operator has demonstrated that adequate, accessible, source separation opportunities exist for recycling and for management of unregulated hazardous waste within the municipalities that will use the facility. Any transfer station that serves the facility shall have source separation opportunities for recycling, unless the area is served by a curbside collection program for source separated recyclables.
  3. Owners and operators who, by July 1, 1992, have filed an application for an extension under the provisions of subsection (a) of this section, may remain open until December 31, 1992, unless they receive a closure order before that time from the Secretary. The Secretary may issue an order to close if the applicant is not likely to meet the criteria in this section.
  4. Any actions required to be performed at the landfill site pursuant to an order issued under this section and section 8008a of this title shall be exempt from certification and permit provisions of this chapter and from the requirement to obtain a permit or permit amendment under chapter 151 of this title. This section shall not exempt from jurisdiction under chapter 151 of this title any actions relating to closure of a landfill authorized pursuant to a certification issued under section 6605 or 6605b of this title, if those actions otherwise would be subject to jurisdiction under chapter 151.
  5. Orders under this section may be issued only if the landfill owner and operator produce a letter from the district in which the facility is located, indicating that receiving the waste is consistent with the district planning process. If the facility is not located within a district, these orders may be issued only on receipt of a letter from the municipality in which the facility is located, indicating that receiving the waste is consistent with the municipality’s solid waste planning process.

HISTORY: Added 1991, No. 202 (Adj. Sess.), § 3, eff. May 27, 1992.

CROSS REFERENCES

Requests for hearings on landfill closure extension orders, see § 8018 of this title.

ANNOTATIONS

Construction.

Claim by operator of lined landfill that actions of municipal district with right to provide solid waste services within its district were ultra vires was not precluded by doctrine of collateral estoppel where prior Vermont court determination in action by operator of unlined landfill was determined not ultra vires. Valley Disposal, Inc. v. Central Vermont Solid Waste Management District, 31 F.3d 89, 1994 U.S. App. LEXIS 20683 (2d Cir. 1994).

§ 6605f. Waste management personnel background review.

  1. Disqualifying criteria.   Any nongovernmental entity or person applying for a certification under section 6605, 6605a, or 6606 of this title, for interim certification under section 6605b of this title, or for a waste transportation permit under section 6607a of this title, shall be denied certification or other authorization if the Secretary finds:
    1. that the applicant or any person required to be listed on the disclosure statement pursuant to subdivision (b)(1) of this section has been convicted of any of the following disqualifying offenses in this or any other jurisdiction within the 10 years preceding the date of the application:
      1. murder;
      2. kidnapping as defined in 13 V.S.A. § 2405 ;
      3. gambling as defined in 13 V.S.A. § 2135 ;
      4. robbery as defined in 13 V.S.A. § 608 ;
      5. bribery as defined in 13 V.S.A. chapter 21;
      6. extortion as defined in 13 V.S.A. § 1701 ;
      7. arson as defined in 13 V.S.A. chapter 11;
      8. burglary as defined in 13 V.S.A. § 1201 ;
      9. larceny and embezzlement as defined in 13 V.S.A. chapter 57;
      10. forgery and fraud as defined in 13 V.S.A. chapters 43, 47, and 49 and 9 V.S.A. chapters 63, 67, 71, 105, and 131;
      11. possession and control of drugs and related offenses as defined in 18 V.S.A. chapter 84;
      12. unlawfully selling, bartering, possessing, furnishing, or transporting alcohol pursuant to 7 V.S.A. § 561 ;
      13. the federal Racketeer Influenced and Corrupt Organizations Act as defined in 18 U.S.C. § 1961 et seq.;
      14. the criminal provisions of federal antitrust laws for activities related to solid waste;
      15. the criminal provisions of any federal or state environmental protection laws or rules relating to solid waste;
      16. obstruction of justice as defined in 13 V.S.A. chapter 67;
      17. fraud in the offering, sale, or purchase of securities under 9 V.S.A. § 5508 and in the U.S. Code;
      18. alteration of motor vehicle identification numbers as defined in 23 V.S.A. § 1703 ;
      19. unlawful manufacture, purchase, use, or transfer of firearms as defined in 13 V.S.A. chapter 85 and in the U.S. Code;
      20. perjury as defined in 13 V.S.A. chapter 65; or
    2. that the applicant or any person required to be listed on the disclosure statement pursuant to subdivision (b)(1) of this section, alone or taken together, have committed more than one violation of environmental: statutes; rules; orders; certifications; or permits, issued by any jurisdiction, which have the potential to significantly harm the public health, public safety, or the environment, giving due consideration to the size and scope of the applicant’s business operations.
  2. Disclosure statement.   The disclosure statement shall include the following:
    1. Disclosure of equity and debt ownership.   The full name, business address, and Social Security number or its foreign equivalent of the applicant or, if the applicant is a business concern, of the officers, directors, partners, or key employees of that business concern; and a listing of all persons or business concerns which hold any equity in or debt liability of the applicant business concern, or, if the applicant business concern is a publicly traded corporation, of all persons or business concerns holding more than five percent of the equity in or debt liability of that business concern. The Secretary and the Commissioner of Public Safety shall have the right, but not the obligation, to require the applicant to submit disclosure statements for the officers, directors, partners, and key employees of any business concern that holds any equity in or debt liability of the applicant business concern.
    2. Disclosure of equity and debt ownership in related business concerns.   The full name, business address, and Social Security number of all persons or business concerns holding any equity in or debt liability of any business concern disclosed in this subsection. The Secretary and the Commissioner of Public Safety shall have the right, but not the obligation, to require the applicant to submit disclosure statements for the officers, directors, partners, and key employees of any business concern that holds any equity in or debt liability of the applicant business concern.
    3. Disclosure of record of convictions.   The record of convictions identified in subsection (a) of this section by any person identified in this section for the 10 years prior to the date of the application.
    4. Disclosure of civil and administrative penalties.   A list of all civil and administrative penalties issued against the applicant by any state or federal authority, in the five years immediately preceding the filing of the application, that resulted from a finding of violation or assurance of discontinuance, relating to the collection, transportation, treatment, storage, or disposal of solid waste or hazardous waste by the applicant, or if the applicant is a business concern, by any key employee, officer, director, or partner of that business concern.
  3. Investigation.   The Secretary shall refer the completed application to the Department of Public Safety for the purpose of verifying the information in the application and conducting an investigation. In connection with its investigation, the Department of Public Safety may request and receive criminal history information from any federal or state law enforcement agency or organization and may transmit that information to the Secretary. Unless the Secretary’s determination or decision is contested, the information contained in the investigative report shall remain confidential and shall only be used by the cooperating agencies.
  4. Definition of key employee.   As used in this section, “key employee” means any individual employed by a business concern in a management capacity or who is empowered to make discretionary decisions of a financially material nature with respect to the solid or hazardous waste operations of the business concern.
  5. Change in ownership.   In the event of any change in ownership, the certificate or permit holder under this section shall file a disclosure statement, as required of an applicant under this section. This filing shall be made at least 90 days before the proposed change in ownership. A proposed change of ownership shall be processed in the same manner as an application under subsection (a) of this section, and if it would result in the denial of an application, transfer of the permit to the proposed new owner shall be denied.
  6. Rehabilitation.   Notwithstanding the provisions of this section, no applicant under this section shall be denied certification, or licensure on the basis of disqualifying criteria with respect to any individual required to be listed in the disclosure statement or shown through investigation to have a beneficial interest in the business of the applicant other than an equity interest or debt liability, if the person has demonstrated the person’s rehabilitation, as determined by the Secretary.
  7. Revocation of certification.   The Secretary shall revoke any certification or permit subject to this section, or appoint a receiver and order that the receiver conduct the business in question, if the Secretary determines:
    1. that any of the grounds for denial under subsection (a) of this section either existed at the time of application or have arisen since that time; or
    2. that the holder of the certification or permit, or the applicant for the certification or permit, knowingly omitted or falsified information required to be disclosed under this section.
  8. Agency coordination.   The Secretary of Natural Resources, the Attorney General, the State’s Attorneys, and the Commissioner of Public Safety shall coordinate efforts to enforce solid waste laws and to investigate for violations of those laws.
  9. Decision by Secretary.   Any denial by the Secretary under subsection (a) of this section shall be made within 90 days of receiving a completed application; except that when the Secretary or the Commissioner of Public Safety requests additional information pursuant to subdivision (b)(1) or (2) of this section, the 90-day period shall not run from the date of that request until the date upon which the Secretary or Commissioner receives the information requested. If the Secretary does not issue a denial within 90 days of receiving a completed application or the additional language requested, the applicant shall be deemed to have complied with the requirements of this section, subject to the Secretary’s right to seek revocation under subsection (g) of this section.
  10. Private entities that contract with governmental entities.   If a governmental entity is an applicant for a certification, interim certification, or waste transportation permit listed in subsection (a) of this section, and contracts with a nongovernmental entity to conduct any part of its operation that is subject to the certificate or permit, such nongovernmental entity shall comply with the requirements of this section.
  11. Exemption.
    1. Except to the extent that other activities create jurisdiction under this section, a person shall be exempt from the provisions of this section, if that person:
      1. applies for certification under this chapter for on-site storage or treatment of solid or hazardous waste:
        1. that is generated solely on-site; or
        2. that is generated off-site by:
          1. any person under the same ownership or control as is the person applying; or
          2. any person who is a joint venturer with, or partner of, the person applying; and
      2. does not accept any other solid or hazardous waste for storage or treatment.
    2. Any person who applies for a certification under this chapter to perform corrective action or closure or post-closure activities shall be exempt from the provisions of this section, except to the extent that other activities create jurisdiction under this section.
  12. Continuing jurisdiction.   After a certification or permit has been issued, the Secretary and the Commissioner of Public Safety shall retain the right to require the permittee to submit additional information concerning all persons holding equity in or debt liability of the permittee, if the Secretary or Commissioner has received reliable information, that was not available at the time the certification or permit was issued, indicating that additional investigation is warranted. Upon request by the Secretary or the Commissioner for the submission of additional information, the permittee shall exercise all due diligence to comply completely and in a timely manner with the request.
  13. Annual statement.   Any person subject to this section who has received a waste transporter permit under section 6607a of this title shall file a statement annually within 30 days prior to the month and day of issuance of that permit disclosing any changes in facts that would render the disclosure statement filed in connection with that permit inaccurate in any way, or stating that no such changes have occurred in the period of time covered by the annual statement. The annual statement shall be under oath or affirmation.

HISTORY: Added 1993, No. 157 (Adj. Sess.), § 1; amended 1995, No. 56 , § 1, eff. April 20, 1995; 1995, No. 141 (Adj. Sess.), §§ 1-5, eff. April 30, 1996; 2017, No. 83 , § 144; 2019, No. 131 (Adj. Sess.), § 29.

History

References in text.

Section 4224a of Title 9, referred to in subdiv. (a)(1)(Q), was repealed by 2005, No. 11 , § 2.

Revision note—

Subdivs. (1)(C), (1)(C)(i), and (1)(C)(ii) of subsec. (k) were redesignated as subdivs. (1)(B)(i), (1)(B)(ii), and (2), respectively, to correct an error in the designations as set out in 1995, No. 56 . In addition, material had been inadvertently deleted from 5.201, which was enacted as 1995, No. 56 , prior to the transmittal of that bill to the Governor. In particular, the material appearing as subsec. (k) was adopted as subdiv. (1) of the subsec. that was titled “Exemptions.” Subdiv. (2) of that subsec. read as follows:

“(2) Any person who applies for a certification under this chapter to perform corrective action, or closure or postclosure activities shall be exempt from the provisions of this section, except to the extent that other activities create jurisdiction under this section.”

Amendments

—2019 (Adj. Sess.). Subdiv. (a)(1)(Q): Substituted “under” for “as defined in” and substituted “5508” for “4224a”.

—2017. Subdiv. (a)(1)(L): Amended generally.

—1995 (Adj. Sess.) Subsec. (a): Rewrote the introductory paragraph, deleted “a finding” preceding “that the applicant” and substituted “or” for “and” thereafter and “has” for “have not” preceding “been convicted” in the introductory paragraph of subdiv. (1), added “or” at the end of subdiv. (1)(T), and rewrote subdiv. (2).

Subsec. (g): Amended generally.

Subsec. (i): Deleted “final” preceding “decision” in the subsec. heading, substituted “any denial by the secretary under subsection (a) of this section shall be made” for “the secretary shall make a final decision under this section” preceding “within 90” in the first sentence, and substituted “issue a denial” for “make a final decision” preceding “within 90” and added “subject to the secretary’s right to seek revocation under subsection (g) of this section” in the second sentence.

Subsec. (k): Amended generally.

Subsec. (m): Added.

—1995. Substituted “nongovernmental” for “nonmunicipal” preceding “entity” in the introductory paragraph of subsec. (a), rewrote subdivs. (b)(1) and (2), rewrote the first sentence of subsec. (i), deleted former subsec. (j), redesignated former subsec. (k) as subsec. (j) and substituted “governmental entities” for “municipalities” following “contract with” in the first sentence, and “governmental” for “municipal” preceding “entity is an” and “nongovernmental” for “nonmunicipal” in two places in the second sentence of that subsec., and added new subsecs. (k) and ( l ).

§ 6605g. Incineration emissions.

  1. Findings.   The General Assembly finds that given the regional nature of weather patterns, the incineration of solid waste, whether from incinerators located inside the State or outside its borders, causes negative effects on the health and welfare of the people of the State, and on the State’s natural resources. Accordingly, it is in the public interest to require the use of the best required technology in incinerators, wherever located, if they are to receive solid waste from the State of Vermont, pursuant to new contracts or contract renewal for the disposal of solid waste.
  2. Best required technology requirement.   To the extent consistent with federal law, no person shall enter a new contract or renew an existing contract for the incineration of solid waste produced within the State’s borders, at an incinerator, regardless of location, that fails to use the best technology currently required by federal law of any solid waste incinerator in the country, in reducing hazardous emissions from the incinerator.

HISTORY: Added 1997, No. 151 (Adj. Sess.), § 5.

§ 6605h. Composting registration.

Notwithstanding sections 6605, 6605f, and 6611 of this title, the Secretary may, by rule, authorize a person engaged in the production or management of compost at a small scale composting facility to register with the Secretary instead of obtaining a facility certification under section 6605 or 6605c of this title. This section shall not apply to a farm producing compost under subdivision 6001(22)(H) of this title.

HISTORY: Added 2009, No. 41 , § 2; amended 2021, No. 41 , § 5, eff. May 20, 2021.

History

Amendments

—2021. Added the last sentence.

§ 6605i. [Reserved for future use.]

§ 6605j. Accepted composting practices.

  1. The Secretary, in consultation with the Secretary of Agriculture, Food and Markets, shall adopt by rule, pursuant to 3 V.S.A. chapter 25, and shall implement and enforce accepted composting practices for the management of composting in the State. These accepted composting practices shall address:
    1. standards for the construction, alteration, or operation of a composting facility;
    2. standards for facility operation, including acceptable quantities of product or inputs, vector management, odors, noise, traffic, litter control, contaminant management, operator training and qualifications, recordkeeping, and reporting;
    3. standards for siting of composting facilities, including siting and operation of compost storage areas, compost bagging areas, and roads and parking areas;
    4. standards for the composting process, including rotation, management of compost piles, compost pile size, and monitoring of compost operations;
    5. standards for management of runoff from compost facilities, including liquids management from the feedstock area, active composting areas, curing area, and compost storage area; the use of swales or stormwater management around or within a compost facility; vegetative buffer requirements; and run-off management from tipping areas;
    6. specified areas of the State unsuitable for the siting of commercial composting that utilizes post-consumer food residuals or animal mortalities, such as designated downtowns, village centers, village growth areas, or areas of existing residential density; and
    7. definitions of “small-scale composting facility,” “medium-scale composting facility,” and “de minimis composting exempt from regulation.”
  2. A person operating a small scale composting facility who follows the accepted composting practices shall not be required to obtain a discharge permit under section 1263 or 1264 of this title, a solid waste facility certification under chapter 159 of this title, or an air emissions permit under chapter 23 of this title unless a permit is required by federal law or the Secretary of Natural Resources determines that a permit is necessary to protect public health or the environment.
  3. [Repealed.]
  4. The Secretary shall not regulate under this section a farm producing compost under subdivision 6001(22)(H) of this title.

HISTORY: Added 2009, No. 41 , § 3; amended 2021, No. 41 , § 6, eff. May 20, 2021.

History

Amendments

—2021. Subsec. (b): Deleted “or operating a composting facility on a farm” following “composting facility”.

Subsec. (c): Repealed.

Subsec. (d): Added.

§ 6605k. Food residuals; management hierarchy.

  1. It is the policy of the State that food residuals collected under the requirements of this chapter shall be managed according to the following order of priority uses:
    1. reduction of the amount generated at the source;
    2. diversion for food consumption by humans;
    3. diversion for agricultural use, including consumption by animals;
    4. composting, land application, and digestion; and
    5. energy recovery.
  2. A person who produces more than an amount identified under subsection (c) of this section in food residuals shall:
    1. separate food residuals from other solid waste, provided that a de minimis amount of food residuals may be disposed of in solid waste when a person has established a program to separate food residuals and the program includes a component for the education of program users regarding the need to separate food residuals; and
    2. arrange for the transfer of food residuals to a location that manages food residuals in a manner consistent with the priority uses established under subdivisions (a)(2)-(5) of this section or shall manage food residuals on site.
  3. The following persons shall be subject to the requirements of subsection (b) of this section:
    1. beginning July 1, 2014, a person whose acts or processes produce more than 104 tons per year of food residuals;
    2. beginning July 1, 2015, a person whose acts or processes produce more than 52 tons per year of food residuals;
    3. beginning July 1, 2016, a person whose acts or processes produce more than 26 tons per year of food residuals;
    4. beginning July 1, 2017, a person whose acts or processes produce more than 18 tons per year of food residuals; and
    5. beginning July 1, 2020, any person who generates any amount of food residuals.

HISTORY: Added 2011, No. 148 (Adj. Sess.), § 6; amended 2017, No. 208 (Adj. Sess.), § 4, eff. July 1, 2020.

History

Amendments

—2017 (Adj. Sess.). Subsec. (b): Deleted “and is located within 20 miles of a certified organics management facility that has available capacity and that is willing to accept the food residuals” preceding “shall”.

§ 6605l. Public collection containers for solid waste.

  1. As used in this section:
    1. “Public building” means a State, county, or municipal building; airport terminal; bus station; railroad station; school building; or school.
    2. “Public land” means all land that is owned or controlled by a municipal or State governmental body.
  2. Beginning July 1, 2015, when a container or containers in a public building or on public land are provided to the public for use for solid waste destined for disposal, an equal number of containers shall be provided for the collection of mandated recyclables. The containers shall be labeled to clearly show the containers are for recyclables and shall be placed as close to each other as possible in order to provide equally convenient access to users. Bathrooms in public buildings and on public land shall be exempt from the requirement of this section to provide an equal number of containers for the collection of mandated recyclables.

HISTORY: Added 2011, No. 148 (Adj. Sess.), § 7.

§ 6605m. Architectural waste recycling.

  1. Definitions.   In addition to the definitions in section 6602 of this chapter, as used in this section:
    1. “Architectural waste” means discarded drywall, metal, asphalt shingles, clean wood, and plywood, and oriented strand board derived from the construction or demolition of buildings or structures.
    2. “Commercial project” means construction, renovation, or demolition of a commercial building or of a residential building with two or more residential units.
  2. Materials recovery requirement.   Beginning on or after January 1, 2015, if a person produces 40 cubic yards or more of architectural waste at a commercial project located within 20 miles of a solid waste facility that recycles architectural waste, the person shall:
    1. arrange for the transfer of architectural waste from the project to a certified solid waste facility, which shall be required to recycle the architectural waste or arrange for its reuse unless the facility demonstrates to the Secretary a lack of a market for recycling or reuse and a plan for reentering the market when it is reestablished; or
    2. arrange for a method of disposition of the architectural waste that the Secretary of Natural Resources deems appropriate as an end use, including transfer of the architectural waste to an out-of-state facility that recycles architectural waste and similar materials.
  3. Transition; application.   The requirements of this section shall not apply to a commercial project subject to a contract entered into on or before January 1, 2015 for the disposal or recycling of architectural waste from the project.
  4. Guidance on separation of hazardous materials.   The Secretary of Natural Resources shall publish informational material regarding the need for a solid waste facility that recycles architectural waste to manage properly and provide for the disposition of hazardous waste and hazardous material in architectural waste delivered to a facility.

HISTORY: Added 2013, No. 175 (Adj. Sess.), § 2.

§ 6606. Hazardous waste certification.

  1. No person shall store, treat, or dispose of any hazardous waste without first obtaining certification from the Secretary for such facility, site or activity. Certification shall be valid for a period not to exceed 10 years.
  2. Certification of all hazardous waste facilities shall include:
    1. Identification of all hazardous waste to be handled at the facility, including the expected amounts of each type of waste and the form in which it will be accepted.
    2. Detailed descriptions of all processes and technologies to be utilized by the facility and provisions to ensure that the operation of the facility is carried out in accordance with approved design and operation plans.
    3. [Repealed.]
    4. Evidence of liability insurance in amounts as the Secretary may determine to be necessary for the protection of human health and safety and the environment.
    5. Evidence of financial responsibility in such form and amount as the Secretary may determine to be necessary to ensure that, upon abandonment, cessation, or interruption of the facility or site, all appropriate measures are taken to prevent present and future damage to public health and safety and the environment, including full and proper closure of the facility and, in the case of land treatment or disposal facilities, post-closure care of the facility for a period of time to be determined by the Secretary.
    6. Evidence that the personnel employed at the hazardous waste treatment or disposal facility or site have met such qualifications as to education and training as the Secretary may determine to be necessary to ensure the safe and adequate operation of the facility or site.
    7. A description of the location, design, and construction of such hazardous waste treatment, disposal, or storage facility.
    8. Contingency plans for effective action to minimize unanticipated damage from any treatment, storage, or disposal of any such hazardous waste.
    9. Such additional conditions, requirements, and restrictions as the Secretary may deem necessary to preserve and protect the ground and surface water.  This may include requirements concerning reporting, recording, and inspections of the operation of the facility.  Guidelines for the establishment of conditions, requirements, and restrictions shall be adopted by the Secretary according to procedures established in 3 V.S.A. chapter 25, the Vermont Administrative Procedure Act.
  3. The Secretary shall not issue a certification to a new nonmunicipal facility, or recertify an existing nonmunicipal facility, without first ascertaining that the applicant meets the requirements established in subdivisions 6605f(a)(1) and (2) of this title.

HISTORY: Added 1977, No. 106 , § 1; amended 1981, No. 102 , § 3; 1983, No. 148 (Adj. Sess.), § 3; 1993, No. 157 (Adj. Sess.), § 4; 1995, No. 141 (Adj. Sess.), § 6, eff. April 30, 1996; 2009, No. 146 (Adj. Sess.), § F12; 2019, No. 131 (Adj. Sess.), § 30.

History

Revision note

—2015. In subdiv. (b)(9), deleted “, but is not limited to,” following “include” in accordance with 2013, No. 5 , § 4.

Amendments

—2019 (Adj. Sess.). Subsec. (b): Substituted “ensure” for “insure” in subdivs. (b)(2) and (b)(5).

—2009 (Adj. Sess.) Subsec. (a): Substituted “ten years” for “five years”.

—1995 (Adj. Sess.) Subsec. (a): Deleted “transport” following “store” in the first sentence.

—1993 (Adj. Sess.). Subsec. (c): Added.

—1983 (Adj. Sess.). Subsec. (b): Substituted “include” for “be in accordance with requirements in section 6605(b) of this chapter in addition to the following” following “shall”.

Subdiv. (b)(2): Substituted “provisions” for “provision” preceding “to insure”.

Subdiv. (b)(7): Added.

Subdiv. (b)(8): Added.

Subdiv. (b)(9): Added.

—1981. Subsec. (b): Amended generally.

Law Reviews —

For note relating to successor landowner liability for damages and cleanup costs for hazardous wastes deposited on property, see 10 Vt. L. Rev. 487 (1985).

§ 6606a. Certificate of need.

  1. No person may begin site preparation for or construction of a hazardous waste management facility for the purpose of treatment or disposal of hazardous waste within the State, unless the Secretary first issues a certificate of need for the facility under this section.  This section shall not apply to:
    1. The replacement of existing facility with an equivalent facility in the usual course of business.
    2. A hazardous waste management facility that is operated only by or on behalf of the owner of the facility for the treatment or disposal of hazardous waste materials generated in Vermont by the owner of the facility.  Such facility shall be located on a site of generation.
  2. Petition for certificate of need.
    1. A person shall submit a completed petition for a certificate of need in accordance with the rules adopted by the Secretary and a copy of any agreement reached in negotiations between the proposed host municipality and the applicant.
    2. At least 30 days prior to the date of filing the petition with the Secretary, the person shall file a notice of intent to construct a hazardous waste management facility with the proposed host municipality, abutting municipalities, and the Secretary.  The notice of intent shall include:
      1. a detailed description of the proposed facility and location, including architectural drawings;
      2. a description of the treatment or disposal processes to be employed;
      3. the amount and types of hazardous wastes to be handled;
      4. alternative sites and technologies that were considered;
      5. reasons for choosing the proposed location and technologies, including planned negotiations with the proposed host municipality; and
      6. the conformance of the proposed facility with any applicable provisions of the hazardous waste management plan adopted by the Secretary of Natural Resources.
  3. The Secretary shall make all practical efforts to process petitions in a prompt manner, including the establishment of time limits for petition processing and procedures and time periods within which to notify petitioners whether a petition is complete.  After determining that a petition is complete, the Secretary shall promptly hold one or more public hearings on the petition for a certificate of need in the proposed host municipality.
    1. Not less than 30 days before the hearing, notice shall be given to the Department of Health, Historic Preservation Division, State Planning Office, and Agency of Transportation.  Similar notice shall also be given by certified mail to adjoining landowners, the legislative body of the proposed host municipality, and the chairs or directors of the municipal and regional planning commissions.
    2. Notice of the public hearing shall be published in a newspaper of general circulation in the county in which the proposed facility will be located two weeks successively, the last publication to be at least 12 days before the day appointed for the hearing.
  4. The Secretary shall, with approval of the Governor, only issue a certificate of need if the Secretary concludes the proposed facility is needed for the general good of the State, upon written findings that:
    1. The proposed facility use is consistent with any applicable provisions of the hazardous waste management plan adopted by the Secretary.
    2. The proposed facility location:
      1. is suitable for the type and amount of hazardous waste intended for treatment or disposal at the facility;
      2. is accessible by transportation routes that minimize the threat to the public health and safety and to the environment;
      3. reasonably accommodates the plans and preferences of the proposed host municipality, as expressed by local government entities.
    3. The need for the facility is demonstrated by the need to ensure the environmentally sound treatment or disposal of hazardous waste generated within Vermont, recognizing the effects of any state hazardous materials management plan, and:
      1. the further need to meet Vermont’s obligations under an interstate agreement or regional compact; or
      2. the lack of adequate current or projected treatment or disposal capacity within the region to handle the hazardous waste generated by Vermont businesses that is proposed for the facility.
  5. The Secretary shall establish conditions in the certificate of need:
    1. limiting the capacity of the hazardous waste facility to the reasonably anticipated needs and interstate commitments of the State for hazardous waste management.  However, upon application of the holder of the certificate, the conditions may later be adjusted by the Secretary if the limits on capacity are found to prevent profitable operation of the facility;
    2. restricting the facility from accepting hazardous wastes from generators who have not demonstrated an effective hazardous waste source reduction program.
  6. , (g)[Repealed.]

    (h) Neither local plans nor solid waste district plans nor regional plans shall exclude hazardous waste facilities for which a certificate of need has been obtained.

    (i), (j)[Repealed.]

HISTORY: Added 1989, No. 282 (Adj. Sess.), § 13, eff. June 22, 1990; amended 1995, No. 189 (Adj. Sess.), §§ 6, 8; 1997, No. 155 (Adj. Sess.), § 37; 2003, No. 115 (Adj. Sess.), § 61, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Subsec. (f): Deleted.

—1997 (Adj. Sess.). Subsec. (g): Repealed.

—1995 Adj. Sess. Subsec. (i): Repealed.

Subsec. (j): Repealed.

§ 6606b. Permits issued by the Secretary related to hazardous waste facilities.

The Secretary shall coordinate and administer the programs under the jurisdiction of the Agency of Natural Resources so that, to the extent possible, there is concurrent review, concurrent public participation, and concurrent permit issuances for hazardous waste management facilities. The Secretary shall assign a permit manager to handle all applications related to a particular waste management facility.

HISTORY: Added 1989, No. 282 (Adj. Sess.), § 14, eff. June 22, 1990; amended 1993, No. 92 , § 13; 2003, No. 115 (Adj. Sess.), § 62, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Deleted “, appeals” from the section heading, deleted the subsec. (a) designation, and deleted subsec. (b).

—1993. Subsec. (b): Deleted “air pollution order” following “certification” in the first sentence.

§ 6606c. Management of unregulated hazardous waste.

  1. By January 1, 1993, the owner of a solid waste management facility that receives mixed solid waste must institute the unregulated hazardous waste diversion program element of its regional plan or its solid waste implementation plan, to remove unregulated hazardous waste from the mixed solid waste entering the facility.
  2. By January 1, 1993, the Agency of Natural Resources shall have developed a program plan for the random sampling of mixed solid waste entering solid waste management facilities in the State in order to determine compliance with the regional or solid waste implementation plan programs instituted by facilities to remove unregulated hazardous waste from the mixed solid waste stream.
  3. By January 31, 1993, the Agency of Natural Resources shall implement the random sampling process developed in subsection (b) of this section.

HISTORY: Added 1991, No. 100 , § 11.

§ 6607. Transportation of hazardous wastes.

  1. In accordance with the Administrative Procedure Act, the Agency of Transportation, in consultation with the Secretary, shall issue rules for the transportation of hazardous wastes. Such rules shall be consistent with applicable rules issued by the U.S. Department of Transportation, and consistent with any rules and standards of this chapter.
  2. The provisions of this section shall apply equally to those persons transporting hazardous wastes generated by others and to those transporting hazardous wastes they have generated themselves, or combinations thereof, as well as persons transporting hazardous wastes through the State of Vermont.
  3. For purposes of their transportation, the following, in waste or usable form, shall not be considered hazardous wastes, but shall be handled as solid waste: mercury-added consumer products, pesticides, paint (whether water based or oil based), paint thinner, paint remover, stains, and varnishes. This exclusion shall not apply with respect to hazardous wastes that are regulated under federal law.

HISTORY: Added 1977, No. 106 , § 1; amended 1991, No. 75 , § 1; 1991, No. 210 (Adj. Sess.), § 3; 1993, No. 157 (Adj. Sess.), § 5; 1995, No. 141 (Adj. Sess.), § 7, eff. April 30, 1996; 1997, No. 151 (Adj. Sess.), § 1.

History

References in text.

The Administrative Procedure Act, referred to in subsec. (a), is codified as 3 V.S.A. chapter 25.

Amendments

—1997 (Adj. Sess.). Subsec. (c): Added “mercury-added consumer products” in the first sentence.

—1995 (Adj. Sess.) Subsec. (a): Deleted the third and fourth sentences.

—1993 (Adj. Sess.). Subsec. (a): Added the fourth sentence.

—1991 (Adj. Sess.). Subsec. (c): Inserted “pesticides” following “solid waste”.

—1991. Subsec. (c): Added.

CROSS REFERENCES

Exemption of nonresident persons transporting hazardous wastes from the provisions of the Nonresident Violator Compact, see 23 V.S.A. § 3559 .

Transportation of hazardous materials generally, see 5 V.S.A. chapter 28.

§ 6607a. Waste transportation.

  1. A commercial hauler desiring to transport waste within the State shall apply to the Secretary for a permit to do so by submitting an application on a form prepared for this purpose by the Secretary and by submitting the disclosure statement described in section 6605f of this title. These permits shall have a duration of five years and shall be renewed annually. The application shall indicate the nature of the waste to be hauled. The Secretary may specify conditions that the Secretary deems necessary to ensure compliance with State law.
  2. As used in this section:
    1. “Commercial hauler” means:
      1. any person that transports regulated quantities of hazardous waste; and
      2. any person that transports solid waste for compensation in a vehicle.
    2. The commercial hauler required to obtain a permit under this section is the legal or commercial entity that is transporting the waste, rather than the individual employees and subcontractors of the legal or commercial entity. In the case of a sole proprietorship, the sole proprietor is the commercial entity.
    3. The Secretary shall not require a commercial hauler to obtain a permit under this section, comply with the disclosure requirements of this section, comply with the reporting and registration requirements of section 6608 of this title, or pay the fee specified in 3 V.S.A. § 2822 , if:
      1. the commercial hauler does not transport more than four cubic yards of solid waste at any time; and
      2. the solid waste transportation services performed are incidental to other nonwaste transportation-related services performed by the commercial hauler.
  3. Wastes shall be subject to inspection, by an agent of the Secretary or any duly authorized law enforcement officer, during transportation or upon delivery to a facility, for compliance with the requirements of State law.
  4. It shall be unlawful for any person to operate a motor vehicle subject to the provisions of this section upon any public highway in the State without first obtaining the permit from the Secretary, or to so operate without having in the vehicle a permit issued under this section.
  5. A violation of this section shall be considered a traffic violation within the meaning of 23 V.S.A. chapter 24.
  6. Any person who violates any provision of this section shall be subject to a penalty of not more than $200.00 for a traffic violation. The penalties imposed by this subsection shall be in addition to other penalties imposed by this chapter.
    1. Except as set forth in subdivisions (2), (3), and (4) of this subsection, a commercial hauler that offers the collection of municipal solid waste: (g) (1) Except as set forth in subdivisions (2), (3), and (4) of this subsection, a commercial hauler that offers the collection of municipal solid waste:
      1. Beginning on July 1, 2015, shall offer to collect mandated recyclables separate from other solid waste and deliver mandated recyclables to a facility maintained and operated for the management and recycling of mandated recyclables.
      2. Beginning on July 1, 2020, shall offer to nonresidential customers and apartment buildings with four or more residential units collection of food residuals separate from other solid waste and deliver to a location that manages food residuals in a manner consistent with the priority uses established under subdivisions 6605k(a)(2)-(5) of this title. Commercial haulers shall not be required to offer collection of food residuals if another commercial hauler provides collection services for food residuals in the same area and has sufficient capacity to provide service to all customers.
    2. In a municipality that has adopted a solid waste management ordinance addressing the collection of mandated recyclables or food residuals, a commercial hauler in that municipality is not required to comply with the requirements of subdivision (1) of this subsection and subsection (h) of this section for the material addressed by the ordinance if the ordinance:
      1. is applicable to all residents of the municipality;
      2. prohibits a resident from opting out of municipally provided solid waste services; and
      3. does not apply a variable rate for the collection for the material addressed by the ordinance.
    3. A commercial hauler is not required to comply with the requirements of subdivision (1)(A) or (B) of this subsection in a specified area within a municipality if:
      1. the Secretary has approved a solid waste implementation plan for the municipality;
      2. for purposes of waiver of the requirements of subdivision (1)(A) of this subsection (g), the Secretary determines that under the approved plan:
        1. the municipality is achieving the per capita disposal rate in the State Solid Waste Plan; and
        2. the municipality demonstrates that its progress toward meeting the diversion goal in the State Solid Waste Plan is substantially equivalent to that of municipalities complying with the requirements of subdivision (1)(A) of this subsection (g);
      3. the approved plan delineates an area where solid waste management services required by subdivision (1)(A) or (B) of this subsection (g) are not required; and
      4. in the delineated area, alternatives to the services, including on-site management, required under subdivision (1)(A) or (B) of this subsection (g) are offered, the alternative services have capacity to serve the needs of all residents in the delineated area, and the alternative services are convenient to residents of the delineated area.
    4. A commercial hauler is not required to comply with the requirements of subdivision (1)(A) or (B) of this subsection for mandated recyclables or food residuals collected as part of a litter collection.
  7. A commercial hauler certified under this section that offers the collection of municipal solid waste may not charge a separate line item fee on a bill to a residential customer for the collection of mandated recyclables, provided that a commercial hauler may charge a fee for all service calls, stops, or collections at a residential property and a commercial hauler may charge a tiered or variable fee based on the size of the collection container provided to a residential customer or the amount of waste collected from a residential customer. A commercial hauler certified under this section may incorporate the cost of the collection of mandated recyclables into the cost of the collection of solid waste and may adjust the charge for the collection of solid waste. A commercial hauler certified under this section that offers the collection of solid waste may charge a separate fee for the collection of food residuals from a residential customer.
  8. A commercial hauler that operates a bag-drop or fast-trash site at a fixed location to collect municipal solid waste shall offer at the site all collection services required under 10 V.S.A. § 6605(j) .

HISTORY: Added 1987, No. 78 , § 11; amended 1987, No. 246 (Adj. Sess.), § 4, eff. June 13, 1988; 1993, No. 81 , § 4; 1993, No. 157 (Adj. Sess.), § 6; 1995, No. 141 (Adj. Sess.), § 8, eff. April 30, 1996; 2011, No. 148 (Adj. Sess.), § 8; 2013, No. 175 (Adj. Sess.), § 6; 2015, No. 57 , § 23; 2015, No. 95 (Adj. Sess.), § 2, eff. May 10, 2016; 2017, No. 47 , § 3b, eff. May 23, 2017; 2017, No. 208 (Adj. Sess.), § 2, eff. May 30, 2018; 2019, No. 83 , § 17, eff. July 1, 2020.

History

Amendments

—2019. Subdiv. (g)(1)(B): Inserted “to nonresidential customers and apartment buildings with four or more residential units” in the first sentence, and added the second sentence.

—2017 (Adj. Sess.). Subsec. (g): Amended generally.

Subsec. (h): Deleted “leaf and yard residuals or” preceding “food residuals”.

Subsec. (i): Added.

—2017. Subdiv. (g)(1)(C): Substituted “2018” for “2017” following “July 1,”.

—2015 (Adj. Sess.). Subdiv. (g)(1): Deleted “and” preceding “(3)” and inserted “, and (4)” following “(3)”.

Subdiv. (g)(4): Added.

—2015. Subdiv. (b)(3): Added.

Subsec. (g): Substituted “commercial hauler” for “transporter certified under this section” preceding “that offers” in subdiv. (1), and “commercial hauler” for “transporter” in subdivs. (2) and (3).

Subsec. (h): Substituted “commercial hauler” for “transporter” wherever it appeared throughout the subsec.

—2013 (Adj. Sess.). Subdiv. (b)(1)(B): Deleted “having a rated capacity of more than one ton” at the end.

Subdiv. (g): Amended generally.

Subsec. (h): Inserted “municipal” following “offers the collection of”.

—2011 (Adj. Sess.). Subsec. (a): Amended generally.

Subsecs. (g) and (h): Added.

—1995 (Adj. Sess.) Amended subsecs. (a), (b), and (d) generally.

—1993 (Adj. Sess.). Subsec. (a): Added the sixth sentence.

—1993. Subsec. (a): Substituted “any conditions the secretary deems necessary to assure” for “which facilities are authorized to serve that geographic area and otherwise ensuring” preceding “compliance” in the third sentence, added the fourth sentence, and substituted “must deliver waste collected from an area that is subject to a duly adopted flow control ordinance, and which otherwise contains the solid waste management” for “shall have access and other” preceding “conditions”, and added “sufficient to assure compliance with state law” following “secretary” in the fifth sentence.

—1987 (Adj. Sess.). Subsec. (b): Amended generally.

§ 6608. Records; reports; monitoring.

  1. For purposes of implementation of this chapter, the Secretary shall adopt, and revise as appropriate, rules that prescribe:
    1. the establishment and maintenance of such records;
    2. the making of such reports;
    3. the taking of such samples, and the performing of such tests or analyses;
    4. the installing, calibrating, using, and maintaining of such monitoring equipment or methods; and
    5. the providing of such other information as may be necessary.
  2. Six months after adoption of the rules relating to hazardous waste, it shall be unlawful for any person to generate, store, transport, treat, or dispose of hazardous wastes in this State without reporting such activity to the Secretary according to the procedures described in said rules.
  3. Information obtained by the Secretary under this section shall be available to the public, unless the Secretary certifies such information as being proprietary. The Secretary may make such certification where any person shows, to the satisfaction of the Secretary, that the information, or parts thereof, would divulge methods or processes entitled to protection as trade secrets. Nothing in this section shall be construed as limiting the disclosure of information by the Secretary to office employees as authorized representatives of the State concerned with implementing the provisions of this chapter or to the Department of Taxes for purposes of enforcing the solid waste tax imposed by 32 V.S.A. chapter 151, subchapter 13.
  4. Where the Secretary has determined that the disposal of a hazardous waste at an uncontrolled hazardous waste site presents a hazard to health or the environment, the Secretary shall provide notice to a town of the location of that uncontrolled site which has been found to exist in the town and to be regulated under this chapter. The notice shall identify the location of the site, the wastes involved, the actions proposed to be taken by the Secretary under this chapter and the location where the records on the site are being maintained by State government. The Secretary shall also notify the town when conditions noticed under this subsection are no longer a hazard. These notices shall be recorded in accord with 24 V.S.A. § 1154 .
  5. When necessary to carry out the purposes of this chapter, the Secretary may require the owner or operator of a solid waste facility to provide the Secretary with information concerning the revenues and costs of its operation and management, and the revenues and costs necessary for its future compliance with State and federal laws pertaining to those facilities. Disclosure of information generated pursuant to this subsection is prohibited, except to a licensed attorney representing the Secretary, or to the Secretary’s designee, if that designee is directly responsible for solid waste planning at any level and has furnished the Secretary a written assurance of compliance with the prohibition contained in this subsection.
  6. All generators of regulated hazardous waste shall register with the Secretary, renew the registration annually, and pay the fee specified in 3 V.S.A. § 2822 .

HISTORY: Added 1977, No. 106 , § 1; amended 1983, No. 148 (Adj. Sess.), § 12; 1987, No. 246 (Adj. Sess.), § 1, eff. June 13, 1988; 2001, No. 65 , § 31; 2013, No. 34 , § 7; 2015, No. 57 , § 37, eff. June 11, 2015; 2015, No. 97 (Adj. Sess.), § 34; 2017, No. 74 , § 18.

History

Amendments

—2017. Subsec. (d): In the third sentence, substituted “under this subsection” for “above” following “conditions noticed”.

—2015 (Adj. Sess.). Subsec. (b): Substituted “adoption of the rules” for “promulgation of the rules”.

—2015. Subsec. (c): Added “or to the Department of Taxes for purposes of enforcing the solid waste tax imposed by 32 V.S.A. chapter 151, subchapter 13” in the last sentence.

—2013. Subsec. (f): Deleted “, except conditionally exempt generators” following “waste”.

—2001. Subsec. (f): Added.

—1987 (Adj. Sess.). Subsec. (e): Added.

—1983 (Adj. Sess.). Subsec. (d): Added.

§ 6608a. Economic poisons.

  1. The Secretary of Agriculture, Food and Markets shall be responsible for and have the authority to implement and enforce those statutes enacted by the General Assembly, including sections 6610a and 6612 of this title, and those rules concerning the generation, transportation, treatment, storage, and disposal of economic poisons that are adopted by the Secretary of Natural Resources in order to operate a hazardous waste management program that is equivalent to the federal program under Subtitle C of the Resource Conservation and Recovery Act of 1976 as subsequently amended and codified in 42 U.S.C. chapter 82, subchapter 3. Procedures and funding for the interdepartmental implementation of a waste economic poison management program shall be established between the Secretary of Natural Resources and the Secretary of Agriculture, Food and Markets.
  2. The Secretary of Natural Resources shall not adopt rules concerning the management of waste economic poisons that are more stringent than the statutory and regulatory requirements under Subtitle C of the Resource Conservation and Recovery Act of 1976 without the concurrence of the Secretary of Agriculture, Food and Markets.
  3. Nothing in this section is intended to interfere with the Secretary of Agriculture, Food and Markets’ authority relating to insecticides, fungicides, and rodenticides under 6 V.S.A. chapter 81 and relating to pesticides under 6 V.S.A. chapter 87 or shall prohibit the Secretary of Agriculture, Food and Markets from adopting rules concerning the management of waste economic poisons that are more stringent than the statutory and regulatory requirements under Subtitle C of the Resource Conservation and Recovery Act of 1976. Nothing in this section is intended to interfere with the Agency of Transportation’s authority under section 6607 of this title.

HISTORY: Added 1977, No. 106 , § 1; amended 1983, No. 148 (Adj. Sess.), § 4; 2015, No. 23 , § 100; 2015, No. 97 (Adj. Sess.), § 35; 2017, No. 113 (Adj. Sess.), § 47a.

History

Amendments

—2017 (Adj. Sess.) Subsec. (a): Substituted “that” for “which”, and “as subsequently amended and” for “and amendments thereto,” in the first sentence.

—2015 (Adj. Sess.). Subsec. (c): Substituted “adopting rules” for “promulgating rules and regulations”.

—2015. Section amended generally.

—1983 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Amended generally.

Subsec. (c): Added.

§ 6608b. Radioactive wastes mixed with hazardous wastes.

  1. The Commissioner of Health shall be responsible for and have the authority to implement and enforce those statutes enacted by the General Assembly, including sections 6610a and 6612 of this title, and those rules concerning the generation, transportation, treatment, storage, and disposal of radioactive wastes mixed with hazardous wastes that are adopted by the Secretary in order to operate a hazardous waste management program that is equivalent to the federal program under Subtitle C of the Resource Conservation and Recovery Act of 1976 as subsequently amended and codified in 42 U.S.C. chapter 82, subchapter 3. Procedures and funding for the interdepartmental implementation of a mixed radioactive waste management program shall be established between the Secretary and the Commissioner of Health.
  2. The Secretary shall not adopt rules concerning the management of radioactive wastes mixed with hazardous wastes that are more stringent than the statutory and regulatory requirements under Subtitle C of the Resource Conservation and Recovery Act of 1976 without the concurrence of the Commissioner of Health.
  3. Nothing in this section is intended to interfere with the authority of the Commissioner of Health relating to general powers under 18 V.S.A. chapter 3, relating to appointing health officers for unorganized towns or gores under 18 V.S.A. chapter 11, and relating to radiation control under 18 V.S.A. chapter 32, nor shall prohibit the Secretary of Human Services from adopting rules concerning the management of radioactive wastes mixed with hazardous wastes that are more stringent than the statutory and regulatory requirements under Subtitle C of the Resource Conservation and Recovery Act of 1976. Nothing in this section is intended to interfere with the Agency of Transportation’s authority under section 6607 of this chapter.
  4. This section does not modify or otherwise affect the requirements of chapter 157 of this title, relating to storage of radioactive material.

HISTORY: Added 1983, No. 148 (Adj. Sess.), § 5; amended 1987, No. 282 (Adj. Sess.), § 15; 2015, No. 23 , § 101; 2015, No. 97 (Adj. Sess.), § 36; 2017, No. 113 (Adj. Sess.), § 48.

History

Amendments

—2017 (Adj. Sess.). Subsec. (a): Amended generally.

—2015 (Adj. Sess.). Subsec. (c): Substituted “adopting rules” for “promulgating rules, and regulations” and “hazardous wastes that” for “hazardous wastes which”.

—2015. Subsec. (a): Deleted “but not limited to” preceding “sections 6610a” and “and regulations” following “the rules”, substituted “adopted” for “promulgated” following “wastes which are” in the first sentence.

Subsec. (b): Substituted “not adopt rules concerning” for “not promulgate rules or regulations concerning” and “that” for “which” preceding “are more stringent”.

—1987 (Adj. Sess.). Rewrote the section heading, deleted “low-level” preceding “radioactive wastes” in the first sentence, inserted “mixed with hazardous wastes” thereafter and substituted “mixed” for “low-level” preceding “radioactive” in the second sentence of subsec. (a), and deleted “low-level” preceding “radioactive wastes” and inserted “mixed with hazardous wastes” thereafter in subsec. (b) and in the first sentence of subsec. (c).

§ 6609. Inspections; right of entry.

For the purposes of developing or enforcing any rule or regulation authorized by this chapter, any duly authorized representative of the Secretary may upon presentation of appropriate credentials at any reasonable time:

  1. enter any place where wastes are generated, stored, treated, or disposed of;
  2. inspect and obtain samples from any person storing, treating, or disposing of any waste, including hazardous waste samples from any vehicle in which wastes are being transported;
  3. inspect and copy any records, reports, information, or test results relating to the purposes of this chapter;
  4. inspect any portion of a facility where wastes are generated, stored, treated, or disposed of including any equipment or other appurtenances contained in the facility;
  5. upon any refusal of entry, inspection, sampling, or copying pursuant to this section, the Secretary or the duly authorized representative of the Secretary may apply for and obtain a warrant or subpoena to allow such entry, inspection, sampling, or copying in the manner established by the Vermont Rules of Criminal Procedure.

HISTORY: Added 1977, No. 106 , § 1; amended 1987, No. 282 (Adj. Sess.), § 16.

History

Amendments

—1987 (Adj. Sess.). Redesignated former subdiv. (4) as subdiv. (5) and added a new (4).

ANNOTATIONS

Cited.

Cited in Agency of Natural Resources v. Towns, 168 Vt. 449, 724 A.2d 1022, 1998 Vt. LEXIS 227 (1998).

§ 6610. Repealed. 1987, No. 78, § 12.

History

Former § 6610. Former § 6610, relating to solid waste orders, was derived from 1977, No. 106 , § 1 and amended by 1983, No. 148 (Adj. Sess.), § 6. The subject matter is now covered by § 6610a of this title.

§ 6610a. Enforcement.

  1. Notwithstanding any other provision of this chapter, the Secretary, upon receipt of information that the storage, transportation, treatment, or disposal of any solid waste or hazardous waste may present a hazard to the health of persons or to the environment or may be in violation of any provision of this chapter, the rules adopted under this chapter, or the terms or conditions of any order or certification issued under this chapter, may take such action as the Secretary determines to be necessary. The action the Secretary may take includes:
    1. After notice and opportunity for hearing, issuing an order directing any person to take such steps as are necessary to prevent the act, correct the condition, or eliminate the practice that constitutes such hazard or violation.  Such action may include, with respect to a facility or site, permanent or temporary cessation of operation.
    2. Requesting that the Attorney General or appropriate State’s Attorney commence an action for injunctive relief, or for the imposition of penalties and fines as provided in section 6612 of this title and other relief as appropriate.  The court may issue a temporary injunction or order in any such proceedings and may exercise all the plenary powers available to it in addition to the power to:
      1. enjoin future activities;
      2. order the design, construction, installation, or operation of abatement of facilities or alternate disposal systems;
      3. order removal of all wastes and restoration of the environment and health;
      4. fix and order compensation for any public property destroyed, damaged, or injured;
      5. assess and award punitive damages; and
      6. order reimbursement to any agency of federal, state, or local government from any person whose act caused governmental expenditures under section 1283 of this title.
    3. Other enforcement action authorized under chapter 201 or 211 of this title.
  2. The hearing by the Secretary under subdivision (a)(1) of this section shall be conducted as a contested case.  The Secretary may issue an emergency order without a prior hearing when an ongoing violation presents an immediate threat of substantial harm to the environment or an immediate threat to the public health.  An emergency order shall be effective upon actual notice to the person against whom the order is issued.  Any person to whom an emergency order is issued shall be given the opportunity for a hearing within five business days of the date the order is issued.
  3. This subsection shall apply only to facilities subject to exemption from the provisions of chapter 151 of this title, as provided by the provisions of subsection 6081(h) of this title. With respect to facilities subject to this subsection, notwithstanding any other provision of this chapter, the Secretary may take such action as the Secretary determines to be necessary, upon receipt of information that the storage, transportation, treatment, or disposal of any solid waste or hazardous waste may present a hazard to the health of persons or to the environment or may be in violation of any provision of this chapter, the rules adopted under this chapter, or the terms or conditions of any order or certification issued under this chapter, or upon receipt of information that a solid waste disposal facility has failed to perform closure and post-closure operations as deemed necessary by the Secretary to preserve and protect the air, groundwater, surface water, public health, and the environment. The action the Secretary may take includes:
    1. After notice and opportunity for hearing, issuing an order directing any person to take such steps as are necessary to prevent the act, correct the condition, or eliminate the practice that constitutes such hazard or violation. Such action may include, with respect to a facility or site, permanent or temporary cessation of operation.
    2. Requesting that the Attorney General or appropriate State’s Attorney commence an action for injunctive relief, or for the imposition of penalties and fines as provided in section 6612 of this title and other relief as appropriate. The court may issue a temporary injunction or order in any such proceedings and may exercise all the plenary powers available to it in addition to the power to:
      1. enjoin future activities;
      2. order the design, construction, installation, or operation of abatement facilities or alternate disposal systems, final cover systems and lining measures, monitoring, reporting and evaluation, remediation measures, financial responsibility and capability mechanisms, and other requirements deemed necessary and no less stringent than minimum program requirements by the Secretary;
      3. order removal of all wastes and restoration of the environment and health;
      4. fix and order compensation for any public property destroyed, damaged, or injured;
      5. assess and award punitive damages; and
      6. order reimbursement to any agency of federal, state, or local government from any person whose act caused governmental expenditures under section 1283 of this title.

HISTORY: Added 1983, No. 148 (Adj. Sess.), § 7; amended 1987, No. 78 , § 13; 1987, No. 282 (Adj. Sess.), § 19; 1993, No. 208 (Adj. Sess.), § 5; 2015, No. 97 (Adj. Sess.), § 37; 2017, No. 113 (Adj. Sess.), § 49; 2019, No. 131 (Adj. Sess.), § 31.

History

Revision note

—2015. In subsecs. (a) and (c), deleted “, but is not limited to” following “includes” in accordance with 2013, No. 5 , § 4.

Amendments

—2019 (Adj. Sess.). Subsec. (a): Substituted “under this chapter” for “thereunder” in the introductory language.

Subdiv. (a)(3): Rewritten.

Subsec. (c): Substituted “under this chapter” for “thereunder” in the second sentence.

—2017 (Adj. Sess.). Subsec. (a): Inserted “waste” following “solid” and deleted “as defined herein” following “hazardous waste” in the first sentence.

Subsec. (c): Inserted “waste” following “solid” and deleted “as defined herein” following “hazardous waste” in the second sentence.

—2015 (Adj. Sess.). Subsec. (a): Substituted “rules adopted thereunder” for “rules promulgated thereunder” and deleted “, but is not limited to” following “includes” in the last sentence of the introductory language.

—1993 (Adj. Sess.). Subsec. (c): Added.

—1987 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a), added “after notice and opportunity for hearing” preceding “issuing” in subdiv. (1) of that subsec., and added subsec. (b).

—1987. Rewrote the section heading, inserted “solid or” preceding “hazardous”, substituted “the secretary” for “he” preceding “determines to be necessary” and deleted “to protect the health of such persons or the environment” thereafter in the first sentence of the introductory paragraph, and deleted “hazardous” preceding “wastes” in subdiv. (2)(C).

CROSS REFERENCES

Contested cases, see 3 V.S.A. §§ 809-812 .

ANNOTATIONS

Bias.

While a personal pecuniary interest in the outcome of a proceeding may be sufficient to require disqualification of the adjudicator, the Agency of Natural Resources did not have such a financial stake in the outcome of an enforcement proceeding against a landfill as to create an impermissible bias on its part. There was no statute or regulation that would have allowed the outcome of the proceeding to affect the agency’s budget as opposed to the state’s general fund. Indeed, there was no connection between the agency’s potential liability in superior court, where it was being sued by the landfill for contribution for the cost of closure operations, and the agency’s fiscal well-being. Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997).

While an institutional pecuniary interest in the outcome of a proceeding may be sufficient to require disqualification of the adjudicator, the Agency of Natural Resources did not have any prospect of institutional gain or loss resulting from the outcome of an enforcement proceeding against a landfill. Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997).

Civil penalties.

Unlike the federal Resource Conservation and Recovery Act, the state Waste Management Act provides for civil penalties only in actions brought by the Attorney General or the appropriate state’s attorney. Thus, the Secretary of the Agency of Natural Resources may order injunctive-type relief only, not civil penalties. Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997).

Jurisdiction.

While both 10 V.S.A. § 6610a(a) and (c) grant the Secretary of the Agency of Natural Resources authority to take such action as she deems necessary and to request that the Attorney General take appropriate action, the secretary need not choose one avenue of enforcement or the other. The plain, ordinary statutory meaning allows concurrent jurisdiction. Also, while subdiv. (a)(2) grants the superior court “plenary powers,” the Legislature did not intend to grant the court exclusive jurisdiction, as “plenary” means “complete” and “unqualified,” not exclusive. Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997).

The principle of priority, under which as between two tribunals with concurrent subject matter jurisdiction, the one which first acquires such jurisdiction should exercise it, and the second in point of time should defer to the first, does not apply where the second may offer relief not available in the first. This exception applied where a landfill was subject to administrative closure by order of the Secretary of the Agency of Natural Resources without requiring an Act 250 permit, which relief the superior court could not provide. Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997).

Cited.

Cited in In re Catamount Dyers, Inc., 50 B.R. 790, 1985 Bankr. LEXIS 5758 (Bankr. D. Vt. 1985).

§ 6611. Financial responsibility.

  1. Any person who operates a facility approved under this chapter shall provide evidence of an escrow account or other form of financial responsibility in such form and amount as the Secretary may determine to ensure that, upon abandonment, cessation, or interruption of the operation of the facility, adequate funds are available to undertake all appropriate measures to prevent present and future damage to the public health and safety and to the environment. Any such financial plan shall include provisions for the equitable distribution of any excess in the escrow account or other financial security to communities whose residents made substantial payments into the escrow account or for that security.
  2. A solid waste management district, by contract, may require that a facility owner or operator that serves the district, establish an escrow account in a reasonable amount in order to provide funds for timely compliance with the provisions of this chapter.  Expenditures from the escrow account shall be for those capital improvements required to be made by the owner by the certification, interim certification, or order issued or otherwise required in accordance with this chapter.
  3. A facility owner or operator, upon an initial showing of financial responsibility, shall report to the Secretary with respect to funds set aside by that date for those purposes.

HISTORY: Added 1977, No. 106 , § 1; amended 1987, No. 78 , § 14; 1987, No. 246 (Adj. Sess.), § 5a, eff. June 13, 1988; 1989, No. 61 , § 2, eff. May 22, 1989; 2019, No. 131 (Adj. Sess.), § 32.

History

Amendments

—2019 (Adj. Sess.). Subsec. (a): Substituted “ensure” for “insure” in the first sentence.

—1989. Subsec. (a): Inserted “an escrow account or other form of” preceding “financial” in the first sentence and added the second sentence.

Subsec. (c): Added.

—1987 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a) and added subsec. (b).

—1987. Substituted “facility” for “landfill” preceding “approved under”, deleted “the rules promulgated in section 6603 of” thereafter, substituted “facility, adequate funds are available to undertake” for “landfill” preceding “all appropriate measures” and deleted “are taken” thereafter.

§ 6612. Penalties.

  1. Any person who violates any provision of this chapter, the rules adopted under this chapter, or the terms or conditions of any order of certification granted by the Secretary shall be subject to a criminal penalty not to exceed $25,000.00 or imprisonment for not more than six months, or both.
  2. Any person who violates any provision of this chapter relating to solid or hazardous waste management, the rules adopted under this chapter, or the terms or conditions of any order relating to solid or hazardous waste management or terms and conditions of any solid or hazardous waste facility certification shall be subject to a civil penalty not to exceed $10,000.00.
  3. Each violation may be a separate and distinct offense and, in the case of a continuing violation, each day’s continuance thereof may be deemed a separate and distinct offense.
  4. Any person who commits any of the following in violation of any provision of this chapter, the rules adopted under this chapter, or the terms or conditions of any order or certification under this title shall be subject to a criminal penalty not to exceed $250,000.00 or imprisonment for not more than five years, or both:
    1. the knowing or reckless transport, treatment, storage, or disposal of any hazardous waste;
    2. the knowing or reckless transport, treatment, storage, or disposal of more than one cubic yard of solid waste or more than 275 pounds of solid waste;
    3. the knowing or reckless release of any hazardous material.

HISTORY: Added 1977, No. 106 , § 1; amended 1981, No. 102 , § 1; 1983, No. 148 (Adj. Sess.), § 8; 1987, No. 78 , § 15; 1989, No. 286 (Adj. Sess.), § 5; 2015, No. 97 (Adj. Sess.), § 38.

History

Amendments

—2015 (Adj. Sess.). Subsec. (a): Substituted “rules adopted under this chapter” for “rules promulgated herein”.

Subsec. (b): Substituted “rules adopted under this chapter” for “regulations promulgated thereunder”.

—1989 (Adj. Sess.). Subsec. (d): Added.

—1987. Subsec. (b): Inserted “solid or” preceding “hazardous” throughout the subsec.

—1983 (Adj. Sess.). Section amended generally.

—1981. Substituted “$25,000.00” for “$5,000.00” following “not to exceed” in the first sentence.

CROSS REFERENCES

Enforcement of environmental laws, see chapter 201 of this title.

ANNOTATIONS

Construction.

While legislature’s frequent and distinctive references to “rules” within this section, and throughout chapter 159, suggests a distinctive interpretation, supreme court will not construe a statute in a way that renders a significant part of it surplusage; because there are no rules contained in 10 V.S.A. chapter 159, defendant’s reading of “herein” makes the phrase wholly inoperative and leaves a gaping hole in the statute’s enforcement. State v. Ben-Mont Corp., 163 Vt. 53, 652 A.2d 1004, 1994 Vt. LEXIS 160 (1994).

In the context of 10 V.S.A. chapter 159, phrase “rules promulgated herein” in subsec. (a) of this section means rules promulgated pursuant to chapter 159. State v. Ben-Mont Corp., 163 Vt. 53, 652 A.2d 1004, 1994 Vt. LEXIS 160 (1994).

Fines.

Unlike the federal Resource Conservation and Recovery Act, the state Waste Management Act provides for civil penalties only in actions brought by the Attorney General or the appropriate state’s attorney. Thus, the Secretary of the Agency of Natural Resources may order injunctive-type relief only, not civil penalties. Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997).

Defendant’s claim that imposition of $20,000 fine for each count impermissibly exceeded $10,000 limit of civil sanctions under 10 V.S.A. § 6612(b) was unavailing because 10 V.S.A. § 6612(a) authorizes fines up to $25,000 for each violation. State v. Ben-Mont Corp., 163 Vt. 53, 652 A.2d 1004, 1994 Vt. LEXIS 160 (1994).

Imposition of $20,000 fines for each violation was not excessive because defendant admitted that it knowingly and repeatedly stored hazardous waste in violation of agency of natural resources regulations. State v. Ben-Mont Corp., 163 Vt. 53, 652 A.2d 1004, 1994 Vt. LEXIS 160 (1994).

Legislative intent.

The legislature’s effort to mirror the Resource Conservation and Recovery Act and its enforcement provisions reflects a legislative intent to criminalize violations of agency of natural resources’ rules. State v. Ben-Mont Corp., 163 Vt. 53, 652 A.2d 1004, 1994 Vt. LEXIS 160 (1994).

Purpose.

Criminalizing violations of agency of natural resources regulations gives 10 V.S.A. chapter 159 its intended effect—a comprehensive cradle-to-grave waste management system with guidelines and incentives to ensure individual responsibility. State v. Ben-Mont Corp., 163 Vt. 53, 652 A.2d 1004, 1994 Vt. LEXIS 160 (1994).

Cited.

Cited in In re Carroll, 2007 VT 73, 181 Vt. 383, 933 A.2d 193, 2007 Vt. LEXIS 166 (July 19, 2007) (mem.).

§ 6613. Variances.

  1. A person who owns or is in control of any plant, building, structure, process, or equipment may apply to the Secretary for a variance from the rules adopted under this chapter. The Secretary may grant a variance if he or she finds that:
    1. The variance proposed does not endanger or tend to endanger human health or safety.
    2. Compliance with the rules from which variance is sought would produce serious hardship without equal or greater benefits to the public.
    3. The variance granted does not enable the applicant to generate, transport, treat, store, or dispose of hazardous waste in a manner which is less stringent than that required by the provisions of Subtitle C of the Resource Conservation and Recovery Act of 1976, and amendments thereto, codified in 42 U.S.C. Chapter 82, subchapter 3, and regulations promulgated under such subtitle.
  2. A person who owns or is in control of any facility may apply to the Secretary for a variance from the requirements of subdivision 6605(j)(2) or (3) of this title if the applicant demonstrates alternative services, including on-site management, are available in the area served by the facility, the alternative services have capacity to serve the needs of all persons served by the facility requesting the variance, and the alternative services are convenient to persons served by the facility requesting the variance.
  3. No variance shall be granted pursuant to this section except after public notice and an opportunity for a public meeting and until the Secretary has considered the relative interests of the applicant, other owners of property likely to be affected, and the general public.
  4. Any variance or renewal thereof shall be granted within the requirements of subsection (a) of this section and for time periods and under conditions consistent with the reasons therefor, and within the following limitations:
    1. If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, abatement, or control of the air and water pollution involved, it shall be only until the necessary practicable means for prevention, abatement, or control become known and available, and subject to the taking of any substitute or alternate measures that the Secretary may prescribe.
    2. If the variance is granted on the ground that compliance with the particular requirement or requirements from which variance is sought will necessitate the taking of measures that, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the Secretary, is requisite for the taking of the necessary measures. A variance granted on the ground specified under this section shall contain a time schedule for the taking of action in an expeditious manner and shall be conditioned on adherence to the time schedule.
    3. If the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in subdivisions (1) and (2) of this subsection, it shall be for not more than one year, except that in the case of a variance from the siting requirements for a solid waste management facility, the variance may be for as long as the Secretary determines necessary, including a permanent variance.
  5. Any variance granted pursuant to this section may be renewed on terms and conditions and for periods that would be appropriate on initial granting of a variance. If a complaint is made to the Secretary on account of the variance, no renewal thereof shall be granted unless, following public notice and an opportunity for a public meeting on the complaint, the Secretary finds that renewal is justified. No renewal shall be granted except on application therefore. The application shall be made at least 60 days prior to the expiration of the variance. Immediately upon receipt of an application for renewal, the Secretary shall give public notice of the application.
  6. A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the Secretary.
  7. This section does not limit the authority of the Secretary under section 6610 of this title concerning imminent hazards from solid waste, nor under section 6610a of this title concerning hazards from hazardous waste and violations of statutes, rules, or orders relating to hazardous waste.

HISTORY: Added 1979, No. 197 (Adj. Sess.), § 4, eff. May 6, 1980; amended 1983, No. 148 (Adj. Sess.), §§ 9, 10; 1987, No. 76 , § 18; 1997, No. 161 (Adj. Sess.), § 10, eff. Jan. 1, 1998; 1999, No. 148 (Adj. Sess.), § 84, eff. May 24, 2000; 2003, No. 115 (Adj. Sess.), § 63, eff. Jan. 31, 2005; 2011, No. 148 (Adj. Sess.), § 9; 2019, No. 131 (Adj. Sess.), § 33.

History

References in text.

Section 6610 of this title, referred to in subsec. (g), was repealed by 1987, No. 78 , § 12.

Amendments

—2019 (Adj. Sess.). Subdiv. (d)(2): Substituted “that” for “which” in the first sentence and substituted “under this section” for “herein” in the second sentence.

—2011 (Adj. Sess.). Added present subsec. (b) and redesignated former subsecs. (b) through (f) as present subsecs. (c) through (g).

—2003 (Adj. Sess.). Subsec. (a): Substituted “secretary” for “board” in two places and “adopted under this chapter” for “of the secretary”.

Subsec. (b): Substituted “notice and an opportunity for a public meeting” for “hearing on due notice” and “secretary” for “board.

Subdivs. (c)(1), (2): Substituted “secretary” for “board”.

Subdiv. (c)(3): Substituted “solid waste management facility” for “sanitary landfill” and “secretary” for “board”.

Subsec. (d): Substituted “secretary” for “board” throughout; “and an opportunity for a public meeting on the complaint” for “hearing on the complaint on due” and deleted “in accordance with rules of the board”.

Subsec. (e): Deleted “board” before the period at the end of the first sentence, inserted “secretary” before the period at the end of the first sentence, and deleted the former second sentence.

—1999 (Adj. Sess.). Subdiv. (c)(3): Added “except that in the case of a variance from the sitting requirements for a sanitary landfill, the variance may be for as long as the board determines necessary, including a permanent variance”.

Subsec. (d): Substituted “the board on” for “the agency of natural resources on“ in the second sentence, “60 days” for “sixty days” in the fourth sentence, and “the board” for “the agency” in two places in the fifth sentence.

Subsec. (e): Substituted “the board” for “the agency” in the first sentence and “granted or denied by the board may” for “granted by the agency may” in the second sentence.

—1997 (Adj. Sess.). Subsec. (e): Substituted “in the supreme court” for “by a proceeding in the appropriate court” in the second sentence.

—1987. Subsec. (d): Substituted “agency of natural resources” for “agency of environmental conservation”.

—1983 (Adj. Sess.). Subdiv. (a)(3): Added.

Subsec. (f): Amended generally.

§ 6614. Waiver.

The Secretary may waive the requirements of subsection 6605(d) of this title and the technical and siting requirements of the solid waste management rules adopted pursuant to subdivision 6603(1) of this title, provided the following conditions are met:

  1. The Secretary intends to perform a removal or remedial action, pursuant to chapter 159 of this title, or the President of the United States intends to perform a response action, as defined in 42 U.S.C. § 9601(25), in response to a release or threatened release of hazardous substances; and
  2. The Secretary makes a prior written determination that:
    1. the proposed response action will not adversely affect the public health, safety, or the environment; and
    2. the technical and siting requirements will be complied with to the extent practical in light of the overall objectives of the response.

HISTORY: Added 2001, No. 149 (Adj. Sess.), § 88, eff. June 27, 2002.

§ 6615. Liability.

  1. Subject only to the defenses set forth in subsections (d) and (e) of this section:
    1. the owner or operator of a facility, or both;
    2. any person who at the time of release or threatened release of any hazardous material owned or operated any facility at which such hazardous materials were disposed of;
    3. any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous materials owned or possessed by such person, by any other person or entity, at any facility owned or operated by another person or entity and containing such hazardous materials; and
    4. any person who accepts or accepted any hazardous materials for transport to disposal or treatment facilities selected by such persons, from which there is a release, or a threatened release of hazardous materials shall be liable for:
      1. abating such release or threatened release; and
      2. costs of investigation, removal, and remedial actions incurred by the State that are necessary to protect the public health or the environment.
  2. In the event that the responsible person or persons fails to act in a timely manner to take the necessary removal and remedial actions, the Secretary may take such actions, order the responsible person or persons to act, or seek a court order requiring such actions.  Any responsible person who fails to comply with such a court order shall be liable in an amount equal to three times the cost of such removal.  Funds recovered under this section shall be deposited in the Environmental Contingency Fund established under section 1283 of this title.
  3. In any suit to enforce claims of the State under this section, it is not necessary for the State to plead or prove negligence in any form or manner on the part of the person specified in subsection (a) of this section. The State need only plead and prove the fact of the release or threatened release and that the person in question was as specified in subsection (a) of this section, or that the release or threatened release occurred at or involved any real property, structure, equipment, or conveyance under the control of that person. Any person who has released hazardous material as specified under subsection (a) of this section, or is in any way responsible for any hazardous materials which the Agency of Natural Resources has removed or is removing pursuant to subsection 1283(b) of this title shall be strictly liable, jointly and severally, without regard to fault, for all cleanup, removal, and remedial costs. Where hazardous materials released by one person are or may be mixed with those released by another, the strict liability established under this section shall be with respect to the cleanup, removal, and remedial costs of all the materials involved; provided, however, it shall be a defense to joint and several liability under this section if the responsible person establishes by a preponderance of the evidence that he or she is responsible for only a certain portion of the costs of the cleanup, removal, and remedial action, considering such factors as the volume and toxicity of the material contributed by the person to the release, then that person’s liability shall be limited to the amount so established. Operators of municipal landfills or persons operating landfills on behalf of municipalities shall not be jointly and severally liable under this section to the extent that they are acting as landfill operator. Generators of household waste, as defined by rule of the Secretary, shall not be liable under this section.
    1. There shall be no liability under this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of hazardous material and the resulting damages were caused solely by any of the following: (d) (1) There shall be no liability under this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of hazardous material and the resulting damages were caused solely by any of the following:
      1. An act of God.
      2. An act of war.
      3. An act or omission of a third party other than an employee or agent of the defendant, or other than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant. If the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail, for purposes of this section, there shall be considered to be no contractual relationship at all. This subdivision (d)(1)(C) shall only serve as a defense if the defendant establishes by a preponderance of the evidence:
        1. that the defendant exercised due care with respect to the hazardous material concerned, taking into consideration the characteristics of that hazardous material, in light of all relevant facts and circumstances; and
        2. that the defendant took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from those acts or omissions.
      4. Any combination of subdivisions (A)-(C) of this subdivision (1).
    2. There shall be no liability under subdivision (a)(1) of this section, regarding a particular facility, for a person otherwise liable who can establish all of the following by a preponderance of the evidence:
      1. the release or threat of release of hazardous material on, under, or from that person’s property and the resulting damages were caused solely by the migration of a release of hazardous materials that did not originate on that person’s property;
      2. the release or threat of release of hazardous material and the resulting damages were caused solely by a third party who is not an employee or agent of the person, and whose action was not associated with a contractual relationship with the person;
      3. the hazardous substance was not deposited, intentionally contained, or disposed of on a facility while the facility was owned or operated by the person;
      4. the person, at the time of any transfer of the property from the person, disclosed any knowledge or information the person had, concerning the nature and extent of any such release;
      5. the person has not caused or contributed to a release, such as through activities that knowingly exacerbated the existing contamination, and has not knowingly affected the release in such a way as to require additional remediation;
      6. the owner or operator of the facility provides access for, and does not interfere with, remediation activities.
    3. A municipality shall not be liable under subdivision (a)(1) of this section as an owner provided that the municipality can show all the following:
      1. The property was acquired by virtue of its function as sovereign through bankruptcy, tax delinquency, abandonment, or other similar circumstances.
      2. The municipality did not cause, contribute to, or worsen a release or threatened release of a hazardous material at the property.
        1. The municipality has entered into an agreement with the Secretary, prior to the acquisition of the property, requiring the municipality to conduct a site investigation with respect to any release or threatened release of a hazardous material and an agreement for the municipality’s marketing of the property acquired. (C) (i) The municipality has entered into an agreement with the Secretary, prior to the acquisition of the property, requiring the municipality to conduct a site investigation with respect to any release or threatened release of a hazardous material and an agreement for the municipality’s marketing of the property acquired.
        2. The Secretary shall consult with the Secretary of Commerce and Community Development on the plan related to the marketing of the property.
        3. The municipality may assert a defense to liability only after implementing a site investigation at the property acquired and taking reasonable steps defined by the agreement with the Secretary to market the property.
        4. In developing an agreement regarding site investigation, the Secretary shall consider the degree and extent of the known releases of hazardous materials at the property, the financial ability of the municipality, and the availability of State and federal funding when determining what is required by the agreement for the investigation of the site.
    4. A regional development corporation or regional planning commission shall not be liable under subdivision (a)(1) of this section as an owner provided that the regional development corporation or regional planning commission can show all the following:
      1. The regional development corporation or regional planning commission did not cause, contribute to, or worsen a release or threat of release at the property.
      2. The regional development corporation received, in the 12 months preceding the acquisition of the property, a performance contract for economic development pursuant to 24 V.S.A. chapter 76. The requirement of this subdivision (d)(4)(B) shall not apply to regional planning commissions.
        1. The regional development corporation or regional planning commission has entered into an agreement with the Secretary, prior to the acquisition of the property, requiring the regional development corporation or regional planning commission to conduct a site investigation with respect to any release or threatened release of a hazardous material and an agreement for the regional development corporation’s or regional planning commission’s marketing of the property acquired. (C) (i) The regional development corporation or regional planning commission has entered into an agreement with the Secretary, prior to the acquisition of the property, requiring the regional development corporation or regional planning commission to conduct a site investigation with respect to any release or threatened release of a hazardous material and an agreement for the regional development corporation’s or regional planning commission’s marketing of the property acquired.
        2. The Secretary shall consult with the Secretary of Commerce and Community Development on the plan related to the marketing of the property.
        3. The regional development corporation or regional planning commission may assert a defense to liability only after implementing a site investigation at the property acquired and taking reasonable steps defined by the agreement to market the property.
        4. In developing an agreement regarding site investigation, the Secretary shall consider the degree and extent of the known releases of hazardous materials at the property, the financial ability of the regional development corporation or the regional planning commission, and the availability of State and federal funding when determining what is required by the agreement for the investigation of the site.
  4. Any person who is the owner or operator of a facility where a release or threatened release existed at the time that person became owner or operator shall be liable unless he or she can establish by a preponderance of the evidence, based upon a diligent and appropriate investigation of the facility in conformance with the requirements of section 6615a of this title, that he or she had no knowledge or reason to know that the release or threatened release was located on the facility.
  5. Except insofar as expressly provided in this section, nothing in this chapter shall be deemed to preclude the pursuit of any other civil or injunctive remedy by any person. The remedies in this chapter are in addition to those provided by existing statutory or common law.
    1. A secured lender or a fiduciary, as the term fiduciary is defined in 14 V.S.A. § 204(2) , shall not, absent other circumstances resulting in liability under this section, be liable as either an owner or operator under this section merely because of any one or any combination of more than one of the following: (g) (1) A secured lender or a fiduciary, as the term fiduciary is defined in 14 V.S.A. § 204(2) , shall not, absent other circumstances resulting in liability under this section, be liable as either an owner or operator under this section merely because of any one or any combination of more than one of the following:
      1. in the case of a secured lender, holding indicia of ownership in a facility primarily to assure the repayment of a financial obligation;
      2. in the case of a fiduciary, acquiring ownership status when that status arises by law upon appointment or requiring or conducting any activity which is necessary to carry out the fiduciary’s duties and falls within the scope of the fiduciary’s authority;
      3. requiring or conducting financial or environmental assessments of a facility or any portion thereof;
      4. monitoring the operations conducted at a facility;
      5. requiring, through financial documents or otherwise, the management of hazardous materials at a facility in compliance with the requirements of this chapter and the rules adopted under this chapter;
      6. giving advice, information, guidance, or direction concerning the general business and financial aspects of a borrower’s operations;
      7. providing general information concerning federal, State, or local laws governing the transportation, storage, treatment, and disposal of hazardous waste or hazardous materials;
      8. engaging in financial workouts, restructuring, or refinancing of a borrower’s obligations;
      9. extending or denying credit to a person owning or in lawful possession of a facility;
      10. in an emergency, requiring or undertaking activities to prevent exposure of persons to hazardous materials or to contain a release;
      11. requiring or conducting abatement, investigation, remediation, or removal activities in response to a release or threatened release, provided that:
        1. prior notice of intent to do any such activity is given to the Secretary in writing, and, unless previously waived in writing by the Secretary, no such activity is undertaken for 30 days after receipt of such notice by the Secretary;
        2. a workplan is prepared by a qualified consultant prior to the commencement of any such activity;
        3. if the Secretary, within 30 days of receiving notice as provided in subdivision (i) of this subdivision (K), elects to undertake a workplan review and gives written notice to the secured lender or fiduciary of such election, no such activity is undertaken without prior workplan approval by the Secretary;
        4. appropriate investigation is undertaken prior to any abatement, remediation, or removal activity;
        5. regular progress reports and a final report are produced during the course of any such activity;
        6. all plans, reports, observations, data, and other information related to the activity are preserved for a period of 10 years and, except for privileged materials, produced to the Secretary upon request;
        7. persons likely to be at or near the facility are not exposed to unacceptable health risk; and
        8. such activity complies with all rules, procedures, and orders of the Secretary; or
      12. foreclosing on the facility and after foreclosure: selling; winding up operations; undertaking an investigation or corrective action under the direction of the State or federal government with respect to the facility; or taking any other measure to preserve, protect, or prepare the facility prior to sale or disposition, provided that:
        1. a secured lender shall be liable as an operator if the secured lender participated in the management of the facility; and
        2. a secured lender shall be liable as an owner if during the course of any transaction of the property, the secured lender fails to disclose any known release or threat of release.
    2. There shall be no protection from liability for a secured lender or a fiduciary under this subsection if the secured lender or fiduciary causes, worsens, or contributes to a release or threat of release of hazardous material. A secured lender or fiduciary who relies on subdivision (g)(1)(K) of this section shall bear the burden of proving compliance with this subdivision.
  6. [Repealed.]
  7. In an action brought by the Secretary under this section, a responsible person may implead, or in a separate action a responsible person may sue, another responsible person or persons and may obtain contribution or indemnification. A responsible person who has resolved its liability to the State under this section through a judicially approved settlement and a secured lender or fiduciary with whom the Secretary has entered into an agreement under subsection (h) of this section shall not be liable for claims for contribution or indemnification regarding matters addressed in the judicially approved settlement or in the agreement. Likewise, a person who has obtained a certificate of completion pursuant to subchapter 3 of this chapter shall not be liable for claims for contribution or indemnification regarding releases or threatened releases described in the approved corrective action plan, as amended. Such a settlement or agreement or certificate of completion does not discharge any other potentially responsible person unless its terms so provide, but it reduces the potential liability of other potentially responsible persons by the relief agreed upon. A secured lender or fiduciary with whom the Secretary has entered into an agreement under subsection (h) of this section may not seek contribution or indemnification on the basis of such agreement from any other potentially responsible person. In any action for contribution or indemnification, the rights of any person who has resolved its liability to the State shall be subordinate to the rights of the State.

HISTORY: Added 1985, No. 70 , § 4, eff. May 20, 1985; amended 1993, No. 29 , §§ 3, 4, eff. May 26, 1993; 1995, No. 44 , § 2, eff. April 20, 1995; 1997, No. 80 (Adj. Sess.), § 12; 2003, No. 164 (Adj. Sess.), § 1, eff. June 12, 2004; 2007, No. 147 (Adj. Sess.), § 8; 2013, No. 55 , § 12; 2015, No. 97 (Adj. Sess.), § 39; 2017, No. 74 , § 19; 2019, No. 131 (Adj. Sess.), § 34.

History

Revision note

—2011. In subdiv. (g)(1), substituted “§ 204(2)” for “§ 204(b)” to correct an error in the reference.

Amendments

—2019 (Adj. Sess.). Subdiv. (g)(1)(E): Substituted “under this chapter” for “thereunder”.

—2017. Subdiv. (d)(1): Substituted “resulting damages” for “damages resulting therefrom” preceding “were caused”.

Subdiv. (d)(1)(D): Amended generally.

—2015 (Adj. Sess.). Subdiv. (g)(1)(E): Substituted “rules adopted thereunder” for “regulations promulgated thereunder”.

—2013. Subsec. (d): Amended generally.

Subsec. (e): Substituted “, based upon a” for “that after making” following “evidence”; inserted “in conformance with the requirements of section 6615a of this title, that”; and substituted “the” for “said” preceding “release”.

Subsec. (g): Amended generally.

Subsec. (h): Repealed.

—2007 (Adj. Sess.) Subdiv. (d)(3): Substituted “subchapter 3 of this chapter” for “section 6615a of this title”.

Subsec. (i): Substituted “a person who has obtained” for “an eligible person or successor who has obtained” and “subchapter 3 of this chapter” for “section 6615a of this title” in the third sentence.

—2003 (Adj. Sess.). Subdiv. (d)(3): Added.

—1997 (Adj. Sess.). Subsec. (d): Added the subdiv. (1) designation, redesignated subsequent subdivs. accordingly, corrected a reference in subdiv. (1)(C), and added subdiv. (2).

—1995. Subsec. (i): Added the third sentence and inserted “or certificate of completion” following “agreement” in the fourth sentence.

—1993. Deleted the fifth sentence in subsec. (c), added “except insofar as expressly provided in this section” preceding “nothing” in the first sentence of subsec. (f) and added subsecs. (g)-(i).

Legislative intent. 2013, No. 55 , § 10 provides: “For the purposes of Secs. 10 through 13 [which amended this section and 10 V.S.A. §§ 6602 and enacted 6615a] of this act, it is the intent of the General Assembly that:

“(1) It is appropriate to confer a limited defense to liability for hazardous material cleanup when a municipality, regional development corporation, or regional planning commission conforms to the requirements of 10 V.S.A. § 6615(d)(3) , in the case of municipalities, and 10 V.S.A. § 6615(d)(4) .

“(2) It is of vital importance for purchasers of commercial properties to conduct environmental site assessments that conform to statutorily recognized standards.

“(3) In construing the defense to liability established pursuant to 10 V.S.A. § 6615(f) , the courts of this State shall be guided by the construction of similar terms contained in 42 U.S.C. § 9601(35)(A)(i) and (B), as amended, and the courts of the United States.

“(4) It is appropriate to confer limited defense to liability for secured lenders and fiduciaries under state law that is equivalent to liability under federal law.

“(5) In construing the defense to liability established pursuant to 10 V.S.A. § 6615(g) , the courts of this State will be guided by the construction of similar terms contained in 42 U.S.C. §§ 9601(20)(F) and 9607(n), as amended, and the courts of the United States.”

CROSS REFERENCES

Limitation of liability of volunteers assisting in prevention, mitigation or remediation of hazardous materials accidents, see 12 V.S.A. § 5783 .

ANNOTATIONS

Agreement to limit liability.

Provision of subsec. (h) that allows secured lenders, upon foreclosure, voluntarily to enter into agreements with the State for the purpose of limiting liability on contaminated property, does not imply further that lenders have an equitable duty to bear any clean-up costs for polluted property they do not seek to foreclose on. Pownal Development Corp. v. Pownal Tanning Co., 171 Vt. 360, 765 A.2d 489, 2000 Vt. LEXIS 314 (2000).

Apportionment of costs.

Defendant was not entitled to recover environmental response costs under counterclaim, where defendant contributed to contamination at site and concealed results of initial test which showed contamination. Folino v. Hampden Color & Chemical Co., 832 F. Supp. 757, 1993 U.S. Dist. LEXIS 13043 (D. Vt. 1993).

Attorney’s fees.

Trial court properly required the Vermont Department of Corrections (DOC) to compensate a school district for attorney’s fees incurred during a site cleanup process. The district played virtually no role in the pollution caused by DOC and had no knowledge of its presence until July 1995; nevertheless, the district remained a responsible party under the Waste Management Act, and remained actively—and reasonably—involved in monitoring the ongoing cleanup efforts through its attorney and environmental consultants to protect its legal interests and to ensure that the work, principally performed by outside contractors, was thoroughly and efficiently executed. Windsor School Dist. v. State, 2008 VT 27, 183 Vt. 452, 956 A.2d 528, 2008 Vt. LEXIS 22 (2008).

School district could recover attorney’s fees under the Albright standard, allowing a party to recover attorney’s fees when the wrongful act of one person had made it necessary for the first party to become involved in litigation with a third party to protect his or her interests, pursuant to the subsection of the Waste Management Act that maintained remedies provided by existing common law. Windsor School Dist. v. State, 2008 VT 27, 183 Vt. 452, 956 A.2d 528, 2008 Vt. LEXIS 22 (2008).

Court’s authority.

Together, the statutes governing liability and corrective procedures under the Vermont Waste Management Act and the statute governing civil enforcement in environmental cases create a scheme delegating broad authority to the courts to order the investigation and remediation of hazardous-waste spills; the statutory language squarely authorizes the court to order remedial actions and specifies the steps that a liable party must take to address hazardous-waste contamination. Here, the court order, which required defendant to conduct an investigation and address contamination at the site, progressively tracking the procedures specified in the corrective action statute, was clearly within the trial court’s authority as outlined by the statutory provisions. State Agency of Natural Res. v. Parkway Cleaners, 2019 VT 21, 209 Vt. 620, 210 A.3d 445, 2019 Vt. LEXIS 41 (2019).

Diligent owner.

The Court rejects the argument that reliance on a negligently performed environmental assessment cannot ever be, as a matter of law, a factor in determining whether the diligent-owner defense is satisfied. That a professionally prepared and apparently legitimate assessment turns out to be flawed casts no shadow on its objective dependability, or on the actual and objective lack of suspicion of the user, at the time the assessment was relied upon. State v. Howe Cleaners, 2010 VT 70, 188 Vt. 303, 9 A.3d 276, 2010 Vt. LEXIS 70 (2010).

Nothing in the record suggested that a thorough visual inspection by an owner should have turned up evidence of contamination, nor was there anything in the record to suggest that someone reviewing the detailed and recent environmental site assessment conducted by an acknowledged professional firm would be aware that it might have been inadequately or negligently performed; the report, on its face, stated an awareness of the past commercial use of the property, the completion of a thorough environmental site assessment of potential contamination based on that history, and a determination following that assessment that no significant problems existed. These facts demonstrated that the owner made a diligent and appropriate investigation and had no reason to know that a release or threatened release existed at the facility. State v. Howe Cleaners, 2010 VT 70, 188 Vt. 303, 9 A.3d 276, 2010 Vt. LEXIS 70 (2010).

Although the Vermont Waste Management Act undeniably has strict-liability aspects to it, it also contains an explicit statutory defense that allows a landowner to avoid liability if he or she can demonstrate that, after making a diligent and appropriate investigation of the property, he or she had no knowledge or reason to know of a release or threatened release on the property. This diligent-owner defense is an exception to the strict liability standard normally imposed on landowners. State v. Howe Cleaners, 2010 VT 70, 188 Vt. 303, 9 A.3d 276, 2010 Vt. LEXIS 70 (2010).

By its terms, the diligent-owner defense focuses on the investigation conducted, or reasonably relied upon, by the buyer at the time of purchase. There is no culpable nexus between the unknown poor quality of a consultant’s investigation and the objective reasonableness of the buyer’s efforts and reliance, the buyer’s actual reliance, or the buyer’s subjective knowledge or suspicion. State v. Howe Cleaners, 2010 VT 70, 188 Vt. 303, 9 A.3d 276, 2010 Vt. LEXIS 70 (2010).

Indemnity.

Given that a school district owned the facility that contained the hazardous waste but had no part in the disposal of that waste, and given that the Department of Corrections formerly owned the facility and was responsible for disposing of the hazardous waste during its ownership, there was exactly the difference in kind and quality of conduct that gave rise to indemnity. Windsor School Dist. v. State, 2008 VT 27, 183 Vt. 452, 956 A.2d 528, 2008 Vt. LEXIS 22 (2008).

As long as a school district remained potentially liable and under an order to investigate what was necessary to remediate the site, which had been formerly occupied by the Department of Corrections (DOC), the district reasonably incurred expenses, including those incurred to monitor the work being done on the DOC’s behalf, to protect its interests and discharge its responsibilities. The DOC was properly required to indemnify the district for those expenses that the trial court found were reasonable. Windsor School Dist. v. State, 2008 VT 27, 183 Vt. 452, 956 A.2d 528, 2008 Vt. LEXIS 22 (2008).

Liability of current owner.

In a legal malpractice case stemming from a state environmental enforcement action where plaintiff was found liable for a hazardous-waste contamination on his property, summary judgment for defendants was appropriate, as a statute of limitations defense would not have succeeded in that plaintiff, as current owner of the property, was committing a continuing violation so long as the property’s contamination was unaddressed. Estate of Daniels v. Goss, 2022 VT 2, 2022 Vt. LEXIS 2 (Vt. 2022).

Proportional-liability defense in the hazardous-waste liability statute does not apply to persons liable solely as current owners. Estate of Daniels v. Goss, 2022 VT 2, 2022 Vt. LEXIS 2 (Vt. 2022).

In a legal malpractice case stemming from a state environmental enforcement action where plaintiff was found liable for a hazardous-waste contamination on his property, summary judgment for defendants was appropriate. Because the proportional-liability defense did not apply to responsible persons liable solely based on current ownership, plaintiff would not have succeeded in defending the state enforcement action even if defendants had raised this argument. Estate of Daniels v. Goss, 2022 VT 2, 2022 Vt. LEXIS 2 (Vt. 2022).

Plain language of the statute governing liability under the Vermont Waste Management Act makes current owners strictly liable for the release or threatened release of hazardous materials on their property, whether it occurred under their ownership or not, absent the unanticipated circumstances outlined in the statute or the applicability of the innocent-purchaser defense. The Vermont Supreme Court does not find the use of the term “from which there is a release or threatened release” to require a concurrence with ownership of the property. State Agency of Natural Res. v. Parkway Cleaners, 2019 VT 21, 209 Vt. 620, 210 A.3d 445, 2019 Vt. LEXIS 41 (2019).

Based on the language of the statute governing liability under the Vermont Waste Management Act, which conferred liability for the release of hazardous materials solely based on ownership of the property, defendant was liable for the release of perchloroethylene from property formerly occupied by a dry cleaning business because he was the property’s current owner, even though the release might have occurred prior to his ownership. State Agency of Natural Res. v. Parkway Cleaners, 2019 VT 21, 209 Vt. 620, 210 A.3d 445, 2019 Vt. LEXIS 41 (2019).

Res judicata.

In an action by the State pursuant to this section for clean-up costs to remedy petroleum contamination, a third-party complaint for contribution and indemnification was not barred by res judicata because the State had not initiated any action against the third-party plaintiffs at the time the third-party defendant brought its claim against them and the court in the previous action between the parties could not have entertained a third-party derivative claim. State v. Carroll, 171 Vt. 395, 765 A.2d 500, 2000 Vt. LEXIS 321 (2000).

Because the statutory scheme governing waste management is intended to hold all parties responsible for hazardous materials contamination accountable for the costs associated with its proper clean-up and disposal, therefore, in action brought by the State for costs that the State incurred, parties should not be precluded under the doctrine of res judicata, by an earlier judgment stemming from its findings on damages, from pursuing a potential third-party claim for contribution and indemnification against plaintiffs in the underlying action. State v. Carroll, 171 Vt. 395, 765 A.2d 500, 2000 Vt. LEXIS 321 (2000).

Right to jury trial.

When the overarching remedy sought by the State was broad declaratory and injunctive relief to confirm an oil company’s liability for contamination and to compel it to assume responsibility for its abatement, the right to jury trial under the Vermont Constitution did not attach. The prayer for reimbursement of response costs incurred to date was merely incidental to and intertwined with that effort; it complemented the equitable remedy and served to afford complete relief. State v. Irving Oil Corp., 2008 VT 42, 183 Vt. 386, 955 A.2d 1098, 2008 Vt. LEXIS 45 (2008).

Secured lender exemption.

Once a mortgagee of property commences foreclosure, it is still only a secured lender and the State is required to show what claim it had under the waste-management statute at that time. Pownal Development Corp. v. Pownal Tanning Co., 171 Vt. 360, 765 A.2d 489, 2000 Vt. LEXIS 314 (2000).

Cited.

Cited in Gerrish Corp. v. Aetna Casualty & Surety Co., 949 F. Supp. 236, 1996 U.S. Dist. LEXIS 19070 (D. Vt. 1996); State v. CNA Insurance Cos., 172 Vt. 318, 779 A.2d 662, 2001 Vt. LEXIS 187 (2001); State v. Carroll, 2003 VT 57, 175 Vt. 571, 830 A.2d 89, 2003 Vt. LEXIS 139 (2003); Hardwick Recycling & Salvage, Inc. v. Acadia Ins. Co., 2004 VT 124, 177 Vt. 421, 869 A.2d 82, 2004 Vt. LEXIS 332 (2004) (mem.).

Law Reviews —

For note relating to successor landowner liability for damages and cleanup costs for hazardous wastes deposited on property, see 10 Vt. L. Rev. 487 (1985).

§ 6615a. Diligent and appropriate investigation for hazardous materials.

  1. Except as provided for in subsection (b) of this section, a diligent and appropriate investigation, as that term is used in subsection 6615(e) of this title, means, for all properties, an investigation where an owner or operator of a property conforms to the standard developed by the Secretary by rule for a diligent and appropriate investigation. If no standard exists, the owner or operator of a property shall conform to one of the following:
    1. the all appropriate inquiry standard set forth in 40 C.F.R. Part 312, as amended; or
    2. the current standard for phase I environmental site assessments established by the American Society for Testing and Materials.
  2. In the case of residential property used for residential purposes, diligent and appropriate investigation shall mean a facility inspection and title search that:
    1. reveal no basis for further investigation; and
    2. do not reveal that the property was used for or was part of a larger parcel that was used for commercial or industrial purposes.

HISTORY: Added 2013, No. 55 , § 13.

History

Former § 6615a. Former § 6615a, relating to redevelopment of contaminated properties, was derived from 1995, No. 44 , § 1 and amended by 1997, No. 80 (Adj. Sess.), §§ 1-11; No. 120 (Adj. Sess.), § 6; 2001, No. 142 (Adj. Sess.), §§ 254a, 254b; 2003, No. 164 (Adj. Sess.), § 2; 2005, No. 71 , § 184a; and 2007, No. 76 , § 32 and was previously repealed by 2007, No. 147 (Adj. Sess.), § 9.

Legislative intent. 2013, No. 55 , § 10 provides: “For the purposes of Secs. 10 through 13 [which enacted this section and amended 10 V.S.A. §§ 6602 and 6615] of this act, it is the intent of the General Assembly that:

“(1) It is appropriate to confer a limited defense to liability for hazardous material cleanup when a municipality, regional development corporation, or regional planning commission conforms to the requirements of 10 V.S.A. § 6615(d)(3) , in the case of municipalities, and 10 V.S.A. § 6615(d)(4) .

“(2) It is of vital importance for purchasers of commercial properties to conduct environmental site assessments that conform to statutorily recognized standards.

“(3) In construing the defense to liability established pursuant to 10 V.S.A. § 6615(f) , the courts of this State shall be guided by the construction of similar terms contained in 42 U.S.C. § 9601(35)(A)(i) and (B), as amended, and the courts of the United States.

“(4) It is appropriate to confer limited defense to liability for secured lenders and fiduciaries under state law that is equivalent to liability under federal law.

“(5) In construing the defense to liability established pursuant to 10 V.S.A. § 6615(g) , the courts of this State will be guided by the construction of similar terms contained in 42 U.S.C. §§ 9601(20)(F) and 9607(n), as amended, and the courts of the United States.”

§ 6615b. Corrective action procedures.

Any person who is determined to be liable for the release or threatened release of a hazardous material as established in section 6615 of this title shall take all of the following actions to mitigate the effects of the release:

  1. Submit for approval by the Secretary a work plan for an investigation of the contaminated site. This shall be submitted within 30 days from either the date of the discharge or release or the date that the release was discovered if the date of the discharge or release is not known, or within a period of time established by an alternative schedule approved by the Secretary. The site investigation shall define the nature, degree, and extent of the contamination, and shall assess potential impacts on human health and the environment.
  2. Perform the site investigation within 90 days of receiving written approval of the work plan by the Secretary, or within a period of time established by an alternative schedule approved by the Secretary. A report detailing the findings of this work shall be sent to the Secretary for review.
  3. Submit a corrective action plan, within 30 days from the date of final acceptance of the site investigation report by the Secretary, or within a period of time established by an alternative schedule approved by the Secretary.
  4. Implement the corrective action plan within 90 days upon approval of the plan by the Secretary, or within a period of time established by an alternative schedule approved by the Secretary. The corrective action activity shall be continued until the contamination is remediated to levels approved by the Secretary. The Secretary may allow for the remediation of a site contaminated with a hazardous material without requiring certification and permitting under sections 556, 6605, and 6606 of this title, provided such activity will not, in the Secretary’s opinion, adversely affect either public health and safety or the environment, and provided such activity is conducted in accordance with standards developed by the Secretary.
  5. Submit to the Secretary all investigative, corrective action, and monitoring reports, including all analytical results related to subdivisions (3)-(5) of this subsection, as they become available.

HISTORY: Added 1997, No. 132 (Adj. Sess.), § 11, eff. April 23, 1998.

ANNOTATIONS

Court’s authority.

Together, the statutes governing liability and corrective procedures under the Vermont Waste Management Act and the statute governing civil enforcement in environmental cases create a scheme delegating broad authority to the courts to order the investigation and remediation of hazardous-waste spills; the statutory language squarely authorizes the court to order remedial actions and specifies the steps that a liable party must take to address hazardous-waste contamination. Here, the court order, which required defendant to conduct an investigation and address contamination at the site, progressively tracking the procedures specified in the corrective action statute, was clearly within the trial court’s authority as outlined by the statutory provisions. State Agency of Natural Res. v. Parkway Cleaners, 2019 VT 21, 209 Vt. 620, 210 A.3d 445, 2019 Vt. LEXIS 41 (2019).

§ 6615c. Information requests.

    1. When the Secretary has reasonable grounds to believe that the Secretary has identified a person who may be subject to liability for a release or threat of release under section 6615 of this title, the Secretary may require the person to furnish information related to: (a) (1) When the Secretary has reasonable grounds to believe that the Secretary has identified a person who may be subject to liability for a release or threat of release under section 6615 of this title, the Secretary may require the person to furnish information related to:
      1. The type, nature, and quantity of any commercial chemical product or hazardous material that has been or is being used, generated, treated, stored, or disposed of at a facility or transported to a facility.
      2. The nature or extent of a release or threatened release of a hazardous material from a facility.
      3. Financial information related to the ability of a person to pay for or to perform the cleanup or information surrounding the corporate structure, if any, of such person who may be subject to liability for a release or threat of release under section 6615 of this title, provided that the person has notified the Secretary that he or she does not have the ability to pay, refuses to perform, or fails to respond to a deadline established under section 6615b of this title to commit to performing a corrective action.
    2. A person served with an information request shall respond within 30 days of receipt of the request or by the date specified by the Secretary in the request, provided that the Secretary may require a person to respond within 10 days of receipt of a request when there is an imminent threat to the environment or other emergency that requires an expedited response.
    3. When the Secretary submits a request for information under this section, the Secretary shall inform the person who received the request for information about the person’s right to object or not comply with the request for information. The information shall include the potential actions that the Secretary may pursue if the person objects to or does not comply with the request for information.
    1. A person who has received a request under subsection (a) of this section shall, at the discretion of the Secretary, either: (b) (1) A person who has received a request under subsection (a) of this section shall, at the discretion of the Secretary, either:
      1. grant the Secretary access, at reasonable times, to any facility, establishment, place, property, or location to inspect and copy all documents or records responsive to the request; or
      2. copy and furnish to the Secretary all information responsive to the request at the option and expense of the person or provide a written explanation that the information has already been provided to the Secretary and a reference to the permit, enforcement action, or other matter under which the Secretary obtained the requested information.
    2. A person responding to a request under subsection (a) of this section may assert any privilege under statute, rule, or common law that is recognized in the State of Vermont to limit access to such information, including the attorney-client privilege. A person responding to a request for information under this section shall not assert privileges related to business confidentiality, including trade secrets, in order to withhold requested information. Any information that is privileged shall be provided to the Secretary with the privileged material redacted. The Secretary may require that a person asserting a privilege under this section provide an index of all privileged information.
  1. The Secretary may require any person who has or may have knowledge of any information listed in subdivision (a)(1) of this section to appear at the offices of the Secretary and may take testimony and require the production of records that relate to a release or threatened release of a hazardous material.
  2. Any request for information under this section shall be served personally or by certified mail.
  3. A response to a request under this section shall be personally certified by the person responding to the request that, under penalty of perjury and to the best of the person’s knowledge:
    1. the response is accurate and truthful; and
    2. the person has not omitted responsive information or will provide the responsive information according to a production schedule approved by the Secretary.
  4. Information identified as qualifying for the trade secret exemption under 1 V.S.A. § 317(c)(9) and other financial information submitted under this section shall be confidential and shall not be subject to inspection and copying under the Public Records Act. A person subject to an information request under this section shall be responsible for proving that submitted information qualifies for the trade secret exemption under 1 V.S.A. § 317(c)(9) . The following information is not trade secret information or financial information for the purposes of this subsection:
    1. the trade name, common name, or generic class or category of the hazardous material;
    2. the physical properties of the hazardous material, including its boiling point, melting point, flash point, specific gravity, vapor density, solubility in water, and vapor pressure at 20 degrees Celsius;
    3. the hazards to health and the environment posed by the hazardous material, including physical hazards and potential acute and chronic health hazards;
    4. the potential routes of human exposure to the hazardous material at the facility;
    5. the location of disposal of any waste stream at the facility;
    6. any monitoring data or analysis of monitoring data pertaining to disposal activities;
    7. any hydrogeologic or geologic data; or
    8. any groundwater monitoring data.
  5. As used in this section, “information” means any written or recorded information, including all documents, records, photographs, recordings, e-mail, correspondence, or other machine readable material.

HISTORY: Added 2015, No. 154 (Adj. Sess.), § 6, eff. June 1, 2016.

§ 6615d. Natural resource damages; liability; rulemaking.

  1. Definitions.   As used in this section:
    1. “Acquisition of or acquiring the equivalent or replacement” means the substitution for an injured resource with a resource that provides the same or substantially similar services, when the substitution:
      1. is in addition to a substitution made or anticipated as part of a response action; and
      2. exceeds the level of response action determined appropriate for the site under section 6615b of this title.
    2. “Baseline condition” means the condition or conditions that would have existed at the area of assessed damages had the release of hazardous material at or from the facility in question not occurred.
    3. “Damages” means the amount of money sought by the Secretary for the injury, destruction, or loss of a natural resource.
    4. “Destruction” means the total and irreversible loss of natural resources.
    5. “Injury” means a measurable adverse long-term or short-term change in the chemical or physical quality or viability of a natural resource resulting either directly or indirectly from exposure to a release of hazardous material or exposure to a product of reactions from a release of hazardous materials.
    6. “Loss” means a measurable adverse reduction of a chemical or physical quality or viability of a natural resource.
    7. “Natural resource damage assessment” means the process of collecting, compiling, and analyzing information, statistics, or data through prescribed methodologies to determine the damages for injuries to a natural resource.
    8. “Natural resources” means fish, wildlife, biota, air, surface water, groundwater, wetlands, drinking water supplies, or State-held public lands.
    9. “Restoring,” “restoration,” “rehabilitating,” or “rehabilitation” means actions undertaken to return an injured natural resource to its baseline condition, as measured in terms of the injured resource’s physical, chemical, or biological properties or the services it had previously provided, when such actions are in addition to a response action under section 6615 of this title.
    10. “Services” means the physical and biological functions performed by the natural resource, including the human uses of those functions.
  2. Authorization.   The Secretary may assess damages against any person found to be liable under section 6615 of this title for a release of hazardous material for injury to, destruction of, or loss of a natural resource from the release. The measure of damages that may be assessed for natural resource damages shall include the cost of restoring, rehabilitating, replacing, or acquiring the equivalent of the injured, damaged, or destroyed natural resources or the services the natural resources provided and any reasonable costs of the Secretary in conducting a natural resource damage assessment. The Secretary also may seek compensation for the interim injury to or loss of a natural resource pending recovery of services to the baseline condition of the natural resource.
  3. Rulemaking; methodology.   The Secretary shall adopt rules to implement the requirements of this section, including a methodology by which the Secretary shall assess and value natural resource damages. The rules shall include:
    1. requirements or acceptable standards for the preassessment of natural resource damages, including requirements for:
      1. notification of the Secretary, natural resource trustees, or other necessary persons of potential damages to natural resources under investigation for the coordination of the assessments, investigations, and planning;
      2. authorized emergency response to natural resource damages when immediate action to avoid destruction of a natural resource is necessary or a situation in which there is a similar need for emergency action, and where the potentially liable party under section 6615 of this title fails to take emergency response actions requested by the Secretary; and
      3. sampling or screening of the potentially injured natural resource;
    2. requirements for a natural resource damages assessment plan to ensure that the natural resource damage assessment is performed in a planned and systematic manner, including:
      1. the categories of reasonable and necessary costs that may be incurred as part of the assessment plan;
      2. the methodologies for identifying and screening restoration alternatives and their costs;
      3. the types of reasonably reliable assessment procedures available to the Secretary, when the available procedures are authorized, and the requirements of the available procedures;
      4. how injury or loss shall be determined and how injury or loss is quantified; and
      5. how damages are measured in terms of the cost of:
        1. the restoration or rehabilitation of the injured natural resources to a condition where they can provide the level of services available at baseline condition; or
        2. the replacement or acquisition of equivalent natural resources or services;
    3. requirements for post-natural resource damages assessment, including:
      1. the documentation that the Secretary shall produce to complete the assessment;
      2. how the Secretary shall seek recovery; and
      3. when and whether the Secretary shall require a restoration plan; and
    4. other requirements deemed necessary by the Secretary for implementation of the rules.
  4. Exceptions.   The Secretary shall not seek to recover natural resource damages under this section when:
    1. the person liable for the release demonstrates that the nature and degree of the destruction, injury, or loss to the natural resources were identified in an application for, renewal of, review of, or other environmental assessment of a permit, certification, license, or other required authorization;
    2. the Secretary authorized the nature and degree of the destruction, injury, or loss to the natural resource in an issued permit, certification, license, or other authorization; and
    3. the person liable for the release was operating within the terms of its permit, certification, license, or other authorization.
  5. Limitations.   The natural resource damages authorized under this section and the requirements for assessment under the rules authorized by this section shall not limit the authority of the Secretary of Natural Resources to seek or recover natural resource damages under other State law, federal law, or common law.
  6. Limit on double recovery.   The Secretary or other natural resource trustee shall not recover natural resource damages under this section for the costs of damage assessment or restoration, rehabilitation, or acquisition of equivalent resources or services recovered by the Secretary or the other trustee under other authority of this chapter or other law for the same release of hazardous material and the same natural resource.
  7. Actions for natural resource damages.   No action may be commenced for natural resource damages under this chapter unless that action is commenced within six years after the date of the discovery of the loss and its connection with the release of hazardous material in question.
  8. Limit on preenactment damages.   There shall be no recovery under this section for natural resource damages that occurred wholly before the adoption of rules under subsection (c) of this section.
  9. Use of funds.   Damages recovered as natural resource damages shall be deposited in the Environmental Contingency Fund established pursuant to section 1283 of this title.

HISTORY: Added 2015, No. 154 (Adj. Sess.), § 8, eff. June 1, 2016.

§ 6615e. Relief for contaminated potable water supplies.

  1. Definitions.   As used in this section:
    1. “Public water system” means any system or combination of systems owned or controlled by a person that provides drinking water through pipes or other constructed conveyances to the public and that has at least 15 service connections or serves an average of at least 25 individuals daily for at least 60 days out of the year. A “public water system” includes all collection, treatment, storage, and distribution facilities under the control of the water supplier and used primarily in connection with the system, and any collection or pretreatment storage facilities not under the control of the water supplier that are used primarily in connection with the system. “Public water system” shall also mean any part of a system that does not provide drinking water, if use of such a part could affect the quality or quantity of the drinking water supplied by the system. “Public water system” shall also mean a system that bottles drinking water for public distribution and sale.
    2. “Public community water system” means a public water system that serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents.
  2. Extension of public community water system.
    1. The Secretary, after due consideration of cost, may initiate a proceeding under this section to determine whether a person that released perfluorooctanoic acid into the air, groundwater, surface water, or onto the land is liable for the costs of extending the water supply of a public water system to an impacted property. A person who released perfluorooctanoic acid shall be liable for the extension of a municipal water line when:
      1. the property is served by a potable water supply regulated under chapter 64 of this title;
      2. the Secretary has determined that the potable water supply on the property:
        1. is a failed supply under chapter 64 of this title due to perfluorooctanoic acid contamination; or
        2. is likely to fail due to contamination by perfluorooctanoic acid due to the proximity of the potable water supply to other potable water supplies contaminated by perfluorooctanoic acid or due to other relevant factors; and
      3. the person the Secretary determined released perfluorooctanoic acid into the air, groundwater, surface water, or onto the land is a cause of or contributor to the perfluorooctanoic acid contamination or likely contamination of the potable water supply.
    2. A person liable for the extension of a public water system under this section shall be strictly, jointly, and severally liable for all costs associated with that public water system extension. The remedy under this section is in addition to those provided by existing statutory or common law.
  3. Liability payment.
    1. Following notification of liability by the Secretary, a person liable under subsection (b) of this section for the extension of the water supply of a public water system shall pay the owner of the public water system for the extension of the water supply within 30 days of receipt of a final engineering design or within an alternate time frame ordered by the Secretary.
    2. If the person liable for the extension of the water supply does not pay the owner within the time frame required under subdivision (1) of this subsection, the person shall be liable for interest on the assessed cost of the extension of the water supply.
  4. Available defenses; rights.   All defenses to liability and all rights to contribution or indemnification available to a person under section 6615 of this title are available to a person subject to liability under this section.

HISTORY: Added 2017, No. 55 , § 1, eff. June 2, 2017.

History

Application of liability. 2017, No. 55 , § 2 provides: “(a) 10 V.S.A. § 6615e , enacted under Sec. 1 of this act, shall apply to any determination of liability made by the Secretary of Natural Resources under 10 V.S.A. § 6615e after the effective date of the section.

“(b) Notwithstanding any contrary provision of 1 V.S.A. § 214 , 10 V.S.A. § 6615e shall apply to any relevant release of perfluorooctanoic acid regardless of the date of the relevant release, including releases that occurred prior to the effective date of 10 V.S.A. § 6615e .”

§ 6616. Release prohibition.

The release of hazardous materials into the surface or groundwater, or onto the land of the State is prohibited. This section shall not apply to releases of hazardous materials pursuant to and in compliance with the conditions of a State or federal permit.

HISTORY: Added 1985, No. 70 , § 5, eff. May 20, 1985.

§ 6617. Person responsible for release; notice to Agency.

Any person who has knowledge of a release or a suspected release and who may be subject to liability for a release, as detailed in section 6615 of this chapter, shall immediately notify the Agency. In addition, any eligible person or successor under section 6615a of this title or any secured lender or fiduciary who has knowledge of a release or a suspected release shall immediately notify the Agency. Failure to notify shall make those persons liable to the penalty provisions of section 6612 of this title.

HISTORY: Added 1985, No. 70 , § 6, eff. May 20, 1985; amended 1993, No. 29 , § 5, eff. May 26, 1993; 1995, No. 44 , § 3, eff. April 20, 1995.

History

Amendments

—1995. Substituted “any eligible person or successor under section 6615a of this title or any” for “a” following “addition” in the second sentence.

—1993. Added the second sentence and substituted “title” for “chapter” following “section 6612 of this” in the third sentence.

§ 6618. Waste Management Assistance Fund.

  1. There is hereby created in the State Treasury a fund to be known as the Waste Management Assistance Fund, to be expended by the Secretary of Natural Resources. The Fund shall have three accounts: one for Solid Waste Management Assistance, one for Hazardous Waste Management Assistance, and one for Electronic Waste Collection and Recycling Assistance. The Hazardous Waste Management Assistance Account shall consist of a percentage of the tax on hazardous waste under the provisions of 32 V.S.A. chapter 237, as established by the Secretary, the toxics use reduction fees under subsection 6628(j) of this title, and appropriations of the General Assembly. In no event shall the amount of the hazardous waste tax that is deposited to the Hazardous Waste Management Assistance Account exceed 40 percent of the annual tax receipts. The Solid Waste Management Assistance Account shall consist of the franchise tax on waste facilities assessed under the provisions of 32 V.S.A. chapter 151, subchapter 13, and appropriations of the General Assembly. The Electronic Waste Collection and Recycling Account shall consist of the program and implementation fees required under section 7553 of this title. All balances in the Fund accounts at the end of any fiscal year shall be carried forward and remain a part of the Fund accounts, except as provided in subsection (e) of this section. Interest earned by the Fund shall be deposited into the appropriate Fund account. Disbursements from the Fund accounts shall be made by the State Treasurer on warrants drawn by the Commissioner of Finance and Management.
  2. The Secretary may authorize disbursements from the Solid Waste Management Assistance Account for the purpose of enhancing solid waste management in the State in accordance with the adopted waste management plan. This includes:
    1. The costs of implementation planning, design, obtaining permits, construction, and operation of State or regional facilities for the processing of recyclable materials and of waste materials that because of their nature or composition create particular or unique environmental, health, safety, or management problems at treatment or disposal facilities.
    2. The costs of assessing existing landfills, and eligible costs for closure and any necessary steps to protect public health at landfills operating before January 1, 1987, provided those costs are the responsibility of the municipality or solid waste management district requesting assistance. The Secretary of Natural Resources shall adopt by procedure technical and financial criteria for disbursements of funds under this subdivision.
    3. The costs of preparing the State waste management plan.
    4. Hazardous waste pilot projects consistent with this chapter.
    5. The costs of developing markets for recyclable material.
    6. The costs of the Agency of Natural Resources in administering solid waste management functions that may be supported by the Fund established in subsection (a) of this section.
    7. A portion of the costs of administering the Environmental Division established under 4 V.S.A. chapter 27. The amount of $120,000.00 per fiscal year shall be disbursed for this purpose.
    8. The costs, not related directly to capital construction projects, that are incurred by a district, or a municipality that is not a member of a district, in the design and permitting of implementation programs included in the adopted Solid Waste Implementation Plan of the district or of the municipality that is not a member of a district. These disbursements shall be issued in the form of advances requiring repayment. These advances shall bear interest at an annual rate equal to the interest rate which the State pays on its bonds. These advances shall be repaid in full by the grantee no later than 24 months after the advance is awarded.
    9. The Secretary shall annually allocate 17 percent of the receipts of this account, based on the projected revenue for that year, for implementation of the Plan adopted pursuant to section 6604 of this title and Solid Waste Implementation Plans adopted pursuant to 24 V.S.A. § 2202a .
    10. The costs of the proper disposal of waste tires. Prior to disbursing funds under this subsection, the Secretary shall provide a person with notice and opportunity to dispose of waste tires properly. The Secretary may condition a disbursement under this subsection on the repayment of the disbursement. If a person fails to provide repayment subject to the terms of a disbursement, the Secretary may initiate an action against the person for repayment to the Fund or may record against the property of the person a lien for the costs of cleaning up waste tires at a property.
  3. The Secretary may authorize disbursements from the Hazardous Waste Management Assistance Account for the purpose of enhancing hazardous waste management in the State in accordance with this chapter.  This includes:
    1. The costs of supplementing the State Waste Management Plan with respect to hazardous waste management.
    2. The costs of the Agency of Natural Resources in administering hazardous waste management functions that may be supported by the Fund established in subsection (a) of this section.
    3. The costs of administering the Hazardous Waste Facility Grant Program under section 6603g of this title.
  4. The Secretary shall annually allocate from the Fund accounts the amounts to be disbursed for each of the functions described in subsections (b), (c), and (f) of this section. The Secretary, in conformance with the priorities established in this chapter, shall establish a system of priorities within each function when the allocation is insufficient to provide funding for all eligible applicants.
  5. The Secretary may allocate funds at the end of the fiscal year from the Solid Waste Management Assistance Account to the Fund, established pursuant to section 1283 of this title, upon a determination that the funds available in the Environmental Contingency Fund are insufficient to meet the State’s obligations pursuant to subdivision 1283(b)(9) of this title. Any expenditure of funds transferred shall be restricted to funding the activities specified in subdivision 1283(b)(9) of this title. In no case shall the unencumbered balance of the Solid Waste Account following the transfer authorized under this subsection be less than $300,000.00.

HISTORY: Added 1987, No. 78 , § 16; amended 1989, No. 218 (Adj. Sess.), § 6; 1989, No. 281 (Adj. Sess.), § 5, eff. June 22, 1990; 1989, No. 282 (Adj. Sess.), § 12, eff. June 22, 1990; 1991, No. 202 (Adj. Sess.), § 8, eff. May 27, 1992; 1997, No. 133 (Adj. Sess.), § 7; 2005, No. 71 , § 97; 2005, No. 135 (Adj. Sess.), §§ 2, 4; 2009, No. 79 (Adj. Sess.), § 3; 2009, No. 134 (Adj Sess.), § 32; 2009, No. 154 (Adj. Sess.), § 236; 2011, No. 148 (Adj. Sess.), § 15.

History

Amendments

—2011 (Adj. Sess.). Subdiv. (b)(10): Added.

—2009 (Adj. Sess.) Subsec. (a): Act No. 79 substituted “three” for “two” preceding “accounts”, deleted “and” following “management assistance”, and added “and one for Electronic Waste Collection and recycling assistance” at the end of the first sentence, and added the fifth sentence.

Subdiv. (b)(7): Act No. 154 substituted “environmental division” for “environmental court”.

Subsec. (d): Act No. 79 substituted “subsections (b), (c), and (f)” for “subsections (b) and (c)” in the first sentence.

—2005 (Adj. Sess.). Subsec. (a): In the fifth sentence substituted “subchapter 13 of chapter 151 of Title 32” for “32 V.S.A. chapter 151, subchapter 13” and added the exception at the end.

Subsec. (b): Substituted “operating before January 1, 1987” for “certified or operating after December 31, 1979 and before January 1, 1987” and added the last sentence.

Subdiv. (b)(9): Added.

Subsec. (e): Added.

—2005. Subdiv. (b)(7): Amended generally.

—1997 (Adj. Sess.). Subsec. (a): Rewrote the third sentence and added the fourth sentence.

—1991 (Adj. Sess.). Subdiv. (b)(7): Made a minor change in punctuation.

Subdiv. (b)(8): Added.

—1989 (Adj. Sess.). Act No. 218 added subdiv. (b)(7).

Act No. 281 inserted “implementation” preceding “planning” in subdiv. (b)(1).

Act No. 282 deleted “solid” preceding “waste” in the section heading, deleted “solid” preceding “waste” in the first sentence, rewrote the former second sentence as the second through fourth sentences, inserted “accounts” following “fund” in two places in the fifth sentence, inserted “appropriate” preceding “fund” and “account” thereafter at the end of the sixth sentence and “accounts” following “fund” in the seventh sentence of subsec. (a), substituted “solid waste management assistance account” for “fund” following “disbursements from the” in the first sentence of the introductory paragraph of subsec. (b), inserted “solid waste management” preceding “functions” and made a minor change in punctuation at the end of subdiv. (b)(6), and purported to add subdiv. (b)(7), however, that subdiv. had previously been added by Act No. 218, added a new subsec. (c), redesignated former subsec. (c) as subsec. (d) and inserted “accounts” following “fund”, and substituted “subsections (b) and (c)” for “subsection (b)” following “described in” in the first sentence of that subsec.

Repeal of sunset. 2005, No. 135 (Adj. Sess.), § 4, which provided for the repeal of subdiv. (b)(9) and subsec. (e) on January 16, 2011 was repealed by 2009, No. 134 (Adj. Sess.), § 32, effective July 1, 2010.

§ 6619. Packaging information.

The Secretary is authorized to require and shall solicit from manufacturers and distributors of consumer goods sold in the State information relating to whether the packages for those goods are recyclable or made of recycled material, and relating to the quantity of the packaging that accompanies each of those products.

HISTORY: Added 1989, No. 61 , § 5, eff. May 22, 1989.

§ 6620. Permits issued by the Secretary related to solid waste facilities.

  1. The Secretary shall coordinate and administer the programs under the jurisdiction of the Agency of Natural Resources so that, to the extent possible, there is concurrent review, concurrent public participation, and concurrent permit issuances for waste management facilities.  The Secretary shall assign a permit manager to handle all applications related to a particular waste management facility.
  2. [Repealed.]

HISTORY: Added 1989, No. 218 (Adj. Sess.), § 4; amended 1993, No. 92 , § 12; 2003, No. 115 (Adj. Sess.), § 64, eff. Jan. 31, 2005.

History

Amendments

—2003 (Adj. Sess.). Subsec. (b): Deleted.

—1993. Subsec. (b): Deleted “air pollution order” following “certification” in the first sentence.

CROSS REFERENCES

Schedule of permit fees, see 3 V.S.A. § 2822 .

§ 6620a. Limitations on the use of heavy metals in packaging.

  1. This section shall take effect on the date the Secretary determines that a law similar to this section has been adopted by any combination of the northeast states with an aggregate population of at least 10,000,000 people. For purposes of this section, northeastern states shall include the New England states, Pennsylvania, New York, and New Jersey.
  2. As used in this section, the following definitions shall apply:
    1. “Package” means a container providing a means of marketing, protecting, or handling a product and shall include a unit package, an intermediate package and a shipping container. “Package” also shall mean and include such unsealed receptacles as carrying cases, crates, cups, pails, rigid foil and other trays, wrappers and wrapping films, bags, and tubs.
    2. “Distributor” means any person, firm, or corporation that takes title to goods purchased for resale.
    3. “Packaging component” means any individual assembled part of a package such as, but not limited to, any interior or exterior blocking, bracing, cushioning, weatherproofing, exterior strapping, coatings, closures, inks, and labels. Tin-plated steel that meets the American Society for Testing and Materials (ASTM) specification A-623 shall be considered as a single package component. Electro-galvanized coated steel and hot dipped coated galvanized steel that meets the ASTM specifications A-525 and A-879 shall be treated in the same manner as tin-plated steel.
    4. “Intentional introduction” means the act of deliberately utilizing a regulated metal in the formulation of a package or packaging component where its continued presence is desired in the final package or packaging component to provide a specific characteristic, appearance, or quality.
    5. “Incidental presence” means the presence of a regulated metal as an unintended or undesired ingredient of a package or packaging component.
    6. “Manufacturing” means physical or chemical modification of one or more materials to produce packaging or packaging components.
    7. “Distribution” means the practice of taking title to one or more package or packaging components for promotional purposes or resale. Persons involved solely in delivering one or more packages or packaging components on behalf of their parties are not considered distributors.
    8. “Manufacturer” means any person, firm, association, partnership, or corporation producing one or more packages or packaging components as defined in this section.
    9. “Supplier” means any person, firm, association, partnership, or corporation which sells, offers for sale, or offers for promotional purposes packages or packaging components that shall be used by any other person, firm, association, partnership, or corporation to package a product.
    1. As soon as feasible, but not later than one year after the Secretary makes the finding described in subsection (a) of this section, no package or packaging component shall be offered for sale or for promotional purposes by its manufacturer or distributor in the State of Vermont that includes, in the package itself or in any packaging component, inks, dyes, pigments, adhesives, stabilizers, or any other additives containing any lead, cadmium, mercury, or hexavalent chromium that has been intentionally introduced as an element during manufacturing or distribution as opposed to the incidental presence of any of these elements. (c) (1) As soon as feasible, but not later than one year after the Secretary makes the finding described in subsection (a) of this section, no package or packaging component shall be offered for sale or for promotional purposes by its manufacturer or distributor in the State of Vermont that includes, in the package itself or in any packaging component, inks, dyes, pigments, adhesives, stabilizers, or any other additives containing any lead, cadmium, mercury, or hexavalent chromium that has been intentionally introduced as an element during manufacturing or distribution as opposed to the incidental presence of any of these elements.
    2. The use of a regulated metal as a processing agent or intermediate to impart certain chemical or physical changes during manufacturing, resulting in the incidental retention of a residue of that metal in the final package or packaging component that is neither desired nor deliberate, is not considered intentional introduction for the purposes of this section where that final package or packaging component is in compliance with subdivision (e)(3) of this section and where there is no reasonable alternative.
    3. The use of recycled materials as feedstock for the manufacture of new packaging materials, where some portion of the recycled materials may contain amounts of the regulated metals, is not considered intentional introduction for the purposes of this section where the new package or packaging component is in compliance with subdivision (e)(3) of this section.
  3. As soon as feasible, but not later than one year after the Secretary makes the finding described in subsection (a) of this section, no product shall be offered for sale or for promotional purposes by its manufacturer or distributor in the State of Vermont in a package that includes, in the package itself or in any packaging component, inks, dyes, pigments, adhesives, stabilizers, or any other additives containing any lead, cadmium, mercury, or hexavalent chromium that has been intentionally introduced as an element during manufacturing or distribution as opposed to the incidental presence of any of these elements.
  4. The sum of the concentration levels of lead, cadmium, mercury, and hexavalent chromium present in any package or packaging component shall not exceed the following:
    1. 600 parts per million by weight (0.06 percent) effective two years after the Secretary makes the findings described in subsection (a) of this section;
    2. 250 parts per million by weight (0.025 percent) effective three years after the Secretary makes the findings described in subsection (a) of this section; and
    3. 100 parts per million by weight (0.01 percent) effective four years after the Secretary makes the findings described in subsection (a) of this section.
  5. All packages and packaging components shall be subject to subsections (c), (d), and (e) of this section except the following:
    1. Those packages or packaging components with a code indicating date of manufacture that were manufactured prior to the effective date of this statute.
    2. Those packages or packaging components to which lead, cadmium, mercury, or hexavalent chromium have been added in the manufacturing, forming, printing, or distribution process in order to comply with health or safety requirements of federal law, provided that the manufacturer of a package or packaging component must petition the Secretary for any exemption from the provisions of this subsection for a particular package or packaging component based upon either criterion; and provided further, that the Secretary may grant an exemption for up to two years if warranted by the circumstances; and provided further, that such an exemption may, upon meeting the criterion of this subsection, be renewed at two-year intervals.
    3. Packages and packaging components that would not exceed the maximum contaminant levels set forth in this section but for the addition of recycled materials; and provided that the exemption under this subdivision shall expire on January 1, 2000.
    4. Packages and packaging components that are reused but exceed contaminant levels set forth in this section, provided that the product being conveyed by that package and the package and packaging itself are regulated under federal or State health or safety laws, or both; and provided that transportation of those packaged products is regulated under federal or State transportation provisions, or both; and provided that disposal of the package is performed according to federal and State radioactive or hazardous waste disposal requirements; and provided that an exemption under this subdivision shall expire on January 1, 2000.
    5. Packages and packaging components having a controlled distribution and reuse (referred to as “reusable entities”) that exceed the contaminant levels set forth in this section, provided that the manufacturers or distributors of those packages or packaging components must petition the Secretary for exemption and receive approval from the Secretary, working with the CONEG toxics in a packaging clearinghouse, according to standards established in this subdivision (5), set by the Secretary and based upon satisfactory demonstrations that the environmental benefit of the controlled distribution and reuse is significantly greater as compared to the same package manufactured in compliance with the contaminant levels set forth in this section; and provided that an exemption under this subdivision shall expire on January 1, 2000. A plan, to be proposed by the manufacturer seeking the exemption, or the manufacturer’s designee, shall include each of the following elements:
      1. a means of identifying in a permanent and visible manner those reusable entities containing regulated metals for which an exemption is sought;
      2. a method of regulatory and financial accountability so that a specified percentage of reusable entities manufactured and distributed to other persons are not discarded by those persons after use, but are returned to the manufacturer or the manufacturer’s designee;
      3. a system of inventory and record maintenance to account for the reusable entities placed in, and removed from, service;
      4. a means of transforming returned entities that are no longer reusable into recycled materials for manufacturing or into manufacturing wastes that are subject to existing federal or State laws, rules, or regulations governing those manufacturing wastes, to ensure that these wastes do not enter the commercial or municipal waste stream; and
      5. a system of annually reporting to the Secretary changes to the system and changes in designees.
  6. Once the Secretary has made the finding described in subsection (a) of this section, the Secretary may notify a manufacturer that there are grounds for suspecting that a package or packaging component produced by that manufacturer may not be in compliance with this section, and may request the manufacturer to certify that the package or component is in compliance. If the manufacturer certifies that the package or component is exempt, the specific basis for the exemption shall be stated. If the manufacturer does not certify that the product is in compliance or is exempt, the Secretary may order that the packages or components in question be withdrawn from sale or promotional use within the State. For purposes of this subsection, the term manufacturer shall include the importer of a product manufactured outside the United States. False or fraudulent statements by a manufacturer may subject the manufacturer to the penalties of 13 V.S.A. § 3016 .
  7. The Secretary shall review the effectiveness of this section by the second January first that follows the determination made under subsection (a) of this section and shall provide a report based upon that review to the Governor, the House Committee on Natural Resources, Fish, and Wildlife, and the Senate Committee on Natural Resources and Energy. The report may contain recommendations to add other toxic substances contained in packaging to the list set forth in this section in order to further reduce the toxicity of packaging waste, and a description of the nature of the substitutes used in lieu of lead, mercury, cadmium, and hexavalent chromium. The Secretary shall, in consultation with the source reduction task force of the Coalition of Northeastern Governors (CONEG), review the extension of the recycling exemption as it is provided for in subdivision (f)(3) of this section. This review shall commence on or before January 1, 1997. A report based upon that review shall be provided to the Governor and General Assembly on or before January 1, 1999.

HISTORY: Added 1989, No. 286 (Adj. Sess.), § 1; amended 1995, No. 57 , § 5; 1995, No. 143 (Adj. Sess.), § 1; 2017, No. 113 (Adj. Sess.), § 49a; 2019, No. 131 (Adj. Sess.), § 35.

History

Revision note

—2015. In subdiv. (f)(5), substituted “in this subdivision (5)” for “below” to conform to V.S.A. style.

Revision note—. This section, which was originally enacted as section 6620 of this title, was redesignated to avoid a conflict with existing section 6620.

Amendments

—2019 (Adj. Sess.). Subdiv. (f)(5)(D): Substituted “that” for “which”, inserted “, rules,” and deleted “, or both,” following “regulations”.

—2017 (Adj. Sess.). Subsec. (h): Amended generally.

—1995 (Adj. Sess.) Subsec. (b): Added the second and third sentences of subdiv. (3) and added subdivs. (4) through (9).

Subsec. (f): Rewrote the first sentence of subdiv. (2) and deleted the former second sentence of that subdiv., substituted “recycled” for “post-consumer” preceding “materials” and “on January 1, 2000” for “four years from the date the secretary makes the determination under subsection (a) of this section” following “expire” in subdiv. (3), and added subdivs. (4) and (5).

Subsec. (h): Deleted “and shall contain a recommendation whether to continue the recycling exemption as it is provided for in subdivision (f)(3) of this section” following “waste” in the second sentence, and added the third and fourth sentences.

—1995. Subsec. (c): Designated the existing provisions of the subsec. as subdiv. (1) and added subdivs. (2) and (3).

A notice issued by the secretary of natural resources on June 6, 1991, provided: “As Secretary of the Vermont Agency of Natural Resources, under provisions 10 V.S.A. Section 6620, I hereby find that a combination of northeastern states with an aggregate population of at least 10 million people have adopted a law similar to this section—pertaining to ‘Limitations on the Use of Heavy Metals in Packaging.’ ” Therefore, subsecs. 6620(c) and 6620(d) are effective January 1, 1992. Further, subsec. 6620(e)(1) is effective June 1, 1993; subsec. 6620(e)(2) is effective June 1, 1994; and subsec. 6620(e)(3) is effective June 1, 1995.

§ 6621. Repealed. 2001, No. 149 (Adj. Sess.), § 94, eff. June 27, 2002.

History

Former § 6621. Former § 6621, relating to shelf labeling law regarding hazardous products, was derived from 1989, No. 282 (Adj. Sess.), § 3, eff. June 22, 1990.

§ 6621a. Landfill disposal requirements.

  1. In accordance with the following schedule, no person shall knowingly dispose of the following materials in solid waste or in landfills:
    1. Lead-acid batteries, after July 1, 1990.
    2. Waste oil, after July 1, 1990.
    3. White goods, after January 1, 1991. “White goods” include discarded refrigerators, washing machines, clothes dryers, ranges, water heaters, dishwashers, and freezers. Other similar domestic and commercial large appliances may be added, as identified by rule of the Secretary.
    4. Tires, after January 1, 1992.
    5. Paint (whether water based or oil based), paint thinner, paint remover, stains, and varnishes. This prohibition shall not apply to solidified water based paint in quantities of less than one gallon, nor shall this prohibition apply to solidified water based paint in quantities greater than one gallon if those larger quantities are from a waste stream that has been subject to an effective paint reuse program, as determined by the Secretary.
    6. Nickel-cadmium batteries, small sealed lead acid batteries, nonconsumer mercuric oxide batteries, and any other battery added by the Secretary by rule.
      1. Labeled mercury-added products on or before July 1, 2007. (7) (A) Labeled mercury-added products on or before July 1, 2007.
      2. Mercury-added products, as defined in chapter 164 of this title, after July 1, 2007, except as other effective dates are established in that chapter.
    7. Banned electronic devices.   After January 1, 2011, computers; peripherals; computer monitors; cathode ray tubes; televisions; printers; personal electronics such as personal digital assistants and personal music players; electronic game consoles; printers; fax machines; wireless telephones; telephones; answering machines; videocassette recorders; digital versatile disc players; digital converter boxes; stereo equipment; and power supply cords (as used to charge electronic devices).
    8. Mandated recyclable materials after July 1, 2015.
    9. Leaf and yard residuals and wood waste after July 1, 2016.
    10. Food residuals after July 1, 2020.
  2. This section shall not prohibit the designation and use of separate areas at landfills for the storage or processing, or both, of material specified in this section.
  3. Insofar as it applies to the operator of a solid waste management facility, the Secretary may suspend the application of this section to material specified in subdivision (a)(2), (3), (4), (5), or (6) of this section, or any combination of these, upon finding that insufficient markets exist and adequate uses are not reasonably available to serve as an alternative to disposal.
  4. The landfill disposal ban under subdivisions (a)(9)-(11) of this section shall not apply to mandated recyclables, leaf and yard residuals, or food residuals collected as part of a litter collection event operated or administered by a nonprofit organization or municipality.

HISTORY: Added 1989, No. 286 (Adj. Sess.), § 2; amended 1991, No. 75 , § 2; 1991, No. 95 , § 3; 1993, No. 221 (Adj. Sess.), § 4a; 1995, No. 189 (Adj. Sess.), § 9; 1997, No. 151 (Adj. Sess.), § 3; 2005, No. 13 , § 2, eff. July 1, 2005; 2009, No. 79 (Adj. Sess.), § 4; 2011, No. 148 (Adj. Sess.), § 10; 2015, No. 95 (Adj. Sess.), § 3, eff. May 10, 2016.

History

Revision note—

This section, which was originally enacted as section 6621 of this title, was redesignated to avoid a conflict with existing section 6621.

Amendments

—2015 (Adj. Sess.). Subsec. (d): Added.

—2011 (Adj. Sess.). Added “materials in” and “or” in the introductory language in subsec. (a); substituted “dryers” for “driers” in subdiv. (a)(3); substituted “and any other battery added by the secretary by rule” for “after July 1, 1992, in any district or municipality in which there is an ongoing program to accept these wastes for treatment” in subdiv. (a)(6); and added subdivs. (a)(9) through (a)(11).

—2009 (Adj. Sess.) Subdiv. (a)(8): Added.

—2005. Subdiv. (a)(7): Deleted “consumer” preceding “products” and added the language beginning ‘on or before July 1, 2007”.

—1997 (Adj. Sess.). Subdiv. (a)(7): Added.

—1995 (Adj. Sess.) Subdiv. (a)(5): Amended generally.

—1993 (Adj. Sess.). Subdiv. (a)(6): Substituted “small sealed lead acid batteries, and nonconsumer mercuric oxide” for “or other rechargeable” following “nickel-cadmium batteries”.

—1991. Subdiv. (a)(5): Added by Act No. 75.

Subdiv. (a)(6): Added by Act No. 95.

Subsec. (c): Act No. 75 inserted “insofar as it applies to the operator of a solid waste management facility” preceding “the secretary”, deleted “or” preceding “(4)” and added “or (5)” thereafter, and made minor changes in punctuation.

Act No. 95 inserted “insofar as it applies to the operator of a solid waste management facility” preceding “the secretary”, deleted “or” preceding “(4)”, added “or (6)” preceding “of this section”, and made minor changes in punctuation.

ANR suspension of landfill disposal ban on mixed paper. 2017, No. 168 (Adj. Sess.), § 25 provides: “Upon finding that insufficient markets exist for the recycling of paper and adequate uses are not reasonably available to serve as an alternative to disposal of paper, the Secretary of Natural Resources may suspend the application of the landfill disposal ban under 10 V.S.A. § 6621a to a solid waste management facility for one or more of the following materials: white and colored paper, newspaper, magazines, catalogues, paper mail and envelopes, boxboard, and paper bags.”

Repeal; suspension of landfill disposal ban. 2017, No. 168 (Adj. Sess.), § 26 provides: “Sec. 25 (ANR suspension of landfill disposal ban; mixed paper) shall be repealed on July 1, 2019.”

CROSS REFERENCES

Recycling lead-acid batteries, see § 6621c of this title.

§ 6621b. Regulation of certain dry cell batteries.

  1. Prohibition.   A person may not place in mixed municipal solid waste a dry cell battery containing mercuric oxide electrode, nickel-cadmium, or sealed lead acid that was purchased for use or used by a government agency, or an industrial, communications, or medical facility.
  2. User responsibility.   Each government agency, or industrial, communications, or medical facility shall collect and segregate, by chemical type, its batteries that are subject to this prohibition and shall return each segregated collection either to the supplier that provided the facility with that type of battery or to a collection facility designated by the manufacturer of that battery or battery-powered product.
  3. Manufacturer responsibility.
    1. A manufacturer of batteries subject to subsection (a) of this section shall:
      1. ensure that a system for the proper collection, transportation, and processing of waste batteries exists for purchasers in Vermont;
      2. clearly inform each purchaser of the prohibition on disposal of waste batteries and of the system or systems for proper collection, transportation, and processing of waste batteries available to the purchaser.
    2. To ensure that a system for the proper collection, transportation, and processing of waste batteries exists, a manufacturer shall:
      1. identify a collection chain through which the batteries should be returned to the manufacturer or to a manufacturer-designated collection site; and
      2. accept waste batteries returned to its manufacturing facility.
    3. A manufacturer shall ensure that the cost of proper collection, transportation, and processing of the waste batteries is included in the sales transaction or agreement between the manufacturer and any purchaser.
    4. A manufacturer that has complied with this subsection is not liable under subsection (a) of this section for improper disposal by a person other than the manufacturer of waste batteries.
  4. Battery requirements.
    1. The manufacturer of a button cell battery that is to be sold at retail in this State shall ensure that each battery is clearly identifiable as to the type of electrode used in the battery.
      1. A manufacturer may not sell at retail, distribute for retail sale, or offer for retail sale in this State an alkaline manganese battery that contains more than 0.30 percent mercury by weight, or after February 1, 1992, 0.025 percent mercury by weight. Effective January 1, 1996, alkaline manganese and zinc carbon batteries may not be sold at retail in this State if they contain any added mercury. (2) (A) A manufacturer may not sell at retail, distribute for retail sale, or offer for retail sale in this State an alkaline manganese battery that contains more than 0.30 percent mercury by weight, or after February 1, 1992, 0.025 percent mercury by weight. Effective January 1, 1996, alkaline manganese and zinc carbon batteries may not be sold at retail in this State if they contain any added mercury.
      2. On application by a manufacturer, the Secretary may exempt a specific type of battery from the requirements of subdivision (d)(2)(A) of this section if there is no battery meeting the requirements that can be reasonably substituted for the battery for which the exemption is sought.  The manufacturer of a battery exempted by the Secretary under this subdivision is subject to the requirements of subsection (c) of this section.
      3. Notwithstanding subdivision (d)(2)(A) of this section, a manufacturer may not sell at retail, distribute for retail sale, or offer for retail sale in this State after January 1, 1992, a button cell alkaline manganese battery that contains more than 25 milligrams of mercury.
    2. Effective January 1, 1993, no button battery containing mercury may be sold at retail in this State unless it contains less than 25 milligrams of mercury.
  5. Rechargeable batteries for tools and appliances.
    1. A manufacturer may not sell at retail, distribute for retail sale, or offer for retail sale in this State a rechargeable consumer product powered by a nickel-cadmium or small sealed lead battery unless:
      1. the battery can be easily removed by the consumer or is contained in a battery pack that is separate from the product and can be easily removed; and
      2. the product, the battery itself, and the package containing a consumer product each, are labeled in a manner that is clearly visible to the consumer, indicating that the battery must be recycled or disposed of properly and that the type of electrode used in the battery is clearly identifiable.
    2. “Rechargeable consumer product” as used in this subsection means any product that contains a rechargeable battery and is primarily used or purchased to be used for personal, family, or household purposes.
    3. On application by a manufacturer, the Secretary may exempt a rechargeable consumer product from the requirements of this subsection if:
      1. the product cannot be reasonably redesigned or manufactured to comply with the requirements prior to July 1, 1993;
      2. the redesign of the product to comply with the requirements would result in significant danger to public health and safety; or
      3. the battery poses no unreasonable hazard when placed in and processed or disposed of as part of mixed municipal solid waste.
    4. An exemption granted by the Secretary under subdivision (e)(3)(A) of this section must be limited to a maximum of two years and may be renewed.

HISTORY: Added 1991, No. 95 , § 1; amended 1993, No. 221 (Adj. Sess.), §§ 4b-4d.

History

Amendments

—1993 (Adj. Sess.). Subsec. (a): Deleted “silver oxide electrode” preceding “nickel-cadmium”.

Subdiv. (d)(2)(A): Inserted “alkaline manganese and zinc carbon” following “1996” and “added” preceding “mercury” in the second sentence.

Subdiv. (e)(1): Inserted “powered by a nickel-cadmium or small sealed lead battery” preceding “unless” in the introductory paragraph and amended subdiv. (B) generally.

§ 6621c. Lead-acid batteries; collection for recycling.

  1. Definitions.   For purposes of this section:
    1. “Lead-acid battery” means a battery that consists of lead and sulfuric acid and is used as a power source.
    2. “Small sealed lead-acid battery” means a lead-acid battery, weighing 25 pounds or less, used in nonvehicular applications. This shall not include any lead-acid battery used as the principal power source for transportation, including automobiles, motorcycles, and boats.
  2. Applicability.   The provisions of subsections (c), (d), and (e) of this section shall not apply to any small sealed lead-acid battery.
  3. Standard retailer obligations.   A retailer selling replacement lead-acid batteries in Vermont shall:
    1. Accept from customers, at the point of transfer, used lead-acid batteries of the same general type and in a quantity at least equal to the number of new batteries purchased, if offered by customers.
    2. Post written language in bold print in the immediate vicinity where lead-acid batteries are sold, that reads as follows: “It is illegal to discard lead-acid batteries in Vermont’s landfills. This store accepts used lead-acid batteries for recycling, in exchange for new batteries being purchased.”
  4. Standard wholesaler obligation.   Any wholesaler selling replacement lead-acid batteries in Vermont shall accept from customers at the point of transfer, used lead-acid batteries of the same general type and in a quantity at least equal to the number of new batteries purchased, if offered by customers. A wholesaler accepting batteries in transfer from a retailer shall be allowed a period not to exceed 90 days to remove batteries from the retail point of collection.
  5. Information on recycling lead-acid batteries.   A manufacturer selling lead-acid batteries in Vermont shall provide their direct customers with a telephone number where retailers and wholesalers may obtain information regarding recycling lead-acid batteries.

HISTORY: Added 1993, No. 220 (Adj. Sess.), § 3.

CROSS REFERENCES

Disposal of batteries in landfills prohibited, see § 6621a of this title.

§ 6621d. Repealed. 2005, No. 13, § 4, eff. July 1, 2007.

History

Former § 6621d. Former § 6621d, relating to mercury-added consumer products, was derived from 1997, No. 151 (Adj. Sess.), § 2 and amended by 1999, No. 63 , § 5; and 2005, No. 13 , § 4(a).

Annotations From Former § 6621d

Constitutionality.

Construction.

Annotations From Former § 6621d

Constitutionality.

The court vacated a preliminary injunction against enforcement of the mercury labeling statute on the ground that the plaintiff association failed to show a likelihood of success on the merits of its commerce clause and First Amendment claims. National Electrical Manufacturers Ass'n v. Sorrell, 272 F.3d 104, 2001 U.S. App. LEXIS 24026 (2d Cir. 2001), cert. denied, 536 U.S. 905, 122 S. Ct. 2358, 153 L. Ed. 2d 180, 2002 U.S. LEXIS 4244 (2002).

Vermont mercury labeling statute impinged on commercial speech of electrical manufacturers in violation of First Amendment, as requirements of law were far more extensive than necessary to advance state’s legitimate interests, and law in effect would allow Vermont to legislate outside its own boundaries in violation of Commerce Clause; accordingly, state was enjoined from attempting to enforce statute, as well as any rules and regulations promulgated thereunder. National Electrical Manufacturers Ass'n v. Sorrell, 72 F. Supp. 2d 449, 1999 U.S. Dist. LEXIS 17389 (D. Vt. 1999), vacated, 272 F.3d 104, 2001 U.S. App. LEXIS 24026 (2d Cir. 2001).

Construction.

This section requires manufacturers to label products that contain specified items that, in turn, contain mercury. In re Electronic Industries Alliance, 2005 VT 111, 179 Vt. 539, 889 A.2d 729, 2005 Vt. LEXIS 258 (2005) (mem.).

§ 6621e. Repealed. 2005, No. 13, § 4(c).

History

Former 6621e. Former § 6621e, relating to the advisory committee on mercury pollution, was derived from 1997, No. 151 (Adj. Sess.), § 4.

§ 6622. Source separation incentives.

  1. Any municipality or solid waste management district that meets the requirements of subsection (d) of this section has met the requirements of subdivision 6604(a)(1)(B) of this title for those materials identified in the source separation requirements under subsection (d) of this section.
  2. A municipality or a solid waste management district that wishes to be eligible, on a priority basis, for implementation grants under subdivision 6603c(c)(2)(C)(ii) of this title shall include a source separation plan in its solid waste management plan. At a minimum, that source separation plan shall include the following components:
    1. a recycling awareness component which includes education and public outreach; and
    2. a strategy to require source separation, including enforcement provisions; and
    3. a list of those materials subject to any source separation program, including at least five of the following materials:
      1. cardboard, including corrugated and boxboard;
      2. glass containers;
      3. yard waste, food waste, and other compostables;
      4. newsprint;
      5. office paper, including white, colored, and mixed office paper;
      6. metal food and beverage containers including tin-plated steel bi-metal and aluminum cans; and
      7. plastic containers made from high density polyethylene (HDPE), polyethylene terephthalate (PET), and polyvinyl chloride (PVC).
  3. If necessary, the Secretary of Natural Resources, by rule, shall add or delete materials to the list set forth under subdivision (b)(3) of this section, after considering the following:
    1. adequacy of markets;
    2. availability of process facilities; and
    3. the costs of collecting, processing, and transporting the material to market.
  4. Municipalities or districts that have an ordinance in effect that includes enforcement provisions and requires source separation of at least five materials identified in this section shall be eligible to receive priority consideration for implementation grants according to the provisions of subsection 6603c(c) of this title.
  5. [Repealed.]
  6. The deadlines established under subsection (d) of this section may be modified by the Secretary, depending on the availability of funds in the capital budget.
  7. For purposes of this section, “source separation” means systems that separate compostable and recyclable materials from noncompostable, nonrecyclable materials at the point of generation. Recyclable materials may be commingled.
  8. For purposes of this section, “compostable” means that a product, package, or material will safely decompose, in a composting system, into a humus-rich material, containing no persistent synthetic residues, that can be safely used as a beneficial soil amendment.

HISTORY: Added 1989, No. 286 (Adj. Sess.), § 3; amended 1991, No. 202 (Adj. Sess.), § 7, eff. May 27, 1992; 1993, No. 81 , § 8, eff. Jan. 1, 1994; 2019, No. 131 (Adj. Sess.), § 36.

History

Amendments

—2019 (Adj. Sess.). Subsec. (c): Deleted “above” preceding “list” and inserted “set forth under subdivision (b)(3) of this section”.

—1993. Subsec. (b): Inserted “on a priority basis” following “eligible”, and “implementation” preceding “grants under” and substituted “subdivision 6603c(c)(2)(C)(ii) of this title” for “subsections (d) or (e) of this section” thereafter in the first sentence of the introductory paragraph, and deleted “or encourage” following “require” and “where source separation is required” following “provisions” in subdiv. (2).

Subsec. (d): Deleted “prior to July 1, 1994” following “effect”, inserted “priority consideration for implementation” preceding “grants” and substituted “according to the provisions of subsection 6603c(c) of this title” for “of up to 60 percent of the capital costs of implementing a collection or processing system, or both, for recyclable materials, but only if the municipality or district can establish that the grant is likely to allow the municipality or district to meet or exceed the goal established in the state plan, with respect to reductions in waste requiring disposal” thereafter.

Subsec. (e): Repealed.

Subsec. (f): Substituted “subsection (d)” for “subsections (d) and (e)” following “established under”.

—1991 (Adj. Sess.). Subsec. (b): Substituted “subsections (d) or (e)” for “subsection (d)” following “under” in the first sentence of the introductory paragraph, inserted “or encourage” following “to require” and “where source separation is required” following “provisions” in subdiv. (2), substituted “any” for “the” preceding “source” in the introductory paragraph of subdiv. (3), and rewrote subdiv. (3)(C).

Subsec. (d): Amended generally.

Subsec. (e): Amended generally.

Subsec. (g): Inserted “compostable and” preceding “recyclable” and “noncompostable” preceding “nonrecyclable”.

Subsec. (h): Added.

§ 6622a. Repealed. 2009, No. 33, § 83(e)(8).

History

Former § 6622a. Former § 6622a, relating to report on the status of whether there are sufficient quantities of quality recycled newsprint at a reasonable price, was derived from 1989, No. 286 (Adj. Sess.), § 10.

§ 6622b. Appeals.

Appeals of any act or decision of the Secretary under this chapter shall be made in accordance with chapter 220 of this title.

HISTORY: Added 2003, No. 115 (Adj. Sess.), § 65, eff. Jan. 31, 2005.

Subchapter 2. Toxics Use Reduction and Hazardous Waste Reduction

History

Amendments

—1991. 1991, No. 100 § 13, added “toxics use reduction and” preceding “hazardous” and substituted “waste” for “materials risk” thereafter in the subchapter heading.

Declaration of policy. 1989, No. 282 (Adj. Sees.), § 1, eff. June 22, 1990, provided:

“It is declared to be the policy of the State of Vermont:

“1. To safeguard public health, promote worker safety and protect the environment by establishing the reduction of the use of toxic materials (toxics use reduction) as the top priority of the state for hazardous waste and toxic material management.

“2. To promote education and information about toxics use reduction in the home and in the workplace.

“3. To establish toxics use reduction as the preferred method for achieving compliance with any federal or state law or rule pertaining to toxics use production and use, hazardous materials management, worker safety, public health or releases of toxics into the environment.

“4. To promote coordination and cooperation among all states in the northeast region of the county and all state agencies that administer toxics related programs.

“5. To reduce the toxicity of the solid waste stream to the maximum extent feasible in accordance with the priorities of 10 V.S.A. § 6604(a)(1) .

“6. To sustain and promote the competitive position of Vermont businesses while advancing innovation in toxics use reduction.

“7. To adopt a statewide goal for toxics use reduction, recognizing the achievements that have already been made and that continue to be made, and to develop and implement a comprehensive program to achieve that goal with respect to the presence of toxics in the air, water and land, and with respect to consumer and worker exposure.”

§ 6623. Goals and purpose.

  1. The goals of this subchapter are to:
    1. eliminate or reduce the use of hazardous, particularly toxic, materials wherever feasible;
    2. reduce the generation of hazardous waste;
    3. reduce the release into the environment of chemical contaminants which have adverse and serious health or environmental effects;
    4. document hazardous waste reduction and toxics use reduction information and make that information available to State and local government and the public.
  2. It is the intent of this subchapter to encourage reduction of toxic substances and to reduce the generation of hazardous waste whenever technically and economically practicable, without shifting risks from one part of a process, environmental medium, or product to another.  Priority shall be given to methods that reduce the amount of toxics used and, where that is not technically and economically practicable, methods that reduce the generation of hazardous waste.

HISTORY: Added 1989, No. 282 (Adj. Sess.), § 17, eff. June 22, 1990; amended 1991, No. 100 , § 1.

History

Amendments

—1991. Subdiv. (a)(4): Substituted “waste reduction and toxics use reduction” for “materials management” following “hazardous” and added “and the public” following “government”.

Subsec. (b): Amended generally.

§ 6624. Definitions.

For purposes of this subchapter, in addition to the provisions of section 6602 of this title, the following definitions apply:

  1. “Class A generator” means a generator who generates 1,000 kg (2,200 lbs) or more of hazardous waste in one calendar month.
  2. “Class B generator” means a generator who generates more than 100 kg (220 lbs) but less than 1,000 kg (2,200 lbs) of hazardous waste in one calendar month and generates more than 1,200 kg (2,640 lbs) of hazardous waste in one calendar year.
  3. “Exempt small quantity generator” means a generator, as defined by 40 CFR § 261.5, who generates less than 100 kg (220 lbs) of hazardous waste or who generates less than 1 kg (2.2 lbs) of acute hazardous waste in one calendar month.
  4. “Large user” means a facility with 10 or more full-time employees that is in the Standard Industrial Classification (SIC) Code required by the Secretary to report and that:
    1. Manufactures, processes, or otherwise uses, exclusive of sales or distribution, more than 4,545.5 kg (10,000 lbs) of a toxic substance per year; or
    2. Manufactures, processes, or otherwise uses, exclusive of sales or distribution, more than 454.4 kg (1,000 lbs) but less than 4,545.5 kg (10,000 lbs) of a toxic substance per year if that substance accounts for more than 10 percent of the total of toxic substances used at the facility during the year.
    1. “Hazardous waste reduction” means any recycling or other activity applied after hazardous waste is generated that is consistent with the general goal of reducing present and future threats to public health, safety, and the environment. Reduction may be proportionate to the increase or decrease in production or other business changes.  The recycling or other activity shall result in: (5) (A) “Hazardous waste reduction” means any recycling or other activity applied after hazardous waste is generated that is consistent with the general goal of reducing present and future threats to public health, safety, and the environment. Reduction may be proportionate to the increase or decrease in production or other business changes.  The recycling or other activity shall result in:
      1. the reduction of total volume or quantity of hazardous waste generated that would otherwise be treated, stored, or disposed of; or
      2. the reduction of toxicity of hazardous waste that would otherwise be treated, stored, or disposed of; or
      3. both the reduction of total volume or quantity and the reduction of toxicity of hazardous waste.
    2. “Hazardous waste reduction” shall not:
      1. result in the significant transfer of hazardous constituents from one environmental medium to another;
      2. include concentrating waste solely for the purposes of reducing volume;
      3. use dilution as a means of reducing toxicity; or
      4. include incineration.
    3. “Hazardous waste reduction” may include on-site and off-site treatment where it can be shown that such treatment confers a higher degree of protection of the public health, safety, and the environment than other technically and economically practicable waste reduction alternatives.
  5. “Risk reduction” means a reduction in volume or toxicity, or both, of a hazardous or toxic substance by a method that does not merely shift the risk to another environmental medium, or create a new environmental risk to human health or the environment.
  6. “Toxic substance” or “toxics” mean any substance in a gaseous, liquid, or solid state listed pursuant to Title III, Section 313 of the Superfund Amendments and Reauthorization Act of 1986.  This list of substances may be altered as specified in subsection 6625(d) of this title.  “Toxic substance” or “toxics” does not include constituents of fuels used to provide energy, unless those fuels include hazardous wastes from a generator’s process.
    1. “Toxics use reduction” means in-plant changes in production or other processes or operations, products, or raw materials that reduce, avoid, or eliminate the use or production of toxic substances or raw materials that result in generation of hazardous wastes, without creating substantial new risks to public health, safety, and the environment, through the application of any of the following techniques: (8) (A) “Toxics use reduction” means in-plant changes in production or other processes or operations, products, or raw materials that reduce, avoid, or eliminate the use or production of toxic substances or raw materials that result in generation of hazardous wastes, without creating substantial new risks to public health, safety, and the environment, through the application of any of the following techniques:
      1. input substitution, meaning to replace a toxic substance, or a raw material that results in the generation of hazardous waste, used in a production or other process or operation with a nontoxic or less toxic substance;
      2. product reformulation, meaning to modify an existing end product in order to reduce toxic substance inputs or raw materials that result in the generation of hazardous wastes;
      3. production or other process or operation redesign or modifications;
      4. production or other process or operation modernization, including upgrading or replacing existing equipment and methods with other equipment and methods;
      5. improved operation and maintenance controls of production or other process or operation equipment and methods, by modifying or adding to existing equipment or methods including techniques such as improved housekeeping practices, system adjustments, product and process inspections or production or other process or operation control equipment or methods; or
      6. recycling, reuse, or extended use of toxics or raw materials that result in the generation of hazardous waste, by using equipment or methods that become an integral part of the production or other process or operation of concern, including filtration and other methods.
    2. “Toxics use reduction” includes proportionate changes in the usage of a particular toxic substance, or a raw material that results in the generation of hazardous waste, by any of the methods set forth in subdivision (8)(A) of this section as the usage of that toxic substance or raw material changes as a result of production changes or other business changes.
  7. “Toxics use” means use or production of a toxic substance, exclusive of sales or distribution.

HISTORY: Added 1989, No. 282 (Adj. Sess.), § 17, eff. June 22, 1990; amended 1991, No. 100 , § 2.

History

References in text.

Title III, Section 313 of the Superfund Amendments and Reauthorization Act of 1986, referred to in subdiv. (7), is codified as 42 U.S.C. § 11023.

40 C.F.R. § 261.5, referred to in subdiv. (3), was removed and reserved by 81 F.R. 85732, 85806, eff. May 30, 2017. For present provisions, see 40 C.F.R. § 262.13.

Amendments

—1991. Section amended generally.

§ 6625. Toxics use reduction and hazardous waste reduction program.

  1. The Secretary shall establish a program for toxics use reduction and hazardous waste reduction pursuant to this subchapter.
  2. The Secretary shall coordinate the activities of all State agencies with responsibilities and duties relating to toxics use and hazardous waste and shall promote coordinated efforts to encourage toxics use reduction and hazardous waste reduction, with emphasis on the merits of use reduction as a means of reducing the amount of hazardous waste generated or hazardous material released into the environment. Coordination between the program and other relevant State agencies and programs shall, to the fullest extent possible, include joint planning processes and joint research and studies.
  3. The planning and reporting requirements of this subchapter shall apply only to generators who routinely generate, through ongoing process and operation, more than 1,200 kg (2,640 lbs) of hazardous waste per year or more than 12 kg (26.4 lbs) of acutely hazardous waste per year, and to large users.
  4. The Secretary shall adopt rules to carry out this subchapter. The rules shall include a provision for exempting from the requirements of this subchapter generators for whom the Secretary determines no source reduction opportunities exist. The Secretary may, by rule, add or remove any toxic substance or hazardous waste from the provisions of this subchapter.  In order to add or remove any toxic substance or hazardous waste from the provisions of this subchapter, the Secretary shall make findings with respect to toxicity, potential impact on public health and the environment, and the potential for use reduction or waste reduction of the toxic substance or hazardous waste.
  5. The Secretary shall adopt, by rule, a list of SIC codes that identifies those facilities that are subject to this subchapter as a large user.  The list initially must include SIC codes 20 through 39.  In adding additional SIC codes, the Secretary shall make findings with respect to chemical use within the SIC category, and shall find:
    1. that the potential impact on public health and the environment is significant; and
    2. that the potential for use reduction and waste reduction within the category is significant.
  6. This subchapter shall not apply to farmers, dealers, or applicators regulated under 6 V.S.A. chapters 81 and 87, or any other persons to the extent they are regulated under any other chapters of Title 6.

HISTORY: Added 1989, No. 282 (Adj. Sess.) § 17, eff. June 22, 1990; amended 1991, No. 100 , § 3.

History

Amendments

—1991. Added “toxics use reduction and” preceding “hazardous” and substituted “waste” for “materials source” thereafter in the section heading.

Subsec. (a): Substituted “toxics use reduction and hazardous waste reduction” for “source reduction” following “program for”.

Subsec. (b): Inserted “toxics use and” following “relating to” and substituted “toxics use reduction and hazardous waste reduction” for “source reduction” following “encourage” in the first sentence.

Subsec. (c): Added “the planning and reporting requirements of” preceding “this subchapter”, substituted “kg (2640 lbs)” for “kilograms” following “1,200” and “kg (26.4 lbs)” for “kilograms” following “12”, and added “and to large users” following “year” at the end of the subsec.

Subsec. (d): Added the third and fourth sentences.

Subsec. (e): Added.

Subsec. (f): Added.

§ 6626. Plan and report formats; data information system.

  1. On or before January 1, 1992, the Secretary shall adopt a format to be used by generators and large users for completing the toxics use reduction and hazardous waste reduction plan required by section 6629 of this title.  On or before July 1, 1993, the Secretary shall adopt a format for the toxics use reduction and hazardous waste reduction performance report required by section 6630 of this title.
  2. On or before July 1, 1992, the Secretary shall establish a data and information system for use in administering the provisions of this subchapter.  In establishing the data and information system, the Secretary shall:
    1. establish methods and procedures for appropriately processing or managing hazardous waste reduction and toxics use reduction information;
    2. use the data management expertise, resources, and forms of already established environmental protection programs, to the extent practicable;
    3. establish computerized data retrieval and data processing systems, including safeguards to protect trade secrets designated pursuant to section 6632 of this title or protected under 1 V.S.A. § 317 ;
    4. identify additional data and information needs of the program.

HISTORY: Added 1989, No. 282 (Adj. Sess.), § 17, eff. June 22, 1990; amended 1991, No. 100 , § 4.

History

Amendments

—1991. Subsec. (a): Substituted “January 1, 1992” for “July 1, 1991”, inserted “and large users” following “generators”, substituted “toxics use” for “source” preceding “reduction”, deleted “review” thereafter, and inserted “and hazardous waste reduction” preceding “plan” in the first sentence; inserted “toxics use reduction and” preceding “hazardous” and substituted “waste reduction” for “materials management” thereafter in the second sentence; and deleted the third and fourth sentences.

Subdiv. (b)(1): Substituted “hazardous waste reduction and toxics use reduction” for “source reduction and management” following “managing”.

Subdiv. (b)(3): Added “or protected under 1 V.S.A. § 317 ” following “title”.

§ 6627. Technical and research assistance program.

The Secretary shall establish a technical and research assistance program to assist generators, exempt small quantity generators, and large users in identifying and applying toxics use reduction methods and hazardous waste reduction methods. The program shall emphasize assistance to smaller businesses that have inadequate technical and financial resources to obtain information, assess and develop and apply toxics use reduction and hazardous waste reduction methods. The program shall also emphasize the merits of use reduction as a means of reducing the amount of hazardous waste generated or hazardous materials released into the environment. In the program:

  1. The Department shall encourage presentations by private or public consultants, including on-site consultation at sites or locations where hazardous waste is generated or toxic substances are used to aid those generators or large users requiring assistance in developing and implementing the toxics use reduction and hazardous waste reduction plan, plan summary, and performance report required by this subchapter.
  2. The Department shall conduct plan assistance programs, seminars, workshops, training programs, and other similar activities to assist generators and large users to evaluate toxics use reduction and hazardous waste reduction alternatives and to identify opportunities for toxics use reduction and hazardous waste reduction.
  3. The Department shall establish a program to assemble, catalogue, and disseminate information about source reduction methods, with emphasis on the merits of use reduction, available consultant services, and regulatory requirements.
  4. The Department shall identify the range of technical solutions that can be applied by particular types of hazardous waste generators to reduce hazardous waste generation.
  5. The Department may also direct on-site technical assistance to generators and large users in developing the plans.
  6. The Department shall coordinate its technical assistance with trade associations and local colleges and universities as appropriate.
  7. Technical services provided under this section shall not result in inspection or other enforcement actions unless there is reasonable cause to believe there is an imminent threat to human health or the environment.
  8. The Department shall provide direct technical assistance to solid waste management districts and regional planning entities including training and information exchange and shall coordinate technical assistance with the solid waste management districts and regional planning entities.

HISTORY: Added 1989, No. 282 (Adj. Sess.), § 17, eff. June 22, 1990; amended 1991, No. 100 , § 5.

History

Amendments

—1991. In the introductory paragraph, inserted “except small quantity generators and large users” preceding “in identifying”, substituted “toxics use” for “source” following “applying”, and substituted “hazardous waste reduction methods” for “other hazardous materials management approaches” following “methods and” in the first sentence; deleted “source reduction methods” following “assess” and substituted “toxics use reduction and hazardous waste reduction methods” for “source reduction methods” following “apply” in the second sentence.

Subdiv. (1): Inserted “or toxic substances are used” following “generated” and “or large users” following “generators”, and substituted “toxics use” for “source” following “implementing the” and “and hazardous waste reduction plan, plan summary, and” for “review and plan and the hazardous materials management” preceding “performance”.

Subdiv. (2): Deleted “review and” following “conduct”, inserted “and large users” following “generators”, and substituted “toxics use reduction and hazardous waste” for “source” following “evaluate” and “toxics use reduction and hazardous waste reduction” for “source reduction” following “opportunities for”.

Subdivs. (5)-(8): Added.

§ 6628. Plan, plan summary, and performance report review.

  1. Except as provided for in this section, a toxics use reduction and hazardous waste reduction plan developed under this subchapter shall be retained at the facility and is not a public record under 1 V.S.A. § 317 . If a person developing a toxics use reduction and hazardous waste reduction plan under this chapter chooses to send all or a portion of the plan to the Secretary for review, it is exempt from public inspection and copying under the Public Records Act and shall be kept confidential. A plan summary submitted pursuant to section 6629 of this title shall be submitted to the Secretary and shall be a public record.
  2. For the purposes of this subchapter, a Class A generator, Class B generator, or large user shall permit any designated employee of the Department to inspect the toxics use reduction and hazardous waste reduction plan.
  3. The Department may review a plan, plan summary, or annual performance report to determine whether the plan, plan summary, or performance report is adequate according to the provisions of sections 6629 and 6630 of this title.  If a Class A generator, Class B generator, or large user fails to complete an adequate plan, plan summary, or annual performance report, the Department, upon review of the plan, plan summary, or performance report shall notify the generator or user of the inadequacy, identifying the specific deficiencies.  The Department shall specify a reasonable time frame of not less than 90 days nor more than 180 days within which the generator or user shall modify a plan, plan summary, or performance report to address the specified deficiencies, and the Department shall make technical assistance available to aid the generator or user in modifying its plan, plan summary, or performance report.
  4. If the Department determines that a modified plan, plan summary, or performance report is inadequate, the Department may either require further modification or issue an administrative order pursuant to subsection (e) of this section.
  5. If after having received a list of specified deficiencies from the Department, a Class A generator, Class B generator, or large user fails to develop an adequate plan, plan summary, or performance report within a time frame specified pursuant to subsection (c) or (d) of this section, the Department may order that generator or user to submit an adequate plan, plan summary, or performance report within a reasonable time frame of not less than 90 days.  If the generator or user fails to develop an adequate plan, plan summary, or performance report within the time frame specified, a meeting shall be held between the generator or user, the Department, and the Secretary in a final attempt to resolve outstanding concerns and issues.  If no compromise can be reached to modify the plan, plan summary, or performance report, the generator or large user shall submit to the Secretary any inadequate plan, and the Department shall conduct a public hearing on the plan, plan summary, or performance report.  Except as provided under 1 V.S.A. § 317 , in any hearing under this section, the relevant plan, plan summary, or performance report shall be considered a public record as defined in 1 V.S.A. § 317 .
  6. On or after October 1, 1992, and every two years thereafter, the Secretary shall select, by the SIC Code, at least two categories of generators with potential for toxics use reduction and hazardous waste reduction and shall:
    1. examine the plans of selected generators and large users in the category, unless the Secretary determines that Agency resources are inadequate to complete plan reviews for all generators and users in the category, in which case the Secretary need only complete those that resources will accommodate;
    2. determine whether the selected generators and large users that are reviewed comply with section 6629 of this title;
    3. identify successful toxics use reduction and hazardous waste reduction approaches, including risk reduction, employed by generators and large users in the category and disseminate information concerning those approaches to generators and large users within the category.
  7. On or after October 1, 1992 for Class A generators, on or after July 1, 1993 for Class B generators, and on or after July 1, 1996 for large users, the Secretary may inspect the plan, plan summary, or performance report.  For generators that are both Class A or Class B generators and large users the toxics use reduction portion of the plan required for chemicals included in the planning process solely by the large user definition is not due until July 1, 1996.
  8. In reviewing the adequacy of any plan, plan summary, or performance report, the Department shall base its determination solely on whether the plan, plan summary, or performance report is complete and prepared in accordance with section 6629 or 6630 of this title.  The Department shall consider information provided under subsection 6629(b) in its review.
  9. The Department shall maintain a log of each plan, plan summary, or performance report it reviews, a list of all plans, plan summaries, or performance reports that have been found inadequate under subsection (e) of this section and descriptions of corrective actions taken.  This information shall be available to the public at the Department’s office.
  10. Fees shall be submitted annually on March 31. Fees shall be submitted to the Secretary and deposited into the hazardous waste management account of the Waste Management Assistance Fund established under section 6618 of this title. Fees shall be computed according to the following:
    1. $400.00 per toxic chemical identified pursuant to subdivision 6629(c)(4) of this title.
    2. $400.00 per hazardous waste stream identified pursuant to subdivision 6629(c)(3) of this title.
    3. Up to a maximum amount of:
      1. $2,000.00 per plan for Class A generators.
      2. $400.00 per plan for Class B generators.
      3. $2,000.00 per plan for large users.
      4. $4,000.00 per plan for Class A generators that are large users.
      5. $1,200.00 per plan for Class B generators that are large users.

HISTORY: Added 1989, No. 282 (Adj. Sess.), § 17, eff. June 22, 1990; amended 1991, No. 100 , § 6; 1995, No. 42 , §§ 1, 3; 1997, No. 155 (Adj. Sess.), § 38; 2003, No. 163 (Adj. Sess.), § 23; 2011, No. 161 (Adj. Sess.), § 5; 2015, No. 29 , § 18; 2015, No. 57 , § 22.

History

Amendments

—2015. Subsec. (a): Act 29 rewrote the second sentence.

Subsec. (j): Act 57 increased the fees throughout.

—2011 (Adj. Sess.). Subdivs. (j)(1)-(j)(3): Increased the fees throughout.

—2003 (Adj. Sess.). Subsec. (j): Changed the fees throughout.

—1997 (Adj. Sess.). Subsec. (j): Deleted the former first sentence, which provided for fees for previous years; deleted “after initial fees have become due” from the end of the new first sentence; and added “of the waste management assistance fund established under section 6618 of this title” to the end of the second sentence.

—1995. Subsec. (g): Substituted “July 1, 1996” for “July 1, 1995” in the first and second sentences.

Subsec. (j): Substituted “March 31st” for “July 1st” in the second sentence.

—1991. Section amended generally.

§ 6629. Toxics use reduction and hazardous waste reduction plan; plan summary.

  1. Each Class A and Class B generator and each large user shall prepare a toxics use reduction and hazardous waste reduction plan for any toxic substance or hazardous waste identified pursuant to subdivisions (c)(3) or (c)(4) of this section. Initial plans shall be due on or before October 1, 1992 for Class A generators; on or before July 1, 1993 for Class B generators; and on or before July 1, 1996 for large users. Updated plans shall be prepared no later than July 1, 1996 and every third July 1 thereafter. For generators that are both Class A or Class B generators and large users, the toxics use reduction portion of the plan required for chemicals included in the planning process solely by the large user definition is due on July 1, 1996 as an integrated component of a toxics use and hazardous waste reduction plan. A toxics use reduction and hazardous waste reduction plan shall:
    1. determine any toxics use reduction and hazardous waste reduction methods that may be implemented to reduce the use of toxic substances and hazardous waste generated without significantly shifting risks from one part of a process, environmental medium, or product to another;
    2. include a plan to document and implement toxics use reduction methods and hazardous waste reduction methods identified in subdivision (1) of this subsection that are technically and economically feasible for the generator, including performance goals for the reduction of toxic substances and hazardous waste, and including a reasonable implementation schedule.
  2. A facility required to complete a toxics use reduction and hazardous waste reduction plan may include as a preface to its initial plan:
    1. An explanation and documentation regarding toxics use reduction and hazardous waste reduction efforts completed or in progress before the first reporting date.
    2. An explanation and documentation regarding impediments to toxics use reduction and hazardous waste reduction specific to the individual facility.
  3. The toxics use reduction and hazardous waste reduction plan shall be prepared for each site pursuant to the format adopted under section 6626 of this title and shall include:
    1. The name and location of the site, including State plane coordinates.
    2. The SIC Codes of the site.
    3. Identification of each routinely generated hazardous waste resulting from ongoing processes or operations that has:
      1. a yearly weight exceeding five percent of the total yearly weight of hazardous waste generated;
      2. for acutely hazardous waste, a yearly weight exceeding five percent of the total yearly weight of acutely hazardous waste generated at the site.
    4. Identification of each routinely used toxic substance resulting from ongoing processes or operations, exclusive of sale or distribution, that has:
      1. a yearly weight exceeding 4,545.5 kg (10,000 lbs); or
      2. a yearly weight of between 454.5 kg (1,000 lbs) and 4,545.4 kg (10,000 lbs) if the toxic substance comprises 10 percent or more of the total toxic substances used.
    5. For each toxic substance and hazardous waste identified in subdivision (3) or (4) of this subsection, the plan shall include:
      1. an estimate of the quantity of toxic substance, or raw material resulting in hazardous waste, used and hazardous waste generated;
      2. an evaluation of feasible toxics use reduction and hazardous waste reduction methods available to the generator or large user.
    6. A specification of, and a rationale for the technically and economically feasible toxics use reduction and hazardous waste reduction methods that will be taken by the generator or large user with respect to each toxic substance or hazardous waste identified in subdivision (3) or (4) of this subsection.  The plan shall give priority to toxics use reduction methods.  The plan shall document the generator’s or large user’s rationale for rejecting any available toxics use reduction or hazardous waste reduction method identified in subdivision (5) of this subsection.  The generator or large user shall have the sole and final authority to determine which, if any, toxics use reduction or hazardous waste reduction methods will be implemented.
    7. An evaluation of the effects of the chosen toxics use reduction or hazardous waste reduction method on emissions and discharges to air, water, or land, and with respect to whether or not that method adversely affects compliance with applicable laws, rules, and regulations.
    8. A written statement articulating upper management and corporate policy with respect to the toxics use reduction and hazardous waste reduction plan and a commitment to implement plan goals.
    9. A description of employee awareness programs that may include training programs specific to the implementation of the planning process to inform and involve the employees in toxic use reduction and hazardous waste reduction planning and implementation to the extent technically and economically feasible.
  4. As part of each plan developed under this section, a large user or generator shall establish specific performance goals for the reduction of toxics and hazardous waste in the following categories:
    1. Any toxic substance used in quantities in excess of 4,545.5 kg (10,000 lbs) a year or any toxic substance used in quantities between 454.5 kg (1,000 lbs) and 4,545.5 kg (10,000 lbs) per year that constitutes 10 percent or more of the total toxic substances used.
    2. For Class A and Class B generators, any hazardous waste representing 10 percent or more by weight of the cumulative hazardous waste stream generated per year.
    3. Whenever technically and economically practicable, the specific performance goals established shall be expressed in numeric terms.  If the establishment of numeric goals is not practicable, the performance goals shall include a clearly stated list of objectives designed to lead to the establishment of numeric goals as soon as is practicable.
  5. Each generator or large user shall explain the rationale for each performance goal.  The rationale for a particular performance goal shall address any impediments to toxics use reduction and hazardous waste reduction, including the following:
    1. The availability of technically practicable toxics use reduction and hazardous waste reduction methods, including any anticipated changes.
    2. The economic practicability of available toxics use reduction and hazardous waste reduction methods, including any anticipated changes.  Examples of situations where toxics use reduction or hazardous waste reduction may not be economically practicable include:
      1. For valid reasons of prioritization, a particular facility has chosen to first address other more serious toxics use reduction or hazardous waste reduction concerns.
      2. Necessary steps to reduce toxics use and hazardous waste are likely to have significant adverse impacts on product quality.
      3. Legal or contractual obligations interfere with the necessary steps that would lead to toxics use reduction or hazardous waste reduction.
  6. Class A and Class B generators and large users shall prepare and submit plan summaries and updated plan summaries by the respective deadlines established under subsection (a) of this section for the completion of plans and updated plans.  The plan summary shall include:
    1. For each toxic substance or hazardous waste identified in subdivision (c)(3) or (c)(4) of this section, a matrix form that indicates the toxics use reduction and hazardous waste reduction methods the large user or generator plans to implement in the next three years.  On the horizontal axis of the matrix shall be listed the toxics use reduction and hazardous waste reduction methods of input substitution, product reformulation, production unit redesign, production unit modernization, improved operation and maintenance of production units, recycling or reuse integral to the production unit, and recycling outside the production process after the waste is generated.  On the vertical axis shall be listed the following: method not considered, method considered but rejected (economic feasibility), method considered but rejected (technical feasibility), and method to be implemented.  The large user or generator shall mark the intersection of a reduction or management technique on the horizontal axis with one of the options in the vertical axis. The larger user or generator shall provide a general written description of the information provided in the matrix and may provide any additional information to summarize the plan.
    2. A list of toxic substances and hazardous wastes that are covered by the plan.
    3. A written statement articulating upper management and corporate policy with respect to the toxics use reduction and hazardous waste reduction plan and a commitment to implement plan goals.
    4. As an option, a description of the specific performance goals established under subsection (d) of this section.

HISTORY: Added 1989, No. 282 (Adj. Sess.), § 17, eff. June 22, 1990; amended 1991, No. 100 , § 7; 1995, No. 42 , § 2; 2019, No. 131 (Adj. Sess.), § 37.

History

Amendments

—2019 (Adj. Sess.). Subdiv. (c)(7): Inserted “, rules,”.

—1995. Subsec. (a): Substituted “July 1, 1996” for “July 1, 1995” in the second sentence, “July 1, 1996 and every third July first thereafter” for “every third July first, following the respective dates for completion of the initial plans” following “later than” in the third sentence, and “due on July 1, 1996 as an integrated component of a toxics use and hazardous waste reduction plan” for “not due initially until July 1, 1995” following “definition” in the fourth sentence of the introductory paragraph.

—1991. Section amended generally.

§ 6630. Toxics use reduction and hazardous waste reduction performance report.

  1. On or before March 31, 1994, or March 31 of the year following the first plan, whichever is later, and annually thereafter, each generator or large user shall prepare and submit a hazardous materials management performance report to the House Committee on Natural Resources, Fish, and Wildlife and the Senate Committee on Natural Resources and Energy documenting toxics use reduction and hazardous waste reduction methods implemented by the generator or large user.
  2. The performance report shall be prepared for each site in accordance with the format adopted pursuant to section 6626 of this title, and shall include:
    1. The name and location of the site, including State plane coordinates.
    2. The SIC Code for the site.
    3. The following information for each hazardous waste or toxic substance identified under subsection 6629(c) of this title:
      1. an estimate of the quantity of hazardous waste generated and the quantity of hazardous waste managed, both on-site and off-site, during the current reporting year and the baseline year, as specified in subsection (c) of this section;
      2. an estimate of the quantity of toxic substances, or raw material resulting in hazardous waste, used during the current reporting year and the baseline year, as specified in subsection (c) of this section;
      3. an estimate of the percentage of toxics use reduction and hazardous waste reduction achieved by each toxics use reduction and hazardous waste reduction measure implemented since the baseline year as specified in subsection (c) of this section;
      4. an assessment of the effect, during the current year, of each hazardous waste reduction measure and toxics use reduction measure implemented since the baseline year relative to each performance goal established in subsection 6629(d) of this title;
      5. a description of factors during the current reporting year that have affected toxics use, hazardous waste generation, releases into the environment caused by use or waste generation as defined by the large user, Class A generator, and Class B generator status, and on-site and off-site hazardous waste management since the baseline year, including:
        1. changes in business activity;
        2. changes in waste classification;
        3. natural phenomena; and
        4. other factors that have affected either the quantity of toxics used or hazardous waste generated or onsite and offsite hazardous waste management requirements; and
      6. a description of wastes concentrated solely for purposes of reducing volume.
  3. For purposes of subsection (b) of this section, the following definitions apply:
    1. The current reporting year is the calendar year immediately preceding the year in which the report is to be prepared.
    2. The baseline year is either of the following, whichever is applicable:
      1. For the initial performance report, the baseline year is the calendar year selected by the generator or large user for which substantial toxics use, hazardous waste generation, or on-site or off-site management data is available, before the initial planning year.  If the generator or large user selects the initial planning year as the baseline year for the initial report, the information required pursuant to subdivision (3) of subsection (b) of this section, for the initial report shall be provided for the initial planning year. The generator or large user may include as part of the report a description of accomplishments in toxics use reduction and hazardous waste reduction prior to the baseline year.
      2. For all subsequent reports, the information of subsection (b) of this section shall be compared against the baseline year, the plan year, and the year immediately preceding this report if different than the plan year.
  4. Every report completed pursuant to this section shall be submitted by the generator or large user for review and certification by an engineer who is registered as a Vermont professional engineer or by an individual who is responsible for the processes and operation of the site.

HISTORY: Added 1989, No. 282 (Adj. Sess.), § 17, eff. June 22, 1990; amended 1991, No. 100 , § 8; 2011, No. 139 (Adj. Sess.), § 11, eff. May 14, 2012; 2017, No. 113 (Adj. Sess.), § 49b.

History

Amendments

—2017 (Adj. Sess.). Subsec. (a): Amended generally.

—2011 (Adj. Sess.). Subsec. (a): Inserted “to the house and senate committees on natural resources and energy” following “report”.

—1991. Section amended generally.

§ 6631. Repealed. 2009, No. 33, § 83(e)(9).

History

Former § 6631. Former § 6631, relating to report on efforts to encourage toxics use reduction and hazardous waste reduction, was derived from 1989, No. 282 (Adj. Sess.), § 17 and amended by 1991, No. 100 , § 9 and 1995, No. 189 (Adj. Sess.), § 7.

§ 6632. Trade secrets.

The Secretary shall adopt rules to ensure that trade secrets designated by a generator in all or a portion of the review and plans, and the report required by this subchapter, which are exempt from public inspection and copying under 1 V.S.A. § 317(c)(9) , shall be used by the Secretary, the Department, and any authorized representative of the Department only in connection with the responsibilities of the Department pursuant to this subchapter, and otherwise shall be kept confidential.

HISTORY: Added 1989, No. 282 (Adj. Sess.), § 17, eff. June 22, 1990; amended 2015, No. 29 , § 19.

History

Amendments

—2015. Section amended generally.

CROSS REFERENCES

Commercial ethical standards for trade secrets, see 9 V.S.A. chapter 143.

§ 6633. Interagency Committee on Chemical Management.

  1. Creation.   There is created the Interagency Committee on Chemical Management in the State to:
    1. evaluate chemical inventories in the State on an annual basis;
    2. identify potential risks to human health and the environment from chemical inventories in the State; and
    3. propose measures or mechanisms to address the identified risks from chemical inventories in the State.
  2. Membership.   The Interagency Committee on Chemical Management shall be composed of the following eight members:
    1. the Secretary of Agriculture, Food and Markets or designee;
    2. the Secretary of Natural Resources or designee;
    3. the Commissioner of Health or designee;
    4. the Commissioner of Labor or designee;
    5. the Commissioner of Public Safety or designee;
    6. the Secretary of Commerce and Community Development or designee;
    7. the Secretary of Digital Services or designee; and
    8. the Secretary of Transportation or designee.
  3. Powers and duties.   The Interagency Committee on Chemical Management shall:
    1. Convene a citizen advisory panel to provide input and expertise to the Committee. The citizen advisory panel shall consist of persons available to the Committee on an as-needed basis to provide the following expertise:
      1. one individual with expertise in toxicology;
      2. one individual with expertise in environmental health;
      3. one individual with expertise in maternal and child health;
      4. one individual with expertise in industrial hygiene or occupational health;
      5. one individual with expertise in human health and environmental risk assessment;
      6. one individual with expertise in manufacturing products or processes located in Vermont and subject to Vermont recordkeeping and reporting requirements;
      7. one individual with expertise in retail sales located in Vermont;
      8. one individual associated with a small business located in Vermont and subject to Vermont recordkeeping and reporting requirements;
      9. one individual associated with an academic institution with expertise in chemical management or chemical policy;
      10. one individual with expertise in environmental law;
      11. one individual with expertise in public policy, with a focus on chemical policy; and
      12. one individual with expertise in development and administration of information reporting technology or databases.
    2. Monitor actions taken by the U.S. Environmental Protection Agency (EPA) to regulate chemicals under the Toxic Substances Control Act, 15 U.S.C. chapter 53, and notify relevant State agencies of any EPA action relevant to the jurisdiction of the agency.
    3. Annually review chemical inventories in the State in relation to emerging scientific evidence in order to identify chemicals of high concern not regulated by the State.
    4. Develop written procedures, guidance, and other resources that are necessary and appropriate to carry out the functions of the Interagency Committee on Chemical Management.
  4. Assistance.   The Interagency Committee on Chemical Management shall have the administrative, technical, and legal assistance of the Agency of Natural Resources, the Agency of Agriculture, Food and Markets, the Department of Health, the Department of Public Safety, the Department of Labor, the Agency of Commerce and Community Development, and the Agency of Digital Services.
  5. Report.   On or before December 15, 2020 and biennially thereafter, the Interagency Committee on Chemical Management shall report to the Governor and make recommendations regarding the actions of the Committee in accordance with this section. Copies of the report shall be submitted to the Senate Committees on Natural Resources and Energy, on Health and Welfare, and on Economic Development, Housing and General Affairs and the House Committees on Natural Resources, Fish, and Wildlife, on Human Services, and on Commerce and Economic Development. The provisions of 2 V.S.A. § 20(d) regarding expiration of required reports shall not apply to the report to be made under this section. The report shall include:
    1. a summary of chemical use in the State based on reported chemical inventories;
    2. a summary of identified risks to human health and the environment from reported chemical inventories;
    3. a summary of any change under federal statute or rule affecting the regulation of chemicals in the State; and
    4. recommended legislative or regulatory action to reduce risks to human health and the environment from regulated and unregulated chemicals of emerging concern.
  6. Meetings.
    1. The Secretary of Natural Resources or designee shall be the Chair of the Interagency Committee on Chemical Management.
    2. The Secretary of Natural Resources or designee shall call the first meeting of the Interagency Committee on Chemical Management to occur on or before July 1, 2019.
    3. A majority of the membership of the Interagency Committee on Chemical Management shall constitute a quorum.
  7. Authority of agencies.   The establishment of the Interagency Committee on Chemical Management shall not limit the independent authority of a State agency to regulate chemical use or management under existing State or applicable federal law.

HISTORY: Added 2019, No. 75 , § 1, eff. June 19, 2019.

History

Transition; Legislative intent. 2019, No. 75 , § 2 provides: “It is the intent of the General Assembly that:

“(1) the Interagency Committee on Chemical Management established by Executive Order No. 02-19 shall fulfill the powers and duties of the Interagency Committee on Chemical Management under 10 V.S.A. § 6633 ; and

“(2) the persons appointed as members of the citizen advisory committee of the Interagency Committee on Chemical Management established by Executive Order No. 02-19 shall continue as members of the citizen advisory committee established under 10 V.S.A. § 6633 .”

Subchapter 3. Brownfields Reuse and Environmental Liability Limitations

History

Legislative purpose. 2007, No. 147 (Adj. Sess.), § 6 provides: “The purpose of this act is to create a property cleanup program within the agency of natural resources, that provides program participants with some protection from certain liabilities pursuant to 10 V.S.A. § 6615 in exchange for having the secretary of natural resources review and oversee work plans for investigation, abatement, removal, remediation, and monitoring a contaminated property. The goals of the cleanup program are to:

“(1) Reduce and eliminate threats to human health and the environment presented by hazardous material contamination.

“(2) Establish risk-based restrictions on future use of property when setting cleanup goals for a contaminated property.

“(3) Reuse historically productive properties that will revitalize communities and help address issues raised by economic shifts while maintaining and enhancing existing public infrastructure.

“(4) Utilize public investment and technical assistance to promote successful redevelopment projects.

“(5) Reduce state legal liability risks associated with a brownfields site for parties who assume responsibility for property remediation.”

§ 6641. Brownfield Property Cleanup Program; creation; powers.

  1. There is created the Brownfield Property Cleanup Program to enable certain interested parties to request the assistance of the Secretary to review and oversee work plans for investigating, abating, removing, remediating, and monitoring a property in exchange for protection from certain liabilities under section 6615 of this title. The Program shall be administered by the Secretary who shall:
    1. Specify an appropriate amount or type of insurance, require the posting of a bond or other form of financial assurance, or establish other qualifications for persons carrying out activities related to the Cleanup Program.
    2. Contract with private engineers, hydrologists, and site professionals to provide the investigation and review required by this subchapter. The contract may be financed from the oversight fees established in subdivision 6644(5) of this title or may bill an applicant who is not liable under subdivision 6615(a)(1) of this title for the services.
    3. Release an applicant from State liability, provided the applicant is in compliance with this subchapter.
  2. After approval of a site investigation work plan or a corrective action plan, the Secretary shall notify the person of any future requirements under this subchapter, including a tentative schedule of processing times.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7.

History

Revision note

—2007 (Adj. Sess.). In subdiv. (2), substituted “fee” for “costs” to correct reference to subdiv. 6644(5) of this title.

§ 6642. Definitions.

As used in this subchapter:

  1. “Applicant” means a person who has applied for relief from State liability through participation in the Program.
  2. “Brownfield site” means real property, the expansion, redevelopment, or reuse of which may be complicated by the release or threatened release of a hazardous material. “Brownfield site” does not include any of the following:
    1. A facility that is the subject of a planned or ongoing removal action under CERCLA.
    2. A facility that is listed as a CERCLA site or is proposed for listing.
    3. A facility that is the subject of any State or federal administrative or court order under any of the following authorities:
      1. 42 U.S.C. § 9601 et seq. (CERCLA) or section 6615 of this title (State hazardous materials remediation);
      2. 42 U.S.C. § 6901 et seq. (Solid Waste Disposal Act) or chapter 159 of this title (solid waste or hazardous waste);
      3. 33 U.S.C. § 1251 et seq. (federal Water Pollution Control Act) or chapter 47 of this title (water pollution control);
      4. 15 U.S.C. § 2601 et seq. (Toxic Substances Control Act);
      5. 42 U.S.C. § 300f et seq. (Safe Drinking Water Act) or chapter 56 of this title (public water supply).
    4. A facility that is subject to either of the following:
      1. corrective action under 42 U.S.C. § 6924(u) or 6928(h);
      2. corrective action permit or order issued or modified to require the implementation of corrective measures.
    5. A land disposal unit in regard to which both of the following apply:
      1. a closure notification under subtitle C of 42 U.S.C. § 6921 et seq. has been submitted;
      2. closure requirements have been specified in a closure plan or permit.
    6. A facility that is subject to the jurisdiction, custody, or control of any instrumentality of the United States, except for land held in trust by the United States for an Indian tribe.
    7. A portion of a facility to which both the following apply:
      1. a release of polychlorinated biphenyls has occurred;
      2. is subject to remediation under 15 U.S.C. § 2601 et seq. (Toxic Substances Control Act).
    8. A portion of a facility for which assistance for response activity has been obtained under subtitle I of 42 U.S.C. § 6991 et seq. (Solid Waste Disposal Act) from the Leaking Underground Storage Tank Trust Fund established under 26 U.S.C. § 9508.
  3. “CERCLA” means the Comprehensive Environmental, Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.
  4. “Innocent current owner” means a person that owns real property where a release or threatened release of a hazardous material exists but the person did none of the following:
    1. held an ownership interest in the property or in any related fixtures or appurtenances, excluding a secured lender’s holding indicia of ownership in the property to assure the repayment of a financial obligation at the time of any disposal of hazardous materials on the property;
    2. directly or indirectly caused or contributed to any releases or threatened releases of hazardous materials at the property;
    3. operated or controlled the operation at the property of a facility for the storage treatment or disposal of hazardous materials at the time of the disposal of hazardous materials at the property;
    4. disposed of or arranged for the disposal of hazardous materials at the property;
    5. generated the hazardous materials that were disposed of at the property.
  5. “Program” means the Brownfield Property Cleanup Program.
  6. “Remediation standards” means standards developed by the Secretary for the remediation of contaminated properties. The Secretary shall determine appropriate remediation standards on a site-specific basis and shall consider all the following:
    1. future land use and the appropriate use of institutional controls;
    2. environmental media, including soil, groundwater, surface water, and air;
    3. requirements for source removal, treatment, or containment;
    4. appropriate use of monitored natural attenuation;
    5. any other issue related to the protection of public health and the environment.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7.

History

Revision note

—2011 (Adj. Sess.). In subdiv. (2)(H), substituted “26 U.S.C. § 9508” for “section 1938 of this title” to correct the reference.

—2013. In introductory language, substituted “As used in” for “For the purposes of” preceding “this subchapter” to conform to V.S.A. style.

§ 6643. Application process.

A person shall apply to the Secretary for participation in the Program on a form determined by the Secretary accompanied by a nonrefundable application fee of $500.00. The application shall include:

  1. A preliminary environmental assessment of the property, a legal description of the property, a description of the physical characteristics of the property, the nature and extent of releases and threatened releases at the property and the risks to human health and the environment presented by the releases or threatened release, and any other information requested by the Secretary.
  2. A description of the proposed redevelopment and use of the property.
  3. A certification that the applicant has given timely notification to the public that provides a reasonable opportunity for public comment to the Secretary regarding the information and material provided in subdivisions (2) and (3) of this section.
  4. A notarized certification, on a form provided by the Secretary, in which the applicant attests to all the following:
    1. Each person who would benefit from liability protection pursuant to section 6653 of this title has disclosed to the Secretary all information currently known to the person or in the person’s possession or control that relates to releases or threatened releases of hazardous materials at the property.
    2. No person, including a principal, owner, director, affiliate, or subsidiary, who would benefit from liability protection pursuant to section 6653 of this title:
      1. currently holds or ever held an ownership interest in the property or in any related fixtures or appurtenances, except for either of the following:
        1. a secured lender’s holding indicia of ownership in the property primarily to assure repayment of a financial obligation;
        2. an innocent current owner;
      2. directly or indirectly caused or contributed to any releases or threatened releases of hazardous materials at the property;
      3. currently operates or controls or ever operated or controlled the operation at the property of a facility for the storage, treatment, or disposal of hazardous materials from which there was a release;
      4. disposed of, or arranged for the disposal of hazardous materials at the property;
      5. generated hazardous materials that were disposed of at the property.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7.

§ 6644. General obligations.

Any person participating in the Program shall do all the following:

  1. Not provide any information required under this subchapter by fraud, intentional misrepresentation, failure to disclose material information, or providing false certification.
  2. Not engage in any activity that is inconsistent or interferes with monitoring, investigation, abatement, removal, or remediation activities or the conditions or restrictions in a certificate of completion.
  3. Provide access to and cooperate with the Secretary and any person liable pursuant to section 6615 of this title acting subject to the approval of the Secretary for investigation, abatement, removal, remediation, or monitoring activities at the property. The grant of access and all other provisions that the Secretary determines necessary may be memorialized in the form of an interest in real property that runs with the land and is binding against successors and assigns.
  4. Comply with all rules and procedures required by the Secretary and obtain all necessary permits, certifications, and other required authorizations prior to beginning any site investigation or corrective action plan activities.
  5. If an innocent current owner, pay any additional costs of the Secretary’s review and oversight of the site investigation or corrective action plan, or both.
  6. Provide the Secretary with all documents and information relating to the performance of the investigation, abatement, removal, remediation, and monitoring activities.
  7. Defend, indemnify, save, and hold harmless the State from all claims and causes of action related to, or arising from, acts or omissions of the applicant in performing the site investigation and corrective action plan except in the case of either of the following:
    1. reimbursement of fees or costs improperly required by and paid to the Secretary by the eligible person or successor;
    2. a cause of action related to the State’s liability pursuant to subsection 6615(a) of this title.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7; amended 2009, No. 134 (Adj. Sess.), § 31.

History

Amendments

—2009 (Adj. Sess.) Subdiv. (5): Amended generally.

§ 6645. Eligibility.

Not more than 30 days after the Secretary receives a complete application, the Secretary shall determine eligibility and provide written notice to the applicant of the Secretary’s determination. A person is eligible for participation in the Program if the Secretary determines all the following:

  1. There is a release or threatened release of hazardous material at the property that the person proposes for remediation and redevelopment.
  2. The applicant is not liable pursuant to section 6615 of this title for any release or threatened release of a hazardous material at the property or the person is an innocent current owner of the property. The Commissioner may accept an affidavit of innocence or may request further information and investigate to determine compliance with this section. Any determination of innocence or liability under this subdivision is solely for the purpose of the initial eligibility determination for this Program and shall have no collateral effect in other proceedings.
  3. The property is a Brownfield site, or the Secretary determines, on a site-by-site basis, both the following:
    1. The property is not a Brownfield site because it is excluded pursuant to subdivision 6642(2)(A), (C)(ii)—(v), (D), (E), (G), or (H) of this title.
    2. Participation in the Program will promote the Program objectives identified in subsection 6641(a) of this title.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7.

History

Revision note

—2011. In subdiv. (3)(A), substituted “6642(2)(A)” for “6642(1)(A)” for purposes of clarity and to correct an error in the reference.

§ 6646. Forbearance.

The State may not bring an action against an applicant based on liability pursuant to subdivision 6615(a)(1) of this title, provided that the applicant has been determined to be eligible for the Program and is working in good faith toward meeting the obligations required by this subchapter.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7.

§ 6647. Site investigation.

  1. The applicant shall submit a site investigation work plan to the Secretary. The work plan shall identify the person or persons who will conduct the site investigation. The work plan shall provide a site investigation that satisfies all the following objectives:
    1. defines the nature, source, degree, and extent of the contamination;
    2. defines all possible pathways for contaminant migration;
    3. presents data that quantify the amounts of contaminants migrating along each pathway;
    4. defines all relevant sensitive receptors;
    5. determines the risk of contamination to human health and the environment;
    6. identifies appropriate abatement, removal, remediation, and monitoring activities, taking into consideration the proposed redevelopment for the property supported by sufficient information;
    7. provides a preliminary recommendation supported by sufficient information.
  2. The Secretary shall evaluate the site investigation work plan and shall either approve, approve with conditions, or disapprove the site investigation work plan. If the Secretary approves the site investigation work plan with conditions or disapproves the work plan, the applicant shall submit a revised site investigation work plan for approval, or the applicant shall withdraw from the Program. The applicant shall submit any additional or corrected information requested by the Secretary at any time during the evaluation of the site investigation work plan.
  3. After approval of the site investigation work plan, the applicant shall implement the site investigation in accordance with the approved work plan.
  4. After completion of the site investigation, the applicant shall submit a site investigation report that describes the information gathered and provides recommendations that address the items identified in subsection (a) of this section. The Secretary may approve the site investigation report or, prior to approval, may require revisions to the report or further site investigation work under an amended site investigation work plan, or both.
  5. If the approved site investigation report concludes that no further investigation, abatement, removal, remediation, or monitoring activities are required to protect adequately human health and the environment and to meet all applicable remediation standards, then the applicant may request a determination from the Secretary that no additional investigation, abatement, removal, remediation, or monitoring activities are required. The Secretary may make that determination if the Secretary determines both of the following:
    1. Redevelopment and reuse of the property will not cause, allow, contribute to, worsen, or delay any release or threatened release of hazardous materials at the property.
    2. The releases or threatened releases that are not abated, removed, or remediated do not pose an unacceptable risk to human health, and the environment and applicable remediation standards are met.
  6. If the approved site investigation report concludes that abatement, removal, remediation, or monitoring activities are required to protect adequately human health and the environment and to meet all applicable remediation standards, the applicant shall submit a corrective action plan in accordance with section 6648 of this title.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7.

§ 6648. Corrective action plan.

  1. A corrective action plan shall clearly describe the basis and details of a proposed cleanup strategy that includes ensuring technical feasibility, an effective engineering design, reasonable costs, protection of human health and the environment, and compliance with the remediation standards. The corrective action plan shall include all the following:
    1. a description of all releases or threatened releases existing at the property;
    2. a proposed plan for abatement, removal, and remediation of any release or threatened release, including any condition that has led or could lead to a release or threatened release;
    3. a plan for continued monitoring of the property during and after the investigation, abatement, removal, and remediation activities are completed;
    4. a description of applicable remediation standards;
    5. plans for all the following:
      1. quality assurance;
      2. sampling and analysis;
      3. health and safety considerations;
      4. data management and record keeping;
    6. a proposed schedule for implementation of each task set forth in the proposed corrective action plan.
  2. The Secretary shall evaluate the corrective action plan and shall either approve, approve with conditions, or disapprove the corrective action plan. The applicant shall submit any additional or corrected information requested by the Secretary at any time during the evaluation of the corrective action plan.
  3. The Secretary may approve a corrective action plan for all or a portion of the releases or threatened releases at the property, provided the Secretary determines that the corrective action plan will fulfill both the following:
    1. Activities in the approved corrective action plan and the redevelopment and use of the property will not cause, contribute to, or worsen any release or threatened release of hazardous materials.
    2. The corrective action plan provides for all investigation, abatement, removal, remediation, and monitoring activities required to protect human health and the environment and to meet all applicable remediation standards.
  4. If the Secretary approves a corrective action plan that addresses only a portion of the releases or threatened releases at the property, the Secretary must find that the releases or threatened releases that are not abated, removed, or remediated pursuant to the corrective action plan do not and will not pose an unacceptable risk to human health and the environment and are in compliance with remediation standards.
  5. Before approving a corrective action plan under this subchapter, the Secretary shall proceed in accordance with chapter 170 of this title.
  6. After approval of a corrective action plan and any amendments to the plan, the Secretary shall notify the claimant of all the following information:
    1. a summary of the nature of the contamination identified on the property and the major components of the corrective action plan;
    2. a detailed description of any restrictions on the future use of the property;
    3. the location where all information relating to an approved corrective action plan and site investigation may be reviewed.
  7. The person receiving the approval shall file the notice of approval of the corrective action in the land records of the municipality in which the property is located within 15 days of receipt of the approval.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7; amended 2015, No. 150 (Adj. Sess.), § 28, eff. Jan. 1, 2018.

History

Amendments

—2015 (Adj. Sess.). Subsec. (e): Rewritten.

§ 6649. Amendments to a corrective action plan.

  1. Except for the corrective action plan adjustment limitations provided under subsection (b) of this section, at the applicant’s request or in the Secretary’s discretion, the Secretary may amend the plan if the Secretary determines that the amendment is necessary to protect public health and the environment.
  2. An approved corrective action plan of an applicant who became a participant in the Program prior to acquiring any ownership interest in the property and who is not otherwise liable pursuant to section 6615 of this title may be amended only at the Secretary’s discretion, provided the amendments to the corrective action plan do not increase the costs of completion by more than 30 percent of the estimated costs of the original corrective action plan.
  3. Notwithstanding issuance of a certificate of completion pursuant to section 6653 of this title, if at any time the Secretary finds that a completed corrective action plan fails to protect adequately human health and the environment or fails to meet all applicable remediation and federal cleanup standards, the Secretary may do any of the following:
    1. exercise authority pursuant to section 6615 of this title against any liable person except the person or the successor of the person that completed the corrective action plan;
    2. perform all investigation, abatement, removal, remediation, or monitoring activities necessary to ensure the property meets all the applicable remediation standards.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7.

§ 6650. Program withdrawal.

  1. An applicant may withdraw from the Program at any time, provided the applicant does all the following:
    1. Files with the Secretary a notice of intent to withdraw from the Program.
    2. Ensures that the site is stabilized. Site stabilization includes any action necessary to ensure that work conducted at the property will not cause greater risk to human health and the environment than existed before the remediation work was begun and to ensure that the property will not pose an imminent hazard to human health or the environment.
    3. Continues to comply with the general obligations of section 6644 of this title.
  2. An applicant may withdraw from the Program after the approval of a corrective action plan and the Secretary has granted personal liability protection as authorized in subsection 6653(b) of this title provided the applicant does all the following:
    1. Meets all the requirements of withdrawal pursuant to subsection (a) of this section.
    2. Records a deed restriction on the property approved by the Secretary. The deed restriction shall include:
      1. any limitations on the uses of the property based on risk-based exposure criteria used in developing the corrective action plan;
      2. prohibitions against physical changes to the property;
      3. a requirement that protective barriers to control remaining sources of contamination be installed and maintained;
      4. restrictions on groundwater use and requirements that alternative water supplies be provided.
    3. Does not engage in an activity at the property that is inconsistent or interferes with the approved corrective action plan.
    4. Does not violate any use restriction imposed on the property by the Secretary.
    5. Promptly reports and addresses contamination caused or exacerbated by a negligent or reckless action during corrective action.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7.

§ 6651. Implementation of corrective action plan.

  1. The applicant shall perform all investigation, abatement, remediation, removal, and monitoring activities in accordance with the approved corrective action plan, any amendments to the plan, and all applicable local, State, and federal laws.
  2. If prior to the issuance of the certificate of completion, the applicant through the performance of an approved site investigation or corrective action plan worsens an existing release or threatened release of hazardous materials at the property, or causes a new release or threatened release, the applicant shall immediately notify the Secretary, prepare and submit to the Secretary an amendment to the corrective action plan for investigation, abatement, removal, remediation, and monitoring of the release or threatened release, and carry out the amended corrective action plan as approved by the Secretary.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7.

§ 6652. Certificate of completion.

  1. After completion of all activities required by the corrective action plan, the applicant shall file a completion report with the Secretary. The completion report shall include all the following:
    1. description of the activities performed under the corrective action plan and any amendments to the plan;
    2. description of any problems encountered;
    3. certification by the applicant that the activities were performed in accordance with the corrective action plan.
  2. Upon receipt of the completion report, the Secretary shall determine whether additional work is required in order to complete the plan. The applicant shall perform any additional activities necessary to complete the corrective action plan as required by the Secretary and shall submit a new completion report. When the Secretary determines that the applicant has successfully completed the corrective action plan and paid all fees and costs due under this subchapter, the Secretary shall issue a certificate of completion, which certifies that the work is completed. The certificate of completion shall include a description of any land use restrictions and other conditions required by the corrective action plan. The Secretary may establish land use restrictions in the certificate of completion for a property, but the Secretary shall not acquire interests in the property in order to establish a land use restriction.
  3. If, on request of the applicant, the Secretary determines that no further investigation, abatement, removal, remediation, or monitoring activities are required, the Secretary shall issue a certificate of completion that includes a description of any required land use restrictions.
  4. The Secretary may determine that a corrective action plan and any amendments of an applicant who participated in the program prior to acquiring an ownership interest in the property and is not otherwise liable pursuant to section 6615 of this title have been substantially completed and that all fees and costs due under this subchapter have been paid and issue a certificate of completion. The certificate of completion shall certify that the work is completed and may include conditions for operation and monitoring in addition to the requirements pursuant to section 6653 of this title.
  5. A certificate of completion issued pursuant to this section shall contain a statement that the protection from liability pursuant to subsection 6653(a) of this title is in effect. The person receiving the certificate of completion shall file it in the land records for the municipality in which the property is located.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7; amended 2017, No. 55 , § 5, eff. June 2, 2017.

History

Amendments

—2017. Subsec. (b): Added the last sentence.

§ 6653. Release from liability; personal release from liability.

  1. An applicant who has obtained a certificate of completion pursuant to section 6652 of this title and successor owners of the property included in the certificate of completion who are not otherwise liable under section 6615 for the release or threatened release of a hazardous material at the property shall not be liable under subdivision 6615(a)(1) of this title for any of the following:
    1. A release or threatened release that existed at the property at the time of the approval of the corrective action plan and complies with one or both of the following:
      1. was discovered after the approval of the corrective action plan by means that were not recognized standard methods at the time of approval of the corrective action plan;
      2. the material was not regulated as hazardous material until after approval of the corrective action plan.
    2. Cleanup after approval of the corrective action plan was done pursuant to more stringent cleanup standards effective after approval of the corrective action plan.
    3. Natural resource damages pursuant to section 6615d of this title, provided that the applicant did not cause the release that resulted in the damages to natural resources.
  2. A person who meets the requirements of subsection 6650(b) of this title shall not be liable under subdivision 6615(a)(1) of this title for the release of a hazardous material that is addressed in a corrective action plan approved by the Secretary. A release from liability under this subsection is personal and does not run with the property or apply to successors in interest to the property.
  3. A release from liability under this section or forbearance from action provided by section 6646 of this title does not extend to any of the following:
    1. A release or threatened release of a hazardous material that was not present at the time the applicant submitted an application pursuant to this subchapter where the release or threatened release:
      1. has not been addressed under an amended corrective action plan approved by the Secretary; or
      2. was caused by intentional or reckless conduct by the applicant or agents of the applicant.
    2. Failure to comply with the general obligations established in section 6644 of this title.
    3. A release that occurs subsequent to the issuance of a certificate of completion.
    4. Failure to comply with the use restrictions contained within the certificate of completion for the site issued pursuant to subsection 6652(b) of this title.
  4. There shall be no protection from liability under this section or forbearance under section 6646 of this title for a successor if that successor or any of its principals, owners, directors, affiliates, or subsidiaries:
    1. ever held an ownership interest in the property or in any related fixtures or appurtenances, excluding a secured lender who holds indicia of ownership in the property primarily to assure repayment of a financial obligation, except in the case of an innocent owner;
    2. directly or indirectly caused or contributed to any release or threatened release of hazardous materials at the property;
    3. currently operates or controls or ever operated or controlled the operation on the property of a facility for the storage, treatment, or disposal of hazardous materials from which there was a release or threatened release of hazardous materials;
    4. disposed of or arranged for the disposal of hazardous materials at the property;
    5. generated hazardous materials that were disposed of at the property.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7; amended 2017, No. 55 , § 6, eff. June 2, 2017.

History

Amendments

—2017. Subdivs. (a)(3) and (c)(4): Added.

§ 6654. Brownfield Revitalization Fund; creation; assistance.

  1. There is created a Brownfield Revitalization Fund that shall be a special fund created pursuant to 32 V.S.A. chapter 7, subchapter 5 to be administered by the Secretary of Commerce and Community Development to aid applicants in the redevelopment of the Brownfield Cleanup Program by assessing and remediating sites. Monies received by the Secretary of Natural Resources for application and participation in the Program shall be deposited in the redevelopment of contaminated properties account of the Environmental Contingency Fund established in section 1283 of this title.
  2. The Fund shall comprise all the following;
    1. State or federal funds appropriated by the General Assembly;
    2. gifts, grants, or other contributions.
  3. A person may apply to the Secretary of Commerce and Community Development for financial assistance in the form of a grant or loan from the Brownfield Revitalization Fund for the purpose of completing characterization, assessment, or remediation of a site only after receipt of a work plan approved by the Secretary submitted pursuant to the Brownfield Property Cleanup Program unless the application is for a project that has been determined to be ineligible for the Program and is otherwise appropriate for funding pursuant to subsection (d) of this section.
  4. In order to determine an award of financial assistance, the Secretary of Commerce and Community Development in consultation with the Secretary of Natural Resources shall consider all the following:
    1. the extent to which the proposed project will facilitate the identification and reduction of threats to human health and the environment associated with exposure to hazardous materials, pollutants, or contaminants;
    2. the extent to which the proposed project will facilitate the use or reuse of existing infrastructure;
    3. the potential for the proposed project to stimulate economic development;
    4. the extent to which the proposed project will respond to local or regional housing needs;
    5. the level of participation by a local community relating to remediation and future use of the Brownfield site;
    6. the extent to which a grant or loan will meet the needs of a community that due to a small population or the low income of the community is unable to draw on other funding sources for environmental remediation and subsequent redevelopment of the area in which a Brownfield site is located;
    7. the extent to which a grant or loan will facilitate the creation or preservation of or an addition to a park, greenway, underdeveloped property, recreational property, or other property used for nonprofit purposes;
    8. the extent to which the grant or loan will create a more balanced geographic distribution of awards from the Brownfield Revitalization Fund.
  5. A grant may be awarded by the Secretary of Commerce and Community Development with the approval of the Secretary of Natural Resources, provided:
    1. A grant may not exceed $50,000.00 for characterization and assessment of a site.
    2. A grant may not exceed $200,000.00 for remediation of a site.
    3. A grant may be used by an applicant to purchase environmental insurance relating to the performance of the characterization, assessment, or remediation of a Brownfield site in accordance with a corrective action plan approved by the Secretary of Natural Resources.
    4. Financial assistance may be provided to applicants by developing a risk sharing pool, an indemnity pool, or other insurance mechanism designed to help applicants.
    5. All reports generated by financial assistance from the Brownfield Revitalization Fund, including site assessments, site investigations, feasibility studies, corrective action plans, and completion reports shall be provided as hard copies to the Secretaries of Commerce and Community Development and of Natural Resources.
  6. The Vermont Economic Development Authority, VEDA, is authorized to make loans on behalf of the State pursuant to this section. Annually, the Secretary of Commerce and Community Development with the approval of the Secretary of Natural Resources in consultation with the VEDA manager shall determine an amount from the Brownfield Revitalization Program that will be available to VEDA for loans. Proceeds from repayment of loans shall be deposited in the Brownfield Revitalization Fund and shall be available for future grants and loans under this section. Loans under this subsection shall be issued and administered by VEDA, provided:
    1. Loans may be awarded only to applicants who have been determined eligible by the Secretary of Commerce and Community Development with the approval of the Secretary of Natural Resources, and the Secretary of Commerce and Community Development has certified that the applicant and the project are eligible for financing or assistance under this section and the project has priority for an award of financial assistance.
    2. A loan to an applicant for characterization or assessment may not exceed $250,000.00. Remediation loans shall not be capped. All loans shall be subject to all the following conditions:
      1. Repayment of a loan shall commence no later than one year following completion of the project for which the loan was used.
      2. The rate of interest on loans shall be set by VEDA in consultation with the Secretary of Commerce and Community Development. The interest rate shall be sufficiently attractive to advance the purposes of this subchapter and may be less than the prevailing borrowing rates available to similarly situated applicants from private lenders, but not less than zero percent.
      3. Loans shall be made in accordance with the terms and conditions specified in a loan agreement executed by VEDA and the applicant. The loan agreement shall specify the terms and conditions of the loan and repayment and any other terms and conditions determined to be necessary by VEDA and the Secretaries of Natural Resources or of Commerce and Community Development.
      4. Disbursement of loan proceeds shall be based on certification by the loan recipient that costs for which reimbursement is requested have been incurred or paid by the recipient for activities under the approved plan. The loan recipient shall provide supporting evidence of payment on request of VEDA. Interim financing charges or short-term interest costs may constitute an allowable cost of a project for which a loan may be used.
      5. In the event of default, any amounts owed on the loan shall be considered a debt for the purposes of 32 V.S.A. § 5 932(4) . VEDA may recover this debt pursuant to the set-off debt collection remedy established pursuant to 32 V.S.A. §§ 5833 and 5934.
      6. The applicant has certified that all State and federal permits and licenses necessary to undertake the project for which financing is being sought have been or will be obtained prior to disbursement of loan funds by VEDA.
      7. The Secretary of Commerce and Community Development has certified to VEDA that the applicant and the project are eligible for financing or assistance under this section, and the project has priority for financial assistance.
    3. The Secretary of Commerce and Community Development in consultation with the Secretary of Natural Resources shall maintain a prioritized list of projects that are eligible for financial assistance under this section at least annually. In order to prioritize, the Secretary of Commerce and Community Development shall consider at a minimum, the criteria set forth in subsection (d) of this section and the following:
      1. the severity of any health or environmental hazard to be remediated;
      2. the population to be served;
      3. the readiness of the project to proceed to the next planning or construction step.
    4. Neither the State nor VEDA shall be responsible for owning or operating a project or for completing a corrective action plan if a grant or loan recipient defaults on a loan obligation, abandons the project site, or fails to complete a corrective action plan to the satisfaction of the Secretary.
    5. The Secretary of Commerce and Community Development or the Secretary of Natural Resources and VEDA may enter into agreements on behalf of the State with federal agencies in order to obtain grants and awards to further the purposes of the Brownfield Revitalization Fund, provided that any grant or award has been approved in compliance with 32 V.S.A. § 5 .
    6. [Repealed.]

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7; amended 2009, No. 67 (Adj. Sess.), § 96; 2009, No. 161 (Adj. Sess.), § 31, eff. June 4, 2010.

History

Amendments

—2009 (Adj. Sess.) Subdiv. (f)(2): Amended generally by Act No. 161.

Subdiv. (f)(6): Repealed by Act No. 67.

§ 6655. State Plan for Brownfield Reclamation.

The Agency of Natural Resources and the Agency of Commerce and Community Development shall jointly develop a State Plan for Brownfield Reclamation that includes both of the following:

  1. an inventory and assessment of potential sites prioritized by the ease of reducing the threat to public health, the availability of development opportunities, and the highest expected return on public investment;
  2. methods and strategies for coordinating remediation with eventual usage of the sites, reclamation of high priority projects, financing projects with various public and private funding, and assuring consistent investment by the State for a minimum of 10 years in order to return as many properties as possible to recreation, parks, green space, housing, and commercial uses.

HISTORY: Added 2007, No. 147 (Adj. Sess.), § 7.

§ 6656. Repealed. 2007, No. 147 (Adj. Sess.), § 10, eff. January 1, 2011.

History

Former § 6656. Former § 6656, relating to the Brownfield Advisory Committee, was derived from 2007, No. 147 (Adj. Sess.), § 7.

Subchapter 4. Paint Stewardship Program

§ 6671. Purpose.

The purpose of this subchapter is to establish an environmentally sound, cost-effective Paint Stewardship Program in the State that will undertake responsibility for the development and implementation of strategies to reduce the generation of postconsumer paint; promote the reuse of postconsumer paint; and collect, transport, and process postconsumer paint, including reuse, recycling, energy recovery, and disposal. The Paint Stewardship Program will follow the waste management hierarchy for managing and reducing postconsumer paint in the order as follows: reduce consumer generation of postconsumer paint, reuse, recycle, provide for energy recovery, and dispose. The Paint Stewardship Program will provide more opportunities for consumers to manage properly their postconsumer paint, provide fiscal relief for local government in managing postconsumer paint, keep paint out of the waste stream, and conserve natural resources.

HISTORY: Added 2013, No. 58 , § 1, eff. June 3, 2013.

§ 6672. Definitions.

As used in this subchapter:

  1. “Architectural paint” means interior and exterior architectural coatings, including interior or exterior water- and oil-based coatings, primers, sealers, or wood coatings, that are sold in containers of five gallons or less. “Architectural paint” does not mean industrial coatings, original equipment coatings, or specialty coatings.
  2. “Distributor” means a company that has a contractual relationship with one or more producers to market and sell architectural paint to retailers in Vermont.
  3. “Energy recovery” means recovery in which all or a part of the solid waste materials are processed in order to use the heat content or other forms of energy of or from the material.
  4. “Environmentally sound management practices” means policies to be implemented by a producer or a stewardship organization to ensure compliance with all applicable laws and also addressing such issues as adequate record keeping, tracking and documenting the fate of materials within the State and beyond, and adequate environmental liability coverage for professional services and for the operations of the contractors working on behalf of the producer organization.
  5. “Municipality” means a city, town, or a village.
  6. “Paint stewardship assessment” means a one-time charge that is:
    1. added to the purchase price of architectural paint sold in Vermont;
    2. passed from the producer to the wholesale purchaser to the retailer and then to a retail consumer; and
    3. necessary to cover the cost of collecting, transporting, and processing the postconsumer paint managed through the statewide Program.
  7. “Postconsumer paint” means architectural paint and its containers not used and no longer wanted by a purchaser.
  8. “Producer” means a manufacturer of architectural paint who sells, offers for sale, or distributes that paint in Vermont under the producer’s own name or brand.
  9. “Recycling” means any process by which discarded products, components, and by-products are transformed into new usable or marketable materials in a manner in which the original products may lose their identity but does not include energy recovery or energy generation by means of combusting discarded products, components, and by-products with or without other waste products.
  10. “Retailer” means any person that offers architectural paint for sale at retail in Vermont.
  11. “Reuse” means the return of a product into the economic stream for use in the same kind of application as originally intended, without a change in the product’s identity.
  12. “Secretary” means the Secretary of Natural Resources.
  13. “Sell” or “sale” means any transfer of title for consideration, including remote sales conducted through sales outlets, catalogues, or the Internet or any other similar electronic means.
  14. “Stewardship organization” means a nonprofit corporation or nonprofit organization created by a producer or group of producers to implement the Paint Stewardship Program required under this subchapter.

HISTORY: Added 2013, No. 58 , § 1, eff. June 3, 2013.

§ 6673. Paint Stewardship Program.

  1. A producer or a stewardship organization representing producers shall submit a plan for the establishment of a Paint Stewardship Program to the Secretary for approval by December 1, 2013. The plan shall address the following:
    1. Provide a list of participating producers and brands covered by the Program.
    2. Provide specific information on the architectural paint products covered under the Program, such as interior or exterior water- and oil-based coatings, primers, sealers, or wood coatings.
    3. Describe how the Program proposed under the plan will collect, transport, recycle, and process postconsumer paint for end-of-life management, including recycling, energy recovery, and disposal, using environmentally sound management practices.
    4. Describe the Program and how it will provide for convenient and available statewide collection of postconsumer architectural paint in urban and rural areas of the State. The producer or stewardship organization shall use the existing household hazardous waste collection infrastructure when selecting collection points for postconsumer architectural paint. A paint retailer shall be authorized as a paint collection point of postconsumer architectural paint for a Paint Stewardship Program if the paint retailer volunteers to act as a paint collection point and complies with all applicable laws, rules, and regulations.
    5. Provide geographic information modeling to determine the number and distribution of sites for collection of postconsumer architectural paint based on the following criteria:
      1. at least 90 percent of Vermont residents shall have a permanent collection site within a 15-mile radius; and
      2. one additional permanent site will be established for every 10,000 residents of a municipality and additional sites shall be distributed to provide convenient and reasonably equitable access for residents within each municipality, unless otherwise approved by the Secretary.
    6. Establish goals to reduce the generation of postconsumer paint, to promote the reuse of postconsumer paint, and for the proper management of postconsumer paint as practical based on current household hazardous waste program information. The goals may be revised by the producer or stewardship organization based on the information collected for the annual report.
    7. Describe how postconsumer paint will be managed in the most environmentally and economically sound manner, including following the waste-management hierarchy. The management of paint under the Program shall use management activities that promote source reduction, reuse, recycling, energy recovery, and disposal.
    8. Describe education and outreach efforts to inform consumers of collection opportunities for postconsumer paint and to promote the source reduction and recycling of architectural paint for each of the following: consumers, contractors, and retailers.
  2. The producer or stewardship organization shall submit a budget for the Program proposed under subsection (a) of this section, and for any amendment to the plan that would affect the Program’s costs. The budget shall include a funding mechanism under which each architectural paint producer remits to a stewardship organization payment of a paint stewardship assessment for each container of architectural paint it sells in this State. Prior to submitting the proposed budget and assessment to the Secretary, the producer or stewardship organization shall provide the budget and assessment to a third-party auditor agreed upon by the Secretary. The third-party auditor shall provide a recommendation as to whether the proposed budget and assessment is cost-effective, reasonable, and limited to covering the cost of the Program. The paint stewardship assessment shall be added to the cost of all architectural paint sold in Vermont. To ensure that the funding mechanism is equitable and sustainable, a uniform paint stewardship assessment shall be established for all architectural paint sold. The paint stewardship assessment shall be approved by the Secretary and shall be sufficient to recover, but not exceed, the costs of the Paint Stewardship Program.
  3. Beginning no later than July 1, 2014, or three months after approval of the plan for a Paint Stewardship Program required under subsection (a) of this section, whichever occurs later, a producer of architectural paint sold at retail or a stewardship organization of which a producer is a member shall implement the approved plan for a Paint Stewardship Program.
  4. A producer or a stewardship organization of which a producer is a member shall promote a Paint Stewardship Program and provide consumers with educational and informational materials describing collection opportunities for postconsumer paint Statewide and promotion of waste prevention, reuse, and recycling. The educational and informational program shall make consumers aware that the funding for the operation of the Paint Stewardship Program has been added to the purchase price of all architectural paint sold in the State.
  5. A plan approved under this section shall provide for collection of postconsumer architectural paint at no cost to the person from whom the architectural paint is collected.
  6. When a plan or amendment to an approved plan is submitted under this section, the Secretary shall make the proposed plan or amendment available for public review and comment for at least 30 days.
  7. A producer or paint stewardship organization shall submit to the Secretary for review, in the same manner as required under subsection 6675(a) of this title, an amendment to an approved plan when there is:
    1. a change to a paint stewardship assessment under the plan;
    2. an addition to or removal of a category of products covered under the Program; or
    3. a revision of the product stewardship organization’s goals.
  8. A plan approved by the Secretary under section 6675 of this title shall have a term not to exceed five years, provided that the producer remains in compliance with the requirements of this chapter and the terms of the approved plan.
  9. In addition to the requirements specified in subsection (a) of this section, a stewardship organization shall notify the Secretary in writing within 30 days of any change to:
    1. the number of collection sites for postconsumer architectural paint identified under this section as part of the plan;
    2. the producers identified under this section as part of the plan;
    3. the brands of architectural paint identified under this section as part of the plan; and
    4. the processors that manage postconsumer architectural paint identified under this section as part of the plan.
  10. Upon submission of a plan to the Secretary under this section, a producer or a stewardship organization shall pay the fee required by 3 V.S.A. § 2822(j)(31) . Thereafter, the producer or stewardship organization shall pay the fee required by 3 V.S.A. § 2822(j)(31) annually by July 1 of each year.

HISTORY: Added 2013, No. 58 , § 1, eff. June 3, 2013; amended 2019, No. 131 (Adj. Sess.), § 38.

History

Amendments

—2019 (Adj. Sess.). Subdiv. (a)(4): Inserted “, rules,” in the third sentence.

§ 6674. Retailer responsibility.

  1. A producer or retailer may not sell or offer for sale architectural paint to any person in Vermont unless the producer of that architectural paint brand or a stewardship program of which the producer of that architectural paint brand is a member is implementing an approved plan for a Paint Stewardship Program as required by section 6673 of this title. A retailer complies with the requirements of this section if, on the date the architectural paint was ordered from the producer or its agent, the producer or paint brand is listed on the Agency of Natural Resources’ website as a producer or brand participating in an approved plan for a Paint Stewardship Program.
  2. At the time of sale to a consumer, a producer, a stewardship organization, or a retailer selling or offering architectural paint for sale shall provide the consumer with information regarding available management options for postconsumer paint collected through the Paint Stewardship Program or a brand of paint being sold under the Program.

HISTORY: Added 2013, No. 58 , § 1, eff. June 3, 2013.

§ 6675. Agency responsibility.

    1. Within 90 days of receipt of a plan submitted under section 6673 of this title, the Secretary shall review the plan and make a determination whether or not to approve the plan. The Secretary shall issue a letter of approval for a submitted plan if: (a) (1) Within 90 days of receipt of a plan submitted under section 6673 of this title, the Secretary shall review the plan and make a determination whether or not to approve the plan. The Secretary shall issue a letter of approval for a submitted plan if:
      1. the submitted plan provides for the establishment of a Paint Stewardship Program that meets the requirements of subsection 6673(a); and
      2. the Secretary determines that the plan:
        1. achieves convenient collection for consumers;
        2. educates the public on proper paint management;
        3. manages waste paint in a manner that is environmentally safe and promotes reuse and recycling; and
        4. is cost-effective.
    2. If the Secretary does not approve a submitted plan, the Secretary shall issue to the paint stewardship organization a letter listing the reasons for the disapproval of the plan. If the Secretary disapproves a plan, a paint stewardship organization intending to sell or continue to sell architectural paint in the State shall submit a new plan within 60 days of receipt of the letter of disapproval.
    1. The Secretary shall review and approve the stewardship assessment proposed by a producer pursuant to subsection 6673(b) of this title. The Secretary shall only approve the Program budget and any assessment if the applicant has demonstrated that the costs of the Program and any proposed assessment are reasonable and the assessment does not exceed the costs of implementing an approved plan. (b) (1) The Secretary shall review and approve the stewardship assessment proposed by a producer pursuant to subsection 6673(b) of this title. The Secretary shall only approve the Program budget and any assessment if the applicant has demonstrated that the costs of the Program and any proposed assessment are reasonable and the assessment does not exceed the costs of implementing an approved plan.
    2. If an amended plan is submitted under subsection 6673(g) of this title that proposes to change the cost of the Program or proposes to change the paint stewardship assessment under the plan, the disapproval of any proposed new assessment or the failure of an approved new assessment to cover the total costs of the Program shall not relieve a producer or stewardship organization of its obligation to continue to implement the approved plan under the originally approved assessment.
  1. Facilities solely collecting paint for the Paint Stewardship Program that would not otherwise be subject to solid waste certification requirements shall not be required to obtain a solid waste certification. Persons solely transporting paint for the Paint Stewardship Program that would not otherwise be subject to solid waste hauler permitting requirements shall not be required to obtain a solid waste hauler’s permit.

HISTORY: Added 2013, No. 58 , § 1, eff. June 3, 2013.

§ 6676. Anticompetitive conduct.

  1. A producer or an organization of producers that manages postconsumer paint, including collection, transport, recycling, and processing of postconsumer paint, as required by this subchapter may engage in anticompetitive conduct to the extent necessary to implement the plan approved by the Secretary and is immune from liability for the conduct relating to antitrust, restraint of trade, unfair trade practices, and other regulation of trade or commerce.
  2. The activity authorized and the immunity afforded under subsection (a) of this section shall not apply to any agreement among producers or paint stewardship organizations:
    1. establishing or affecting the price of paint, except for the paint stewardship assessment approved under subsection 6675(b) of this title;
    2. setting or limiting the output or production of paint;
    3. setting or limiting the volume of paint sold in a geographic area;
    4. restricting the geographic area where paint will be sold; or
    5. restricting the customers to whom paint will be sold or the volume of paint that will be sold.

HISTORY: Added 2013, No. 58 , § 1, eff. June 3, 2013.

§ 6677. Producer reporting requirements.

No later than October 15, 2015, and annually thereafter, a producer or a stewardship program of which the producer is a member shall submit to the Secretary a report describing the Paint Stewardship Program that the producer or Stewardship Program is implementing as required by section 6673 of this title. At a minimum, the report shall include:

  1. a description of the methods the producer or Stewardship Program used to reduce, reuse, collect, transport, recycle, and process postconsumer paint statewide in Vermont;
  2. the volume and type of postconsumer paint collected by the producer or Stewardship Program at each collection center in all regions of Vermont;
  3. the volume of postconsumer paint collected by the producer or Stewardship Program in Vermont by method of disposition, including reuse, recycling, energy recovery, and disposal;
  4. an independent financial audit of the Paint Stewardship Program implemented by the producer or the Stewardship Program;
  5. the prior year’s actual direct and indirect costs for each Program element and the administrative and overhead costs of administering the approved Program; and
  6. samples of the educational materials that the producer or stewardship program provided to consumers of architectural paint.

HISTORY: Added 2013, No. 58 , § 1, eff. June 3, 2013.

§ 6678. Confidential business information.

Data reported to the Secretary by a producer or stewardship organization under this subchapter shall be a trade secret exempt from public inspection and copying under 1 V.S.A. § 317(c)(9) , provided that the Secretary may use and disclose such information in summary or aggregated form that does not directly or indirectly identify individual producers, distributors, or retailers. The Secretary may require, as a part of the report submitted under section 6677 of this title, that the manufacturer or stewardship organization provide a report that does not contain trade secret information and is available for public inspection and review.

HISTORY: Added 2013, No. 58 , § 1, eff. June 3, 2013.

§ 6679. Rulemaking; procedure.

The Secretary may adopt rules or procedures to implement the requirements of this subchapter.

HISTORY: Added 2013, No. 58 , § 1, eff. June 3, 2013.

§ 6680. Universal waste designation for postconsumer paint.

  1. The requirements of Subchapter 9 of the Vermont Hazardous Waste Management Rules, which allow certain categories of hazardous waste to be managed as universal waste, shall apply to postconsumer paint until the postconsumer paint is discarded, provided that:
    1. the postconsumer paint is collected as a part of a stewardship plan approved under this subchapter; and
    2. the collected postconsumer paint is or includes paint that is a hazardous waste as defined and regulated by the Vermont Hazardous Waste Management Rules.
  2. When postconsumer paint is regulated as universal waste under subsection (a) of this section, small and large quantity handlers of the postconsumer paint shall manage the postconsumer paint in a manner that prevents releases of any universal waste or component of the universal waste to the environment. Postconsumer paint regulated as universal waste shall, at a minimum, be contained in one or more of the following:
    1. a container that remains closed, structurally sound, and compatible with the postconsumer paint and that lacks evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions; or
    2. a container that does not meet the requirements of subdivision (1) of this subsection, provided that the unacceptable container is overpacked in a container that meets the requirements of subdivision (1).
  3. Containers holding postconsumer paint that is regulated as universal waste shall be clearly labeled “Universal Waste Paint,” “Used Paint,” or “Waste Paint.”
  4. Unless otherwise provided by statute, the definitions of the Vermont Hazardous Waste Management Rules shall apply to this section.

HISTORY: Added 2013, No. 58 , § 1, eff. June 3, 2013.

Subchapter 5. Single-Use Carryout Bags; Expanded Polystyrene Food Service Products; Single-Use Plastic Straws; and Single-Use Plastic Stirrers

§ 6691. Definitions.

As used in this subchapter:

  1. “Agency” means the Agency of Natural Resources.
  2. “Carryout bag” means a bag provided by a store or food service establishment to a customer at the point of sale for the purpose of transporting groceries or retail goods, except that a “carryout bag” shall not mean:
    1. a bag made of paper when the paper has a basis weight of 30 pounds or less;
    2. a bag provided by a pharmacy to a customer purchasing a prescription medication;
    3. a bag used by customers inside a store to:
      1. package loose items, such as fruits, vegetables, nuts, coffee, grains, bakery goods, candy, greeting cards, or small hardware items;
      2. contain or wrap frozen foods, meat, or fish; or
      3. contain or wrap flowers;
    4. a laundry, dry cleaning, or garment bag, including bags provided by a store to protect large garments, such as suits, jackets, or dresses.
  3. “Expanded polystyrene” means blown polystyrene and expanded and extruded foams that are thermoplastic petrochemical materials utilizing a styrene monomer and processed by a number of techniques, including: fusion of polymer spheres, known as expandable bead 20 polystyrene; injection molding; foam molding; and extrusion-blow molding, also known as extruded foam polystyrene.
    1. “Expanded polystyrene food service product” means a product made of expanded polystyrene that is: (4) (A) “Expanded polystyrene food service product” means a product made of expanded polystyrene that is:
      1. used for selling or providing food or beverages to be used once for eating or drinking; or
      2. generally recognized by the public as an item to be discarded after one use.
    2. “Expanded polystyrene food service product” shall include:
      1. food containers;
      2. plates;
      3. hot and cold beverage cups;
      4. trays; and
      5. cartons for eggs or other food.
    3. “Expanded polystyrene food service product” shall not include:
      1. food or beverages that have been packaged in expanded polystyrene outside the State before receipt by a food service establishment or store;
      2. a product made of expanded polystyrene that is used to package raw, uncooked, or butchered meat, fish, poultry, or seafood; or
      3. nonfoam polystyrene food service products.
  4. “Food service establishment” has the same meaning as in 18 V.S.A. § 4301 .
  5. “Plastic” means a synthetic material made from linking monomers through a chemical reaction to create a polymer chain that can be molded or extruded at high heat into various solid forms that retain their defined shapes during their life cycle and after disposal, including material derived from either petroleum or a biologically based polymer, such as corn or other plant sources.
  6. “Point of sale” means a check-out stand, cash register, or other point of departure from a store or food service establishment, including the location where remotely ordered food or products are delivered to a purchaser.
  7. “Recyclable paper carryout bag” means a carryout bag that is made of paper and that is recyclable.
  8. “Reusable carryout bag” means a carryout bag that is designed and manufactured for multiple uses and is:
    1. made of cloth or other machine-washable fabric that has stitched handles; or
    2. a polypropylene bag that has stitched handles.
  9. “Secretary” means the Secretary of Natural Resources.
  10. “Single-use plastic carryout bag” means a carryout bag that is:
    1. made of plastic;
    2. a single-use product; and
    3. not a reusable carryout bag.
  11. “Single-use plastic stirrer” means a device that is:
    1. used to mix beverages;
    2. made predominantly of plastic; and
    3. a single-use product.
  12. “Single-use plastic straw” means a tube made of plastic that is:
    1. used to transfer liquid from a container to the mouth of a person drinking the liquid; and
    2. is a single-use product.
  13. “Single-use product” or “single use” means a product that is generally recognized by the public as an item to be discarded after one use.
  14. “Store” means a grocery store, supermarket, convenience store, liquor store, drycleaner, pharmacy, drug store, or other retail establishment that provides carryout bags to its customers.

HISTORY: Added 2019, No. 69 , § 2, eff. July 1, 2020.

§ 6692. Single-use plastic carryout bags; prohibition.

A store or food service establishment shall not provide a single-use plastic carryout bag to a customer.

HISTORY: Added 2019, No. 69 , § 2, eff. July 1, 2020.

§ 6693. Recyclable paper carryout bag.

  1. A store or food service establishment may provide a consumer a recyclable paper carryout bag at the point of sale if the bag is provided to the consumer for a charge of not less than $0.10 per bag.
  2. All monies collected by a store or food service establishment under this section for provision of a recyclable paper carryout bag shall be retained by the store or food service establishment.

HISTORY: Added 2019, No. 69 , § 2, eff. July 1, 2020.

§ 6694. Single-use plastic straws.

  1. A food service establishment shall not provide a single-use plastic straw to a customer, except that a food service establishment may provide a straw to a person upon request.
  2. The prohibition on sale or provision of a single-use plastic straw under subsection (a) of this section shall not apply to:
    1. a hospital licensed under 18 V.S.A. chapter 43;
    2. a nursing home, residential care home, assisted living residence, home for the terminally ill, or therapeutic community, as those terms are defined in 33 V.S.A. chapter 71; or
    3. an independent living facility as that term is defined in 32 V.S.A. chapter 225.
  3. This section shall not alter the requirements of 9 V.S.A. chapter 139 regarding the provision of services by a place of public accommodation.

HISTORY: Added 2019, No. 69 , § 2, eff. July 1, 2020.

§ 6695. Single-use plastic stirrers.

A food service establishment shall not provide a single-use plastic stirrer to a customer.

HISTORY: Added 2019, No. 69 , § 2, eff. July 1, 2020.

§ 6696. Expanded polystyrene food service products.

  1. A person shall not sell or offer for sale in the State an expanded polystyrene food service product.
  2. A store or food service establishment shall not sell or provide food or beverages in an expanded polystyrene food service product.
  3. This section shall not prohibit a person from storing or packaging a food or beverage in an expanded polystyrene food service product for distribution out of State.

HISTORY: Added 2019, No. 69 , § 2, eff. July 1, 2020.

§ 6697. Civil penalties; warning.

  1. A person, store, or food service establishment that violates the requirements of this subchapter shall:
    1. receive a written warning for a first offense;
    2. be subject to a civil penalty of $25.00 for a second offense; and
    3. be subject to a civil penalty of $100.00 for a third or subsequent offense.
  2. For the purposes of enforcement under this subchapter, an offense shall be each day a person, store, or food service establishment is violating a requirement of this subchapter.

HISTORY: Added 2019, No. 69 , § 2, eff. July 1, 2020.

§ 6698. Inventory exception.

A store or food service establishment shall not violate a prohibition under this subchapter regarding the provision of a carryout bag, single-use plastic straw, single-use stirrer, or expanded polystyrene food service product if the store or food service establishment:

  1. purchased the carryout bag, single-use plastic straw, single-use stirrer, or expanded polystyrene food service product prior to May 15, 2019; and
  2. provides the carryout bag, single-use plastic straw, single-use stirrer, or expanded polystyrene food service product to a consumer on or before July 1, 2021.

HISTORY: Added 2019, No. 69 , § 2, eff. July 1, 2020.

§ 6699. Application to municipal bylaws, ordinances, or charters; preemption.

  1. The General Assembly finds that the requirements of this subchapter are of statewide interest and, beginning on July 1, 2020, shall be applied uniformly in the State and shall occupy the entire field of regulation of single-use plastic carryout bags; single-use, recyclable paper carryout bags; single-use plastic straws; single-use plastic stirrers; and expanded polystyrene food service products.
  2. A municipal ordinance, bylaw, or charter adopted or enacted before July 1, 2020 that regulates or addresses the use, sale, or provision of single-use plastic carryout bags, single-use recyclable paper carryout bags, single-use plastic straws, single-use plastic stirrers, or expanded polystyrene food service products is preempted by the requirements of this subchapter, and a municipality shall not enforce or otherwise implement the ordinance, bylaw, or charter.

HISTORY: Added 2019, No. 69 , § 2, eff. July 1, 2020.

§ 6700. Rulemaking.

The Secretary may adopt rules to implement the requirements of this subchapter.

HISTORY: Added 2019, No. 69 , § 2, eff. July 1, 2020.

Chapter 161. Disposal of Low-Level Radioactive Waste

CROSS REFERENCES

Ionizing and nonionizing radiation control, see 18 V.S.A. chapter 32.

Storage of radioactive material, see chapter 157 of this title.

Texas Low-Level Radioactive Waste Disposal Compact, see chapter 162 of this title.

Law Reviews —

For note, “Low-Level Radioactive Waste Disposal Policy in Vermont: An Assessment of Act 296,” see 16 Vt. L. Rev. 639 (1992).

For commentary, “A Response to Low-Level Radioactive Waste Disposal Policy in Vermont: An Assessment of Act 296,” see 16 Vt. L. Rev. 1169 (1992).

§ 7000. Implementation of the provisions of this chapter.

  1. There shall be no further implementation of the provisions of this chapter unless authorized by an act of the General Assembly. Any such act authorizing further implementation of this chapter shall include provisions that establish or designate an entity to accomplish the functions previously assigned, under this chapter, to the Low-Level Radioactive Waste Authority.
  2. The Low-Level Radioactive Waste Fund created under subsection 7013(a) of this title shall be terminated after funds are transferred in accordance with subdivision 7067(b)(4) of this title.

HISTORY: Added 1993, No. 137 (Adj. Sess.), § 5.

§ 7001. Definitions.

As used in this chapter:

  1. “Adequate financial assurance requirements” mean a requirement, or combination of requirements, for the Authority and for generators of low-level radioactive waste to have financial responsibility instruments or arrangements that, considering the Fund established by section 7013 of this chapter and all other relevant information, are sufficient to ensure, to a high probability, that the Authority will be financially able to carry out its responsibilities under this chapter.
  2. “Agency” means the Agency of Natural Resources.
  3. “Authority” means the Vermont Low-Level Radioactive Waste Authority.
  4. “Closure” includes post-closure observation and maintenance.
  5. “Construction costs” mean pre-operational capital costs, site acquisition costs, and any permit and license fees for the facility authorized by this chapter.
  6. “Expected low-level radioactive waste” means the low-level radioactive waste from the normal operation of the Vermont Yankee facility, during its licensed operating life, including decommissioning waste, and from the normal operations of the currently licensed low-level radioactive waste generators in Vermont through the expected date for completing the decommissioning of Vermont Yankee, plus a small emergency contingency reserve.
  7. “Low-level radioactive waste” means radioactive material that is not high-level radioactive waste, spent nuclear fuel, transuranic waste, or byproduct material, as defined in 42 U.S.C. § 2014(e) (2), which the U.S. Atomic Energy Act of 1954, section 11(e)(2), and that material the U.S. Nuclear Regulatory Commission, consistent with existing law, classifies as low-level radioactive waste.
  8. “NRC” means the Nuclear Regulatory Commission or any successor agency.
  9. “Person” means an individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, or other legal entity, or any legal successor to or representative, or agent.
  10. “Public comment” means ample opportunities for public input, including at least prior availability of a draft decision, policy, or rule, two public hearings in different areas of the State, warned at least twice with a first warning not less than 30 days prior to the hearing by notice to daily media outlets in the area and statewide, and preparation and distribution of a response summary to all comments received.
  11. “Shallow land burial” means the burial of waste within an unlined subsurface trench without additional engineered structures or enhancements designed to minimize migration of radionuclides.
  12. “Siting plan” means a plan which reflects the standards, procedures and timetables of this chapter and meets the requirements for a siting plan of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (Public Law 99-240) ( 42 U.S.C. § 2021b et seq.).
  13. “Yankee site” means a site for a low-level radioactive waste disposal facility on land presently owned by and contiguous to the Vermont Yankee nuclear generating facility.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990.

Law Reviews —

For note, “Low-Level Radioactive Waste Disposal Policy in Vermont: An Assessment of Act 296,” see 16 Vt. L. Rev. 639 (1992).

§ 7002. Timetable and responsibilities.

  1. The following timetable and responsibilities shall be adhered to:
    1. Within 60 days of June 29, 1990, the Governor shall appoint the initial members of the Authority.
    2. As soon as practicable, the Authority shall, after public comment, initiate a study to determine the maximum appropriate separation of long-lived waste, the appropriate level of recoverability of such waste, and the appropriate permanent disposal technology and cost for that waste.
    3. As soon as practicable, the Authority shall initiate the site characterization of the Yankee site.
    4. As soon as practicable, the Authority shall begin collecting data for the screening of the Town of Vernon and of the rest of the State in order to identify potential alternative sites for a disposal facility.
    5. Within 270 days of June 29, 1990, the Agency shall, after public comment, adopt rules establishing the siting, screening, and certification requirements under sections 7021 and 7022 of this title.
    6. On or before November 1, 1991, the Authority shall:
      1. complete the characterization of the Yankee site;
      2. after public comment, select at least three potential alternate sites, including one in the Town of Vernon.
    7. Within 60 days of the submission by the Authority of a request for certification of a potential alternative site, the Agency shall decide if the site meets the applicable siting requirements.
    8. As soon as practicable, the Authority shall, after public comment, decide whether to characterize a certified site other than the Yankee site or to complete the requirements of subsection 7012(f) of this title for the Yankee site.  Then, if the Yankee site has been certified by the Agency as meeting the siting requirements and if the requirements of subsection 7012(f) have been completed, the Authority may decide whether to prepare a draft license application for a disposal facility at the Yankee site.
    9. On or before December 15, 1991, the Authority must decide either to characterize an alternative site or to prepare a draft license application for a facility at a previously characterized site. Then, initially before January 15, 1992, and subsequently within 30 days of any similar decision, the Authority must petition the General Assembly under chapter 157 of this title for approval of its decision.
    10. If the General Assembly approves a petition to characterize an alternate site or sites or if it directs the characterization of an alternate site or sites, then the Authority must begin characterization and, within 18 months of the legislative decisions, the Authority must complete characterization. Following the completion of characterization, the Authority must again decide whether to characterize another certified site or sites or to complete the requirements of subsection 7012(f) for the characterized site. Then, if the requirements of subsection 7012(f) have been completed, the Authority may decide whether to prepare a draft license application for a disposal facility at a characterized site.
    11. If the General Assembly approves a petition to prepare a draft license application or directs the preparation of a draft license for a disposal facility at a particular characterized site, the Authority shall, within six months of the legislative action or the effective date of the rules required by sections 7023 and 7024 of this title, whichever is later, after public comment, submit a draft license application to the Agency for review.
    12. Within 18 months of June 29, 1990, based on the results of the study required in subdivision (2) of this subsection and after public comment, the Authority shall:
      1. make recommendations to the Agency for rules on separation and recoverability of long-lived waste;
      2. make recommendations to the Agency for rules on the disposal facility design standards; and
      3. make an initial report to the General Assembly and to the Public Service Board on the possible appropriate technologies, and their costs, for the permanent disposal of the long-lived waste.
    13. Within six months of receiving the Authority’s recommendations and after public comment, the Agency shall adopt the separation, recoverability, and design standards under section 7023 of this title and the draft license application standards and review procedures under section 7024 of this title.
    14. By July 1, 1992 after public comment, the Authority shall petition the Public Service Board for approval of a service fee under subsections 7013(e) and 7020(b) of this chapter and shall propose adequate financial assurance requirements as part of the same proceeding.
    15. Within six months of receiving the draft license application, the Agency must complete its review.
    16. Not later than 30 days after completion of the review of the draft license application by the Agency, the Authority shall apply to the U.S. Nuclear Regulatory Commission for a license to construct and operate a disposal facility in the State.
    17. Not later than 30 days after completion of the review of the draft license application by the Agency, the Authority shall apply for a land use permit under chapter 151 of this title.
    18. Within 180 days of obtaining a license and a land use permit, the Authority shall begin construction of the disposal facility.
    19. As soon as practicable, the Authority shall begin operation of the disposal facility.
    20. Within 120 days of the completion of decommissioning of the Vermont Yankee nuclear generating facility, the Authority shall begin closure of the disposal facility.
  2. Subdivisions (a)(3) and (a)(6) through (a)(20) of this section may be, but need not be, complied with if, at the time the action is required, the State has entered into a compact or agreement adequately providing for the out-of-state disposal of the expected low-level radioactive wastes.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990; amended 2009, No. 33 , § 31; 2019, No. 131 (Adj. Sess.), § 39.

History

Revision note

—2011. In subsec. (b), substituted “(a)(20)” for “(a)(21)” to correct an error in the reference.

Revision note—. Substituted “June 29, 1990” for “the effective date of this chapter” in subdivs. (a)(1) and (a)(5) and for “the effective date of this act” in the introductory paragraph of subdiv. (a)(12), for purposes of clarity.

Editor’s note

—2017. In subdivs. (a)(12)(C) and (a)(14), the name “Public Service Board” is retained for the historical accuracy of deadlines that have passed. 2017, No. 53 , § 9 changed the name of this board to the Public Utility Commission.

Amendments

—2019 (Adj. Sess.). Subsec. (a): Substituted “General Assembly” for “Legislature” in subdivs. (a)(9), (a)(10), (a)(11) and (a)(12)(C).

—2009. Subsec. (a): Deleted subdiv. (20) and renumbered subdiv. (21) as (20).

§§ 7003-7009. [Reserved for future use.]

§ 7010. Repealed. 1993, No. 137 (Adj. Sess.), § 4(a), eff. April 21, 1994.

History

Former § 7010. Former § 7010, relating to the Vermont Low-Level Radioactive Waste Authority, was derived from 1989, No. 296 (Adj. Sess.), § 3.

Effect of repeal on pending litigation. 1993, No. 137 (Adj. Sess.), § 4(b), provided that the State of Vermont shall succeed the Authority in any claims and causes of action and that as of the termination of the Vermont Low-level Radioactive Waste Authority on June 30, 1994, the Attorney General is authorized to pursue any current litigation brought in the name of the Authority. Expenses for such actions may be allocated under 10 V.S.A. § 7064(b) .

§ 7011. Powers of the Authority.

In addition to any powers conferred or implied elsewhere by this chapter:

  1. The members may meet as often as necessary to carry out the responsibilities of the Authority.  Meetings shall be held at the call of the Chair or on written request to the Chair by two members.  The Authority shall keep complete minutes of all its meetings and other proceedings and shall preserve its records of all kinds.
  2. As soon as practical after appointment, and at appropriate intervals thereafter, the Authority shall hold public hearings in various locations throughout the State to obtain the reaction of the general public to the way the Authority proposes to carry out its responsibilities.
  3. The Authority may appoint a Director to be the Chief Administrative Officer of the Authority.  In addition to any other duties authorized by the Authority, the Director may:
    1. hire and supervise staff and negotiate and execute contracts as authorized by the authority and as necessary to fulfill its responsibilities;
    2. attend meetings of the Authority;
    3. ensure that the minutes and records of the Authority are properly maintained and preserved;
    4. approve all accounts of the Authority, including accounts for salaries, per diems, and allowable expenses of any employee or consultant thereof, and expenses incidental to the operation of the Authority;
    5. prepare an annual report of the actions of the Authority and prepare such other reports as the Authority may request; and
    6. perform such other duties as may be directed by the Authority in the carrying out of the purposes of this chapter.
  4. The Authority may:
    1. adopt and amend bylaws necessary to properly carry out this chapter;
    2. do all things necessary, convenient, or desirable to carry out the purposes of this chapter or the responsibilities imposed or necessarily implied in this chapter;
    3. acquire, construct, reconstruct, purchase, hold, maintain, repair, operate, lease as lessor or lessee, dispose of, and use any real or personal property or any interest in real or personal property necessary, convenient, or desirable to carry out the purpose of this chapter and to sell, transfer, and dispose of any property or interest in real or personal property at any time required by it in the exercise of its powers;
    4. prepare a siting plan for obtaining compliance with the federal Low-Level Radioactive Waste Policy Act;
    5. apply for, accept, receive, and administer gifts, grants, and other funds available from any source;
    6. enter into contracts and agreements with the federal government and its agencies, interstate agencies, local governmental entities, or private entities, as necessary, convenient, or desirable for the authority in the performance of its duties and the execution or carrying out of any of its powers under this chapter;
    7. make, conduct, request, and participate in studies, plans, surveys, investigations, and research relating to selection, preparation, construction, operation, maintenance, closure, and financing of a disposal facility;
    8. obtain necessary insurance;
    9. enforce all contracts and agreements as necessary, convenient, or desirable for the authority;
    10. distribute appropriate impact fees;
    11. set and collect the service fees, and otherwise administer the low-level radioactive waste, as required by section 7013 of this title;
    12. ensure that all waste is properly packaged before being placed in the disposal facility; and
    13. the Authority may refuse to accept at facilities established pursuant to this chapter any low-level radioactive waste from a generator who has failed to follow the reporting requirements established by the Agency under subsection 7020(a) of this title.
  5. The Authority may not prepare a draft license application for any site nor initiate characterization of any site other than the Vermont Yankee site, without legislative approval.
  6. The Authority may acquire real property, or any interest in it (including the right to perform site characterization or other investigatory activities) by eminent domain in accordance with the procedures of 24 V.S.A. §§ 3604 through 3610, except that:
    1. “Necessity” shall mean only a reasonable need that considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner; it shall not be measured merely by expense or convenience to the condemning party, but shall, nevertheless, consider the importance of carrying out the purposes of this chapter.
    2. When the right to do a site characterization or other investigatory activity is sought, the “survey” required by those sections need only be a legal description of the property plus a statement of the activities to be conducted.
    3. Nothing contained in those sections shall be construed to prevent the Authority from bringing any proceeding to remove a cloud on title or from acquiring any property by negotiation or purchase.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990; amended 2019, No. 131 (Adj. Sess.), § 40.

History

References in text.

The Low-Level Radioactive Waste Policy Act, referred to in subdiv. (4)(D), is codified as 42 U.S.C. §§ 2021b-2021j.

Revision note

—2015. In subdiv. (3)(D), deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2019 (Adj. Sess.). Subdiv. (4)(C): Substituted “in real or personal property” for “therein” twice.

Termination of activities of low-level radioactive waste authority. Pursuant to 1993, No. 137 (Adj. Sess.), § 4(a), eff. April 21, 1994, the repeal of section 7010 of this title is intended to terminate the activities of the Vermont low-level radioactive waste authority.

§ 7012. Responsibilities of the Authority.

  1. The Authority, while informing and consulting the public throughout, shall carry out the actions necessary to fulfill the requirements of the timetable in section 7002 of this chapter.
  2. The Authority must comply with the rules adopted by the Agency and with any fee approval conditions of the Public Utility Commission under sections 7020 through 7024 of this title, even if they impose requirements more stringent than federal requirements, and the Authority must obtain all applicable State and local permits for the disposal facility authorized by this chapter, except that the facility is not subject to certification under section 6605 of this title.
  3. If a low-level radioactive waste disposal facility is constructed by the Authority, the Authority shall provide for the operation, maintenance, and closure of the facility and shall provide for all necessary actions during the institutional control period.  The Authority shall place information about the facility and the waste placed in the facility in appropriate State and local records.
  4. In performing the study to determine the appropriate permanent disposal technology for long-lived waste, required by subdivision 7002(a)(2) of this title, the Authority shall consider a deep-mined facility in-state, technologies not normally examined in the United States for disposal of low-level radioactive waste, and all other technologies reasonably available.
  5. In performing the study, required by subdivision 7002(a)(2) of this title, to determine the maximum appropriate separation of long-lived waste, the Authority shall consider the various techniques potentially available, their costs and incremental risks.  The risks to be considered should include radiological and other risks to workers, the public, and the environment from the separation process and from the disposal of the separated wastes in the facility authorized by this chapter and in any expected permanent disposal facility for the long-lived waste.
  6. Prior to a decision to prepare a draft license application and the submission of that decision to the General Assembly, the Authority shall:
    1. conduct a social and economic impacts study to determine the short-term and long-term effects from the proposed disposal facility on the Vermont municipalities that contain, or that are adjacent to municipalities containing, the proposed site and determine the appropriate impact fees to be paid;
    2. prepare a report on the strengths and weaknesses of the site that has been characterized and comparing the site to the best potential alternative site as identified by the Authority;
    3. negotiate with the municipality or each municipality where the proposed site is located any impact fees, other payments, or conditions to be included in the proposal to be submitted to the voters and in the petition to be submitted to the General Assembly;
    4. hold at least one public hearing near each site; and
    5. obtain the consent of a majority of the voters, present and voting at a duly warned meeting, of the municipality, or of each municipality, where the proposed site is located.
  7. For any particular site, including the Yankee site, the Authority may perform any of the requirements of subsection (f) of this section as soon as appropriate.
  8. Prior to a decision to characterize another certified site, the report on the strengths and weaknesses of the previously characterized site must be completed.  However, a decision to characterize another site will not prohibit a later decision to prepare a draft license for any previously characterized site, if otherwise appropriate.
  9. A petition to the General Assembly to prepare a draft license application must be accompanied by a proposed financing plan for legislative enactment to cover the construction costs of the facility, unless the Authority has opted to raise construction funds under the provisions of section 7015 of this chapter.
  10. The Authority in deciding on the specific disposal plan required by subdivision 7002(a)(20) of this title for the permanent disposal of the long-lived waste shall thoroughly examine all reasonable alternatives to leaving the waste at the disposal facility authorized by this chapter and the option of leaving it there shall not be given undue weight.
  11. The Authority shall advise, consult, and cooperate with the federal government and its agencies, the State and its other agencies, interstate agencies, other states, local governmental entities within this State, and private entities.
  12. The Authority initially shall prepare a budget in reasonable detail, allocating funds for the year, and shall periodically revise the budget, as necessary.  The Authority shall keep an accurate account of all its activities and of all its receipts and expenditures.  Prior to the first day of September in each year, the Authority shall submit a report of its activities for the preceding fiscal year to the Governor and to the General Assembly.  The report shall set forth a complete operating and financial statement covering its operations during the year.  The Authority shall cause an audit of its books and accounts to be made at least once in each year by a certified public accountant and its cost shall be considered an expense of the Authority and a copy shall be included in the annual report.
  13. The Auditor of Accounts of the State and the Auditor’s authorized representatives may at any time examine the accounts and books of the Authority including its receipts, disbursements, contracts, funds, investments, and any other matters relating to its financial statements.
  14. The Authority shall prepare an annual report on the quantities, characteristics, and any expected treatment of the low-level radioactive waste generated in Vermont during the calendar year and reasonably expected to be generated through the date anticipated by the Authority for the completion of the decommissioning of Vermont Yankee.
  15. The Authority shall administer a grant program for Vermont municipalities where a certified site is located which the Authority has decided to characterize and may administer a similar grant program for Vermont municipalities that are within five miles of such a site.  The grants shall be subject to the approval of the Public Utility Commission and shall be used by the municipality to provide technical assistance and to otherwise assist the community to effectively participate in the consideration of the site for a disposal facility under this chapter.
  16. Prior to the commencement of operation of the disposal facility, the Authority shall establish a disposal fee, to be approved by the Public Utility Commission, for any waste that must be accepted by the facility for disposal on which the service fee has not been paid under subsection 7013(e) of this title or for which capacity has not been contracted for under section 7015.  The disposal fee must cover, pro rata, all costs and expenses contemplated by this chapter.
  17. The Authority shall provide free of charge a copy of any public document within its possession, upon request, to any municipalities that contain, or that are adjacent to municipalities containing, an alternative site or the Yankee site.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, amended 1990; 2019, No. 131 (Adj. Sess.), § 41.

History

Revision note

—2017. In subdivs. (b), (o) and (p), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

Amendments

—2019 (Adj. Sess.). Subsecs. (f), (i): Substituted “General Assembly” for “Legislature” in the intro. language of subsec. (f), in subdiv. (f)(3), and in subsec. (i).

Termination of activities of low-level radioactive waste Authority. Pursuant to 1993, No. 137 (Adj. Sess.), § 4(a), eff. April 21, 1994, the repeal of section 7010 of this title is intended to terminate the activities of the Vermont low-level radioactive waste Authority.

§ 7013. Low-Level Radioactive Waste Fund.

  1. There is hereby created in the State Treasury a fund to be known as the Low-Level Radioactive Waste Fund, to be administered and expended by the Vermont Low-Level Radioactive Waste Authority.
  2. The Fund shall consist of:
    1. the balance in the Radioactive Waste Management Fund as of the repeal of section 6512 of this title;
    2. fees assessed under subsections (e) and (g) of this section and under subsection 7012(p) of this title;
    3. any monies required for the financial assurances, and pre-paid construction funds raised under section 7015 of this title;
    4. any grants from the federal government or from other sources accepted by the Governor for deposit into the Fund; and
    5. rebates of any surcharges collected for the disposal of low-level radioactive waste generated in Vermont pursuant to the Federal Low-Level Radioactive Waste Policy Amendments of 1985 (P.L. 99-240) and deposited in escrow pursuant to section 5(d)(2) of such law ( 42 U.S.C. § 2021e (d)(2)).
  3. All balances in the Fund at the end of any fiscal year shall be carried forward and remain a part of the Fund.  Interest accruing from the Fund shall remain in the fund and shall be allocated proportionately among the accounts provided for in subsection (i) of this section based on the average principal balance of each account.  Disbursements from the Fund shall be made by the State Treasurer on warrants drawn by the Director or Chair of the Authority.
  4. The Fund shall be used to:
    1. provide staff for the Authority, and to pay for all costs related to the performance of its responsibilities under this chapter;
    2. reimburse any State entity for all costs incurred in the issuance and enforcement of rules and adjudications authorized by section 7020 of this title and for all other costs for actions and proceedings authorized by this chapter;
    3. provide for all costs of the long-term monitoring and care of the disposal facility authorized under this chapter;
    4. cover costs of emergency responses, remedial action, personal injury, and property damage during construction, operation, closure, and long-term monitoring and care of the disposal facility authorized by this chapter;
    5. cover the costs of the permanent disposal of the long-lived waste;
    6. pay the costs associated with any community and project safety plan required under subdivision 7024(a)(9) of this title; and
    7. cover any liability of the Authority or of any other State entity arising out of activities under this chapter.
  5. A service fee shall be levied on all low-level radioactive waste generated in this State, whether shipped to a disposal facility or stored awaiting disposal.  Initially, the service fee shall be $10.00 per cubic foot.  Periodically or as necessary, the service fee shall be set by the Authority in an amount sufficient for all current and future expenses allowed under subsection (d) of this section, except for construction costs of the facility authorized by this chapter.  The service fee shall be approved by the Public Utility Commission under section 7020 of this chapter.  Whenever the Authority requests approval of a service fee by the Public Utility Commission, it shall estimate the totals needed in each of the segregated accounts required by subsection (i) of this section.  The estimates shall contain appropriate contingency amounts.  The Authority may set the service fee on the basis of volume, curies, hazardous constituents or a combination of those characteristics, as appropriate.
  6. The service fee of subsection (e) of this section and the assessment of subsection (g) of this section, shall not apply to low-level radioactive waste which was authorized, as of January 1, 1990, under regulations of the U.S. Nuclear Regulatory Commission, to be stored for decay on the site of generation for less than one year and disposed of as though it were not radioactive.  The Authority shall identify those wastes that are exempt from the service fee, consistent with the intent of this section.
  7. In order to provide funds for the timely commencement of the regulatory responsibilities of State agencies and for the initial activities of the Authority, there shall be imposed an immediate assessment of $1,000,000.00 levied proportionately on all generators of low-level radioactive waste, based on the volume of waste generated in calendar years 1986-1989.  The Authority shall make these assessments within 60 days of June 29, 1990 and the generators shall pay them within 30 days of the assessment.
  8. The service fee for Vermont Yankee shall be adjusted such that its portion of the total funds needed for all current and future expenses will be accumulated no later than the end of the operating life of the plant.  The service fee for all other generators shall be adjusted to accumulate their shares no later than the date they expect to cease generating waste and in no case later than the expected date for closure of the disposal facility authorized by this chapter.
  9. The Fund established by this section shall be segregated into four accounts: one account for expenses expected prior to the end of the operating life of Vermont Yankee, except construction costs; a second account for expenses, including ongoing capital costs, expected after the end of the operating life of Vermont Yankee; a third account for the costs of the permanent disposal of the long-lived waste; and a fourth account for construction costs.  Funds in each account shall be used only for the stated purpose of the account and shall not be transferred between accounts without approval of the Public Utility Commission.  If the Public Utility Commission finds, upon petition, that any of the accounts contains funds substantially in excess of those reasonably expected to be sufficient for all current and future expenses of the account, the Public Utility Commission may require any excess in that account to be returned to the generators on an equitable basis.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990; amended 2019, No. 131 (Adj. Sess.), § 42.

History

References in text.

Section 6512 of this title, referred to in subdiv. (b)(1), was repealed by 1989, No. 76 , § 18.

The Federal Low-Level Radioactive Waste Policy Amendments of 1985, referred to in subdiv. (b)(5), is codified as 42 U.S.C. § 2021b et seq.

Revision note

—2017. In subsecs. (e) and (i), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

Revision note—. Substituted “June 29, 1990” for “the effective date of this chapter” in the second sentence of subsec. (g) for purposes of clarity.

Amendments

—2019 (Adj. Sess.). Subdiv. (d)(2): Substituted “rules” for “regulations”.

CROSS REFERENCES

Termination of Fund, see § 7000 of this title.

§ 7014. Tax ramifications.

  1. All property and business of the Authority is devoted to an essential public and governmental function and purpose and is exempt from all taxes, franchise fees, and special assessments of whatever nature of the State or any subdivision of the State.
  2. The Authority annually shall pay a municipality, in which a disposal site is located, an amount in lieu of taxes equal to the amount of property tax that would be paid on such a disposal site by an owner subject to property tax.
  3. The Authority shall pay all applicable State and local permit fees, including any fees negotiated pursuant to subdivision 7012(f)(3) of this chapter.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990.

§ 7015. Construction costs.

  1. In lieu of proposing a financing plan for the construction costs to the General Assembly under subsection 7012(i) of this title, the Authority may solicit offers to purchase or otherwise commit or contract for disposal capacity in the disposal facility authorized by this chapter. In the solicitation, the Authority should provide an estimate of the proposed design capacity and the expected construction costs.
  2. No offer may be accepted unless the terms of all such commitments or contracts, taken together, provide for the complete prepayment of all construction costs, exhaust the proposed capacity, contain acceptable terms and conditions, and are otherwise in the best interests of the State.
  3. The commitments or contracts shall be nontransferable, without approval of the Authority, shall provide for payment on an equal and pro rata basis for all generators and shall provide for the right of the Authority to reacquire, at any time, pro rata from all such commitments or contracts sufficient capacity to meet emergencies or necessary contingencies.
  4. If the total capacity of all offered commitments or contracts is less than the expected low-level radioactive waste, or if the commitments or contracts provide less than all the construction costs, or if the offers are for any other reason unsatisfactory, then the Authority shall reduce the design capacity of the facility, try to negotiate terms and conditions that will provide the complete construction costs and carry out the purposes of this chapter.
  5. The Authority may, for any reason, decide to not accept all offers received under this section and decide to pursue an alternative method of financing the construction costs of the disposal facility. If the Authority decides not to accept any such offers, it shall propose a financing plan to the General Assembly within 90 days or by the date set out in subdivision 7002(a)(9) of this title, whichever is later.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990; amended 2019, No. 131 (Adj. Sess.), § 43.

History

Amendments

—2019 (Adj. Sess.). Subsec. (a): Substituted “General Assembly” for “legislature”.

Subsec. (b): Substituted “interests” for “interest”.

Subsec. (c): Substituted “General Assembly” for “legislature”.

§§ 7016-7019. [Reserved for future use.]

§ 7020. State regulation; responsibilities and authority.

  1. The Agency, after public comment and after consultation with the Public Utility Commission and the Department of Public Service, shall by rule establish the siting requirements, the screening and certification procedures and criteria, the separation, recoverability, and facility design standards, and the draft license review procedures and standards.  These rules must at least include the minimum requirements of sections 7021, 7022, 7023, and 7024 of this title and be sufficient to protect the environment and the public health for the hazardous life of materials likely to be deposited in the disposal facility. The Agency shall by rule establish procedures and requirements for public comment under this chapter.  The Agency shall also by rule establish procedures and requirements for reports and manifests from generators of low-level radioactive waste concerning the quantities, concentrations, characteristics, expected generation rates, packaging, storage conditions, and any other information reasonably necessary for the Agency and the Authority to carry out their responsibilities.
  2. The Public Utility Commission shall:
    1. approve the service fees and disposal fees set by the Authority under sections 7011(4)(K), 7012(p), and 7013(e) of this title;
    2. utilize procedures substantially similar to the rate-setting procedures in 30 V.S.A. chapter 5, including the procedures for temporary rates in section 226 of that chapter but not including the time limits of section 227 of that chapter;
    3. review and approve, during any fee approval proceeding, an amount for:
      1. expenses expected prior to the end of the operating life of Vermont Yankee, except construction costs;
      2. expenses, including ongoing capital costs, expected after the end of the operating life of Vermont Yankee;
      3. costs of the permanent disposal of the long-lived waste; and
      4. construction costs; and
    4. determine, after public hearing, adequate financial assurance requirements to be specified as a condition for approval of fees under this subsection.
  3. The Department of Public Service shall appear in all proceedings before the Public Utility Commission under this chapter and represent the interests of the people of the State.  The Department of Public Service shall review and may present testimony on any issue, including the service or disposal fees, the costs of permanent disposal of the long-lived waste, the financial assurance requirements, and the relationship of these fees, costs, and requirements to the costs of decommissioning the Vermont Yankee Nuclear Power Station.
  4. Rules adopted under this section must be at least as stringent as applicable federal standards, performance objectives, and requirements.
  5. No officers, departments, boards, agencies, divisions, and commissions of the State may render any services to the Authority that would compromise their ability to perform their regulatory functions under this chapter, but they shall cooperate with and provide any information available to them as may be requested by the Authority for the performance of its responsibilities if otherwise allowed by law.
  6. The Agency of Natural Resources, the Public Utility Commission, and the Department of Public Service may allocate to the Authority the portion of the expenses incurred by them, including expenses from the use of additional personnel and regular employees, for all actions and proceedings authorized by this chapter.  At least quarterly, the Agency and the Department of Public Service shall send to the Authority detailed statements showing the money expended, and the Authority shall pay those statements out of the Low-Level Radioactive Waste Fund.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990.

History

Revision note

—2017. In subsecs. (a), (b), (c), and (f), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

§ 7021. Siting requirements.

  1. Under the authority of section 7020 of this title, the Agency shall adopt rules establishing the siting requirements for a low-level radioactive waste disposal facility that shall, at a minimum, require that:
    1. the disposal site shall not be located in an area that is incapable of being thoroughly characterized, modeled, analyzed, and monitored;
    2. the disposal site shall not be located in an area where projected population growth and future development are likely to affect the ability of the disposal facility to meet the performance objectives;
    3. the disposal site shall not be located in areas having known natural resources that, if exploited, would result in the failure of the disposal facility to meet the performance objectives;
    4. the disposal site shall not be located in a 500-year floodplain, coastal high-hazard zone, or wetland and must be generally well drained and free of areas of flooding or frequent ponding;
    5. the disposal site shall not be located in areas with excessive upstream drainage that could erode, expose, or inundate the waste disposal units;
    6. the disposal site shall not be located in an area with insufficient depth to watertable so that groundwater intrusion, perennial or otherwise, could occur;
    7. the hydrogeologic unit used for disposal shall not discharge groundwater to the surface within the disposal site;
    8. the disposal site shall avoid areas where tectonic processes such as faulting, folding, seismic activity, or vulcanism may occur with such frequency and extent to significantly affect the ability of the disposal site to meet the performance objectives;
    9. the disposal site shall avoid areas where surface geologic processes such as mass wasting, erosion, slumping, landsliding, or weathering occur with such frequency and extent to significantly affect the ability of the disposal site to meet the performance objectives;
    10. the disposal site shall not be located where nearby facilities or activities or any existing radioactive materials could adversely impact the ability of the site to meet the performance objectives or significantly mask the environmental monitoring program;
    11. the disposal site shall not be located above 2,500 feet in elevation;
    12. the disposal site shall not be located within a watershed of Class A waters or of a public water supply, or within or adjacent to an aquifer protection area, within or adjacent to Class I or Class II aquifers, or where surface water quality standards could be reasonably expected to be violated by the facility;
    13. the disposal facility shall not be located within 100 meters of a wetland, stream, river, lake, or pond, within 200 meters of designated outstanding resource waters, or within distances found critical by site investigation;
    14. the disposal site shall not be located in areas where failure of a dam or impoundment could adversely affect the ability of the disposal site to meet the performance objectives;
    15. the disposal site must be of sufficient size to allow the satisfaction of the performance objectives; and
    16. the disposal site must retard, or be capable of being modified to retard, the movement of radionuclides.
  2. The rules establishing the siting requirements for a low-level radioactive waste disposal facility shall also consider the following:
    1. the proximity of the disposal site to schools, historical sites, wilderness areas, parks (municipal, State, or national), State or wildlife refuges or management areas, military sites, or unique cultural areas;
    2. the potential for adverse effects on rare or endangered species;
    3. the population density of the area surrounding the disposal site and the likely impacts on local governmental units; and
    4. mitigation or avoidance of harm from unanticipated releases and from transportation accidents.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990.

CROSS REFERENCES

Designation of preferred routes for transportation of radioactive materials, see 5 V.S.A. § 2003 .

Issuance of land use permits to generators of radioactive waste, see § 6086a of this title.

§ 7022. Screening and certification process.

Under the authority of section 7020 of this title, the Agency shall adopt rules regarding screening for potential alternative sites and certification of sites, which must at least establish the procedures and criteria for:

  1. screening, by the Authority, of the Town of Vernon and the rest of the State;
  2. selecting and studying potential alternative sites by the Authority;
  3. submission, by the Authority, of each selected potential alternative site to the Agency for certification;
  4. certification, by the Agency, of alternative sites and the Yankee site as meeting applicable siting requirements;
  5. characterization of an alternative site;
  6. deciding, by the Authority, to characterize a certified alternative site or to prepare a draft license application for a disposal facility at a characterized site.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990.

§ 7023. Waste separation; recoverability; and minimum facility design standards.

  1. Under the authority of section 7020 of this title, the Agency shall adopt rules establishing waste separation, recoverability, and minimum facility design standards for any low-level radioactive waste disposal facility including:
    1. a prohibition on shallow land burial;
    2. definitions of short-lived waste and long-lived waste;
    3. definition of hazardous life of the short-lived waste;
    4. requirements for maximum separation of short-lived and long-lived waste;
    5. requirements that the design be compatible with and complement the characteristics of the site as necessary for the performance objectives;
    6. requirements for active management during, and setting the length of, an institutional control period;
    7. requirements to control the dilution of long-lived waste where the purpose is to convert long-lived waste to short-lived waste or to change the federal classification;
    8. requirements for enhanced containment sufficient to meet the performance objectives;
    9. requirements for recoverability of the separated long-lived waste that are compatible with the performance objectives;
    10. requirements for structural integrity during the design life of the facility;
    11. requirements for monitoring, until the end of the institutional control period, that are adequate to detect failure of the facility in time to take reasonable remedial action and that provide for independent review and verification;
    12. requirements for long-term passive isolation of the waste from the environment, including the minimization of water intrusion and protection against intruders;
    13. requirements for the permanent unmistakable marking of the facility identifying it as hazardous to future human inhabitants;
    14. performance objectives for each stage of the life of the facility to ensure the protection of individuals and the general population from releases of radioactivity, the protection of individuals and the general population from direct radiation, the protection of individuals from and during intrusion; and
    15. capacity specifications to limit the size of the disposal facility to that necessary to dispose of the expected low-level radioactive waste.
  2. In establishing the definitions of short-lived and long-lived waste and in establishing the requirements for maximum separation of those wastes, the Agency shall ensure that the hazardous life of the short-lived waste is less than the institutional control period and shall consider the costs of separation and all risks from separating and disposing of the separated wastes. This should include the risks associated with the separation process, the placement of the separated wastes in the facility authorized by this chapter, the recovery of the long-lived waste and any transportation and preparation of that waste for permanent disposal.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990.

§ 7024. Agency standards and procedures for review of the draft license application.

  1. The Agency shall adopt rules establishing standards for a draft license application for a low-level radioactive waste disposal facility that shall, at a minimum, include:
    1. compliance with the rules adopted by the Agency under this chapter;
    2. consent for entry into the facility by State regulatory personnel;
    3. requirements to the extent permitted by law, to limit waste disposal access in order to prevent the exhaustion of disposal capacity at an early or uncertain future date;
    4. the financial assurance requirements established by the Public Utility Commission under section 7020 of this title;
    5. requirements for operating procedures;
    6. requirements for on-site supervision of the operation of the disposal facility;
    7. requirements for closure and for closure monitoring and observation, including a minimum five-year post-closure period;
    8. requirements for long-term management by the State;
    9. requirements for a community and project safety plan, including an emergency response plan and a training plan for facility personnel and public safety officials, all based on a worst case analysis;
    10. requirements for emergency response and monitoring for operator or facility failure; and
    11. requirements for detailed annual reports, including requirements for reporting all waste in storage and, after disposal has begun, all waste placed in the facility.
  2. The Agency shall adopt rules establishing procedures for its review of a draft license application that shall, at a minimum, include:
    1. submission of the draft application and other specified information;
    2. submission of pre-operational radiation survey in the vicinity of the site;
    3. submission of an environmental and public health impact analysis;
    4. an opportunity for public review and inspection of, and public comment on, the draft license application in the locality of the approved site; and
    5. a procedure for complying with conditions or changes to the licensing application required by the NRC or the District Environmental Commission.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990; amended 2003, No. 115 (Adj. Sess.), § 66, eff. Jan. 31, 2005; 2019, No. 131 (Adj. Sess.), § 44.

History

Revision note

—2017. In subsec. (a)(4), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

Amendments

—2019 (Adj. Sess.). Subdiv. (a)(1): Substituted “adopted” for “promulgated”.

—2003 (Adj. Sess.). Subdiv. (b)(5): Substituted “district environmental commission” for “environmental board”.

§§ 7025-7029. [Reserved for future use.]

§ 7030. Enforcement and judicial review.

  1. Any person who violates this chapter or any rule adopted under this chapter or refuses to comply with any of the provisions of this chapter shall be subject to enforcement actions under chapters 201 and 211 of this title, except that for the failure to pay the service fees under section 7013 of this title, the penalty shall be no more than 25 percent of the fees owed.
  2. Any person, upon a well-founded belief that there has been a violation of this chapter or any rule adopted under this chapter or a refusal to comply with any of the provisions of this chapter, or of the rules adopted under this chapter, may commence an action in Washington Superior Court for injunctive relief, or other appropriate relief, or for penalties and attorney’s fees.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990.

CROSS REFERENCES

Injunctions generally, see V.R.C.P. 65.

§§ 7031-7039. [Reserved for future use.]

§ 7040. Immunity and liability.

  1. No provision of this chapter shall constitute a waiver of sovereign immunity.
  2. Nor shall any State official or employee (including members of the Authority and its Director and staff) be held financially responsible for acts taken within the scope of employment, or for failure to take any discretionary act, related to this chapter or the rules authorized by this chapter.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990.

CROSS REFERENCES

Limitation of liability of volunteers assisting in prevention, mitigation or remediation of hazardous materials accidents, see 12 V.S.A. § 5783 .

§§ 7041-7049. [Reserved for future use.]

§ 7050. Generator obligations.

In addition to any other obligation imposed by this chapter, any person who generates low-level radioactive waste in Vermont shall comply with the reporting and financial assurance requirements as established under section 7020 of this title.

HISTORY: Added 1989, No. 296 (Adj. Sess.), § 3, eff. June 29, 1990.

Chapter 162. Texas Low-Level Radioactive Waste Disposal Compact

History

Effective date of chapter. 1993, No. 137 (Adj. Sess.), § 7(a) provided in part that section 2 of the act, which added this chapter, shall take effect upon ratification of the Texas Low-Level Radioactive Waste Disposal Compact by the United States Congress.

Legislative findings. 1993, No. 137 (Adj. Sess.), § 1, provided:

“(a) Low-level radioactive wastes are generated through the operation of nuclear power plants and as byproducts of medical, research, educational and other purposes. In Vermont, a very high percentage of the state’s current low-level radioactive waste is generated by the Vermont Yankee nuclear facility. It is very likely that Vermont Yankee will, during its operating life and during the period of its decommissioning, continue to produce most of Vermont’s low-level radioactive waste.

“(b) The generators of low-level radioactive waste in the State of Vermont do not have long-term access to a commercial low-level radioactive waste disposal facility.

“(c) As directed by the general assembly, the secretary of the agency of natural resources has pursued the opportunity to join an interstate compact pursuant to the Low-Level Radioactive Waste Policy Amendments Act of 1985, and has negotiated a compact agreement, the Texas Low-Level Radioactive Waste Disposal Compact, with the states of Texas and Maine to dispose of Vermont’s low-level radioactive waste, including nuclear plant decommissioning waste, in the State of Texas over a 50-year period.

“(d) The Texas Low-Level Radioactive Waste Disposal Compact will become effective after ratification by the Congress of the United States.

“(e) It is in the best interests of the state to become a member of the Texas Low-Level Radioactive Waste Disposal Compact because the siting conditions of the proposed compact facility in the host state are more suitable than conditions in Vermont for the protection of public health and safety, and the environment.

“(f) As a result of this legislation authorizing Vermont’s entrance into the compact and the shipment of low-level radioactive waste to Texas, Vermont governmental activity and expenditure associated with low-level radioactive waste disposal will be substantially reduced.”

Pursuant to 1993, No. 137 (Adj. Sess.), § 7(a), section 1 of the act, as set out in this note above, shall take effect upon the ratification of the Texas Low-Level Radioactive Waste Disposal Compact by the United States Congress.

CROSS REFERENCES

Ionizing and nonionizing radiation control, see 18 V.S.A. chapter 32.

Storage of radioactive material, see chapter 157 of this title.

§ 7060. Entry into the Compact.

The State shall be a member of the Texas Low-Level Radioactive Waste Disposal Compact.

HISTORY: Added 1993, No. 137 (Adj. Sess.), § 2.

History

Effective date of chapter. See note preceding § 7060 of this title.

§ 7061. Definitions.

  1. As used in this chapter:
    1. “Commission” means the Texas Low-Level Radioactive Waste Disposal Compact Commission.
    2. “Compact” or “Compact agreement” means the Texas Low-Level Radioactive Waste Disposal Compact.
    3. “Compact facility,” “disposal facility,” and “facility” mean any site, location, structure, or property within the State of Texas provided for the purposes of disposal of low-level radioactive waste, pursuant to the Compact.
    4. “Generator” means a person who produces or processes low-level radioactive waste in the course of its activities.
    5. “Low-level radioactive waste” means radioactive waste material that is not high-level radioactive waste, spent nuclear fuel, transuranic waste, or byproduct material, as defined in 42 U.S.C. § 2014(e) (2), the U.S. Atomic Energy Act of 1954, Section 11(e)(2), and that material the U.S. Nuclear Regulatory Commission, consistent with existing law, classifies as low-level radioactive waste.
    6. “Manage” means collection, consolidation, storage, packaging, or treatment of low-level radioactive waste.
  2. In addition, terms defined in the Compact shall have the same definition in this chapter, unless another meaning is clearly intended.

HISTORY: Added 1993, No. 137 (Adj. Sess.), § 2.

History

Effective date of chapter. See note preceding § 7060 of this title.

§ 7062. Commission membership.

The Governor shall appoint one or more persons with relevant knowledge and experience to represent the State on the Commission established by Article III of the Compact. The Governor may appoint an alternate for each Commission member appointed under this section. Each Commission member and alternate, if appointed, shall serve at the pleasure of the Governor.

HISTORY: Added 1993, No. 137 (Adj. Sess.), § 2; amended 2011, No. 47 , § 20r, eff. May 25, 2011.

History

Amendments

—2011. Substituted “Commission membership” for “Member of the commission” in the section heading and substituted “one or more persons with relevant knowledge and experience” for “a person” in the first sentence; and substituted “each” for “the” preceding “commission” in the second and third sentences.

Effective date of chapter. See note preceding § 7060 of this title.

§ 7063. Compensation of Commission members; report.

Each Commission member and alternate is entitled to compensation at a rate established by the Governor, and for reimbursement for actual and necessary expenses incurred in the performance of his or her duties. If a State employee is appointed as a Commission member or an alternate, that State employee is not entitled to compensation in addition to such employee’s regular pay. At least annually by December 31, Commission members and alternates appointed under this section shall report to the Governor and the Commissioner of Public Service on their activities conducted in representing the State on the Commission. The report shall include an itemization of compensation paid and expenses incurred. Compensation and expenses of Commission members and alternates shall be included in the annual budget of the Department of Public Service and shall be specifically identified in the budget report filed pursuant to 32 V.S.A. §§ 306 and 307.

HISTORY: Added 1993, No. 137 (Adj. Sess.), § 2; amended 2011, No. 47 , § 20s, eff. May 25, 2011.

History

Amendments

—2011. Rewrote the section heading; substituted “Each” for “The” preceding “commission”, “by the governor” for “under 32 V.S.A. § 1010 ” following “established and”, “a” for “the” preceding “rate”; inserted “an” preceding “alternate”; deleted “per diem” preceding “compensation”; inserted “in addition to such employee’s regular pay” following “compensation”; and added the third and fourth sentences.

Effective date of chapter. See note preceding § 7060 of this title.

§ 7064. Support of the Compact Commission member.

  1. The Agency of Natural Resources, the Agency of Administration, the Department of Public Service, the Department of Health, and the Attorney General shall respond to requests of the Commission member for data and information needed for Commission activities.
  2. Expenses of any State agency for all actions and proceedings authorized under this chapter and the Compact shall be allocated to the Secretary of Administration for billing under subdivision 7067(b)(3) of this title, including expenses for the use of additional personnel and regular employees.

HISTORY: Added 1993, No. 137 (Adj. Sess.), § 2.

History

Revision note—

In subsec. (b), substituted “subdivision 7067(b)(3)” for “subdivision 7067(a)(3)” to correct an error in the reference.

Effective date of chapter. See note preceding § 7060 of this title.

§ 7065. Compact responsibilities.

  1. For low-level radioactive waste, to the extent necessary to meet the requirements of the Texas Low-Level Radioactive Waste Disposal Compact, the Secretary of Natural Resources shall do the following:
    1. develop and enforce procedures for packaging, processing, and waste form specifications for low-level radioactive waste shipments to the compact facility;
    2. develop and enforce procedures for minimization of the volume of low-level radioactive waste generated;
    3. by no later than 180 days after the effective date of this chapter, establish the annual projected volume of low-level radioactive waste from each generator in Vermont to be disposed in the Compact facility for the years 1995-2045, to determine compliance with section 3.04(11) of the Compact agreement;
    4. collect, compile, and distribute data and information required under this section.
  2. For low-level radioactive waste, as part of its present responsibilities under 18 V.S.A. chapter 32, the Commissioner of Health shall do the following:
    1. maintain a registry of all generators of low-level radioactive waste within the State, including the amount and class of low-level radioactive waste generated by each generator;
    2. maintain an accounting of waste shipped and proposed to be shipped to the Compact facility by volume and curies, proposed transportation methods and routes, and proposed shipment schedules.
  3. The Secretary of Natural Resources may do the following:
    1. develop and enforce procedures for reports and manifests from generators of low-level radioactive waste within the State concerning the quantities, concentrations, and characteristics of waste generated and shipped; proposed transportation methods and routes; proposed shipment schedules; expected generation rates; packaging; and storage conditions and any other information reasonably necessary for the Agency and the Commission member to carry out their responsibilities;
    2. adopt rules under 3 V.S.A. chapter 25 for fulfilling the State responsibilities identified in this section and any other responsibilities established in the Compact for low-level radioactive waste.
  4. [Repealed.]

HISTORY: Added 1993, No. 137 (Adj. Sess.), § 2; amended 2009, No. 33 , § 83(e)(10).

History

Amendments

—2009. Subsec. (d): Repealed.

Effective date of chapter. See note preceding § 7060 of this title.

CROSS REFERENCES

Designation of preferred routes for transportation of radioactive materials, see 5 V.S.A. § 2003 .

§ 7066. Requirements regarding radioactive waste disposal.

  1. Every generator of low-level radioactive waste in this State shall comply with the reporting requirements of this chapter.
  2. A generator of low-level radioactive waste in this State that existed, as a generator, on the effective date of the Compact, including any nuclear plant, may not be discriminated against with respect to access to disposal capacity at the Compact facility.
  3. No generator of low-level radioactive waste in the State existing on the date of enactment of this section may increase its generation of waste in a year by more than 20 percent of the total annual volume of waste from all generators estimated for disposal by the Secretary of Natural Resources, under subdivision 7065(a)(3) of this title, unless that generator receives a favorable determination from the Secretary of Natural Resources that disposal capacity will be available as provided by section 3.04(11) of the Compact agreement.
  4. Any person other than those generators identified in subsection (c) of this section who wishes to undertake an activity that will generate low-level radioactive waste in the State must first receive a favorable determination from the Secretary of Natural Resources that disposal capacity will be available as provided by section 3.04(11) of the Compact agreement.
  5. No generator of low-level radioactive waste may dispose of its low-level radioactive waste at the Compact facility unless that generator has a current indemnification agreement with the State of Vermont. Federal generators of low-level radioactive waste shall be required to indemnify the State only to the extent permitted by federal law. Any indemnification agreement shall be reviewed by the Attorney General before the State agrees to it.

HISTORY: Added 1993, No. 137 (Adj. Sess.), § 2.

History

Effective date of chapter. See note preceding § 7060 of this title.

§ 7067. Assessment of Compact costs; Low-Level Radioactive Waste Disposal Compact Fund.

  1. There is hereby created the Low-Level Radioactive Waste Disposal Compact Fund, to be administered and expended by the Secretary of Administration in accordance with the provisions of this section. All balances in the Fund at the end of any fiscal year shall be carried forward and remain a part of the Fund. Interest earned by the Fund shall be deposited into the Fund.
  2. The Secretary of Administration shall assess the generators of low-level radioactive waste in the State for the full administrative costs of membership and participation in the Compact, subject to Articles IV and V of that agreement, and for the State’s costs incurred in carrying out the responsibilities of this chapter. Generators of low-level radioactive waste shall be assessed by the method established in subsection (c) of this section. Payments shall be dispensed from the State Treasury only upon warrants issued by the Commissioner of Finance and Management after receipt of proper statements describing expenses.
    1. Initial assessments.
      1. The Secretary of Administration shall make an initial assessment in the amount of $12,500,000.00 within 30 days following ratification of the Compact agreement by the Congress of the United States. The amount assessed shall be paid within 15 days of the assessment.
      2. The Secretary of Administration shall make a second assessment in the amount of $12,500,000.00 within 30 days following the date of the opening of the compact facility in Texas. The amount assessed shall be paid within 15 days of the assessment.
    2. Host county assessments.
      1. The Secretary of Administration shall make an initial host county assessment in accordance with section 4.05, subsection (5) of the Compact in the amount of $1,250,000.00 no later than 30 working days following ratification of the Compact agreement by the Congress of the United States. The amount assessed shall be paid within 15 days of assessment.
      2. The Secretary of Administration shall make a second host county assessment in the amount of $1,250,000.00 no later than 30 working days following the approval of a facility operating license by the Texas Natural Resource Conservation Commission. The amount assessed shall be paid within 15 days of assessment.
    3. Compact Commission and State expenses.   On an annual basis or on any other schedule established by the Commission, the Secretary of Administration shall assess the State’s share of the administrative, legal and other expenses for the operation of the Compact Commission, as well as the State’s costs incurred in carrying out the responsibilities of this chapter. Amounts assessed under this section shall be paid within 30 days of assessment.
    4. Uncommitted balance of the Low-Level Radioactive Waste Fund.   Any uncommitted balance of the Low-Level Radioactive Waste Fund created under section 7013 of this title, shall be transferred to the Fund established in subsection (a) of this section and shall be used to reduce, offset, or eliminate the costs assessed under this subsection.
    5. Alternate payment schedule.   In accordance with section 5.02 of the Compact agreement and if so designated by the Commission, the schedule for assessments by the Secretary of Administration to be forwarded to the Texas Low-Level Radioactive Waste Disposal Authority under subdivision (1) of this section shall be revised to conform to the payment schedule for the repayment of debt incurred for the construction of the compact facility. An amount may not be assessed pursuant to this subsection on less than 30 days’ notice and a payment may not be required in fewer than 15 days from the date of assessment.
  3. With respect to the funding of the assessment for payments identified in subsection (b) of this section, generators of low-level radioactive waste in the State shall be assessed proportionately on the basis of a three-year rolling total volume of generated wastes prepared for shipment (i.e., waste processed into disposal containers). The calculation shall use the last three complete calendar years at the time the assessment is made. Vermont Yankee decommissioning waste shall be accounted for by using a volume equal to 3/20 of the decommissioning waste volume estimate from the last completed Vermont Yankee decommissioning rate case before the Federal Energy Regulatory Commission. This 3/20 decommissioning waste volume shall be added to the three-year waste generated by Vermont Yankee prior to performing the calculation. Those generators generating less than five cubic feet of low-level radioactive waste for the rolling three-year period shall be exempt from this assessment.
  4. A generator of low-level radioactive waste in the State that did not contribute to the initial assessments identified in this section shall make such contributions at the end of the third calendar year after its first shipment of radioactive waste to the compact facility. A recalculation shall be made of the initial assessments under subsection (b) of this section if the new generator has generated more than five cubic feet of waste during the three-year period. The calculation described in subsection (c) of this section shall be recalculated, including the new generator’s waste volume. The amount due from the new generator shall be distributed to the previous payees in proportion to their payment amount. If the new generator’s waste is one percent of the recalculated total waste volume or greater, interest will also be included in the payment to the previous payees in an amount equal to the Vermont Yankee cost of money between the initial payments and the time the new generator payment is made.

HISTORY: Added 1993, No. 137 (Adj. Sess.), § 2.

History

Revision note—

In subsec. (b), substituted “subsection (c)” for “subsection (b)” following “established in” to correct an error in the reference.

Effective date of chapter. See note preceding § 7060 of this title.

§ 7068. Enforcement.

Any person who violates this chapter or any rule adopted under this chapter or refuses to comply with any of the provisions of this chapter shall be subject to enforcement actions under chapters 201 and 211 of this title.

HISTORY: Added 1993, No. 137 (Adj. Sess.), § 2.

History

Effective date of chapter. See note preceding § 7060 of this title.

§ 7069. Texas Low-Level Radioactive Waste Disposal Compact.

The General Assembly ratifies the Texas Low-Level Radioactive Waste Disposal Compact to provide access to facilities in the State of Texas for the permanent disposal of all low-level radioactive waste. The text is as follows:

TEXAS LOW-LEVEL RADIOACTIVE WASTE DISPOSAL COMPACT

Article I. Policy and Purpose

Sec. 1.01. The party states recognize a responsibility for each state to seek to manage low-level radioactive waste generated within its boundaries, pursuant to the Low-Level Radioactive Waste Policy Act, as amended by the Low-Level Radioactive Waste Policy Amendments Act of 1985 (42 U.S.C. Secs. 2021b-2021j). They also recognize that the United States Congress, by enacting the Act, has authorized and encouraged states to enter into compacts for the efficient management and disposal of low-level radioactive waste. It is the policy of the party states to cooperate in the protection of the health, safety, and welfare of their citizens and the environment and to provide for and encourage the economical management and disposal of low-level radioactive waste. It is the purpose of this compact to provide the framework for such a cooperative effort; to promote the health, safety, and welfare of the citizens and the environment of the party states; to limit the number of facilities needed to effectively, efficiently, and economically manage low-level radioactive waste and to encourage the reduction of the generation thereof; and to distribute the costs, benefits, and obligations among the party states; all in accordance with the terms of this compact.

Article II. Definitions

Sec. 2.01. As used in this compact, unless the context clearly indicates otherwise, the following definitions apply:

  1. “Act” means the Low-Level Radioactive Waste Policy Act, as amended by the Low-Level Radioactive Waste Policy Amendments Act of 1985 (42 U.S.C. Secs. 2021b-2021j).
  2. “Commission” means the Texas Low-Level Radioactive Waste Disposal Compact Commission established in Article III of this compact.
  3. “Compact facility” or “facility” means any site, location, structure, or property located in and provided by the host state for the purpose of management or disposal of low-level radioactive waste for which the party states are responsible.
  4. “Disposal” means the permanent isolation of low-level radioactive waste pursuant to requirements established by the United States Nuclear Regulatory Commission and the United States Environmental Protection Agency under applicable laws, or by the host state.
  5. “Generate,” when used in relation to low-level radioactive waste, means to produce low-level radioactive waste.
  6. “Generator” means a person who produces or processes low-level radioactive waste in the course of its activities, excluding persons who arrange for the collection, transportation, management, treatment, storage, or disposal of waste generated outside the party states, unless approved by the Commission.
  7. “Host county” means a county in the host state in which a disposal facility is located or is being developed.
  8. “Host state” means a party state in which a compact facility is located or is being developed. The State of Texas is the host state under this compact.
  9. “Institutional control period” means that period of time following closure of the facility and transfer of the facility license from the operator to the custodial agency in compliance with the appropriate regulations for long-term observation and maintenance.
  10. “Low-Level Radioactive Waste” has the same meaning as that term is defined in Section 2(9) of the Act (42 U.S.C. Sec. 2021b(9)), or in the host state statute so long as the waste is not incompatible with management and disposal at the compact facility.
  11. “Management” means collection, consolidation, storage, packaging, or treatment.
  12. “Operator” means a person who operates a disposal facility.
  13. “Party state” means any state that has become a party in accordance with Article VII of this Compact. Texas, Maine, and Vermont are initial party states under this Compact.
  14. “Person” means an individual, corporation, partnership, or other legal entity, whether public or private.
  15. “Transporter” means a person who transports low-level radioactive waste.

    Article III. The Commission

    Sec. 3.01. There is hereby established the Texas Low-Level Radioactive Waste Disposal Compact Commission. The Commission shall consist of one voting member from each party state except that the host state shall be entitled to six voting members. Commission members shall be appointed by the party state governors, as provided by the laws of each party state. Each party state may provide alternates for each appointed member.

    Sec. 3.02. A quorum of the Commission consists of a majority of the members. Except as otherwise provided in this compact, an official act of the Commission must receive the affirmative vote of a majority of its members.

    Sec. 3.03. The Commission is a legal entity separate and distinct from the party states and has governmental immunity to the same extent as an entity created under the authority of Article XVI, Section 59, of the Texas Constitution. Members of the Commission shall not be personally liable for actions taken in their official capacity. The liabilities of the Commission shall not be deemed liabilities of the party states.

    Sec. 3.04. The Commission shall:

    (1) Compensate its members according to the host state’s law.

    (2) Conduct its business, hold meetings, and maintain public records pursuant to laws of the host state, except that notice of public meetings shall be given in the nonhost party states in accordance with their respective statutes.

    (3) Be located in the capital city of the host state.

    (4) Meet at least once a year and upon the call of the Chair, or any member. The Governor of the host state shall appoint a Chair and Vice Chair.

    (5) Keep an accurate account of all receipts and disbursements. An annual audit of the books of the commission shall be conducted by an independent certified public accountant, and the audit report shall be made a part of the annual report of the Commission.

    (6) Approve a budget each year and establish a fiscal year that conforms to the fiscal year of the host state.

    (7) Prepare, adopt, and implement contingency plans for the disposal and management of low-level radioactive waste in the event that the compact facility should be closed. Any plan which requires the host state to store or otherwise manage the low-level radioactive waste from all the party states must be approved by at least four host state members of the Commission. The Commission, in a contingency plan or otherwise, may not require a nonhost party state to store low-level radioactive waste generated outside the state.

    (8) Submit communications to the governors and to the presiding officers of the legislatures of the party states regarding the activities of the Commission, including an annual report to be submitted on or before January 31 of each year.

    (9) Assemble and make available to the party states, and to the public, information concerning low-level radioactive waste management needs, technologies, and problems.

    (10) Keep a current inventory of all generators within the party states, based upon information provided by the party states.

    (11) By no later than 180 days after all members of the Commission are appointed under Section 3.01 of this article, establish by rule the total volume of low-level radioactive waste that the host state will dispose of in the compact facility in the years 1995-2045, including decommissioning waste. The shipments of low-level radioactive waste from all nonhost party states shall not exceed 20 percent of the volume estimated to be disposed of by the host state during the 50-year period. When averaged over such 50-year period, the total of all shipments from nonhost party states shall not exceed 20,000 cubic feet a year. The Commission shall coordinate the volumes, timing, and frequency of shipments from generators in the nonhost party states in order to assure that over the life of this agreement shipments from the nonhost party states do not exceed 20 percent of the volume projected by the Commission under this paragraph.

    Sec. 3.05. The Commission may:

    (1) Employ staff necessary to carry out its duties and functions. The Commission is authorized to use to the extent practicable the services of existing employees of the party states. Compensation shall be as determined by the Commission.

    (2) Accept any grants, equipment, supplies, materials, or services, conditional or otherwise, from the federal or state government. The nature, amount, and condition, if any, of any donation, grant, or other resources accepted pursuant to this paragraph and the identity of the donor or grantor shall be detailed in the annual report of the Commission.

    (3) Enter into contracts to carry out its duties and authority, subject to projected resources. No contract made by the Commission shall bind a party state.

    (4) Adopt, by a majority vote, bylaws and rules necessary to carry out the terms of this compact. Any rules promulgated by the Commission shall be adopted in accordance with the Administrative Procedure and Texas Register Act (Article 6252-13a, Vernon’s Texas Civil Statutes).

    (5) Sue and be sued and, when authorized by a majority vote of the members, seek to intervene in administrative or judicial proceedings related to this Compact.

    (6) Enter into an agreement with any person, state, regional body, or group of states for the importation of low-level radioactive waste into the Compact for management or disposal, provided that the agreement receives a majority vote of the Commission. The Commission may adopt such conditions and restrictions in the agreement as it deems advisable.

    (7) Upon petition, allow an individual generator, a group of generators, or the host state of the Compact, to export low-level radioactive waste to a low-level radioactive waste disposal facility located outside the party states. The Commission may approve the petition only by a majority vote of its members. The permission to export low-level radioactive waste shall be effective for that period of time and for the specified amount of low-level radioactive waste, and subject to any other term or condition, as is determined by the Commission.

    (8) Monitor the exportation outside of the party states of material, which otherwise meets the criteria of low-level radioactive waste, where the sole purpose of the exportation is to manage or process the material for recycling or waste reduction and return it to the party states for disposal in the compact facility.

    Sec. 3.06. Jurisdiction and venue of any action contesting any action of the Commission shall be in the United States District Court in the district where the Commission maintains its office.

    Article IV. Rights, Responsibilities and Obligations of Party States

    Sec. 4.01. The host state shall develop and have full administrative control over the development, management and operation of a facility for the disposal of low-level radioactive waste generated within the party states. The host state shall be entitled to unlimited use of the facility over its operating life. Use of the facility by the nonhost party states for disposal of low-level radioactive waste, including such waste resulting from decommissioning of any nuclear electric generation facilities located in the party states, is limited to the volume requirements of Section 3.04(11) of Article III.

    Sec. 4.02. Low-level radioactive waste generated within the party states shall be disposed of only at the compact facility, except as provided in Section 3.05(7) of Article III.

    Sec. 4.03. The initial states of this Compact cannot be members of another low-level radioactive waste compact entered into pursuant to the Act.

    Sec. 4.04. The host state shall do the following:

    (1) Cause a facility to be developed in a timely manner and operated and maintained through the institutional control period.

    (2) Ensure, consistent with any applicable federal and host state laws, the protection and preservation of the environment and the public health and safety in the siting, design, development, licensing, regulation, operation, closure, decommissioning, and long-term care of the disposal facilities within the host state.

    (3) Close the facility when reasonably necessary to protect the public health and safety of its citizens or to protect its natural resources from harm. However, the host state shall notify the commission of the closure within three days of its action and shall, within 30 working days of its action, provide a written explanation to the Commission of the closure, and implement any adopted contingency plan.

    (4) Establish reasonable fees for disposal at the facility of low-level radioactive waste generated in the party states based on disposal fee criteria set out in Sections 402.272 and 402.273, Texas Health and Safety Code. The same fees shall be charged for the disposal of low-level radioactive waste that was generated in the host state and in the nonhost party states. Fees shall also be sufficient to reasonably support the activities of the Commission.

    (5) Submit an annual report to the Commission on the status of the facility, including projections of the facility’s anticipated future capacity, and on the related funds.

    (6) Notify the Commission immediately upon the occurrence of any event that could cause a possible temporary or permanent closure of the facility and identify all reasonable options for the disposal of low-level radioactive waste at alternate compact facilities or, by arrangement and commission vote, at noncompact facilities.

    (7) Promptly notify the other party states of any legal action involving the facility.

    (8) Identify and regulate, in accordance with federal and host state law, the means and routes of transportation of low-level radioactive waste in the host state.

    Sec. 4.05. Each party state shall do the following:

    (1) Develop and enforce procedures requiring low-level radioactive waste shipments originating within its borders and destined for the facility to conform to packaging, processing, and waste form specifications of the host state.

    (2) Maintain a registry of all generators within the state that may have low-level radioactive waste to be disposed of at the facility, including, but not limited to, the amount of low-level radioactive waste and the class of the low-level radioactive waste generated by each generator.

    (3) Develop and enforce procedures requiring generators within its borders to minimize the volume of low-level radioactive waste requiring disposal. Nothing in this Compact shall prohibit the storage, treatment, or management of waste by a generator.

    (4) Provide the Commission with any data and information necessary for the implementation of the Commission’s responsibilities, including taking those actions necessary to obtain this data or information.

    (5) Pay for community assistance projects designated by the host county in an amount for each nonhost party state equal to 10 percent of the payment provided for in Article V for each such state. One-half of the payment shall be due and payable to the host county on the first day of the month following ratification of this compact agreement by Congress and one-half of the payment shall be due and payable on the first day of the month following the approval of a facility operating license by the host state’s regulatory body.

    (6) Provide financial support for the Commission’s activities prior to the date of facility operation and subsequent to the date of Congressional ratification of this Compact under Section 7.07 of Article VII. Each party state will be responsible for annual payments equaling its pro rata share of the Commission’s expenses, incurred for administrative, legal, and other purposes of the Commission.

    (7) If agreed by all parties to a dispute, submit the dispute to arbitration or other alternate dispute resolution process. If arbitration is agreed upon, the Governor of each party state shall appoint an arbitrator. If the number of party states is an even number, the arbitrators so chosen shall appoint an additional arbitrator. The determination of a majority of the arbitrators shall be binding on the party states. Arbitration proceedings shall be conducted in accordance with the provisions of 9 U.S.C. Sections 1 through 16. If all parties to a dispute do not agree to arbitration or alternate dispute resolution process, the United States District Court in the district where the Commission maintains its office shall have original jurisdiction over any action between or among parties to this compact.

    (8) Provide on a regular basis to the Commission and host state:

    1. an accounting of waste shipped and proposed to be shipped to the compact facility, by volume and curies;
    2. proposed transportation methods and routes; and
    3. proposed shipment schedules.

      (9) Seek to join in any legal action by or against the host state to prevent nonparty states or generators from disposing of low-level radioactive waste at the facility.

      Sec. 4.06. Each party state shall act in good faith and may rely on the good faith performance of the other party states regarding requirements of this Compact.

      Article V. Party State Contributions

      Sec. 5.01. Each party state, except the host state, shall contribute a total of $25 million to the host state. Payments shall be deposited in the host state treasury to the credit of the Low-Level Waste Fund in the following manner except as otherwise provided. Not later than the 60th day after the date of Congressional ratification of this Compact, each nonhost party state shall pay to the host state $12.5 million. Not later than the 60th day after the date of the opening of the compact facility, each nonhost party state shall pay to the host state an additional $12.5 million.

      Sec. 5.02. As an alternative, the host state and the nonhost states may provide for payments in the same total amount as stated above to be made to meet the principal and interest expense associated with the bond indebtedness or other form of indebtedness issued by the appropriate agency of the host state for purposes associated with the development, operation, and post-closure monitoring of the compact facility. In the event the member states proceed in this manner, the payment schedule shall be determined in accordance with the schedule of debt repayment. This schedule shall replace the payment schedule described in Section 5.01 of this article.

      Article VI. Prohibited Acts and Penalties

      Sec. 6.01. No person shall dispose of low-level radioactive waste generated within the party states unless the disposal is at the compact facility, except as otherwise provided in Section 3.05(7) of Article III.

      Sec. 6.02. No person shall manage or dispose of low-level radioactive waste within the party states unless the low-level radioactive waste was generated within the party states, except as provided in Section 3.05(6) of Article III. Nothing herein shall be construed to prohibit the storage or management of low-level radioactive waste by a generator, nor its disposal pursuant to 10 C.F.R. Section 20.302.

      Sec. 6.03. Violations of this article may result in prohibiting the violator from disposing of low-level radioactive waste in the compact facility, or in the imposition of penalty surcharges on shipments to the facility, as determined by the Commission.

      Article VII. Eligibility; Entry into Effect; Congressional Consent; Withdrawal; Exclusion

      Sec. 7.01. The States of Texas, Maine, and Vermont are party states to this Compact. Any other state may be made eligible for party status by a majority vote of the Commission and ratification by the legislature of the host state, subject to fulfillment of the rights of the initial nonhost party states under Section 3.04(11) of Article III and Section 4.01 of Article IV, and upon compliance with those terms and conditions for eligibility that the host state may establish. The host state may establish all terms and conditions for the entry of any state, other than the states named in this section, as a member of this Compact; provided, however, the specific provisions of this Compact, except for those pertaining to the composition of the Commission and those pertaining to Section 7.09 of this article, may not be changed except upon ratification by the legislatures of the party states.

      Sec. 7.02. Upon compliance with the other provisions of this Compact, a state made eligible under Section 7.01 of this article may become a party state by legislative enactment of this Compact or by executive order of the governor of the state adopting this Compact. A state becoming a party state by executive order shall cease to be a party state upon adjournment of the first general session of its legislature convened after the executive order is issued, unless before the adjournment, the legislature enacts this Compact.

      Sec. 7.03. Any party state may withdraw from this Compact by repealing enactment of this Compact subject to the provisions herein. In the event the host state allows an additional state or additional states to join the Compact, the host state’s legislature, without the consent of the nonhost party states, shall have the right to modify the composition of the Commission so that the host state shall have a voting majority on the Commission, provided, however, that any modification maintains the right of each initial party state to retain one voting member on the Commission.

      Sec. 7.04. If the host state withdraws from the Compact, the withdrawal shall not become effective until five years after enactment of the repealing legislation and the nonhost party states may continue to use the facility during that time. The financial obligation of the nonhost party states under Article V shall cease immediately upon enactment of the repealing legislation. If the host state withdraws from the Compact or abandons plans to operate a facility prior to the date of any nonhost party state payment under Sections 4.05(5) and (6) of Article IV or Article V, the nonhost party states are relieved of any obligations to make the contributions. This section sets out the exclusive remedies for the nonhost party states if the host state withdraws from the Compact or is unable to develop and operate a compact facility.

      Sec. 7.05. A party state, other than the host state, may withdraw from the compact by repealing the enactment of this Compact, but this withdrawal shall not become effective until two years after the effective date of the repealing legislation. During this two-year period the party state will continue to have access to the facility. The withdrawing party shall remain liable for any payments under Sections 4.05(5) and (6) of Article IV that were due during the two-year period, and shall not be entitled to any refund of payments previously made.

      Sec. 7.06. Any party state that substantially fails to comply with the terms of the Compact or to fulfill its obligations hereunder may have its membership in the Compact revoked by a seven-eighths vote of the Commission following notice that a hearing will be scheduled not less than six months from the date of the notice. In all other respects, revocation proceedings undertaken by the Commission will be subject to the Administrative Procedure and Texas Register Act (Article 6252-13a, Vernon’s Texas Civil Statutes), except that a party state may appeal the Commission’s revocation decision to the United States District Court in accordance with Section 3.06 of Article III. Revocation shall take effect one year from the date such party state receives written notice from the Commission of a final action. Written notice of revocation shall be transmitted immediately following the vote of the Commission, by the Chair, to the governor of the affected party state, all other governors of party states, and to the United States Congress.

      Sec. 7.07. This Compact shall take effect following its enactment under the laws of the host state and any other party state and thereafter upon the consent of the United States Congress and shall remain in effect until otherwise provided by federal law. If Texas and either Maine or Vermont ratify this Compact, the Compact shall be in full force and effect as to Texas and the other ratifying state, and this Compact shall be interpreted as follows:

      (1) Texas and the other ratifying state are the initial party states.

      (2) The Commission shall consist of two voting members from the other ratifying state and six from Texas.

      (3) Each party state is responsible for its pro rata share of the Commission’s expenses.

      Sec. 7.08. This Compact is subject to review by the United States Congress and the withdrawal of the consent of Congress every five years after its effective date, pursuant to federal law.

      Sec. 7.09. The host state legislature, with the approval of the governor, shall have the right and authority, without the consent of the nonhost party states, to modify the provisions contained in Section 3.04(11) of Article III to comply with Section 402.219(c)(1), Texas Health and Safety Code, as long as the modification does not impair the rights of the initial nonhost party states.

      Article VIII. Construction and Severability

      Sec. 8.01. The provisions of this Compact shall be broadly construed to carry out the purposes of the Compact, but the sovereign powers of a party shall not be infringed upon unnecessarily.

      Sec. 8.02. This Compact does not affect any judicial proceeding pending on the effective date of this compact.

      Sec. 8.03 No party state acquires any liability, by joining this Compact, resulting from the siting, operation, maintenance, long-term care or any other activity relating to the compact facility. No nonhost party state shall be liable for any harm or damage from the siting, operation, maintenance, or long-term care relating to the compact facility. Except as otherwise expressly provided in this Compact, nothing in this Compact shall be construed to alter the incidence of liability of any kind for any act or failure to act. Generators, transporters, owners, and operators of the facility shall be liable for their acts, omissions, conduct, or relationships in accordance with applicable law. By entering into this Compact and securing the ratification by Congress of its terms, no party state acquires a potential liability under Section 5(d)(2)(C) of the Act (42 U.S.C. Sec. 2021e(d)(2)(C)) that did not exist prior to entering into this Compact.

      Sec. 8.04. If a party state withdraws from the Compact pursuant to Section 7.03 of Article VII or has its membership in this Compact revoked pursuant to Section 7.06 of Article VII, the withdrawal or revocation shall not affect any liability already incurred by or chargeable to the affected state under Section 8.03 of this article.

      Sec. 8.05. The provisions of this Compact shall be severable and if any phrase, clause, sentence, or provision of this Compact is declared by a court of competent jurisdiction to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any government, agency, person, or circumstances is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby to the extent the remainder can in all fairness be given effect. If any provision of this Compact shall be held contrary to the Constitution of any state participating therein, the Compact shall remain in full force and effect as to the state affected as to all severable matters.

      Sec. 8.06. Nothing in this Compact diminishes or otherwise impairs the jurisdiction, authority, or discretion of either of the following:

      (1) the United States Nuclear Regulatory Commission pursuant to the Atomic Energy Act of 1954, as amended (42 U.S.C. Sec. 2011 et seq.); or

      (2) an agreement state under Section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. Sec. 2021).

      Sec. 8.07. Nothing in this Compact confers any new authority on the states or Commission to do any of the following:

      (1) Regulate the packaging or transportation of low-level radioactive waste in a manner inconsistent with the regulations of the United States Nuclear Regulatory Commission or the United States Department of Transportation.

      (2) Regulate health, safety, or environmental hazards from source, byproduct, or special nuclear material.

      (3) Inspect the activities of licensees of the agreement states or of the United States Nuclear Regulatory Commission.

HISTORY: Added 1993, No. 137 (Adj. Sess.), § 2.

History

References in text.

10 C.F.R. § 20.302, referred to in 6.03 of this Compact, was removed by 58 F.R. 67657, Dec. 22, 1993. For present provisions, see 10 C.F.R. §§ 20.1001 through 20.2402.

Sections 402.272 and 402.273, Texas Health and Safety Code, referred to in 4.04(4) of this compact, were renumbered by Acts 2003, 78th Leg., ch. 1067, § 11, eff. Sept. 1, 2003. For present provisions, see §§ 401.245 and 401.246 of the Texas Health and Safety Code.

Section 402.219(c)(1), Texas Health and Safety Code, referred to in 7.09 of this compact, was renumbered by Acts 2003, 78th Leg., ch. 1067, § 10, eff. Sept. 1, 2003. For present provisions, see §§ 401.248 of the Texas Health and Safety Code.

Effective date of chapter. See note following § 7060 of this title.

CROSS REFERENCES

Liability for hazardous materials generally, see § 6615 of this title.

Chapter 164. Comprehensive Mercury Management

§ 7101. Legislative findings.

The General Assembly finds and declares that:

  1. Mercury is a persistent and toxic pollutant that bioaccumulates in the environment and poses a serious threat to humans, particularly young children and the developing fetus, and wildlife.
  2. Recent EPA research concludes that 16 percent of American women of childbearing age have unsafe mercury blood levels, and that the annual number of newborn infants at risk in the United States is 630,000.
  3. The primary means of human exposure to mercury is the consumption of contaminated fish and shellfish.
  4. Vermont and all other northeastern states have issued Statewide fish consumption mercury contamination advisories that recommend limiting or avoiding the consumption of certain freshwater fish caught locally.
  5. While the Vermont Departments of Environmental Conservation, Fish and Wildlife, and Health have undertaken a long-term collaboration to monitor and report on fish tissue mercury in Vermont waters, most lakes and streams remain untested. Of the 560 lakes and ponds tracked by the Department of Environmental Conservation, only 60 of the largest have been monitored for fish mercury. For inland lakes, this corresponds to 51 percent of the lake acreage in Vermont. Only 22 river or stream sites have been tested for fish mercury. This current monitoring approach is not designed to track changes in fish mercury over time in response to management actions and does not address mercury impacts on fish-eating wildlife.
  6. The U.S. Food and Drug Administration and the Vermont Department of Health recommend limiting the consumption of certain commercial saltwater fish, including canned tuna.
  7. Human exposure to mercury can result in nervous system, kidney, and liver damage and impaired childhood development.
  8. There has been a threefold increase in mercury loading to the environment over the past 150 years. Much of the mercury deposited from the atmosphere is from human and natural sources, but anthropogenic emissions exceed those that occur naturally.
  9. More than one-half of the mercury deposition is from out-of-region sources, with the largest being coal-burning power plants (utility boilers) and industrial boilers.
  10. While mercury-added switches have been eliminated from currently manufactured U.S. and foreign manufactured motor vehicles, mercury-added switches are still prevalent in end-of-life motor vehicles previously manufactured. Collection programs for these vehicle switches at end-of-life of the vehicle have proven to be a feasible method to reduce a significant source of mercury release to the region.
  11. Implementation of the 1998 New England Governors and Eastern Canadian Premiers Mercury Action Plan has led to a decrease in regional mercury emissions of more than 55 percent—primarily due to emissions controls on municipal combustors and medical waste incinerators, both of which burn discarded mercury-added products.
  12. The New England Governors and Eastern Canadian Premiers have set an interim goal in the Mercury Action Plan of 75 percent reduction in anthropogenic emissions by 2010. Achieving this goal will require further reduction measures from in-region combustion sources such as power plants, industrial and commercial boilers, and sewage sludge incinerators, and will require reducing mercury releases that occur through disposal and breakage of products that contain mercury.
  13. Many of the states in the region, including Connecticut, Maine, New York, and Rhode Island, have adopted comprehensive mercury-added product legislation to identify and eliminate unnecessary uses of mercury.
  14. Significant use of mercury-added products occurs in health care facilities, schools, and dental practices, in all of which mercury use or release reduction is technically and economically feasible.
  15. The Mercury Task Force of the Conference of New England Governors and Eastern Canadian Premiers adopted a goal to reduce dental wastewater discharges of mercury by having 50 percent of dentists install amalgam separators in each state or jurisdiction by the end of 2005.
  16. In 1998, the Vermont General Assembly passed legislation requiring labeling of mercury-added products and banned the disposal of these labeled products in landfills. The Agency and municipal solid waste districts implemented numerous mercury education and reduction programs to reduce mercury use in products and to collect spent mercury-added products for proper recycling and disposal. Public education is essential to reducing improper disposal of spent mercury-added products.
  17. Vermont’s mercury product legislation passed in 1998 does not comprehensively restrict the sale and use of mercury-added products.
  18. Studies conducted for the State of Maine show that mercury-free alternatives exist for a majority of the thousands of products containing mercury components. These products include thermometers, thermostats, flow meters, barometers, manometers, medical devices, and electrical switches and relays.
  19. Studies conducted for the State of Maine show that manufacturers are beginning to market mercury-free versions of all types of mercury-added button cell and other miniature batteries.
  20. Novelty products using mercury have been banned from sale in several states.
  21. Citizens of Vermont, the Vermont environment, and the Agency will benefit from comprehensive mercury product legislation that further reduces mercury emissions and is consistent with model mercury product legislation developed jointly by the northeast states.

HISTORY: Added 2005, No. 13 , § 1.

§ 7102. Definitions.

As used in this chapter:

  1. “Agency” means the Vermont Agency of Natural Resources.
  2. “Elemental mercury” means the chemical symbol Hg. Elemental Hg is a silvery-white liquid (at room temperature) with an atomic number of 80 and an atomic mass of 200.57.
  3. “Fabricated mercury-added product” means a product that consists of a combination of individual components that combine to make a single unit, including mercury-added measuring devices, lamps, and switches.
  4. “Formulated mercury-added product” means a product that is sold as a consistent mixture of chemicals to which mercury or a mercury compound has been intentionally added in order to provide a specific characteristic, appearance, or quality, or to perform a specific function, or for any other reason. This includes laboratory chemicals, cleaning products, cosmetics, pharmaceuticals, and coating materials. For the purposes of this chapter, formulated mercury-added product does not include pharmaceuticals, pharmaceutical products, biological products, or any substance that may be lawfully sold over the counter without a prescription under the federal Food, Drug and Cosmetics Act, 21 U.S.C. §§ 301 et seq. “Biological product” means a virus, therapeutic serum, toxin, antitoxin, vaccine, blood, blood component or derivative, allergenic product or an analogous product, or asphenamine (a derivative of arsphenamine) or any other trivalent organic arsenic compound used for the prevention, treatment, or cure of a disease or condition of human beings.
  5. “Large appliance” includes the following items: refrigerators, washing machines, clothes dryers, ranges, water heaters, dishwashers, freezers, microwave ovens, air conditioners, portable heaters, and other similar domestic and commercial appliances as may be identified by the Agency by rule.
    1. “Manufacturer” means any person, firm, association, partnership, corporation, governmental entity, organization, combination, or joint venture that: (6) (A) “Manufacturer” means any person, firm, association, partnership, corporation, governmental entity, organization, combination, or joint venture that:
      1. produces a mercury-added product; or
      2. serves as an importer or domestic distributor of a mercury-added product produced outside the United States.
    2. This definition shall not apply to retailers for whom importing is not their primary business.
    3. In the case of a multi-component mercury-added product, the manufacturer is the last manufacturer to produce or assemble the product.
    4. In the case of mercury-containing thermostats, the manufacturer is the original equipment manufacturer.
  6. “Mercury-added component” means a mercury-added product that is incorporated into another product to form a fabricated mercury-added product, including electrical switches, relays, and lamps.
  7. “Mercury-added novelty” means a mercury-added product intended mainly for personal or household enjoyment or adornment. Mercury-added novelties include items intended for use as practical jokes, figurines, adornments, toys, games, cards, ornaments, yard statues and figures, candles, jewelry, holiday decorations, items of apparel (including footwear), and similar products.
  8. “Mercury-added product” means a product, a commodity, a chemical, a product with one or more components, or a product that cannot function without the use of that component, that contains mercury or a mercury compound intentionally added to the product, commodity, chemical, or component in order to provide a specific characteristic, appearance, or quality, or to perform a specific function, or for any other reason. These products include formulated mercury-added products and fabricated mercury-added products.
  9. “Mercury fever thermometer” means a mercury-added product that is used for measuring body temperature. This does not include a fever thermometer with a mercury-added button cell battery.
  10. “Motor vehicle” means a vehicle propelled by an internal combustion engine or an electric motor, such as an automobile, van, truck, motorized construction equipment, motorized recreational vehicle, motorcycle, or forklift.
  11. “End-of-life motor vehicle” means a motor vehicle that has not been intentionally flattened, crushed, shredded, or baled if sold, given, or otherwise conveyed to a motor vehicle recycler or scrap metal recycling facility for the purpose of recycling.
  12. “Mercury-added vehicle switch” means a capsule, commonly known as a bullet, containing mercury, that is part of a convenience light switch assembly for motor vehicle trunks and hoods or is part of the anti-lock brake system.
  13. “Motor vehicle recycler” means an individual or entity engaged in the business of acquiring, dismantling, parts recycling, or destroying six or more end-of-life motor vehicles in a year.
  14. “Scrap metal recycling facility” means a facility at a fixed location that uses equipment to process and refabricate scrap metal into prepared grades and principally produces scrap iron, steel, or nonferrous metallic scrap for sale.
  15. “Mercury-containing thermostat” means a product or device that uses a mercury switch to sense and control room temperature through communication with heating, ventilating, or air-conditioning equipment. “Mercury-containing thermostat” includes thermostats used to sense and control room temperature in residential, commercial, industrial, and other buildings but does not include a thermostat used to sense and control temperature as part of a manufacturing process.
  16. “Person” means any individual, corporation, partnership, cooperative, association, firm, sole proprietorship, governmental agency, or other entity.
  17. “Thermostat retailer” means a person who sells thermostats of any kind directly to homeowners or other nonprofessionals through any selling or distribution mechanism, including sales using the Internet or catalogues. A retailer may also be a wholesaler if it meets the definition of wholesaler.
  18. “Thermostat wholesaler” means a person that is engaged in the distribution and wholesale sale of heating, ventilation, and air-conditioning components to contractors who install heating, ventilation, and air-conditioning components.

HISTORY: Added 2005, No. 13 , § 1; amended 2005, No. 117 (Adj. Sess.), § 1; 2007, No. 149 (Adj. Sess.), § 2.

History

Revision note

—2015. In subdiv. (18), deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2007 (Adj. Sess.). Subdivs. (6)(D), (16)-(19): Added.

—2005 (Adj. Sess.). Subdivs. (12)-(15): Added.

§ 7103. Multistate clearinghouse.

The Agency is authorized to participate in the establishment and implementation of a regional, multistate clearinghouse to assist in carrying out the requirements of this chapter, to coordinate State review of manufacturer notification under section 7104 of this title, applications for alternative product labeling under section 7106 of this title, exemption requests from product sale restrictions under section 7105 of this title, education and outreach activities, and to coordinate any other activities related to the administration of this chapter. Notwithstanding 1 V.S.A. § 317 , the Agency may provide the multistate clearinghouse with product information submitted to the Department under section 7104 of this title, and the Agency and the multistate clearinghouse may compile or publish analyses or summaries of such information, provided the analyses or summaries do not identify any manufacturer or reveal any confidential information.

HISTORY: Added 2005, No. 13 , § 1.

§ 7104. Notification.

  1. Effective July 1, 2006, no mercury-added product may be offered for final sale, sold at a final sale, or distributed in Vermont, unless the manufacturer or its designated industrial trade group gives prior notification in writing to the Agency or the multistate clearinghouse described in section 7103 of this chapter, as provided in this section. This notification, in a form approved by the Agency, at a minimum shall include:
    1. a brief description of the product or category of products to be offered for sale or distributed;
    2. the purpose for which mercury is used in each individual product or category of products;
    3. the amount of mercury in each unit of the product or product component, reported as an exact number or as falling within a range approved by the Agency;
    4. the name and address of the manufacturer, or manufacturers, and the name, address, and telephone number of a contact person for the manufacturer; and
    5. the total amount of mercury in all units of the product or product components sold in the United States during the most recent calendar year for which sales figures are available, reported either for the units or components sold by the manufacturer or as aggregated by a manufacturer trade association for all units of the product or components made by the industry.
  2. With the approval of the Agency or multistate clearinghouse, the manufacturer may supply the information required in this section for a product category rather than an individual product. The manufacturer or its designated industrial trade group shall revise the information in the notification whenever there is a significant change in the information or when requested by the Agency or the multistate clearinghouse. The information required under subdivision (a)(5) of this section must be updated and provided to the Agency or multistate clearinghouse every three years on a date established through the multistate clearinghouse.
  3. [Repealed.]
  4. The requirements of this section do not apply to drugs approved by the U.S. Food and Drug Administration or to any mercury-added product for which federal law governs notice in a manner that preempts State authority.
  5. Public disclosure of any business information submitted to the Agency pursuant to this section shall be governed by the requirements of 1 V.S.A. § 317 . Notwithstanding the provisions of 1 V.S.A. § 317 , the Agency may provide the multistate clearinghouse with copies of that information, and the Agency, in consultation with the clearinghouse, may compile or publish analyses or summaries of that information, provided the analyses or summaries do not identify any manufacturer or reveal any confidential information.

HISTORY: Added 2005, No. 13 , § 1; amended 2005, No. 117 (Adj. Sess.), § 2.

History

Amendments

—2005 (Adj. Sess.). Subdiv. (a)(3): Deleted “as an average per product or per component with an upper or lower limit” following “number”.

Subsec. (c): Deleted.

§ 7105. Restrictions on the sale and use of certain mercury-added products.

  1. Novelties.   After July 1, 2006, no mercury-added novelty may be offered for sale, sold at final sale, or distributed in Vermont. This ban on sale or distribution shall not apply to a novelty incorporating one or more button cell batteries, or one or more mercury-added lamps, as its only mercury-added components. Manufacturers that produce and sell mercury-added novelties must notify retailers about the provisions of this product ban and how to return the remaining inventory to the manufacturer.
  2. Thermometers and thermostats.   After July 1, 2006, no mercury fever thermometer or mercury-containing thermostat for the control of space heating or cooling may be offered for final sale, sold at final sale, or distributed in Vermont.
  3. Dairy manometers.   After January 1, 2006, no mercury dairy manometer may be offered for final sale, sold at a final sale, or distributed in Vermont, with the exception of a mercury dairy manometer purchased by a licensed dairy service provider to calibrate customers’ manometers and other milking equipment. The Agency of Agriculture, Food and Markets will notify dairy service providers of this product ban, and how to dispose properly of remaining inventory. The Agency of Agriculture, Food and Markets and Vermont solid waste districts and municipalities will continue their education, outreach, and assistance programs for dairy farms, focusing on the hazards of mercury, and encouraging dairy farmers to replace their mercury-containing manometers with mercury-free alternatives in an effort to help further reduce mercury in the environment.
  4. Elemental mercury.
    1. Effective July 1, 2006, no person may sell or provide elemental mercury to another person in Vermont, except for recycling or disposal purposes, without providing a “material safety data sheet,” as defined in 42 U.S.C. § 11049, and requiring the purchaser or recipient to sign a statement that the purchaser:
      1. will use the mercury only for medical, manufacturing, or research purposes;
      2. understands that mercury is toxic, and the purchaser or recipient will store and use it appropriately so that no person is exposed to the mercury; and
      3. will not place the mercury in solid waste for disposal or in a wastewater treatment and disposal system, and will not allow anyone under the purchaser’s or recipient’s control to place or cause mercury to be placed in such a location.
    2. Effective July 1, 2006, no person may purchase elemental mercury from someone outside the State of Vermont for use in Vermont without a certified statement from the purchaser provided to the Agency, certifying that the conditions specified in subdivision (1) of this subsection, if applicable, have been met. These conditions shall not apply to the sale or provision of elemental mercury for manufacturing, recycling, or disposal purposes.
  5. Instruments, measuring devices, and neon signs.
    1. Effective January 1, 2007, none of the following mercury-added products may be offered for final sale, sold at a final sale, or distributed in Vermont as a new manufactured product:
      1. a barometer;
      2. an esophageal dilator, bougie tube, or gastrointestinal tube;
      3. a flow meter;
      4. a hydrometer;
      5. a hygrometer or psychrometer;
      6. a manometer other than a manometer prohibited from sale under subsection (c) of this section;
      7. a pyrometer;
      8. a sphygmomanometer;
      9. a thermometer that contains elemental mercury, other than a mercury fever thermometer;
      10. a mercury-added neon type sign.
    2. This prohibition does not apply to the sale of a mercury-added product listed in subdivisions (1)(A)-(J) of this subsection if use of the product is a federal requirement, or if the only mercury-added component of the product is a button cell battery. This prohibition does not apply to the sale of mercury-added lamps when used in semiconductor manufacturing and other manufacturing operations.
  6. Mercury switches and relays.   Effective January 1, 2007, no mercury switch or mercury relay, individually or as a product component, may be offered for final sale, sold at a final sale, or distributed in Vermont as a new manufactured product. This subsection does not apply to the sale of a mercury switch or mercury relay if the manufacturer provides satisfactory documentation that the use of the switch or relay is a federal requirement.
  7. Exclusion for existing equipment.   The prohibitions in subsections (e) and (f) of this section do not apply if the switch, relay, or measuring device is used to replace a switch, relay, or measuring device which is a component of a larger product in use prior to January 1, 2007, provided the owner of that equipment has made every reasonable effort to determine that no compatible nonmercury replacement component exists.
  8. Exemptions.
    1. A manufacturer of a mercury-added switch, relay, or measuring device may apply to the Agency and notify the multistate clearinghouse for an exemption from the sales ban in subsections (e) and (f) of this section, provided that exemption shall be for not more than five years. With Agency approval, an agent of the manufacturer, who may be a user, may apply for an exemption.
    2. The manufacturer or agent of the manufacturer seeking an exemption to offer for sale, sell, or distribute a switch, relay, or measuring device in Vermont after January 1, 2007 shall apply for the exemption not later than March 1, 2006. Exemption applications for new types of switches, relays, or measuring devices developed and intended to begin initial sale or distribution after January 1, 2007 must be received at least nine months prior to the intended offer for sale, the sale, or the distribution in Vermont.
    3. Application for the exemption or exemption renewal shall be on a form and be supported by the information and materials required by the agency. The exemption application shall document the basis for the requested exemption or renewal of exemption and describe how the manufacturer will ensure that a system exists for the proper collection, transportation, and processing of the switches, relays, or measuring devices at the end of their useful life.
    4. The Agency may grant an exemption with or without conditions upon findings that:
      1. a system exists for the proper collection, transportation, and processing of the product at the end of its life, including a system for the direct return of a waste product to the manufacturer or a collection and recycling system that is supported by an industry or trade group, or other similar private or public sector efforts; and
      2. one of the following applies:
        1. use of the product provides a net benefit to the environment, public health, or public safety when compared to available nonmercury alternatives; or
        2. technically feasible alternatives are not available at reasonable cost;
      3. with respect to renewals of an exemption, in addition to subdivisions (A) and (B) of this subdivision (4), reasonable efforts have been made to remove mercury from the product.
    5. Prior to issuing an exemption or conditional exemption, the Agency may consult with the multistate clearinghouse and other states to promote consistency in the implementation of this section.
    6. The Agency may renew, for a period not longer than five years, an exemption or conditional exemption one or more times if the manufacturer applies for renewal, and the Agency finds that the manufacturer meets the requirements for that exemption, and that the manufacturer has complied with all the conditions of the original approval. With Agency approval, an agent of the manufacturer may apply for the exemption renewal.

HISTORY: Added 2005, No. 13 , § 1; amended 2005, No. 117 (Adj. Sess.), § 3; 2007, No. 63 , § 2.

History

Amendments

—2007. Subdiv. (e)(1)(J): Deleted “or lamp” following “sign”.

—2005 (Adj. Sess.). Deleted “manufacturing or” preceding “recycling” in subdiv. (d)(1), added “manufacturing” following “medical” in subdiv. (d)(1)(A), and added “or recipient” following “purchaser” in subdiv. (d)(1)(B), and “or recipient’s” following “purchaser’s” in subdiv. (d)(1)(C).

§ 7106. Labeling of mercury-added products.

  1. No mercury-added product may be offered for final sale, sold at a final sale, or distributed in Vermont after July 1, 2007, unless both the product and its packaging are labeled in accordance with this section. This requirement also may be met by compliance with the terms of any approved alternative labeling method granted under subsection (h) or (i) of this section. A retailer may not be found in violation of this subsection if the retailer lacked knowledge that the product contained mercury.
  2. This section shall not apply to mercury-added button cell batteries, products containing mercury-added button cell batteries, photographic film, or the packaging of these products.
  3. If a mercury-added component is part of another product, the product containing the component, the component, and the product package must be labeled. The label on a product containing a mercury-added component shall identify the component with sufficient detail so that it may be readily located for removal.
  4. All labels must be legible and must clearly inform the purchaser or consumer, using words or symbols, in a minimum of 10 point font type, that mercury is present in the product and clearly specify that the mercury-added product should not be disposed of or placed in a waste stream destined for disposal until the mercury is removed and reused, recycled, or otherwise managed to ensure that the mercury in the product does not become mixed with other solid waste or wastewater. Component, product, and package labels must be placed such that they are clearly visible. A label must also be visible prior to sale.
  5. Labels affixed to the product or any component shall be constructed of materials that are sufficiently durable to remain legible for the useful life of the product.
  6. Responsibility for product and package labels required under this section shall be on the manufacturer. In the case of a multi-component product in which a mercury-added component is included, the responsible manufacturer is the last manufacturer to produce or assemble the product. In the case of a mercury-added product imported from a foreign country, the importer shall assure the manufacturer has complied with this section before the offering for final sale or distribution of the product in Vermont.
  7. Any mercury-added product for which federal law governs labeling in a manner that preempts State authority shall be exempt from the requirements of this section. This section shall not apply to prescription drugs or any substance that may lawfully be sold over the counter without a prescription under the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301 et seq.
  8. Alternative methods of labeling are as follows:
      1. A manufacturer may apply to the Agency or the multistate clearinghouse for an alternative to the requirements of subsections (a) through (f) and (i) of this section where: (1) (A) A manufacturer may apply to the Agency or the multistate clearinghouse for an alternative to the requirements of subsections (a) through (f) and (i) of this section where:
        1. strict compliance with the requirements is not feasible as determined by the Agency;
        2. the proposed alternative would be at least as effective in providing presale notification of mercury content;
        3. the proposed alternative would be at least as effective in providing instructions on proper disposal; or
        4. federal law governs labeling in a manner that preempts State authority.
      2. The Agency may approve an alternative concerning a certain product category without application by manufacturers, but the Agency must consider other alternatives for the category upon application by a manufacturer for the use of an unapproved alternative.
    1. Applications for an alternative to the requirements of subsections (a) through (f) and (i) of this section must:
      1. document the justification for the requested alternative;
      2. describe how the alternative ensures that purchasers or recipients of mercury-added products are made aware of mercury content prior to purchase or receipt;
      3. describe how a person discarding the mercury-added product will be made aware of the need for proper handling to ensure that it does not become part of solid waste or wastewater;
      4. document the readiness of all necessary parties to implement the proposed alternative; and
      5. describe the performance measures to be utilized by the manufacturer to demonstrate that the alternative is providing effective presale notification and predisposal notification.
    2. The Agency may grant, deny, or approve with modifications or conditions a request for an alternative to the requirements of subsections (a) through (f) and (i) of this section. This approval of an alternative shall be for a period, specified by the Agency, of no less than two years. The Agency may review alternatives and modify or condition a previously approved alternative after providing notice to the affected parties. Modifications shall be implemented within a time frame approved by the Agency, which shall not exceed two years. Requests for renewals shall be submitted 90 days before the expiration of the approval. Prior to approving an alternative, the Agency may consult with states, provinces, and regional organizations to review consistency with other states that have similar legislation.
    3. Alternatives that authorize font sizes less than 10-point type that have been approved by the Agency prior to July 1, 2005 shall remain in effect until July 1, 2015.
      1. The following alternative methods of labeling for specific products are approved, and no further Agency approval is required:

        (1) Labeling of a large appliance sold in a store where that appliance is on display shall meet all requirements of subsections (a) through (f) of this section, except that no package labeling is required.

        (2) Labeling of all new motor vehicles shall meet all the requirements of subsections (a) through (f) of this section, except that the mercury-added components are not required to be labeled. A driver’s side doorpost label applied by the manufacturer shall list the mercury-added components that may be present on the vehicle. Only in the case of a trade of a new vehicle by a dealer with a dealer in another state shall the motor vehicle dealer be responsible for applying the doorpost label to the vehicle. No labeling of used motor vehicles shall be required. For motor vehicles without doorposts, label placement will be subject to the approval of the Agency.

        (3) (A) Labeling of products that contain, as their only mercury-added components, one or more lamps not intended to be replaceable by the user or consumer that are used for one or more of the purposes enumerated in this subdivision shall meet all the requirements of subsections (a) through (f) of this section, except no label is required on the internal lamp, no label is required on the package, and no label is required to be visible prior to purchase. A label must be included in the care and use manual or in the event that no care and use manual is produced for the product, the product instructions.

        1. backlighting;
        2. liquid crystal display (LCD) panel;
        3. scanning images; or
        4. copying images.
  9. Lamp purposes subject to this subdivision shall be:
  10. A manufacturer who offers for final sale, sells at a final sale, or distributes a product subject to the labeling requirements of this section shall certify to the Secretary, on a form provided by the Secretary, that the label conforms to the requirements of subsection (d) or (i) of this section.
  • This subdivision (A) shall apply to products containing lamps used for other purposes, if those products are approved under subsection (h) of this section, except that there need not be compliance in this instance with the requirement established in subdivision (h)(1)(A)(ii), regarding the effectiveness of the proposed alternative.

    (B) Labeling of products with a screen or LCD panel less than seven inches on the diagonal that contain, as their only mercury-added components, one or more lamps not intended to be replaceable by the user or consumer that are used for backlighting shall meet all the requirements of subsections (a) through (c) of this section by placing the label on the product or in the care and use manual or in the event that no care and use manual is produced for the product, the product instructions. No label is required on the internal lamp, and no label shall be required to be visible prior to purchase.

    (C) Labeling of a product that contains as its only mercury-added components a lamp or lamps at least one of which is intended to be replaceable by the user or consumer must meet the labeling requirements of subsections (a) through (f) of this section, except no label is required to be visible prior to purchase. A label must also be included in the care and use manual or in the event that no care and use manual is produced for the product, the product instructions. If the replaceable lamp is placed within a housing intended to be replaceable by the user or consumer, the housing must also be labeled.

    (D) Labeling of replacement components for products in subdivision (A) or (B) of this subdivision (3) shall meet all the requirements of subsections (a) through (f) of this section by labeling the package on the replacement component.

    (4) [Repealed.]

  • HISTORY: Added 2005, No. 13 , § 1; amended 2005, No. 117 (Adj. Sess.), § 4; 2007, No. 63 , § 3, eff. June 4, 2007; 2009, No. 56 , § 26.

    History

    Revision note

    —2020. Substituted “July 1, 2005” for “the effective date of this chapter” following “approved by the Agency prior to” in subdiv. (h)(4) for clarity.

    Amendments

    —2009. Subsec. (j): Amended generally.

    —2007. Subdiv. (i)(3)(A): Substituted “in the event that no care and use manual is produced for the product, the product instructions” for “product instructions, if any” at the end of the second sentence.

    Subdiv. (i)(3)(B): Substituted “in the event that no care and use manual is produced for the product, the product instructions” for “product instructions, if any” at the end of the first sentence.

    Subdiv. (i)(3)(C): Substituted “in the event that no care and use manual is produced for the product, the product instructions” for “product instructions, if any” at the end of the second sentence.

    Subdiv. (i)(3)(D): Added.

    —2005 (Adj. Sess.). Subdiv. (h)(3): Substituted “subsections (a) through (f) and (i) of this section” for “subsections (a) through (f) and (j) of this section”.

    § 7107. Discarded mercury-added products.

    1. Management of discarded mercury-added products.   After July 1, 2007, discarded mercury-added products, except for mercury-added button cell batteries, products containing mercury-added button cell batteries as their only mercury-added components, and photographic film shall be managed as provided in this section.
      1. Disposal ban.   No person shall knowingly dispose of mercury-added products in a solid waste landfill or combustor.
      2. Source separation.   Except as otherwise provided by this section, every person who discards solid waste shall separate mercury-added products from that solid waste for management as hazardous waste or universal hazardous waste, according to all applicable State and federal rules or regulations. Any contractor who replaces or removes mercury-added products shall assure that any discarded mercury-added product is subject to proper separation and management as a hazardous waste or universal hazardous waste. Any contractor who replaces a mercury-containing thermostat from a building shall deliver the mercury-containing thermostat to an appropriate collection location for recycling.
    2. Facility requirements.   Solid waste transfer, combustion facility, and landfill facility requirements:
      1. Disposal ban.   Effective July 1, 2007, the owner and operator of a solid waste landfill, transfer station, or combustion facility shall not knowingly accept for disposal mercury-added products.
      2. Notification of disposal ban.   Effective July 1, 2007, solid waste transfer facilities, solid waste combustion facilities, and landfill facilities shall implement the following minimum mechanisms to notify the public and haulers of the disposal ban:
        1. posting of clearly visible and easily read signs at the facility, providing notice of the prohibition of the disposal and combustion of mercury-added products; and
        2. providing customers information about collection programs, and facilities that are permitted to accept mercury-added products.
    3. Collection program.
      1. By December 1, 1998, every solid waste implementation plan of every solid waste management district or municipality having such a plan shall be amended to provide for:
        1. an informational effort to advise the public about labeled mercury-added products; and
        2. a collection program for the collection of mercury-added products identified in subsection (a) of this section.
      2. These amended plans shall be implemented by each solid waste management district or municipality by June 1, 1999. Components of these amended plans that are related to subdivisions (1)(A) and (B) of this subsection shall not be required to receive approval from the Agency of Natural Resources.
    4. Removal of mercury-added components.   The Agency shall conduct a study and make recommendations for requirements to remove effectively and feasibly mercury-added components in products prior to disposal or recycling processes. This report shall identify removal and collection systems at public and private solid waste management facilities and salvage businesses, manufacturer-sponsored or operated collection and take-back programs, and other feasible programs. The Agency will identify costs mechanisms for financing such programs. The study shall address removal and collection of mercury-added components in automobiles and the collection of switches, relays, and gauges in home appliances, heating devices, and other equipment. The Agency shall report to the General Assembly no later than January 15, 2006.
    5. Exemption for certain federally regulated products.   If a formulated mercury-added product is a cosmetic or pharmaceutical product subject to the federal Food and Drug Administration’s regulatory requirements relating to mercury, the product is exempt from the requirements of this section.
    6. Exemption for solidified latex paint.   Formulated mercury-added latex paint solidified for disposal is exempt from the requirements of this section.

    HISTORY: Added 2005, No. 13 , § 1; amended 2005, No. 117 (Adj. Sess.), § 5; 2007, No. 149 (Adj. Sess.), § 3; 2019, No. 131 (Adj. Sess.), § 45.

    History

    Amendments

    —2019 (Adj. Sess.). Subdiv. (a)(2): Inserted “rules or” in the first sentence.

    —2007 (Adj. Sess.). Subdiv. (a)(2): Added the last sentence.

    Subsec. (d): Deleted the last three sentences.

    —2005 (Adj. Sess.). Subsec. (d): Substituted “operated” for “-operated” preceding “collection”; made a punctuation change following “programs”; deleted “and” following “costs” and preceding “mechanisms”; and added the last three sentences.

    § 7108. Section 7108 repealed effective December 31, 2021. Mercury-added motor vehicle components.

    1. Applicability.   This section applies to:
      1. a motor vehicle recycler or scrap metal recycling facility in the State; and
      2. a manufacturer of motor vehicles sold in this State.
    2. Mercury-added switch removal requirements.   A motor vehicle recycler that accepts end-of-life motor vehicles shall remove mercury-added vehicle switches prior to crushing, shredding, or other scrap metal processing and prior to conveying for crushing, shredding, or other scrap metal processing.
      1. Motor vehicle recyclers shall maintain a log sheet of switches removed from end-of-life motor vehicles and shall provide such log to the Agency annually or upon request of the Agency.
      2. Switches, including switches encased in light or brake assemblies, shall be collected, stored, transported, and handled in accordance with all applicable State and federal laws.
    3. Manufacturer mercury-added switch recovery program.   A manufacturer of vehicles sold in this State, individually or as part of a group, shall implement a mercury-added vehicle switch recovery program that includes the following:
      1. educational material to assist motor vehicle recyclers in identifying mercury-added vehicle switches and safely removing, properly handling, and storing switches;
      2. storage containers provided at no cost to all motor vehicle recyclers identified by the Agency, suitable for the safe storage of switches, including switches encased in light or brake assemblies;
      3. collection, packaging, shipping, and recycling of mercury-added switches, including switches encased in light or brake assemblies, provided to all motor vehicle recyclers at no cost and that comply with all applicable State and federal laws; and
      4. a report on or before December 1 annually to the Agency that includes the total number of mercury-added switches recovered in the program, the names of the motor vehicle recyclers and the number of switches removed from each, and the total amount of mercury collected during the previous 12-month period.
    4. Agency responsibility.
      1. The Agency shall provide workshops and other training to motor vehicle recyclers to inform them of the requirements of this section.
      2. The Agency may develop, by procedure, exemptions of certain mercury-added vehicle switches and other components from the requirements of this section, including mercury-added switches that are inaccessible due to motor vehicle damage and anti-lock brake switches in certain motor vehicle types that are difficult or labor-intensive to remove.

    HISTORY: Added 2017, No. 168 (Adj. Sess.), § 15, eff. May 22, 2018.

    History

    Prospective repeal of § 7108. 2017, No. 168 (Adj. Sess.), § 17 provides for the repeal of this section effective December 31, 2021.

    Application of enactment of section. 2017, No. 168 (Adj. Sess.), § 16 provides: “On December 31, 2017, the former 10 V.S.A. § 7108 , requiring establishing mercury-added vehicle component requirements, as established by 2006 Acts and Resolves No. 117, was repealed. Sec. 15 of this act reenacts 10 V.S.A. § 7108 in substantially the same form as the section was enacted by 2006 Acts and Resolves No. 117. Notwithstanding the requirements of 1 V.S.A. § 214 , the requirements of 10 V.S.A. § 7108 as enacted by Sec. 15 of this act shall apply retroactively to December 31, 2017 and shall be implemented prospectively from that date.”

    § 7109. Mercury in schools.

    After July 1, 2006, no school in Vermont may use, or purchase for use, in a primary or secondary nonvocational education program, any of the following: elemental mercury, chemicals containing mercury or mercury compounds, or mercury-added measuring devices. Other mercury-added products that are used by schools are not subject to this prohibition. No person shall bring elemental mercury onto the premises or into the buildings of schools located in Vermont, including child care facilities, preschools, kindergartens, and primary and secondary schools.

    HISTORY: Added 2005, No. 13 , § 1.

    § 7110. Mercury-added products used in dental procedures.

    1. Dental amalgam, a formulated mercury-added product, shall not be regulated by any other sections of this chapter.
    2. Vermont dental offices and vocational dental education programs shall use and instruct on the use of best management practices to minimize the presence of elemental mercury, unused amalgam, and waste amalgam in their wastewater discharge and in their solid waste. The Agency shall develop best management practices that include a requirement for an amalgam removal efficiency of at least 95 percent. The required best management practices shall be defined by a procedure of the Agency by January 1, 2006, including reporting requirements to verify compliance with best management practices. The Agency shall consult with the Vermont State Dental Society and other interested parties during the development of best management practices. Dental offices shall comply with best management practices.
    3. No later than January 1, 2007, a dental office that in the course of treating its patients places or removes dental amalgam must install an amalgam separator system in the wastewater discharge line. For the purposes of this section, an amalgam separator system means a device that removes dental amalgam from the waste stream prior to discharge into either the local public wastewater system or a private septic system located at the dental facility and that has been certified as conforming to the standards of ISO 11143, Dental Equipment—Amalgam Separators. A dental office must demonstrate proper installation, operation, maintenance, and amalgam waste recycling or disposal in accordance with the manufacturer’s recommendations by maintaining annual records on waste shipment and maintenance of the system and any other reporting required in subsection (b) of this section. Records of the previous three years shall be maintained at all times. Methods or technologies other than amalgam separators that achieve equivalent or greater dental amalgam discharge reductions and that are approved by the Agency shall be deemed to comply with the requirements of this subsection.
    4. Exemptions.
      1. The following categories of dental offices are exempt from the requirement to install an amalgam separator:
        1. Orthodontists;
        2. Periodontists;
        3. Endodontists;
        4. Oral and maxillofacial surgeons;
        5. A dental office that is scheduled to no longer be used as a dental office after July 1, 2007;
        6. Any other dental office that does not place or remove amalgam.
      2. A dental office in subdivision (1) of this subsection shall be exempt only if all dentists practicing at the site using a shared vacuum system qualify for an exemption.
    5. The Agency shall conduct a survey of dental offices once every five years, beginning July 1, 2006, to ascertain the use of dental amalgam. The survey results shall be provided to the Advisory Committee on Mercury Pollution for inclusion in their report to the General Assembly. The Agency shall consult with the Vermont State Dental Society for assistance in conducting the survey.
    6. For the purposes of this section:
      1. “Dental amalgam” or “amalgam” means a mixture of mercury and silver alloy that forms a hard solid metal dental restorative material. For purposes of this section, dental amalgam or amalgam shall include mercury and silver alloy precapsulated and ready for mixing.
      2. “Dental office” means any dental clinic, dental office, or dental practice.

    HISTORY: Added 2005, No. 13 , § 1.

    § 7111. Hospital mercury reduction plan.

    By July 1, 2006, each hospital in Vermont shall submit a mercury reduction plan to the Agency, consistent with guidance provided by the Agency. The plan will cover all patient care sites owned or operated by the hospital. The plan shall identify and quantify mercury use and disposal related to patient care, including equipment and chemicals to the extent known through mercury content information provided by manufacturers or maintained by the Agency through labeling plans and notification. The plan will also set target mercury use reduction goals from the 2002 baseline year and will identify measures to be taken by the hospital to reduce mercury in patient care settings through reductions in use of equipment and chemicals containing mercury and through modifications in the hospital’s purchasing policies and procedures with regard to products containing mercury. An updated plan shall be submitted on July 1, 2009 and each three years thereafter. The Agency may exempt a hospital from future plan updates if the hospital has achieved greater than 95 percent reduction in mercury use from the baseline year and has demonstrated to the Agency that written purchasing policies are in place to minimize or eliminate mercury use in products.

    HISTORY: Added 2005, No. 13 , § 1.

    § 7112. Public education and outreach.

    1. The Agency and the Department of Health, in concert with other relevant State agencies, may implement a comprehensive public education, outreach, and assistance program for households, hazardous waste generators, municipalities, and solid waste management districts, small businesses, health care facilities, scrap metal facilities, dismantlers, institutions, schools, and other interested groups. These public education, outreach, and assistance programs should focus on the hazards of mercury, particularly those associated with the consumption of fresh and saltwater fish; the requirements and obligations of individuals, manufacturers, and agencies under this chapter; and voluntary efforts that individuals, institutions, and businesses can undertake to help further reduce mercury in the environment. These programs may also provide information to retailers, wholesalers, and the public on what products contain mercury, including those considered to be banned novelty items under section 7105 of this title; information on possible nonmercury alternatives; and information on products that do contain mercury, but may be environmentally beneficial. The Agency shall cooperate with manufacturers of mercury-added products and other affected businesses in the development and implementation of any public education and technical assistance programs. The Agency and the Department of Health may assist the municipalities and solid waste management districts in developing, designing, and disseminating information for the public about mercury-added products, the requirements of the law regarding the source separation of waste mercury-added products, and the collection programs that are available to the public, including any manufacturer-based reverse distribution system. A component of this information may be directed specifically at large public and private institutions that use and discard substantial numbers of waste mercury-added products and at any other large users of those products.
    2. The Agency shall cooperate with neighboring states and provinces and regional organizations in the northeastern United States and Canada to develop any outreach, assistance, and education programs, where appropriate.
    3. The Agency may develop an awards program to recognize the accomplishments of manufacturers, municipalities, solid waste management facilities, solid waste recycling facilities, household hazardous waste collection facilities, citizens, or others who go beyond the minimum requirements established under this chapter, and excel at reducing or eliminating mercury in air emissions, solid waste, and wastewater discharges.

    HISTORY: Added 2005, No. 13 , § 1.

    § 7113. Repealed. 2011, No. 148 (Adj. Sess.), § 13.

    History

    Former § 7113. Former § 7113, relating to the advisory committee on mercury pollution, was derived from 2005, No. 13 , § 1 and amended by 2009, No. 46 , § 10a and 2011, No. 139 (Adj. Sess.), § 12.

    § 7114. Mercury planning.

    1. The Agency shall develop a plan and identify the necessary resources to accomplish the plan that would provide the necessary data to answer the following questions concerning mercury contamination of fish:
      1. Are fish contaminant levels changing with time and in response to management actions?
      2. Is there a baseline water-column concentration of mercury above which risks to humans and wildlife from mercury become unacceptable?
    2. The plan shall be developed in collaboration among the Departments of Environmental Conservation, of Fish and Wildlife, and of Health and be submitted to the General Assembly not later than January 15, 2006.

    HISTORY: Added 2005, No. 13 , § 1.

    § 7115. Rulemaking.

    The Secretary of Natural Resources is authorized to adopt rules necessary to implement this chapter.

    HISTORY: Added 2005, No. 13 , § 1.

    § 7116. Mercury-containing thermostats.

    1. Manufacturer responsibility.   Each thermostat manufacturer that has offered for final sale, sold at final sale, or has distributed mercury-containing thermostats in Vermont shall, individually or collectively:
      1. Not later than October 1, 2008 submit a plan to the Agency for approval that describes a collection and financial incentive program for mercury thermostats. The program contained in this plan shall ensure that the following take place:
        1. That an effective education and outreach program shall be developed and shall be directed toward wholesalers, retailers, contractors, and homeowners. There shall be no cost to thermostat wholesalers or thermostat retailers for education and outreach materials.
        2. That handling and recycling of mercury-containing thermostats are accomplished in a manner that is consistent with the provisions of the universal waste rules adopted by the Secretary.
        3. That containers for mercury-containing thermostat collection are provided to all thermostat wholesalers. The cost to thermostat wholesalers shall be limited to an initial, reasonable one-time fee per container as specified in the plan.
        4. That collection systems are provided to all collection points registered pursuant to subdivision (d)(3) of this section. Collection systems can include individual product mail back or multiple collection containers. The cost to registered collection points shall be limited to an initial, reasonable one-time fee per container as specified in the plan.
        5. That a financial incentive is established with a minimum value of $5.00 for the return of each mercury-containing thermostat to a thermostat wholesaler by a contractor or service technician. The financial incentive shall be in the form of cash or coupons that are redeemable by the contractor or service technician.
        6. That a financial incentive is established with a minimum value of $5.00 to homeowners or nonprofessionals for the return of each mercury-containing thermostat to a collection point registered with the Agency. The financial incentive shall be in the form of cash or in the form of a coupon that can be redeemed for cash from the manufacturer or can be redeemed for a credit toward purchase of general merchandise in the retail location where the thermostat was returned.
        7. Mechanisms to protect against the fraudulent return of thermostats are established.
      2. No later than April 1, 2009, implement a mercury thermostat collection plan approved by the Secretary under subdivision (d)(1) of this section.
      3. [Repealed.]
    2. Thermostat wholesaler and thermostat retailer responsibilities.
      1. By April 1, 2009, a thermostat wholesaler shall not offer for final sale, sell at final sale, or distribute thermostats unless the wholesaler:
        1. acts as a collection site for thermostats that contain mercury; and
        2. promotes and utilizes the collection containers provided by thermostat manufacturers to facilitate a contractor collection program as established by subsection (a) of this section, and all other tasks as needed to establish and maintain a cost-effective manufacturer collection and financial incentive program.
      2. By April 1, 2009, a thermostat retailer shall not offer for final sale, sell, or distribute thermostats in the State unless the thermostat retailer participates in an education and outreach program to educate consumers on the collection program for mercury thermostats.
    3. Sales prohibition.   Beginning April 1, 2009, the following sales prohibitions shall apply to manufacturers, thermostat wholesalers, and thermostat retailers:
      1. A manufacturer not in compliance with this section is prohibited from offering any thermostat for final sale in the State, selling any thermostat at final sale in the State, or distributing any thermostat in the State. A manufacturer not in compliance with this section shall provide the necessary support to thermostat wholesalers and thermostat retailers to ensure the manufacturer’s thermostats are not offered for final sale, sold at final sale, or distributed in this State.
      2. A thermostat wholesaler or thermostat retailer shall not offer for final sale, sell at final sale, or distribute in this State any thermostat of a manufacturer that is not in compliance with this section.
    4. Agency responsibilities.
      1. Agency review.   Within 60 days of receipt of a complete application from a manufacturer, the Agency shall review and may grant, deny, or approve with modifications a manufacturer plan required by subdivision (a)(1) of this section. The Agency shall not approve a plan unless all elements of subdivision (a)(1) are adequately addressed. In reviewing a plan, the Agency may consider consistency of the plan with collection and financial incentive requirements in other states and consider consistency between manufacturer collection programs. In reviewing plans, the Agency shall ensure that education and outreach programs are uniform and consistent to ensure ease of implementation by thermostat wholesalers and thermostat retailers.
      2. Public review.   The Agency shall establish a process under which a plan submitted by a manufacturer is, prior to plan approval, available for public review and comment for 30 days. The Agency shall consult with interested persons, including representatives from thermostat manufacturers, environmental groups, thermostat wholesalers, thermostat retailers, service contractors, municipalities, and solid waste districts.
      3. Registered collection points.   The Agency shall maintain and post on the Agency of Natural Resources’ website a list of municipalities, solid waste districts, and thermostat retailers who wish to register as collection points for mercury thermostats.
      4. Education and outreach.   In conjunction with the educational and outreach programs implemented by manufacturers, the Agency shall conduct an education and outreach program directed toward wholesalers, retailers, contractors, and homeowners to promote the collection of discarded mercury-containing thermostats.
      5. [Repealed.]
    5. Rate of collection.   By July 1, 2010, the Agency shall estimate the number of out-of-service thermostats generated in Vermont on an annual basis, in consultation with interested persons, including representatives from thermostat manufacturers, thermostat wholesalers, thermostat retailers, service contractors, environmental groups, municipalities, and solid waste districts. Beginning July 1, 2011, should collection efforts fail to result in the collection and recycling of at least 65 percent of the out-of-service mercury-containing thermostats in the State, the Agency shall, in consultation with interested persons, require modifications to manufacturers’ collection plans in an attempt to improve collection rates in accordance with these goals.

    HISTORY: Added 2007, No. 149 (Adj. Sess.), § 4; amended 2011, No. 139 (Adj. Sess.), § 51, eff. May 14, 2012.

    History

    Amendments

    —2011 (Adj. Sess.). Subdiv. (d)(5): Repealed.

    Chapter 164A. Collection and Disposal of Mercury-Containing Lamps

    § 7151. Definitions.

    As used in this chapter:

    1. “Agency” means the Agency of Natural Resources.
    2. “Covered entity” means any person who presents to a collection facility that is included in an approved plan:
      1. any number of compact fluorescent mercury-containing lamps; or
      2. 10 or fewer mercury-containing lamps that are not compact fluorescent lamps.
    3. “Lamp” means an electric lamp, including mercury-containing lamps, incandescent lamps, halogen lamps, and light-emitting diode lamps.
    4. “Manufacturer” means a person who:
      1. manufactures or manufactured a mercury-containing lamp under its own brand or label for sale in the State;
      2. sells in the State under its own brand or label a mercury-containing lamp produced by another supplier;
      3. owns a brand that it licenses or licensed to another person for use on a mercury-containing lamp sold in the State;
      4. imports into the United States for sale in the State a mercury-containing lamp manufactured by a person without a presence in the United States;
      5. manufactures a mercury-containing lamp for sale in the State without affixing a brand name; or
      6. assumes the responsibilities, obligations, and liabilities of a manufacturer as defined under subdivisions (A) through (E) of this subdivision (4), provided that the Secretary may enforce the requirements of this chapter against a manufacturer defined under subdivisions (A) through (E) of this subdivision (4) if a person who assumes the manufacturer’s responsibilities fails to comply with the requirements of this chapter.
    5. “Mercury-containing lamp” means a general purpose lamp to which mercury is intentionally added during the manufacturing process. “Mercury-containing lamp” does not mean a lamp used for medical, disinfection, treatment, or industrial purposes.
    6. “Program year” means the period from July 1 through June 30.
    7. “Retailer” means a person who sells a mercury-containing lamp to a person in the State through any means, including a sales outlet, a catalogue, the telephone, the Internet, or any electronic means.
    8. “Secretary” means the Secretary of Natural Resources.
    9. “Sell” or “sale” means any transfer for consideration of title or of the right to use by lease or sales contract a mercury-containing lamp to a person in the State of Vermont. “Sell” or “sale” does not include the sale, resale, lease, or transfer of a used mercury-containing lamp or a manufacturer’s or a distributor’s wholesale transaction with a distributor or a retailer.
    10. “Stewardship organization” means an organization, association, or entity that has developed a system, method, or other mechanism which assumes the responsibilities, obligations, and liabilities under this chapter of multiple manufacturers of mercury-containing lamps.

    HISTORY: Added 2011, No. 36 , § 2, eff. May 19, 2011.

    § 7152. Sale of mercury-containing lamps; stewardship organization registration.

    1. Sale prohibited.   Beginning on July 1, 2012, except as set forth under section 7155 of this title, a manufacturer of a mercury-containing lamp shall not sell, offer for sale, or deliver to a retailer for subsequent sale a mercury-containing lamp unless all of the following have been met:
      1. The manufacturer is implementing an approved collection plan.
      2. The manufacturer has paid the fee under section 7158 of this title.
      3. The name of the manufacturer and the manufacturer’s brand are designated on the Agency of Natural Resources’ website as covered by an approved plan.
      4. The manufacturer has submitted an annual report under section 7153 of this title.
      5. The manufacturer has conducted a plan audit consistent with the requirements of subsection 7153(b) of this title.
      6. The manufacturer has demonstrated that no alternative non-mercury energy efficient lamp is available that provides the same or better overall performance at a cost equal to or better than the classes of lamps that the manufacturer proposes to sell.
    2. Stewardship organization registration requirements.
      1. Beginning January 1, 2012 and annually thereafter, a stewardship organization shall file a registration form with the Secretary. The Secretary shall provide the registration form to a stewardship organization. The registration form shall include:
        1. a list of the manufacturers participating in the stewardship organization;
        2. the name, address, and contact information of a person responsible for ensuring the manufacturer’s compliance with this chapter;
        3. a description of how the stewardship organization meets the requirements of subsection 7155(b) of this title, including any reasonable requirements for participation in the stewardship organization; and
        4. the name, address, and contact information of a person for a nonmember manufacturer to contact on how to participate in the stewardship organization to satisfy the requirements of this chapter.
      2. A renewal of a registration without changes may be accomplished through notifying the Agency of Natural Resources on a form provided by the Agency.

    HISTORY: Added 2011, No. 36 , § 2, eff. May 19, 2011.

    § 7153. Annual report; plan audit.

    1. Annual report.   At the end of each program year, a manufacturer of a mercury-containing lamp shall submit an annual report to the Secretary that contains the following:
      1. A description of the collection program.
      2. The number and type of mercury-containing lamps collected and the collection facility from which the lamps were collected.
      3. An estimate of the number of mercury-containing lamps available for collection and the methodology used to develop this number. Sales data and other confidential business information provided under this section shall not be subject to inspection and review pursuant to 1 V.S.A. chapter 5, subchapter 3 (access to public records). Confidential information shall be redacted from any final public report.
      4. The steps that the manufacturer has taken during the past program year to improve the collection rate and life cycle performance of mercury-containing lamps.
    2. Plan audit.   Once every five years, the manufacturer shall hire an independent third party to audit the plan and plan operation. The auditor shall examine the effectiveness of the program in collecting and disposing of mercury-containing lamps. The auditor shall examine the cost-effectiveness of the program and compare it to that of collection programs for mercury-containing lamps in other jurisdictions. The auditor shall make recommendations to the Secretary on ways to increase program efficacy and cost-effectiveness.

    HISTORY: Added 2011, No. 36 , § 2, eff. May 19, 2011.

    § 7154. Collection plans.

    1. Collection plan required.   Prior to February 1, 2012, a manufacturer, individually or as a participant in a stewardship organization, shall submit a collection plan to the Secretary for review.
      1. Free collection of mercury-containing lamps.   The collection program shall provide for free collection of mercury-containing lamps from covered entities. A manufacturer shall accept all mercury-containing lamps collected from a covered entity and shall not refuse the collection of a mercury-containing lamp based on the brand or manufacturer of the mercury-containing lamp. The collection program shall also provide for the payment of the costs for recycling and transportation from a collection facility to a recycler.
      2. Convenient collection location.   The manufacturer shall develop a collection program that:
        1. allows all municipal collection locations and all retailers that sell mercury-containing lamps to opt to be a collection facility; and
        2. at a minimum, has not less than two collection facilities in each county.
      3. Public education and outreach.   The collection plan shall include an education and outreach program that may include media advertising, retail displays, articles in trade and other journals and publications, and other public educational efforts. At a minimum, the education and outreach program shall notify the public of the following:
        1. that there is a free collection program for mercury-containing lamps;
        2. the location of collection points and how a covered entity can access this collection program; and
        3. the special handling considerations associated with mercury-containing lamps.
      4. Compliance with appropriate environmental standards.   In implementing a collection plan, a manufacturer shall comply with all applicable laws related to the collection, transportation, and disposal of mercury-containing lamps. A manufacturer shall comply with any special handling or disposal standards established by the Secretary for a mercury-containing lamp or for the collection plan of the manufacturer.
    2. Term of collection plan.   A collection plan approved by the Secretary under section 7156 of this title shall have a term not to exceed five years, provided that the manufacturer remains in compliance with the requirements of this chapter and the terms of the approved plan.

    HISTORY: Added 2011, No. 36 , § 2, eff. May 19, 2011.

    § 7155. Stewardship organizations.

    1. Participation in a stewardship organization.   A manufacturer may meet the requirements of this chapter by participating in a stewardship organization that undertakes the manufacturer’s responsibilities under sections 7152, 7153, and 7154 of this title.
    2. Qualifications for a stewardship organization.   To qualify as a stewardship organization under this chapter, an organization shall:
      1. commit to assume the responsibilities, obligations, and liabilities of all manufacturers participating in the stewardship organization;
      2. represent at least 45 percent of the market share of mercury-containing lamps sold in the State;
      3. not create unreasonable barriers for participation in the stewardship organization; and
      4. maintain a public website that lists all manufacturers and manufacturers’ brands covered by the stewardship organization’s approved collection plan.
    3. Exemption from antitrust provisions.   A stewardship organization and manufacturers participating in a stewardship organization subject to the requirements of this chapter may engage in anticompetitive conduct to the extent necessary to develop and implement the collection plan required by this chapter. A stewardship organization or a manufacturer participating within a stewardship organization that is engaged in anticompetitive conduct under this subsection shall be immune from liability for conduct under State laws relating to antitrust, restraint of trade, unfair trade practices, and other regulation of trade or commerce if the stewardship organization is exercising due diligence to comply with the requirements of this chapter.

    HISTORY: Added 2011, No. 36 , § 2, eff. May 19, 2011.

    § 7156. Agency responsibilities.

    1. Review and approve collection plans.   The Secretary shall review and approve or deny collection plans submitted under section 7154 of this title. The Secretary shall approve a collection plan if the Secretary finds that the plan:
      1. complies with the requirements of subsection 7154(a) of this title;
      2. provides adequate notice to the public of the collection opportunities available for mercury-containing lamps;
      3. ensures that collection of mercury-containing lamps will occur in an environmentally sound fashion that is consistent with the law or with any special handling requirements adopted by the Secretary;
      4. promotes the collection and disposal of mercury-containing lamps.
    2. Plan amendment.   The Secretary, in his or her discretion or at the request of a manufacturer or a stewardship organization, may require a manufacturer or a stewardship organization to amend an approved plan. Plan amendments shall be subject to the public input provisions of subsection (c) of this section.
    3. Procedure.   Before approving a collection plan under this chapter, the Secretary shall proceed in accordance with chapter 170 of this title.
    4. Registrations.   The Secretary shall accept, review, and approve or deny registrations required by this chapter. The Secretary may revoke a registration of a stewardship organization for actions that are unreasonable, unnecessary, or contrary to the requirements or the policy of this chapter.
    5. Supervisory capacity.   The Secretary shall act in a supervisory capacity over the actions of a stewardship organization registered under this section. In acting in this capacity, the Secretary shall review the actions of the stewardship organization to ensure that they are reasonable, necessary, and limited to carrying out requirements of and policy established by this chapter.
    6. Special handling requirements.   The Secretary may adopt, by rule, special handling requirements for the collection, transport, and disposal of mercury-containing lamps.
    7. Approved plans; Internet posting.   The Secretary shall post on the agency website all manufacturers and manufacturers’ brands that are covered under an approved plan. For stewardship organizations, the Agency may link to the list of manufacturers and manufacturers’ brands on the stewardship organization’s website.

    HISTORY: Added 2011, No. 36 , § 2, eff. May 19, 2011; amended 2015, No. 150 (Adj. Sess.), § 29, eff. Jan. 1, 2018.

    History

    Amendments

    —2015 (Adj. Sess.). Subsec. (c): Rewritten.

    § 7157. Retailer obligations.

    1. Sale prohibited.   Except as set forth under subsection (b) of this section, beginning July 1, 2012, no retailer shall sell or offer for sale a mercury-containing lamp unless the retailer has reviewed the Agency website required in subsection 7156(g) of this title to determine that the manufacturer of the mercury-containing lamp is implementing an approved collection plan or is a member of a stewardship organization.
    2. Inventory exception; expiration or revocation of manufacturer registration.   A retailer shall not be responsible for an unlawful sale of a mercury-containing lamp under this subsection if:
      1. the retailer purchased the mercury-containing lamp prior to July 1, 2012; or
      2. the manufacturer’s collection plan expired or was revoked, and the retailer took possession of the in-store inventory of mercury-containing lamps prior to the expiration or revocation of the manufacturer’s collection plan.

    HISTORY: Added 2011, No. 36 , § 2, eff. May 19, 2011.

    History

    Revision note

    —2011. Cross reference in subsec. (a) to “subsection 7156(e) of this title” was revised to read “subsection 7156(g) of this title” to correctly reference the requirement for the Agency of Natural Resources to post information to a website.

    § 7158. Fees; disposition.

    1. A manufacturer or stewardship organization shall pay $2,000.00 annually for operation under a collection plan approved by the Secretary under section 7156 of this title.
    2. The fees collected under subsection (a) of this section shall be deposited in the Environmental Permit Fund established under 3 V.S.A. § 2805 . The Agency shall utilize no more than $20,000.00 annually of the fees collected under subsection (a) for the performance of its responsibilities under section 7156 of this title.

    HISTORY: Added 2011, No. 36 , § 2, eff. May 19, 2011.

    § 7159. Mercury content standards.

    1. Mercury content standards for lamps.   Beginning January 1, 2013, a mercury-containing lamp sold in this State shall satisfy the mercury-content standard for lamps set by California.
    2. Rulemaking; implementation.   The Agency of Natural Resources may adopt rules to implement the requirements of this chapter, including exemptions from the mercury content standards established under subsection (a) of this section.
    3. Certificate of compliance.
      1. Beginning April 1, 2013, the Secretary may request a manufacturer of a lamp or lamps to submit a certification, supported by technical information, that the manufacturer’s lamp or lamps that are sold or offered for sale in the State comply with the standard established under subsection (a) of this section. A manufacturer shall submit a certificate of compliance within 30 days of the Secretary’s request. If a manufacturer fails to provide a requested certification within 30 days of the request, the manufacturer shall be prohibited from selling lamps or offering lamps for sale in the State.
      2. Upon request of a retailer or other person selling a manufacturer’s lamps, a manufacturer shall provide a certification that the manufacturer’s lamp or lamps comply with the standard established under subsection (a) of this section. A manufacturer shall provide a certificate of compliance within 30 days of the retailer’s request. The certification must specify that the lamp or lamps are not prohibited from sale in the State. If a manufacturer fails to provide a certification under this subdivision (c)(2), the manufacturer shall be prohibited from selling lamps or offering lamps for sale in the State.

    HISTORY: Added 2011, No. 36 , § 2, eff. May 19, 2011.

    § 7160. Other disposal programs.

    A municipality or other public agency may not require covered entities to use public facilities to dispose of mercury-containing lamps to the exclusion of other lawful programs available. A municipality and other public agencies are encouraged to work with manufacturers to assist them in meeting their collection and disposal obligations under this chapter. Nothing in this chapter prohibits or restricts the operation of any program collecting and disposing of mercury-containing lamps in addition to those provided by manufacturers or prohibits or restricts any persons from receiving, collecting, transporting, or disposing of mercury-containing lamps, provided that all other applicable laws are met.

    HISTORY: Added 2011, No. 36 , § 2, eff. May 19, 2011.

    Chapter 165. General Permit Authority

    History

    Sunset of chapter. 2009, No. 54 , § 91(b) provides: “Chapter 165 of Title 10 shall sunset on July 1, 2014; however, the sunset shall not affect any permit granted prior to July 1, 2014 under chapter 165 of Title 10.”

    §§ 7500-7505. Repealed. 2009, No. 54, § 91(b), eff. July 1, 2014.

    History

    Former §§ 7500-7505. Former § 7500, relating to general permit authority, purpose and definitions, was derived from 2009, No. 54 , § 90.

    Former § 7501, relating to general permits, was derived from 2009, No. 54 , § 90 and amended by 2009, No. 110 (Adj. Sess.), § 15 and 2009, No. 146 (Adj. Sess.), § F13.

    Former § 7502, relating to issuance of general permits; public participation, was derived from 2009, No. 54 , § 90.

    Former § 7503, relating to authorization under a general permit, was derived from 2009, No. 54 , § 90.

    Former § 7504, relating to requiring an individual permit, was derived from 2009, No. 54 , § 90.

    Former § 7505, relating to requiring authorization under a general permit, was derived from 2009, No. 54 , § 90.

    Chapter 166. Collection and Recycling of Electronic Devices

    History

    Legislative findings. 2009, No. 79 (Adj. Sess.), § 1 provides: “The general assembly finds:

    “(1) According to the U.S. Environmental Protection Agency, discarded computers, computer monitors, televisions, and other consumer electronics — collectively referred to as e-waste — are the fastest growing portion of the waste stream, growing by approximately eight percent from 2004 to 2005.

    “(2) Televisions, computers, computer monitors, and printers are prevalent in modern society and contribute significantly to the waste generated in Vermont.

    “(3) Televisions, computers, computer monitors, and printers contain lead, mercury, and other hazardous substances that pose a threat to human health and the environment if improperly disposed of at the end of the useful life of these products.

    “(4) The state of Vermont has committed to providing its citizens with a safe and healthy environment and has actively undertaken efforts such as mercury reduction programs to reduce the potential for contamination.

    “(5) The appropriate recycling of televisions, computers, computer monitors, and printers protects public health and the environment by reducing the potential for the release of heavy metals and mercury from landfills into the environment, consistent with other state initiatives, and also conserving valuable landfill space.

    “(6) The establishment of a system to provide for the collection and recycling of televisions, computers, computer monitors, and printers in Vermont is consistent with the state’s duty to protect the health, safety, and welfare of its citizens; maintain and enhance the quality of the environment; conserve natural resources; prevent pollution of air, water, and land; and stimulate economic growth.”

    Electronic waste collection and recycling program funding. 2009, No. 79 (Adj. Sess.), § 6b(a) as amended by 2009, No. 156 (Adj. Sess.), § E.701(b) provides: “Beginning in fiscal year 2012, the governor’s proposed budget for the agency of natural resources shall include a line item, including the source of the funds, for the electronic waste collection and recycling activities required under chapter 166 of Title 10.”

    § 7551. Definitions.

    As used in this chapter:

    1. “Agency” means the Agency of Natural Resources.
    2. “Cathode-ray tube” means a vacuum tube or picture tube used to convert an electronic signal into a visual image.
    3. “Collection” means the aggregation of electronic waste from covered entities and includes all the activities up to the time the electronic waste is delivered to a recycler.
    4. “Collector” means a public or private entity that receives electronic waste from covered entities or from another collector and that performs any of the following:
      1. arranges for the delivery of the electronic waste to a recycler;
      2. sorts electronic waste;
      3. consolidates electronic waste; or
      4. provides data security services in a manner approved by the Secretary.
    5. “Computer” means a laptop computer, desktop computer, tablet computer, or central processing unit that conveys electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions. “Computer” does not include an automated typewriter or typesetter or other similar device.
    6. “Computer monitor” means a display device without a tuner that can display pictures and sound and is used with a computer.
    7. “Computer peripheral” means a keyboard or any other device sold exclusively for external use with a computer that provides input or output into or from a computer.
    8. “Covered electronic device” means a computer, computer monitor, device containing a cathode ray tube, printer, or television from a covered entity. “Covered electronic device” does not include any motor vehicle or any part thereof; a camera or video camera; a portable or stationary radio; a wireless telephone; a household appliance, such as a clothes washer, clothes dryer, water heater, refrigerator, freezer, microwave oven, oven, range, or dishwasher; equipment that is functionally or physically part of a larger piece of equipment intended for use in an industrial, research and development, or commercial setting; security or anti-terrorism equipment; monitoring and control instruments or systems; thermostats; hand-held transceivers; a telephone of any type; a portable digital assistant or similar device; a calculator; a global positioning system receiver or similar navigation device; commercial medical equipment that contains a cathode ray tube, a cathode ray tube device, a flat panel display, or similar video display that is not separate from the larger piece of equipment; or other medical devices, as the term “device” is defined under 21 U.S.C. § 321(h) of the Federal Food, Drug, and Cosmetic Act, as that section is amended from time to time.
    9. “Covered entity” means any household, charity, or school district in the State or a business in the State that employs 10 or fewer individuals. If seven or fewer covered electronic devices are delivered to a collector at any given time, those devices shall be presumed to be from a covered entity.
    10. “Electronic waste” means a computer, computer monitor, computer peripheral, device containing a cathode ray tube, printer, or television from a covered entity. “Electronic waste” does not include any motor vehicle or any part thereof; a camera or video camera; a portable or stationary radio; a wireless telephone; a household appliance, such as a clothes washer, clothes dryer, water heater, refrigerator, freezer, microwave oven, oven, range, or dishwasher; equipment that is functionally or physically part of a larger piece of equipment intended for use in an industrial, library, research and development, or commercial setting; security or antiterrorism equipment; monitoring and control instruments or systems; thermostats; handheld transceivers; a telephone of any type; a portable digital assistant or similar device; a calculator; a global positioning system receiver or similar navigation device; commercial medical equipment that contains a cathode ray tube, a cathode ray tube device, a flat panel display, or similar video display that is not separate from the larger piece of equipment; or other medical devices, as the term “device” is defined under 21 U.S.C. § 321(h) of the Federal Food, Drug, and Cosmetic Act, as that section is amended from time to time.
    11. “Manufacturer” means a person who:
      1. manufactures or manufactured a covered electronic device under its own brand or label for sale in the State;
      2. sells in the State under its own brand or label covered electronic devices produced by another supplier;
      3. owns a brand that it licenses or licensed to another person for use on a covered electronic device sold in the State;
      4. imports into the United States for sale in the State a covered electronic device manufactured by a person without a presence in the United States;
      5. manufactures covered electronic devices for sale in the State without affixing a brand name; or
      6. assumes the responsibilities, obligations, and liabilities of a manufacturer as defined under subdivisions (A) through (E) of this subdivision (11), provided that the Secretary may enforce the requirements of this chapter against a manufacturer if a person who assumes the manufacturer’s responsibilities fails to comply with the requirements of this chapter.
    12. “Market share” means a “manufacturer’s market share” that shall be the manufacturer’s percentage share of the total weight of covered electronic devices sold in the State as determined by an estimate of the aggregate total weight of the manufacturer’s covered electronic devices sold in the State during the previous program year based on national sales data unless the Secretary approves a manufacturer to use actual sales data.
    13. “Printer” means desktop printers, multifunction printer copiers, and printer fax combinations taken out of service that are designed to reside on a work surface and include various print technologies, including without limitation laser and LED (electrographic), ink jet, dot matrix, thermal, and digital sublimation, and “multi-function” or “all-in-one” devices that perform different tasks, including copying, scanning, faxing, and printing. “Printer” does not include floor-standing printers, printers with an optional floor stand, point of sale (POS) receipt printers, household printers such as a calculator with printing capabilities or label makers, or nonstand-alone printers that are embedded into products that are not covered electronic products.
    14. “Program year” means the period established by the Secretary as the program year in the Plan required by section 7552 of this title.
    15. “Recycler” means a person who accepts electronic waste from covered entities and collectors for the purpose of recycling. A person who takes products solely for reuse, refurbishment, or repair is not a recycler.
    16. “Recycling” means the process of collecting and preparing electronic wastes for use in manufacturing processes or for recovery of useable materials followed by delivery of such materials for use. Recycling does not include destruction by incineration, waste-to-energy incineration or other such processes, or land disposal.
    17. “Retailer” means a person who sells, rents, or leases covered electronic devices to a person in the State, through any means, including sales outlets, catalogues, the telephone, the Internet, or any electronic means.
    18. “Sell” or “sale” means any transfer for consideration of title or of the right to use by lease or sales contract of a covered electronic device to a person in the State. “Sell” or “sale” does not include the sale, resale, lease, or transfer of used covered electronic devices or a manufacturer’s or a distributor’s wholesale transaction with a distributor or a retailer.
    19. “Television” means any telecommunications system or device containing a cathode ray tube or other type of display system with a viewable area of greater than four inches when measured diagonally that can broadcast or receive moving pictures and sound over a distance and includes a television tuner or a display device peripheral to a computer that contains a television tuner.
    20. “Transporter” means a person that moves electronic waste from a collector to either another collector or to a recycler.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010; amended 2011, No. 148 (Adj. Sess.), § 16.

    History

    Revision note

    —2013. In the introductory language, substituted “As used in” for “For the purposes of” preceding “this chapter” to conform to V.S.A. style.

    Amendments

    —2011 (Adj. Sess.). Rewrote subdivs. (4) and (5), substituted “from” for “sold to” following “or television” in the first sentence of subdivs. (8) and (10), added the second sentence of subdiv. (9), and rewrote subdivs. (12), (14), and (20).

    § 7552. Standard Electronic Waste Recycling Plan.

    1. Standard Plan adoption.   Beginning January 1, 2011, the Secretary shall adopt a plan for the collection and recycling of all electronic waste in the State. In developing the Plan, the Secretary shall evaluate existing electronic waste collection opportunities and services in each county to determine whether such opportunities and services are adequate. In making an adequacy determination, the Secretary shall consider the geography, population, and population density of each county. If, after completion of an adequacy review, the Secretary determines that the collection opportunities in a county are:
      1. Inadequate, the Secretary may require additional collection activities in that county. Additional collection activities may include additional collection facilities, collection events, or other collection activities identified by the Secretary as necessary to achieve the Statewide recycling goal. If the Secretary requires additional collection activities, the Secretary shall consider, as one of the criteria reviewed in selecting additional collection activities, the cost-effectiveness of the additional collection activities in achieving the objective of convenient service.
      2. Adequate, and that additional collection opportunities are not required.
    2. Standard Plan minimum requirements.   The Standard Plan shall:
      1. site at least three permanent facilities in each county for the collection of electronic waste from covered entities, unless the Secretary determines that existing or proposed collection opportunities are not required, but in no case shall the Secretary reduce the number of permanent facilities below one;
      2. site at least one permanent facility in each city or town with a population of 10,000 or greater for the collection of electronic waste from covered entities;
      3. require electronic waste collection facilities to accept electronic waste at no cost to covered entities;
      4. ensure that each recycler used in implementing the Plan complies with the recycling standards established under section 7559 of this title;
      5. ensure that during Plan implementation a public information and outreach effort takes place to inform consumers about how to recycle their electronic waste at the end of the product’s life;
      6. require electronic waste collection facilities to be staffed, open on an ongoing basis, and open to the public at a frequency needed to meet the needs of the area being served;
      7. prohibit a collection facility from refusing to accept electronic waste delivered to the facility for recycling from a covered entity.
    3. Plan evaluation.   The Secretary shall annually review and analyze the Standard Plan to determine if implementation of the Standard Plan achieves the statewide collection and recycling goal set forth under section 7555 of this title. The Secretary may modify the plan based upon the results of that review.
    4. Plan term.   The Secretary shall revise and adopt the standard plan every five years.
    5. Public review and consultation.   Prior to the approval or modification of the Standard Plan, the Agency shall make the proposed Standard Plan available for public review and comment for at least 30 days. The Agency shall consult with interested persons, including manufacturers, recyclers, collectors, retailers, solid waste districts, and environmental groups.
    6. Applicability.   A collector, transporter, or recycler not included in a plan approved under this section or under a plan approved under section 7554 of this title shall not be subject to the requirements of this section or section 7554.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010.

    § 7553. Sale of covered electronic devices; manufacturer registration.

    1. Sale prohibited.   Beginning July 1, 2010, no manufacturer shall sell or offer for sale or deliver to a retailer for subsequent sale a covered electronic device unless:
      1. the manufacturer has filed the registration required by this section;
        1. beginning July 1, 2010 and annually thereafter, the manufacturer has paid the fee required by subsection (g) of this section; and (2) (A) beginning July 1, 2010 and annually thereafter, the manufacturer has paid the fee required by subsection (g) of this section; and
        2. beginning July 1, 2011 and annually thereafter, if the manufacturer is covered under the Standard Plan, the manufacturer has paid the fee required by subsection (h) of this section; and
      2. the covered electronic device is labeled with the manufacturer’s brand or registered trademark, and the label or trademark is permanently affixed and readily visible.
    2. Manufacturer registration requirements.
      1. The manufacturer shall file a registration form with the Secretary. The Secretary shall provide the registration form to a manufacturer. The registration form shall include:
        1. A list of the manufacturer’s brands of covered electronic devices offered for sale by the manufacturer in this State.
        2. The name, address, and contact information of a person responsible for ensuring the manufacturer’s compliance with this chapter.
        3. Beginning July 1, 2011 and annually thereafter, a certification that the manufacturer is seeking coverage under the Standard Plan set forth under subsection (a) of this section or, under a plan approved under section 7554 of this title, is opting out of the Standard Plan.
        4. An estimate of the aggregate total weight of the manufacturer’s covered electronic devices sold during the previous program year based on national sales data. A manufacturer shall submit with the report required under this subsection a description of how the estimate was calculated. The data submitted under this subdivision (1)(D) shall be considered a trade secret for the purposes of 1 V.S.A. § 317(c)(9) .
      2. A renewal of a registration without changes may be accomplished through notifying the Agency of Natural Resources on a form provided by the Agency.
    3. Registration prior to sale.   A manufacturer who begins to sell or offer for sale covered electronic devices and has not filed a registration under this section or section 7554 of this title shall submit a registration to the Agency of Natural Resources within 10 days of beginning to sell or offer for sale covered electronic devices.
    4. Amendments to registration.   A registration shall be amended within 10 days after a change to any information included in the registration submitted by the manufacturer under this section.
    5. Effective date of registration.   A registration is effective upon receipt by the Agency of Natural Resources of a complete registration form and payment of fees required by this section. Registration under this chapter shall be renewed annually.
    6. Agency review of registration application.   The Agency of Natural Resources shall notify the manufacturer of any required information that is omitted from the registration. Upon receipt of a notification from the Agency, the manufacturer shall submit a revised registration providing the information noted by the Agency.
    7. Registration fee.
      1. Each manufacturer of a covered electronic device registered under this section shall pay to the Secretary a fee:
        1. For the program year beginning July 1, 2010, for manufacturers who sell in Vermont no more than 100 covered electronic devices, the fee shall be $1,250.00, and for all other manufacturers, the fee shall be $5,000.00.
        2. For the program year beginning July 1, 2011 and annually thereafter, the fee shall be determined by multiplying the manufacturer’s market share by the cost to the Agency of administering the electronic waste collection program under this chapter.
      2. The fees collected under this subsection shall be deposited into the Electronic Waste Collection and Recycling Account of the Waste Management Assistance Fund.
    8. Implementation fee.
      1. Beginning July 1, 2011, each manufacturer that seeks coverage under the Standard Plan shall pay to the Secretary an implementation fee that shall be assessed on a quarterly basis and that shall be determined by multiplying the manufacturer’s market share by the prior quarter’s cost of implementing the electronic waste collection and recycling program adopted under the Standard Plan. For purposes of this section, the Electronic Waste and Recycling Program includes collection, transportation, recycling, and the reasonable cost of contract administration.
      2. The fee collected under this subsection shall be deposited into the Electronic Waste Collection and Recycling Account of the Waste Management Assistance Fund.
      3. At the end of each program year, the Secretary shall review the total costs of collection and recycling for the program year and shall reapportion the implementation fee assessed under this subsection to accurately reflect the actual cost of the Program and the manufacturer’s market share of covered electronic devices sold in the State during the program year.
    9. Exemption.   A manufacturer who sells fewer than 20 covered electronic devices in Vermont in a program year is exempt from the requirements of this section.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010; amended 2009, No. 156 (Adj. Sess.), § E.701; 2011, No. 161 (Adj. Sess.), § 6.

    History

    Amendments

    —2011 (Adj. Sess.). Substituted “Beginning July 1, 2011” for “For the program year of July 1, 2011, through June 30, 2012” in the first sentence in subdiv. (1); deleted former subdiv. (2); and redesignated former subdivs. (3) and (4) as present subdivs. (2) and (3).

    —2009 (Adj. Sess.) Act No. 156 repealed subdiv. (h)(4) and redesignated former subdiv. (h)(5) as present subdiv. (h)(4).

    § 7554. Manufacturer opt-out individual plan.

    1. Opt-out of Standard Plan.   A manufacturer or group of manufacturers may elect not to seek coverage under the Standard Plan established under section 7552 of this title, provided that the manufacturer or group of manufacturers complies with the requirements of subdivisions 7553(a)(1)-(3) of this title and submits an individual plan to the Secretary for approval that:
      1. provides for each county the number of collection methods identified in the Standard Plan adopted under section 7552 of this title;
      2. describes the collection, transportation, and recycling systems and service providers used, including a description of how the authority or authorized party will:
        1. seek to use businesses within the State, including retailers, charities, processors, and collection and transportation services, to fulfill its program goal under this section;
        2. fairly compensate collectors for providing collection services; and
        3. fairly compensate recyclers for providing recycling services;
      3. describes how the plan will provide service to covered entities;
      4. describes the processes and methods used to recycle electronic waste, including a description of the processing that will be used and the facility location;
      5. documents the audits of each recycler used in the Plan and compliance with recycling standards established under section 7559 of this title;
      6. describes the accounting and reporting systems that will be employed to track progress toward the Plan’s equivalent share;
      7. includes a timeline describing start-up, implementation, and progress toward milestones with anticipated results;
      8. includes a public information campaign to inform consumers about how to recycle their electronic waste at the end of the product’s life.
    2. Manufacturer program goal.   An individual plan submitted under this section shall be implemented to ensure satisfaction of the manufacturer’s electronic waste program goal. The Electronic Waste Recycling Program goal for a manufacturer that submits a plan under this section shall be the product of the relevant statewide recycling goal set forth in subsection 7555(a) of this title multiplied by the manufacturer’s market share of covered electronic devices. A manufacturer that submits a plan under this section may only count electronic waste received from covered entities toward the Program goal set forth in this section.
    3. Collection from covered entities.   A manufacturer that submits a plan under this section or a collector operating on behalf of a manufacturer that submits a plan under this section shall not charge a fee to covered entities for the collection, transportation, or recycling of electronic waste.
    4. Public review.   Before approving an individual plan under this section, the Secretary shall proceed in accordance with chapter 170 of this title.
    5. Collection facilities.   If a manufacturer that submits a plan under this section is required to implement a collection facility, the collection facility shall be staffed, open on an ongoing basis, and open to the public at a frequency approved by the Secretary in order to meet the needs of the area being served. A collection facility implemented under this section shall be prohibited from refusing or rejecting acceptance of electronic waste delivered to the facility for recycling.
    6. Annual report.   Beginning August 1, 2012, a manufacturer that submits a plan under this section shall report by August 1 and annually thereafter to the Secretary the following:
      1. the type of electronic waste collected;
      2. the aggregate total weight of electronic waste the manufacturer recycled by type during the preceding program year;
      3. a list of recyclers utilized by the manufacturer;
      4. a description of the processes and methods used to recycle the electronic waste; and
      5. a summary of the educational and outreach activities undertaken by the manufacturer.
      1. Parity surcharge.   A manufacturer that submits a plan under this section shall be assessed a surcharge if the lesser of the following occurs: (g) (1) Parity surcharge.   A manufacturer that submits a plan under this section shall be assessed a surcharge if the lesser of the following occurs:
        1. the manufacturer accepts less than the Program goal set forth in subsection (b) of this section; or
        2. the manufacturer accepts less than its market share portion of the total of electronic waste collected in the State.
      2. The surcharge shall be calculated by multiplying the average per pound of cost to the Secretary for the current program year to implement the Standard Plan plus 20 percent by the number of additional pounds of electronic waste that should have been accepted by the manufacturer. The surcharges collected under this section shall be deposited into the Electronic Waste Collection and Recycling Account of the Waste Management Assistance Fund and used to offset the costs of Program implementation.
    7. Effective date of plan approval.   A plan submitted under this section shall not be approved until the Secretary determines that the plan will provide a functionally equivalent level of electronic waste collection and recycling as the Standard Plan and that all the requirements of this section have been met.
    8. Amendments to plan.   An amendment to an individual plan approved under this section shall not take effect until approved by the Secretary.
    9. Opt-in to Standard Plan.   At the completion of any program year, a manufacturer approved under this section may seek coverage under the Standard Plan adopted under section 7552 of this title.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010; amended 2015, No. 150 (Adj. Sess.), § 30, eff. Jan. 1, 2018.

    History

    Amendments

    —2015 (Adj. Sess.). Subsec. (d): Rewritten.

    § 7555. Statewide recycling goal.

    1. Statewide recycling goal.
      1. For the program year of July 1, 2011 to June 30, 2012, the statewide recycling goal for electronic waste shall be the product of the U.S. Census Bureau’s 2010 population estimate for the State multiplied by 5.5 pounds.
      2. For the program year of July 1, 2012 to June 30, 2013, the statewide recycling goal for electronic waste shall be the product of the U.S. Census Bureau’s 2010 population estimate for the State multiplied by 6.0 pounds.
      3. For the program year of July 1, 2013 to June 30, 2014 and annually thereafter, the statewide recycling goal for all electronic waste shall be the product of the base weight multiplied by the goal attainment percentage.
    2. Base weight.   For purposes of this section, “base weight” means the average weight of all electronic waste reported as collected under this chapter during the previous two program years.
    3. Goal attainment percentage.   For purposes of this section, “goal attainment percentage” means, for each type of product:
      1. 90 percent if the base weight is less than 90 percent of the statewide recycling goal for the previous calendar year;
      2. 95 percent if the base weight is 90 percent or greater, but not more than 95 percent of the statewide recycling goal for the previous calendar year;
      3. 100 percent if the base weight is 95 percent or greater, but not more than 105 percent of the statewide recycling goal for the previous calendar year;
      4. 105 percent if the base weight is 105 percent or greater, but not more than 110 percent of the statewide recycling goal for the previous calendar year; or
      5. 110 percent if the base weight is 110 percent or greater of the statewide recycling goal.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010.

    § 7556. Retailer obligations.

    1. Sale prohibited.   Beginning July 1, 2010, no retailer shall sell or offer for sale a covered electronic device unless the covered electronic device is labeled by the manufacturer as required by subdivision 7553(a)(3) of this title, and the retailer has reviewed the website required in subdivision 7559(6) of this title to determine that the labeled manufacturers of all new covered electronic devices that the retailer is offering for sale are registered with the Agency of Natural Resources.
    2. Expiration or revocation of manufacturer registration.   A retailer shall not be responsible for an unlawful sale under this section if the manufacturer was not registered or the manufacturer’s registration expired or was revoked if the retailer took possession of the covered electronic device prior to July 1, 2010 or prior to the expiration or revocation of the manufacturer’s registration, and the unlawful sale occurred within six months after the expiration or revocation.
    3. Customer information.   Beginning July 1, 2011, a retailer who sells new covered electronic devices shall provide information to customers describing where and how they may recycle electronic waste and advising them of opportunities and locations for the convenient collection of electronic waste for the purpose of recycling. This requirement may be met by the posting of signs provided under the Standard Plan or a plan approved under section 7554 of this title that includes a warning that electronic waste shall not be disposed of in a solid waste facility and that provides a toll-free number or website address regarding proper disposal of covered electronic devices.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010.

    § 7557. Recycler program responsibility.

    1. Recycler registration.
      1. Beginning July 1, 2011, no person may recycle electronic waste at a facility located within the State unless that person has submitted a registration with the Agency of Natural Resources on a form prescribed by the Agency. A registration is effective upon receipt by the Agency and is valid for a period not to exceed five years. An electronics recycling facility registered under this section is not required to obtain a solid waste certification pursuant to chapter 159 of this title. Registration information shall include:
        1. the name, address, telephone number, and location of all recycling facilities under the direct control of the recycler that may receive electronic waste;
        2. evidence that the financial assurance requirements of section 6611 of this title have been satisfied.
      2. A registration shall be amended within 10 days after a change to any information included in the registration submitted by the recycler under this section.
    2. Recycler’s reporting requirements.   Beginning August 1, 2012, a recycler of electronic waste shall report by August 1 and annually thereafter to the Agency of Natural Resources on a form provided by the Agency the type of electronic waste collected, the total weight of electronic waste recycled during the preceding program year, and whether electronic waste was collected under the Standard Plan or an approved individual plan. In the annual report, the recycler shall certify that the recycler has complied with the electronic management guidelines developed under subdivision 7559(7) of this title.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010.

    § 7558. Collector and transporter program responsibility.

    1. Collector and transporter registration.
      1. Beginning July 1, 2011, no person may operate as a collector or transporter of electronic waste unless that person has submitted a registration with the Agency of Natural Resources on a form prescribed by the Agency. A registration is effective upon receipt by the Agency and is valid for a period not to exceed five years. An electronics collector or transporter registered under this section shall not be required to obtain a solid waste certification or a solid waste hauler permit pursuant to chapter 159 of this title.
      2. A registration shall be amended within 10 days after a change to any information included in the registration submitted by the collector under this section.
      3. Beginning August 1, 2012, a collector of electronic waste shall report by August 1 and annually thereafter to the Agency of Natural Resources on a form provided by the Agency the type of electronic waste collected, the total weight of electronic waste recycled during the preceding program year, and whether electronic waste was collected under the Standard Plan or an approved individual plan.
    2. Transporter reporting requirements.   Beginning August 1, 2012, a transporter of electronic waste not destined for recycling in Vermont shall report annually by August 1 to the Agency of Natural Resources the total pounds of electronic waste collected and whether electronic waste was collected under the Standard Plan or an approved individual plan.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010.

    § 7559. Agency of Natural Resources responsibilities.

    The Agency of Natural Resources shall:

    1. Adopt and administer the Standard Plan required under section 7552 of this title.
    2. Establish procedures for:
      1. the registration and certifications required under this chapter; and
      2. making the registrations and certifications required under this chapter easily available to manufacturers, retailers, and members of the public.
    3. Collect the data submitted under this chapter.
    4. Annually review data submitted under this chapter to determine whether any of the variables in the statewide recycling goal should be changed. The Agency shall submit recommended changes to the Senate Committee on Natural Resources and Energy and the House Committee on Natural Resources, Fish, and Wildlife.
    5. [Repealed.]
    6. Maintain a website that includes the names of manufacturers with current, valid registrations; the manufacturers’ brands listed in registrations filed with the Agency. The Agency shall update the website information within 10 days of receipt of a complete registration.
    7. In consultation with interested parties, establish guidelines for the environmentally sound management of consumer electronics, including specific requirements for collectors, transporters, and recyclers.
    8. Identify approved transporters, collectors, and recyclers.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010; amended 2017, No. 113 (Adj. Sess.), § 49c.

    History

    Amendments

    —2017 (Adj. Sess.). Subdiv. (4): Amended generally.

    § 7560. Administration of Electronic Waste Recycling Program.

    1. The Secretary of Natural Resources may contract for implementation and administration of the Standard Plan required under section 7552 of this title and, in so doing, shall comply with the Agency of Administration’s current contracting procedures.
    2. In contracting for implementation and administration of the Standard Plan, the Secretary shall review the costs incurred by similar electronic waste collection and recycling programs in other states. The Secretary in his or her discretion may reopen the Standard Plan if bids received in response to a request for proposal exceed the average cost of collection and recycling incurred by similar electronic waste collection and recycling programs in other states.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010.

    § 7561. Other recycling programs.

    A municipality or other public agency may not require covered entities to use public facilities to recycle their electronic waste to the exclusion of other lawful programs available. A municipality and other public agencies are encouraged to work with manufacturers to assist them in meeting their recycling obligations under this chapter. Nothing in this chapter prohibits or restricts the operation of any program recycling electronic waste in addition to those provided by manufacturers or prohibits or restricts any persons from receiving, collecting, transporting, or recycling electronic waste, provided that those persons are registered as required under this chapter.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010.

    § 7562. Multistate implementation.

    The Agency of Natural Resources or a contracted entity under section 7560 of this title is authorized to participate in the establishment of a regional multistate organization or compact to assist in carrying out the requirements of this chapter.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010.

    § 7563. Limitations.

    If a federal law or combination of federal laws takes effect that is applicable to all covered electronic devices sold in the United States and establishes a program for the collection and recycling or reuse of covered electronic devices that is applicable to all covered electronic devices, the Agency shall evaluate whether the federal law provides a solution that is equal to or better than the Program established under this chapter. The Agency shall report its findings to the General Assembly.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010.

    § 7564. Rulemaking.

    The Secretary of Natural Resources may adopt rules to implement the requirements of this chapter.

    HISTORY: Added 2009, No. 79 (Adj. Sess.), § 2, eff. April 19, 2010.

    Chapter 168. Product Stewardship for Primary Batteries and Rechargeable Batteries

    Subchapter 1. Definitions

    § 7581. Definitions.

    As used in this chapter:

    1. “Agency” means the Agency of Natural Resources.
    2. “Brand” means a name, symbol, word, or traceable mark that identifies a primary battery and attributes the primary battery to the owner or licensee of the brand as the producer.
    3. “Calendar year” means the period commencing January 1 and ending December 31 of the same year.
    4. “Collection rate” means a percentage by weight that each producer or primary battery stewardship organization collects by an established date. The collection rate shall be calculated by dividing the total weight of the primary batteries that are collected during a calendar year by the average annual weight of primary batteries that were estimated to have been sold in the State by participating producers during the previous three calendar years. Estimates of primary batteries sold in the State may be based on a reasonable pro rata calculation based on national sales.
    5. “Consumer” means any person who presents or delivers any number of primary batteries to a collection facility that is included in an approved primary battery stewardship plan.
    6. “Consumer product” means any product that is regularly used or purchased to be used for personal, family, or household purposes. “Consumer product” shall not mean a product primarily used or purchased for industrial or business use.
    7. “Discarded primary battery” means a primary battery that is no longer used for its manufactured purpose.
    8. “Easily removable” means readily detachable by a person without the use of tools or with the use of common household tools.
    9. “Participate” means to appoint a primary battery stewardship organization or rechargeable battery stewardship organization to operate on behalf of oneself and to have that appointment accepted by the stewardship organization.
    10. “Primary battery” means a nonrechargeable battery weighing two kilograms or less, including alkaline, carbon-zinc, and lithium metal batteries. “Primary battery” shall not mean:
      1. a battery intended for industrial, business-to-business, warranty or maintenance services, or nonpersonal use;
      2. a battery that is sold in a computer, computer monitor, computer peripheral, printer, television, or device containing a cathode ray tube;
      3. a battery that is not easily removable or is not intended to be removed from a consumer product; and
      4. a battery that is sold or used in a medical device, as that term is defined in the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(h) , as may be amended.
    11. “Primary battery producer” or “producer” means one of the following with regard to a primary battery that is sold or offered for sale in the State:
      1. a person who manufactures a primary battery and who sells or offers for sale that primary battery in the State under the person’s own name or brand;
      2. if subdivision (A) of this subdivision (11) does not apply, a person who owns or licenses a trademark or brand under which a primary battery is sold or offered for sale whether or not the trademark is registered; or
      3. if subdivisions (A) and (B) of this subdivision (11) do not apply, a person who imports a primary battery into the State for sale.
    12. “Primary battery stewardship organization” means an organization appointed by one or more producers to act as an agent on behalf of a producer or producers to design, submit, implement, and administer a primary battery stewardship plan under this chapter.
    13. “Primary battery stewardship plan” or “plan” means a plan submitted to the Secretary pursuant to section 7584 of this title by an individual producer or a primary battery stewardship organization.
    14. “Program” or “stewardship program” means the system for the collection, transportation, recycling, and disposal of primary batteries implemented pursuant to an approved primary battery stewardship plan.
      1. “Rechargeable battery” means: (15) (A) “Rechargeable battery” means:
        1. one or more voltaic or galvanic cells, electrically connected to produce electric energy and designed to be recharged and weighing less than 11 pounds; or
        2. a battery pack designed to be recharged that weighs less than 11 pounds and that is designed to provide less than 40 volts direct current.
      2. “Rechargeable battery” shall not mean:
        1. a battery that is not easily removable or is not intended or designed to be removed from the covered product, other than by the manufacturer;
        2. a battery that contains electrolyte as a free liquid;
        3. a battery or battery pack that employs lead-acid technology, unless the battery or battery pack:
          1. is sealed;
          2. contains no liquid electrolyte; and
          3. is intended by its manufacturer to power a handheld device or to provide uninterrupted backup electrical power protection for stationary consumer products or stationary office equipment; or
        4. a battery intended for industrial, business-to-business, warranty or maintenance services, or nonpersonal use.
    15. “Rechargeable battery steward” means a person who:
      1. manufactures a rechargeable battery or a rechargeable product that is sold, offered for sale, or distributed in the State under its own brand name;
      2. owns or licenses a trademark or brand under which a rechargeable battery or rechargeable product is sold, offered for sale, or distributed in the State, whether or not the trademark is registered; or
      3. if subdivisions (A) and (B) of this subdivision (16) do not apply, imports a rechargeable battery or rechargeable product into the State for sale or distribution.
    16. “Rechargeable battery stewardship organization” means an entity registered by the Secretary pursuant to section 7588 of this title that is either a single rechargeable battery steward operating on its own behalf; an organization appointed by one or more rechargeable battery stewards to operate a plan in which each steward is participating; or a retailer or franchisor of retailers operating a plan on behalf of itself or its franchisees.
    17. “Rechargeable product” means a consumer product that contains or is packaged with a rechargeable battery at the time the product is sold, offered for sale, or distributed in the State. “Rechargeable product” shall not mean:
      1. a product from which a rechargeable battery is not easily removable or is not intended or designed to be removed from the product other than by the manufacturer; or
      2. a medical device, as that term is defined in the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(h) , as amended.
    18. “Recycling” means any process by which discarded products, components, and by-products are transformed into new usable or marketable materials in a manner in which the original products may lose their identity, but does not include energy recovery or energy generation by means of combusting discarded products, components, and by-products with or without other waste products.
    19. “Retailer” means a person who offers a primary battery for sale to any consumer or business at retail in the State through any means, including remote offerings such as sales outlets, catalogues, or an Internet website.
    20. “Secretary” means the Secretary of Natural Resources.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    Subchapter 2. Primary Battery Stewardship Program

    § 7582. Sale of primary batteries.

    1. Sale prohibited.   Except as set forth under subsections (b) and (c) of this section, beginning on January 1, 2016, a producer of a primary battery shall not sell, offer for sale, or deliver to a retailer for subsequent sale a primary battery unless:
      1. the producer or the primary battery stewardship organization in which the producer is participating is registered under an approved and implemented primary battery stewardship plan;
      2. the producer or primary battery stewardship organization has paid the fee under section 7594 of this title; and
      3. the name of the producer and the producer’s brand are designated on the Agency website as covered by an approved primary battery stewardship plan.
    2. New producers.
      1. A producer of a primary battery who, after January 1, 2016, seeks to sell, offer for sale, or offer for promotional purposes in the State a primary battery not previously sold in State shall notify the Secretary prior to selling or offering for sale or promotion a primary battery not covered by an approved primary battery stewardship plan.
      2. The Secretary shall list a producer who supplies notice under this subsection as a “new producer” on the Agency’s website. A producer that supplies notice under this subsection shall have 90 days, not including the time required for public comment under subsection 7586(c) of this section, to either join an existing primary battery stewardship organization or submit a primary battery stewardship plan for approval to the State.
    3. Exemption.   A producer who annually sells, offers for sale, distributes, or imports in or into the State primary batteries with a total retail value of less than $2,000.00 shall be exempt from the requirements of this chapter.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    § 7583. Primary battery stewardship organization; requirements; registration.

    1. Participation in a primary battery stewardship organization.   A producer of primary batteries may meet the requirements of this chapter by participating in a primary battery stewardship organization that undertakes the producer’s responsibilities under sections 7582, 7584, and 7585 of this title.
    2. Qualifications for a primary battery stewardship organization.   To qualify as a primary battery stewardship organization under this chapter, an organization shall:
      1. commit to assume the responsibilities, obligations, and liabilities of all producers participating in the primary battery stewardship organization;
      2. not create unreasonable barriers for participation by producers in the primary battery stewardship organization; and
      3. maintain a public website that lists all producers and producers’ brands covered by the primary battery stewardship organization’s approved collection plan.
    3. Registration requirements.
      1. Beginning on March 1, 2015 and annually thereafter, a primary battery stewardship organization shall file a registration form with the Secretary. The Secretary shall provide the registration form to a primary battery stewardship organization. The registration form shall require submission of the following information:
        1. a list of the producers participating in the primary battery stewardship organization;
        2. the name, address, and contact information of a person responsible for ensuring a producer’s compliance with this chapter;
        3. a description of how the primary battery stewardship organization proposes to meet the requirements of subsection (a) of this section, including any reasonable requirements for participation in the primary battery stewardship organization; and
        4. the name, address, and contact information of a person for a nonmember manufacturer to contact on how to participate in the primary battery stewardship organization to satisfy the requirements of this chapter.
      2. A renewal of a registration without changes may be accomplished through notifying the Secretary on a form provided by the Secretary.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    § 7584. Primary battery stewardship plan.

    1. Primary battery stewardship plan required.   On or before June 1, 2015, each producer selling, offering for sale, distributing, or offering for promotional purposes a primary battery in the State shall individually or as part of a primary battery stewardship organization submit a primary battery stewardship plan to the Secretary for review.
    2. Primary battery stewardship plan; minimum requirements.   Each primary battery stewardship plan shall include, at a minimum, all of the following elements:
      1. List of producers and brands.   Each primary battery stewardship plan shall list:
        1. all participating producers and contact information for each of the participating producers; and
        2. the brands of primary batteries covered by the plan.
      2. Free collection.   Each primary battery stewardship plan shall provide for the collection of primary batteries from consumers at no cost to consumers. A producer shall not refuse the collection of a primary battery based on the brand or producer of the primary battery.
      3. Collection; convenience.   Each primary battery stewardship plan shall:
        1. Allow all retailers who meet requirements specified in the plan, all municipalities, and all certified solid waste management facilities to opt to be a collection facility.
        2. Provide, at a minimum, no fewer than two collection facilities in each county in the State that provide for collection throughout the year.
        3. Provide for the acceptance from a consumer of up to 100 batteries per visit. A collection facility may agree to accept more than 100 batteries per visit from a consumer.
      4. Method of disposition.   Each primary battery stewardship plan shall include a description of the method that will be used to responsibly manage discarded primary batteries to ensure that the components of the discarded primary batteries, to the extent economically and technically feasible, are recycled.
      5. Roles and responsibilities.   A primary battery stewardship plan shall list all key participants in the primary battery collection chain, including:
        1. the number and name of the collection facilities accepting primary batteries under the plan, including the address and contact information for each facility;
        2. the name and contact information of a transporter or contractor collecting primary batteries from collection facilities; and
        3. the name, address, and contact information of the recycling facilities that process the collected primary batteries.
      6. Education and outreach.   A primary battery stewardship plan shall include an education and outreach program. The education and outreach program may include mass media advertising in radio or television broadcasts or newspaper publications of general circulation in the State, retail displays, articles in trade and other journals and publications, and other public educational efforts. The education and outreach program shall describe the outreach procedures that will be used to provide notice of the program to businesses, municipalities, certified solid waste management facilities, retailers, wholesalers, and haulers. At a minimum, the education and outreach program shall notify the public of the following:
        1. that there is a free collection program for all primary batteries; and
        2. the location of collection points and how to access the collection program.
      7. Reimbursement.   A primary battery stewardship plan shall include a reimbursement procedure that is consistent with the requirements of subchapter 4 of this chapter.
      8. Performance goal; collection rate.   A primary battery stewardship plan shall include a collection rate performance goal for the primary batteries subject to the plan. The collection rate includes the estimated total weight of primary batteries that will be sold or offered for sale in the State by the producer or the producers participating in the primary battery stewardship plan.
    3. Implementation.   A producer or a primary battery stewardship organization shall include provisions in the plan for the implementation of the program in conjunction with those retailers, municipalities, and certified solid waste management facilities acting as collection facilities under a program. No transportation or recycling cost shall be imposed on retailers, municipalities, or certified solid waste management facilities acting as collection facilities under a program. A producer or a primary battery stewardship organization shall provide retailers, municipalities, and certified solid waste management facilities acting as collection facilities products or equipment for setting up a collection point and for providing for the pickup of collected primary batteries, including arranging for the management of those primary batteries.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    § 7585. Annual report; plan audit.

    1. Annual report.   On or before March 1, 2017 and annually thereafter, a producer or a primary battery stewardship organization shall submit a report to the Secretary that contains the following:
      1. the weight of primary batteries collected by the producer or the primary battery stewardship organization in the prior calendar year;
      2. the estimated percentage, by weight, of rechargeable batteries collected by the producer or the primary battery stewardship organization in the prior calendar year;
      3. the percentage of primary batteries collected in the prior calendar year that are from producers who are not participating in any approved stewardship plan, based on periodic sorting of primary batteries by the reporting producer;
      4. the collection rate achieved in the prior calendar year under the primary battery stewardship plan, including a report of the estimated total sales data by weight for primary batteries sold in the State for the previous three calendar years;
      5. the locations for all collection points set up by the primary battery producers covered by the primary battery stewardship plan and contact information for each location;
      6. examples and description of educational materials used to increase collection;
      7. the manner in which the collected primary batteries were managed;
      8. any material change to the primary battery stewardship plan approved by the Secretary pursuant to section 7586 of this title; and
      9. the cost of implementation of the primary battery stewardship plan, including the costs of collection, recycling, education, and outreach.
    2. Plan audit.   After five years of implementation of an approved primary battery stewardship plan, a primary battery producer or primary battery stewardship organization shall hire an independent third party to conduct a one-time audit of the primary battery stewardship plan and plan operation. The auditor shall examine the effectiveness of the primary battery stewardship plan in collecting and recycling primary batteries. The independent auditor shall examine the cost-effectiveness of the plan and compare it to that of collection plans or programs for primary batteries in other jurisdictions. The independent auditor shall submit the results of the audit to the Secretary as part of the annual report required under subsection (a) of this section.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    § 7586. Agency responsibilities; approval of plans.

    1. Approval of plan.   Within 90 days after receipt of a proposed primary battery stewardship plan, not including the time required for public comment under chapter 170 of this title, the Secretary shall determine whether the plan complies with the requirements of section 7584 of this title. If the Secretary determines that a plan complies with the requirements of section 7584 of this title, the Secretary shall notify the applicant of the plan approval in writing. If the Secretary rejects a primary battery stewardship plan, the Secretary shall notify the applicant in writing of the reasons for rejecting the plan. An applicant whose plan is rejected by the Secretary shall submit a revised plan to the Secretary within 45 days of receiving notice of rejection. A primary battery stewardship plan that is not approved or rejected by the Secretary within 90 days, not including the time required for public comment under chapter 170 of this title, of submission by a producer shall be deemed approved.
    2. Plan amendment; changes.   Any changes to a proposed primary battery stewardship plan shall be approved by the Secretary in writing. The Secretary, in his or her discretion or at the request of a producer, may require a producer or a primary battery stewardship organization to amend an approved plan.
    3. Public review.   When the Secretary receives a request to approve or amend a primary battery stewardship plan under this subchapter, the Secretary shall proceed in accordance with chapter 170 of this title.
    4. [Repealed.]
    5. Registrations.   The Secretary shall accept, review, and approve or deny primary battery stewardship organization registrations submitted under section 7583 of this title.
    6. Agency website.   The Secretary shall maintain a website that includes a copy of all approved primary battery stewardship plans, the names of producers with approved plans, participation in approved plans, or other compliance with this chapter. The website shall list all of an approved primary battery producer’s brands covered by a primary battery stewardship plan filed with the Secretary. The Secretary shall update information on the website within 10 days of receipt of notice of any change to the listed information. The website shall list all known primary battery producers exempt from the requirements of this chapter under subsection 7582(c) of this title.
    7. Term of primary battery stewardship plan.   A primary battery stewardship plan approved by the Secretary under this section shall have a term not to exceed five years, provided that the primary battery producer or primary battery stewardship organization remains in compliance with the requirements of this chapter and the terms of the approved plan.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014; amended 2015, No. 150 (Adj. Sess.), § 31, eff. Jan. 1, 2018.

    History

    Amendments

    —2015 (Adj. Sess.). Subsec. (a): Substituted “chapter 170 of this title” for “subsection (c) of this section” twice.

    Subsec. (c): Rewritten.

    Subsec. (d): Repealed.

    § 7587. Retailer obligations.

    1. Sale prohibited.   Except as set forth in subsection (b) of this section, no retailer shall sell or offer for sale a primary battery on or after January 1, 2016 unless the producer of the primary battery is implementing an approved primary battery stewardship plan, is a member of a primary battery stewardship organization implementing an approved primary battery stewardship plan, or is exempt from participation in an approved plan, as determined by review of the producers listed on the Agency website required in subsection 7586(f) of this title.
    2. Inventory exception; expiration or revocation of producer registration.   A retailer shall not be responsible for an unlawful sale of a primary battery under this subsection if:
      1. the retailer purchased the primary battery prior to January 1, 2016 and sells the primary battery on or before January 1, 2017; or
      2. the producer’s primary battery stewardship plan expired or was revoked, and the retailer took possession of the in-store inventory of primary batteries prior to the expiration or revocation of the producer’s primary battery stewardship plan.
    3. Educational material.   A producer or primary battery stewardship organization supplying primary batteries to a retailer shall provide the retailer with educational materials describing collection opportunities for primary batteries. The retailer shall make the educational materials available to consumers.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    Subchapter 3. Registration of Rechargeable Battery Stewardship Organization

    § 7588. Registration of rechargeable battery stewardship organization.

    1. A rechargeable battery steward or rechargeable battery stewardship organization shall register with the Secretary in order to seek reimbursement under subchapter 4 of this chapter.
    2. The Secretary shall register a rechargeable battery steward or rechargeable battery stewardship organization upon:
      1. submission of a registration form provided by the Secretary that includes:
        1. the name of a rechargeable battery steward implementing an individual program or a list of the producers participating in a rechargeable battery stewardship organization; and
        2. the name, address, and contact information of a person responsible for implementing the rechargeable battery stewardship program;
      2. a determination by the Secretary that the rechargeable battery steward or rechargeable battery stewardship organization offers to municipalities, certified solid waste management facilities, and retailers a year-round free collection and recycling program.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    Subchapter 4. Reimbursement

    § 7589. Reimbursement; authorization.

    1. Reimbursement of primary battery producers.
      1. A producer or a primary battery stewardship organization operating under an approved primary battery stewardship plan that collects primary batteries or rechargeable batteries that are not listed under its approved plan shall be entitled to reimbursement from the following entities of reimbursable costs per unit of weight incurred in collecting the batteries:
        1. the producer of the collected primary battery or the primary battery stewardship organization representing the producer of the collected primary battery; or
        2. the rechargeable battery steward responsible for the collected rechargeable batteries or, where the rechargeable battery steward responsible for the collected rechargeable batteries is participating in a rechargeable battery stewardship organization, the stewardship organization.
      2. Reimbursement may be requested by a collecting primary battery producer or primary battery stewardship organization only after that producer has achieved the collection rate performance goal approved by the Secretary under section 7584 of this title.
    2. Reimbursement of rechargeable battery stewardship organization.   A registered rechargeable battery steward or rechargeable battery stewardship organization shall be entitled to reimbursement from the producer of the collected primary battery or the primary battery stewardship organization representing the producer of the collected primary battery.
    3. Reimbursable costs.   Under this subchapter, reimbursement shall be allowed only for those costs incurred in collecting the batteries subject to the reimbursement request. Reimbursable costs include:
      1. costs of collection, transport, recycling, and other methods of disposition identified in a primary battery stewardship plan approved pursuant to section 7586 of this title; and
      2. reasonable educational, promotional, or administrative costs.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    § 7590. Reimbursement process.

    1. Reimbursement request.
      1. A primary battery producer, primary battery stewardship organization, or rechargeable battery stewardship organization that incurs reimbursable costs under section 7589 of this title shall submit a request to the producer of the collected primary battery or the primary battery stewardship organization in which the producer is participating or the rechargeable battery stewardship organization responsible for the collected rechargeable battery.
      2. A producer or primary battery stewardship organization or rechargeable battery stewardship organization that receives a request for reimbursement may, prior to payment and within 30 days of receipt of the request for reimbursement, request an independent audit of submitted reimbursement costs.
      3. The independent auditor shall be responsible for verifying the reasonableness of the reimbursement request, including the costs sought for reimbursement, the amount of reimbursement, and the reimbursable costs assessed by each of the two programs.
      4. If the independent audit confirms the reasonableness of the reimbursement request, the producer, primary battery stewardship organization, or rechargeable battery stewardship organization requesting the audit shall pay the cost of the audit and the amount of the reimbursement calculated by the independent auditor. If the independent audit indicates the reimbursement request was not reasonable, the producer or primary battery stewardship organization that initiated the reimbursement request shall pay the cost of the audit and the amount of the reimbursement calculated by the independent auditor.
    2. Role of Agency.   The Agency shall not be required to provide assistance or otherwise participate in a reimbursement request, audit, or other action under this section, unless subject to subpoena before a court of jurisdiction.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    Subchapter 5. Private Right of Action

    § 7591. Private right of action.

    1. Action against producer with no primary battery stewardship plan.   A producer, a primary battery stewardship organization implementing an approved primary battery stewardship plan in compliance with the requirements of this chapter, a rechargeable battery steward, or a rechargeable battery stewardship organization may bring a civil action against another producer or primary battery stewardship organization for damages when:
      1. the plaintiff producer, primary battery stewardship organization, rechargeable battery steward, or rechargeable battery stewardship organization incurs more than $1,000.00 in actual reimbursable costs collecting, handling, recycling, or properly disposing of primary batteries sold or offered for sale in the State by that other producer;
      2. the producer from whom damages are sought:
        1. can be identified as the producer of the collected primary batteries from a brand or marking on the discarded battery or from other information available to the plaintiff producer, primary battery stewardship organization, rechargeable battery steward, or rechargeable battery stewardship organization; and
        2. does not operate or participate in an approved primary battery stewardship organization in the State or is not otherwise in compliance with the requirements of this chapter.
    2. Action against producer with an approved primary battery stewardship plan.   A producer, a primary battery stewardship organization in compliance with the requirements of this chapter, a rechargeable battery steward, or a rechargeable battery stewardship organization may bring a civil action for damages against a primary producer or primary battery stewardship organization in the State that is in compliance with the requirements of this chapter, provided that the conditions of subsection (d) of this section have been met.
    3. Action against rechargeable battery stewardship organization.   A producer, a primary battery stewardship organization in compliance with the requirements of this chapter, a rechargeable battery steward, or a rechargeable battery stewardship organization may bring a civil action for damages against a rechargeable battery stewardship organization registered by the Secretary, provided that the conditions of subsection (d) of this section have been met.
    4. Condition precedent to cause of action.   Except as authorized under subsection (a) of this section, a cause of action under this section shall be allowed only if:
      1. a plaintiff producer, primary battery stewardship organization, or rechargeable battery stewardship organization submitted a reimbursement request to another producer, primary battery stewardship organization, or rechargeable battery stewardship organization under subchapter 4 of this chapter; and
      2. the plaintiff producer, primary battery stewardship organization, or rechargeable battery stewardship organization does not receive reimbursement within:
        1. 90 days of the reimbursement request, if no independent audit is requested under subchapter 4 of this chapter; or
        2. 60 days after completion of an audit if an independent audit is requested under subchapter 4 of this chapter, and the audit confirms the validity of the reimbursement request.
    5. Action against individual producer or steward.
      1. A civil action under this section may be brought against an individual primary battery producer or an individual rechargeable battery steward only if the primary battery producer is implementing its own primary battery stewardship plan, the primary battery producer has failed to register to participate in a primary battery stewardship plan, or the rechargeable battery steward is implementing its own registered rechargeable battery stewardship organization.
      2. A primary battery producer participating in an approved primary battery stewardship plan covering multiple producers or a rechargeable battery steward participating in a rechargeable battery stewardship organization representing multiple stewards shall not be sued individually for reimbursement.
      3. An action against a primary battery producer participating in a primary battery stewardship plan covering multiple producers or an action against a rechargeable battery steward participating in a rechargeable battery stewardship organization shall be brought against the stewardship organization implementing the plan.
    6. Role of Agency.   The Agency shall not be a party to or be required to provide assistance or otherwise participate in a civil action authorized under this section solely due to its regulatory requirements under this chapter, unless subject to subpoena before a court of jurisdiction.
    7. Damages; definitions.   As used in this section, “damages” means the actual, reimbursable costs a plaintiff producer, primary battery stewardship organization, or rechargeable battery stewardship organization incurs in collecting, handling, recycling, or properly disposing of primary batteries reasonably identified as having originated from another primary battery producer, primary battery stewardship organization, or rechargeable battery stewardship organization.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    Subchapter 6. General Provisions

    § 7592. Confidentiality of submitted data.

    1. Confidentiality.   Reports and data submitted under this chapter shall be available for public inspection and copying, provided that:
      1. Information protected under the Uniform Trade Secrets Act, as codified under 9 V.S.A. chapter 143, or under the trade secret exemption under 1 V.S.A. § 317(c)(9) shall be exempt from public inspection and copying under the Public Records Act.
      2. The Secretary may publish information confidential under subdivision (1) of this subsection in a summary or aggregated form that does not directly or indirectly identify individual producers, battery stewards, distributors, or retailers.
    2. Omission of trade secret information.   The Secretary may require, as a part of a report submitted under this chapter, that the producer, primary battery stewardship organization, rechargeable battery steward, or rechargeable battery stewardship organization submit a report that does not contain trade secret information and is available for public inspection and review.
    3. Total weight of batteries.   The total weight of batteries collected under an approved primary battery stewardship plan is not confidential business information under the Uniform Trade Secrets Act, as codified under 9 V.S.A. chapter 143, and shall be subject to inspection and review under the Public Records Act, 1 V.S.A chapter 5, subchapter 3.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    § 7593. Antitrust; conduct authorized.

    1. Activity authorized.   A producer, group of producers, or primary battery stewardship organization implementing or participating in an approved primary battery stewardship plan under this chapter for the collection, transport, processing, and end-of-life management of primary batteries is individually or jointly immune from liability for the conduct under State laws relating to antitrust, restraint of trade, unfair trade practices, and other regulation of trade or commerce under 9 V.S.A. chapter 63, subchapter 1, to the extent that the conduct is reasonably necessary to plan, implement, and comply with the producer’s, group of producers’, or primary battery stewardship organization’s chosen system for managing discarded primary batteries. This subsection shall also apply to conduct of a retailer or wholesaler participating in a producer or primary battery stewardship organization’s approved primary battery stewardship plan when the conduct is necessary to plan and implement the producer’s or primary battery stewardship organization’s organized collection or recycling system for discarded batteries
    2. Limitations on anti-trust activity.   Subsection (a) of this section shall not apply to an agreement among producers, groups of producers, retailers, wholesalers, or primary battery stewardship organizations affecting the price of primary batteries or any agreement restricting the geographic area in which, or customers to whom, primary batteries shall be sold.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    § 7594. Administrative fee.

    1. Fees assessed.   A primary battery producer or primary battery stewardship organization shall pay a fee of $15,000.00 annually for operation under a primary battery stewardship plan approved by the Secretary under section 7586 of this title.
    2. Disposition of fees.   The fees collected under subsection (a) of this section shall be deposited in the Environmental Permit Fund under 3 V.S.A. § 2805 .

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    § 7595. Rulemaking; procedure.

    The Secretary may adopt rules or procedures to implement the requirements of this chapter.

    HISTORY: Added 2013, No. 139 (Adj. Sess.), § 1, eff. May 22, 2014.

    Chapter 170. Department of Environmental Conservation; Standard Procedures

    History

    Rules; effect on procedural requirements. 2015, No. 150 (Adj. Sess.), § 2, effective July 1, 2018, provides: “Sec. 1 of this act [which enacted this chapter] shall take precedence over any inconsistent requirements for notice and processing of applications contained in rules adopted by the Department of Environmental Conservation other than rules pertaining to applications that are exempt under Sec. 1, 10 V.S.A. § 7718 . On or before July 1, 2019, the Secretary of Natural Resources shall commence and complete amendments to conform these rules to Sec. 1.

    “(2) On passage, the Secretary of Natural Resources shall have authority to adopt rules in accordance with Sec. 1.”

    Federally delegated programs. 2015, No. 150 (Adj. Sess.), § 5c, effective January 1, 2018 provides: “If the U.S. Environmental Protection Agency notifies the Secretary of Natural Resources that a provision of this act is inconsistent with the Clean Air Act or Clean Water Act as defined in 10 V.S.A. chapter 170 or federal regulations adopted under one of those acts, the Secretary shall report the receipt of this notification to the House and Senate Committees on Natural Resources and Energy and the House Committee on Fish, Wildlife and Water Resources. This report shall attach the notification and may include proposed statutory revisions to address the inconsistency.”

    Subchapter 1. General Provisions

    § 7701. Department of Environmental Conservation; standard procedures.

    The purpose of this chapter is to establish standard procedures for public notice, public meetings, and decisions relating to applications for permits issued by the Department of Environmental Conservation.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.

    § 7702. Definitions.

    As used in this chapter:

    1. “Adjoining property owner” means a person who owns land in fee simple, if that land:
      1. shares a property boundary with a tract of land where proposed or actual activity regulated by the Department is located; or
      2. is adjacent to a tract of land where such activity is located and the two properties are separated only by a river, stream, or public highway.
    2. “Administrative amendment” means an amendment to an individual permit, general permit, or notice of intent under a general permit that corrects typographical errors, changes the name or mailing address of a permittee, or makes other similar changes to a permit that do not require technical review of the permitted activity or the imposition of new conditions or requirements.
    3. “Administrative record” means the application and any supporting data furnished by the applicant; all information submitted by the applicant during the course of reviewing the application; the draft permit or notice of intent to deny the application; the fact sheet and all documents cited in the fact sheet, if applicable; all comments received during the public comment period; the recording or transcript of any public meeting or meetings held; any written material submitted at a public meeting; the response to comments; the final permit; any document used as a basis for the final decision; and any other documents contained in the permit file.
    4. “Administratively complete application” means an application for a permit for which all initially required documentation has been submitted, and any required permit fee, and the information submitted initially addresses all application requirements but has not yet been subjected to a complete technical review.
    5. “Agency” means the Agency of Natural Resources.
    6. “Clean Air Act” means the federal statutes on air pollution prevention and control, 42 U.S.C. § 7401 et seq.
    7. “Clean Water Act” means the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.
    8. “Commissioner” means the Commissioner of Environmental Conservation or the Commissioner’s designee.
    9. “Department” means the Department of Environmental Conservation.
    10. “Document” means any written or recorded information, regardless of physical form or characteristics, that the Department produces or acquires in the course of reviewing an application for a permit.
    11. “Environmental notice bulletin” or “bulletin” means the website and e-mail notification system required by 3 V.S.A. § 2826 .
    12. “Fact sheet” means a document that briefly sets forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing a draft decision.
    13. “General permit” means a permit that applies to a class or category of discharges, emissions, disposal, facilities, or activities within a common geographic area, including the entire State or a region of the State.
    14. “Individual permit” means a permit that authorizes a specific discharge, emission, disposal, facility, or activity that contains terms and conditions that are specific to the discharge, emission, disposal, facility, or activity.
    15. “Major amendment” means an amendment to an individual permit or notice of intent under a general permit that necessitates technical review.
    16. “Minor amendment” means an amendment to an individual permit or notice of intent under a general permit that requires a change in a condition or requirement, does not necessitate technical review, and is not an administrative amendment.
    17. “Notice of intent under a general permit” means an authorization issued by the Secretary to undertake an action authorized by a general permit.
    18. “Permit” includes any permit, certification, license, registration, determination, or similar form of permission required from the Department by law. However, the term excludes a professional license issued pursuant to chapter 48, subchapter 3 (licensing of well drillers) of this title and sections 1674 (water supply operators), 1936 (UST inspector licenses), 6607 (hazardous waste transporters), and 6607a (waste transportation) of this title.
    19. “Person” shall have the same meaning as under section 8502 of this title.
    20. “Person to whom notice is federally required” means a person to whom notice of an application or draft decision must be given under federal regulations adopted pursuant to the Clean Air Act or Clean Water Act.
    21. “Public meeting” means a meeting that is open to the public and recorded or transcribed, at which the Department shall provide basic information about the draft permit decision, an opportunity for questions to the applicant and the Department, and an opportunity for members of the public to submit oral and written comments.
    22. “Secretary” means the Secretary of Natural Resources or designee.
    23. “Technical review” means the application of scientific, engineering, or other professional expertise to the facts to determine whether activity for which a permit is requested meets the standards for issuing the permit under statute and rule.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.

    § 7703. Rules; additional notice or procedures.

    1. Rules.
      1. Implementing rules.   The Secretary may adopt rules to implement this chapter.
      2. Complex projects; preapplication process.   The Secretary shall adopt rules to determine when a project requiring a permit is large and complex. These rules shall provide that an applicant proposing such a project, prior to filing an application for a permit, shall initiate a project scoping process pursuant to 3 V.S.A. § 2828 or shall hold an informational meeting that is open to the public. The rules shall ensure that:
        1. Written notice of an informational meeting under this section is sent to the owner of the land where the project is located if the applicant is not the owner; the municipality in which the project is located; the municipal and regional planning commissions for any municipality in which the project is located; if the project site is located on a boundary, any Vermont municipality adjacent to that boundary and the municipal and regional planning commissions for that municipality; and each adjoining property owner. At the time this written notice is sent, the Secretary also shall post the notice to the environmental notice bulletin.
        2. The notice to adjoining property owners informs them of how they can continue to receive notices and information through the environmental notice bulletin concerning the project as it is reviewed by the Secretary.
        3. The applicant furnishes by affidavit to the Secretary the names of those furnished notice and certifies compliance with the notice requirements of this subsection.
        4. The applicant and the Secretary or designee shall attend the meeting. The applicant shall respond to questions from other attendees.
    2. Additional notice.
      1. The Secretary may require, by rule or in an individual case, measures in addition to those directed by this chapter using any method reasonably calculated to give direct notice to persons potentially affected by a decision on the application.
      2. In an individual case, the Secretary may determine to apply the procedures of section 7713 (Type 2) of this chapter to the issuance of a permit otherwise subject to the procedures of section 7715 (Type 4) or section 7716 (Type 5) of this chapter.
    3. Extension of deadlines.   A person may request that the Secretary extend any deadline for comment or requesting a public informational meeting established by this chapter. The person shall submit the request before the deadline and include a brief explanation of why the extension is justified. If the request is granted, the Secretary shall provide notice of the new deadline through the environmental notice bulletin.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.

    § 7704. Administrative record.

    1. The Secretary shall create an administrative record for each application for a permit and shall make the administrative record available to the public.
    2. The Secretary shall base a draft or final decision on each application for a permit on the administrative record.
    3. With respect to permits issued under the Clean Air Act and Clean Water Act, the Secretary shall comply with any requirements under those acts concerning the maintenance and availability of the administrative record.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.

    § 7705. Time; how computed.

    In this chapter:

    1. When time is to be reckoned from a day, date, or an act done, the day, date, or day when the act is done shall not be included in the computation.
    2. Computation of a time period shall use calendar days.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.

    Subchapter 2. Standard Procedures

    § 7711. Permit procedures; standard provisions.

    1. Notice through the environmental notice bulletin.   When this chapter requires notice through the environmental notice bulletin:
      1. The bulletin shall generate and send an e-mail to notify:
        1. each person requiring notice under section 7712 of this chapter;
        2. the applicant;
        3. each person on an interested persons list;
        4. each municipality in which the activity to be permitted is located, except for notice of a draft or final general permit; and
        5. each other person to whom this chapter directs that a particular notice be provided through the bulletin.
      2. At a minimum, each notice generated by the bulletin shall contain:
        1. the name and contact information for the person at the Agency processing the permit;
        2. the name and address of the permit applicant, if applicable;
        3. the name and address of the facility or activity to be permitted, if applicable;
        4. a brief description of the activity for which the permit would be issued;
        5. the length of the period for submitting written comments and the process for submitting those comments, if applicable, and notice of the requirements regarding submission of comments during that period or at a public meeting in order to appeal under chapter 220 of this title;
        6. the process for requesting a public meeting, if applicable;
        7. when a public meeting has been scheduled, the time, date, and location of the meeting and a brief description of the nature and purpose of the meeting;
        8. when issued, the draft permit or notice of intent to deny a permit, and the period and process for submitting written comments on that draft permit or notice;
        9. when issued, the final decision issuing or denying a permit, and the process for appealing the decision; and
        10. any other information that this chapter directs be included in a particular notice to be generated by the bulletin.
      3. The environmental notice bulletin shall provide notice by mail as required by 3 V.S.A. § 2826 .
    2. Notice to adjoining property owners.   When this chapter requires notice of an application to adjoining property owners, the applicant shall provide notice of the application by U.S. mail to all adjoining property owners, on a form developed by the Secretary, at the time the application is submitted to the Secretary. The form shall state how the property owners can continue to receive notices and information concerning the project as it is reviewed by the Secretary. The applicant shall provide a signed certification to the Secretary that all adjoining property owners have been notified of the application. However, if the applicant has provided written notice to adjoining property owners as part of the preapplication engagement process for complex projects under rules adopted in accordance with subsection 7703(a) of this title, then instead of the written notice required of the applicant by this subsection, the Department shall provide notice of the application through the environmental notice bulletin to those adjoining property owners who have requested notice.
    3. Comment period length.   When this chapter requires the Secretary to provide a public comment period, the length of the period shall be at least 30 days, unless this chapter applies a different period for submitting comments on the particular type of permit.
    4. Period to request a public meeting.   When this chapter allows a person to request a public meeting on a draft decision, the person shall submit the request within 14 days of the date on which notice of the draft decision is posted to the environmental notice bulletin, unless this chapter specifies a different period for requesting a hearing on the particular type of permit.
    5. Public meeting; notice; additional comment period.   When the Secretary holds a public meeting under this chapter:
      1. The Secretary shall:
        1. provide at least 14 days’ prior notice of the public meeting through the environmental notice bulletin, unless this chapter specifies a different notice period for a public meeting on the particular type of permit;
        2. include in the notice, in addition to the information required by subsection (a) of this section, the date the Secretary gave notice of an administratively complete application, if applicable; and
        3. hold the period for written comments open for at least seven days after the meeting.
      2. The applicant or applicant’s representative and the Secretary or designee shall attend the meeting. The applicant shall cause to be present those professionals retained in the preparation of the application. At the meeting, the applicant and the Secretary each shall answer questions relevant to the application or draft decision to the best of their ability.
    6. Draft decisions.   When this chapter requires the Secretary to post a draft decision or draft general permit to the environmental notice bulletin, the Secretary shall post to the bulletin the draft decision or draft general permit and all documents on which the Secretary relied in issuing the draft. This post shall include instructions on how to inspect and how to request a copy of each other document that is part of the administrative record of the draft decision or permit.
    7. Response to comments.   When this chapter requires the Secretary to provide a response to comments, the Secretary shall provide a response to each comment received during the comment period and the basis for the response. The Secretary also shall specify each provision of the draft decision that has been changed in the final decision and the reasons for each change. The Secretary shall post the response to comments to the environmental notice bulletin and send it to all commenters.
    8. Final decisions; content; notice.
      1. The Secretary’s final decision on an application for a permit or on the issuance of a general permit shall include a concise statement of the facts and analysis supporting the decision that is sufficient to apprise the reader of the decision’s factual and legal basis. The final decision also shall provide notice that it may be appealed and state the period for filing an appeal and how and where to file an appeal.
      2. When this chapter requires that the Secretary post a final decision to the environmental notice bulletin, the Secretary also shall send a copy of the final decision to all commenters.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.

    § 7712. Type 1 Procedures.

    1. Purpose; scope.
      1. The purpose of this section is to establish the public notice and comment requirements that the Department must follow when adopting general permits and considering applications for individual permits under the Clean Air Act and Clean Water Act.
      2. This section governs each application for a permit to be issued by the Secretary pursuant to the requirements of the Clean Air Act or Clean Water Act and to each general permit to be issued under one of those acts. However, the subsection does not apply to a notice of intent under a general permit. The procedures under this section shall be known as Type 1 Procedures.
    2. Notice of application.
      1. The applicant shall provide notice to adjoining property owners.
      2. At least 15 days prior to posting a draft decision, the Secretary shall provide notice of an administratively complete application through the environmental notice bulletin. The environmental notice bulletin shall send notice of such an application to each person to whom notice is federally required.
      3. This subsection shall not apply to a general permit issued under this section.
    3. Notice of draft decision or draft general permit.   The Secretary shall provide notice of a draft decision or draft general permit through the environmental notice bulletin and shall post the draft decision or permit to the bulletin. In addition to the requirements of section 7711 of this chapter:
      1. The Secretary shall post a fact sheet to the bulletin.
      2. The environmental notice bulletin shall send notice of the draft to each person to whom notice is federally required.
      3. The Secretary shall provide newspaper notice of the draft decision as required by this subdivision (3).
        1. If the draft decision pertains to an application for an individual permit, the Secretary shall provide notice in a daily or weekly newspaper in the area of the proposed project if the project is classified as major pursuant to the Clean Water Act or chapter 47 of this title or if required by federal statute or regulation.
        2. If the draft decision is a draft general permit, the Secretary shall provide notice in daily or weekly newspapers in each region of the State to which the draft general permit will apply.
        3. In addition to the requirements of this chapter and 3 V.S.A. § 2826 , the notice from the environmental notice bulletin and the newspaper notice shall include all information required pursuant to applicable federal statute and regulation.
    4. Comment period.   The Secretary shall provide a public comment period.
    5. Public meeting.   On or before the end of the comment period, any person may request a public meeting on the draft decision or draft general permit issued under this section. The Secretary shall hold a public meeting whenever any person files a written request for such a meeting. The Secretary otherwise may hold a public meeting at his or her discretion. The Secretary shall provide at least 30 days’ notice of the public meeting through the environmental notice bulletin. If the notice of the public meeting is not issued at the same time as the draft decision or draft general permit, the Secretary also shall provide notice of the public meeting in the same manner as required for the draft decision or permit under subsection (c) of this section.
    6. Notice of final decision or final general permit.   The Secretary shall provide notice of the final decision or final general permit through the environmental notice bulletin and shall post the final decision or permit to the bulletin. When the Secretary issues the final decision or final general permit, the Secretary shall provide a response to comments.
    7. Compliance with Clean Air and Water Acts.   With respect to issuance of a permit under the Clean Air Act or Clean Water Act, if a requirement under those acts directs the Secretary to provide the public with greater notice, opportunity to participate, or access to information than the corresponding requirement of this chapter, the Secretary shall comply with the federal requirement.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.

    § 7713. Type 2 Procedures.

    1. Purpose; scope.
      1. The purpose of this section is to establish the public notice and comment requirements that the Department must follow when considering applications for individual permits, except for individual permits specifically listed in other sections of this subchapter, and when considering other permits listed in this section.
      2. The procedures under this section shall be known as Type 2 Procedures. This section governs an application for each of the following:
        1. an individual permit issued pursuant to the Secretary’s authority under this title and 29 V.S.A. chapter 11, except for permits governed by sections 7712 and 7714-7716 of this chapter;
        2. a wetland determination under section 914 of this title;
        3. an individual shoreland permit under chapter 49A of this title;
        4. a public water system source permit under section 1675 of this title;
        5. a provisional certification issued under section 6605d of this title; and
        6. a corrective action plan under section 6648 of this title.
    2. Notice of application.
      1. The applicant shall provide notice of the application to adjoining property owners.
        1. For public water system source protection areas, the applicant also shall provide notice to all property owners located in:
          1. zones 1 and 2 of the source protection area for a public community water system source; and
          2. the source protection area for a public nontransient noncommunity water system source.
        2. For an individual shoreland permit under chapter 49A:
          1. The notice to adjoining property owners shall be to the adjoining property owners on the terrestrial boundary of the shoreland.
          2. This chapter does not require notice to owners of property across the lake as defined in that chapter.
      2. The Secretary shall provide notice of an administratively complete application through the environmental notice bulletin.
    3. Notice of draft decision; comment period.   The Secretary shall provide notice of a draft decision through the environmental notice bulletin and shall post the draft decision to the bulletin. The Secretary shall provide a public comment period.
    4. Public meeting.   The Secretary shall hold a public meeting whenever any person files a written request for such a meeting. The Secretary otherwise may hold a public meeting at his or her discretion.
    5. Notice of final decision.   The Secretary shall provide notice of the final decision through the environmental notice bulletin and shall post the final decision to the bulletin. When the Secretary issues the final decision, the Secretary shall provide a response to comments.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.

    § 7714. Type 3 Procedures.

    1. Purpose; scope.
      1. The purpose of this section is to establish the public notice and comment requirements that the Department must follow when adopting general permits, except for general permits governed by section 7712 of this chapter, and when considering other permits listed in this section.
      2. The procedures under this section shall be known as Type 3 Procedures. This section governs each of the following:
        1. Each general permit issued pursuant to the Secretary’s authority under this title other than a general permit subject to section 7712 of this chapter. However, this section does not apply to a notice of intent under a general permit.
        2. Issuance of a dam safety order under chapter 43 of this title, except for an unsafe dam order under section 1095 of this title.
        3. An application or request for approval of:
          1. an aquatic nuisance control permit under chapter 50 of this title;
          2. a change in treatment for a public water supply under chapter 56 of this title;
          3. a collection plan for mercury-containing lamps under section 7156 of this title;
          4. an individual plan for the collection and recycling of electronic waste under section 7554 of this title; and
          5. a primary battery stewardship plan under section 7586 of this title.
    2. Notice of application.   The Secretary shall provide notice of an administratively complete application through the environmental notice bulletin.
    3. Notice of draft decision; comment period.   The Secretary shall provide notice of the draft decision through the environmental notice bulletin and shall post the draft decision to the bulletin. The Secretary shall provide a public comment period.
    4. Public meeting.   The Secretary shall hold a public meeting whenever any person files a written request for such a meeting. The Secretary otherwise may hold a public meeting at his or her discretion.
    5. Notice of final decision.   The Secretary shall provide notice of the final decision through the environmental notice bulletin and shall post the final decision to the bulletin. The Secretary shall provide a response to comments.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018; amended 2017, No. 74 , § 20.

    History

    Amendments

    —2017. Deleted subdiv. (a)(2)(C)(i); and redesignated former subdivs. (a)(2)(C)(ii)-(a)(2)(C)(vi) as (a)(2)(C)(i)-(a)(2)(C)(v), respectively.

    § 7715. Type 4 Procedures.

    1. Purpose; scope.
      1. The purpose of this section is to establish the public notice and comment requirements that the Department must follow when considering applications for notice of intent under a general permit and other permits listed in this section.
      2. The procedures under this section shall be known as Type 4 Procedures. This section applies to each of the following:
        1. a notice of intent under a general permit issued pursuant to the Secretary’s authority under this title; and
        2. an application for each of following permits:
          1. construction or operation of an air contaminant source or class of sources not identified in the State’s implementation plan approved under the Clean Air Act;
          2. construction or expansion of a public water supply under chapter 56 of this title, except that a change in treatment for a public water supply shall proceed in accordance with section 7714 of this chapter;
          3. a category 1 underground storage tank under chapter 59 of this title;
          4. a categorical solid waste certification under chapter 159 of this title; and
          5. a medium scale composting certification under chapter 159 of this title.
    2. Notice of application.   The Secretary shall provide notice of an administratively complete application through the environmental notice bulletin.
    3. Notice of draft decision; comment period.   The Secretary shall provide notice of the draft decision through the environmental notice bulletin and shall post the draft decision to the bulletin. The Secretary shall provide a public comment period of at least 14 days on the draft decision.
    4. Notice of final decision.   The Secretary shall provide notice of the final decision through the environmental notice bulletin and shall post the decision to the bulletin. The Secretary shall provide a response to comments.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.

    § 7716. Type 5 Procedures.

    1. Purpose; scope.
      1. The purpose of this section is to establish the public notice and comment requirements that the Department must follow when issuing emergency permits and other permits listed in this section.
      2. The procedures under this section shall be known as Type 5 Procedures. This section shall govern each of the following:
        1. issuance of temporary emergency permits under section 912 of this title;
        2. applications for public water system operational permits under chapter 56 of this title;
        3. issuance of authorizations, under a stream alteration general permit issued under chapter 41 of this title, for reporting without an application, for an emergency, and for activities to prevent risks to life or of severe damage to improved property posed by the next annual flood;
        4. issuance of emergency permits issued under section 1268 of this title;
        5. issuance of emergency sludge and septage disposal approvals under section 6605 of this title; and
        6. shoreland registrations authorized under chapter 49A of this title.
    2. Notice of final decision.   The Secretary shall provide notice of the final decision through the environmental notice bulletin and shall post the decision to the bulletin.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.

    § 7717. Amendments; renewals.

    1. A major amendment shall be subject to the same procedures applicable to the original permit decision under this chapter.
    2. A minor amendment shall be subject to the Type 4 Procedures, except that the Secretary need not provide notice of the administratively complete application.
    3. An administrative amendment shall not be subject to the procedural requirements of this chapter.
    4. A person may renew a permit under the same procedures applicable to the original permit decision under this chapter.
    5. With respect to amending a permit issued under the Clean Air Act or Clean Water Act, if a requirement under those acts directs the Secretary to provide the public with greater notice, opportunity to participate, or access to information than the corresponding requirement of this chapter, the Secretary shall comply with the federal requirement.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.

    § 7718. Exemptions.

    This subchapter shall not govern an application or petition for:

    1. an unsafe dam order under section 1095 of this title;
    2. a potable water supply and wastewater permit under subsection 1973(j) of this title;
    3. a hazardous waste facility certification under section 6606 of this title; and
    4. a certificate of need under section 6606a of this title.

    HISTORY: Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.

    Part 6. Uniform Environmental Law Enforcement

    Chapter 201. Administrative Environmental Law Enforcement

    CROSS REFERENCES

    Civil enforcement of environmental laws, see § 8221 of this title.

    Environmental Court, see 4 V.S.A. chapter 27.

    Subchapter 1. General Provisions

    § 8001. Legislative findings.

    The General Assembly finds it necessary to standardize and enhance the enforcement powers of the Secretary of Natural Resources and the enforcement powers of the Natural Resources Board in order to:

    1. enhance the protection of environmental and human health afforded by existing laws;
    2. prevent the unfair economic advantage obtained by persons who operate in violation of environmental laws;
    3. provide for more even-handed enforcement of environmental laws;
    4. foster greater compliance with environmental laws;
    5. deter repeated violation of environmental laws; and
    6. establish a fair and consistent system for assessing administrative penalties.

    HISTORY: Added 1989, No. 98 , § 1; amended 2003, No. 115 (Adj. Sess.), § 67, eff. Jan. 31, 2005; 2013, No. 11 , § 25.

    History

    Amendments

    —2013. Substituted “Natural Resources Board” for “land use panel of the natural resources board” in the introductory paragraph.

    —2003 (Adj. Sess.). Substituted “land use panel of the natural resources” for “environmental” preceding “board” in the introductory paragraph.

    ANNOTATIONS

    Cited.

    Cited in Agency of Natural Res. v. Deso, 2003 VT 36, 175 Vt. 513, 824 A.2d 558, 2003 Vt. LEXIS 66 (2003) (mem.).

    § 8002. Definitions.

    As used in this chapter:

    1. “Board” means the Natural Resources Board defined by subdivision 6001(1) of this title.
    2. “Compliance” means compliance with the statutes specified in section 8003 of this title and with any related rules, permits, assurances, or orders.
    3. “Investigator” means an investigator designated and duly authorized by the Secretary or the Board.
    4. “Person” means any individual, partnership, company, corporation, association, unincorporated 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.
    5. “Permit” means any permit, license, certification, or transitional operational authority issued under any of the statutes specified in section 8003 of this title.
    6. “Respondent” means a person who has committed or is alleged to have committed a violation.
    7. “Secretary” means the Secretary of Natural Resources or the Secretary’s duly authorized representative.
    8. “Stop work order” means an order to cease construction or other activity.
    9. “Violation” means noncompliance with one or more of the statutes specified in section 8003 of this title or any related rules, permits, assurances, or orders.
    10. [Repealed.]
    11. “Economic benefit” means a reasonable approximation of any gain, advantage, wrongful profit, or delayed avoided cost, financial or otherwise, obtained as a result of a violation. Economic benefit shall not be limited to only competitive advantage obtained.
    12. “Environmental Court” or “Environmental Division” means the Environmental Division of the Superior Court established by 4 V.S.A. § 30 .
    13. “Civil citation” means an environmental citation issued by the Secretary or the Board for a violation of a statute listed under subsection 8003(a) of this title.
    14. “Federally authorized or delegated program” means an area of environmental regulation where the U.S. Environmental Protection Agency has authorized or delegated to Vermont primary regulatory responsibility, including the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act.
    15. “Post” means:
      1. placing a draft administrative order, assurance of discontinuance, or civil citation or a final administrative order, assurance of discontinuance, or civil citation on the website of the Secretary if he or she initiates an enforcement action under this chapter or on the website of the Board if it initiates an enforcement action; and
      2. providing public notice about the opportunity to:
        1. submit written comments regarding a draft administrative order, assurance of discontinuance, or civil citation; or
        2. request intervention in a final administrative order, assurance of discontinuance, or civil citation.
    16. “Agency issuing the order” means the Secretary when the Secretary has issued an administrative or emergency administrative order under this chapter and the Board when the Board has issued such an order.

    HISTORY: Added 1989, No. 98 , § 1; amended 1993, No. 92 , § 10; 2003, No. 115 (Adj. Sess.), § 68, eff. Jan. 31, 2005; 2007, No. 191 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), §§ 53c, 53e, 236; 2011, No. 73 (Adj. Sess.), § 1; 2013, No. 11 , §§ 15, 16, 25.

    History

    Amendments

    —2013. Subdiv. (10): Repealed.

    Subdiv. (13): Substituted “civil citation” for “civil complaint”.

    Subdiv. (15): Substituted “civil citation” for “civil complaint” throughout.

    Subdiv. (16): Added.

    —2011 (Adj. Sess.). Subdivs. (13) through (15): Added by Act No. 73.

    —2009 (Adj. Sess.) Subdiv. (12): Added.

    —2007 (Adj. Sess.) Subdiv. (11): Added.

    —2003 (Adj. Sess.). Subdiv. (1): Substituted “natural resources” for “environmental” and “defined” for “established”.

    Subdiv. (10): Added.

    —1993. Subdiv. (5): Deleted “including air pollution orders issued under chapter 23 of this title” following “section 8003 of this title”.

    ANNOTATIONS

    Orders.

    Plain meaning of statute authorizes Secretary of Natural Resources to issue administrative order through duly authorized representative. Secretary v. Henry, 161 Vt. 556, 641 A.2d 1345, 1994 Vt. LEXIS 38 (1994).

    Term “orders” as used in subdiv. (9) of this section does not include orders of Superior Court. Vermont Agency of Natural Resources v. Holland, 159 Vt. 21, 613 A.2d 712, 1992 Vt. LEXIS 90 (1992).

    Person.

    The determination of individual liability is the responsibility of the Environmental Division, and while landowners as co-permittees were both responsible for complying with the permits and share fault for the violations, by lumping them together in calculating the penalties, the Environmental Division put the landowners in an untenable position when it required them to allocate between themselves the responsibility for payment. Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995).

    Violation.

    Even though District Commission refused to approve hanging of banners once the district coordinator ruled that permit conditions prohibited banners, violation did not occur until permit with specific language prohibiting banners was issued, and thus the Environmental Division erred in concluding that a violation occurred upon District Commission’s refusal; legal opinions of the district coordinator or a notice of alleged violation of the Commission are valid only when supported by the statute or permit language and it was improper to assess any penalty until such time. Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995).

    Subchapter 2. Enforcement Authority of the Secretary and the Board

    § 8003. Applicability.

    1. The Secretary may take action under this chapter to enforce the following statutes and rules, permits, assurances, or orders implementing the following statutes, and the Board may take such action with respect to subdivision (10) of this subsection:
      1. 10 V.S.A. chapter 23, relating to air quality;
      2. 10 V.S.A. chapter 32, relating to flood hazard areas;
      3. 10 V.S.A. chapters 47 and 56, relating to water pollution control, water quality standards, public water supply, and lakes in crisis;
      4. 10 V.S.A. chapters 41 and 43, relating to dams and stream alterations;
      5. 10 V.S.A. chapter 37, relating to wetlands protection and water resources management;
      6. 10 V.S.A. chapter 48, relating to well drillers and groundwater withdrawal;
      7. 10 V.S.A. chapter 53, relating to beverage containers, provided that the Secretary may not take action to enforce the provisions of section 1530 of this title that are enforceable by the Commissioner of Taxes;
      8. 10 V.S.A. chapter 59, relating to underground storage tanks and aboveground storage tanks;
      9. 10 V.S.A. chapter 64, relating to potable water supplies and wastewater systems;
      10. 10 V.S.A. chapter 151, relating to land use, and including findings and conclusions issued under section 6086b of this title;
      11. [Repealed.]
      12. 10 V.S.A. chapter 159, relating to solid waste, hazardous waste, and hazardous materials;
      13. 10 V.S.A. chapter 161, relating to low-level radioactive waste;
      14. [Repealed.]
      15. 29 V.S.A. chapter 11, relating to lands under public waters;
      16. 10 V.S.A. chapter 162, relating to the Texas Low-Level Radioactive Waste Disposal Compact;
      17. 10 V.S.A. § 2625 , relating to heavy cutting of timber;
      18. 10 V.S.A. chapter 164, relating to comprehensive mercury management;
      19. 24 V.S.A. chapter 61, subchapter 10, relating to salvage yards;
      20. 10 V.S.A. chapter 50, relating to the control of aquatic species and introduction of algicides, pesticides, and herbicides;
      21. 10 V.S.A. chapter 166, relating to collection and recycling of electronic waste;
      22. 10 V.S.A. chapter 164A, collection and disposal of mercury-containing lamps;
      23. 24 V.S.A. § 2202a , relating to a municipality’s adoption and implementation of a solid waste implementation plan that is consistent with the State Solid Waste Plan;
      24. 10 V.S.A. chapter 49A, relating to lake shoreland protection standards;
      25. 10 V.S.A. chapter 83, subchapter 8, relating to the importation of firewood;
      26. 10 V.S.A. chapter 168, relating to the collection and disposal of primary batteries;
      27. 10 V.S.A. chapter 123, relating to threatened and endangered species;
      28. 30 V.S.A. § 255 , relating to regional coordination to reduce greenhouse gases;
      29. Subdiv. (a)(29) effective until January 1, 2022; see also subdiv. (a)(29) effective January 1, 2022 set out below.

        10 V.S.A. § 1420 , relating to abandoned vessels; and

        (29)

        Subdiv. (a)(29) effective January 1, 2022; see also subdiv. (a)(29) effective until January 1, 2022 set out above.

        10 V.S.A. § 1420 , relating to abandoned vessels;

      30. Subdiv. (a)(30) effective until January 1, 2022; see also subdiv. (a)(30) effective January 1, 2022 set out below.

        3 V.S.A. § 2810 , relating to interim environmental media standards.

        (30)

        Subdiv. (a)(30) effective January 1, 2022; see also subdiv. (a)(30) effective until January 1, 2022 set out above.

        3 V.S.A. § 2810 , relating to interim environmental media standards; and

      31. Subdiv. (a)(31) effective January 1, 2022.

        10 V.S.A. chapter 124, relating to the trade in covered animal parts or products.

    2. The Secretary’s administrative enforcement authority established by this chapter shall supplement any authority of the Secretary established by the chapters set forth in subsection (a) of this section to initiate criminal proceedings or civil proceedings under chapters 47, 56, 59, 123, and 159 of this title.
    3. The authority established by this chapter shall not be construed as negating any constitutional, common law, or statutory rights of persons.
    4. Upon the request of the Secretary of Agriculture, Food and Markets, the Secretary may take action under this chapter to enforce the agricultural water quality requirements of, rules adopted under, and permits and certifications issued under 6 V.S.A. chapter 215. The Secretary of Natural Resources and the Secretary of Agriculture, Food and Markets shall enter into a memorandum of understanding to implement this subsection.

    HISTORY: Added 1989, No. 98 , § 1; amended 1989, No. 296 (Adj. Sess.), § 10, eff. June 29, 1990; 1991, No. 71 , § 3; 1993, No. 137 (Adj. Sess.), § 3; 1997, No. 15 , § 4, eff. May 6, 1997; 2001, No. 133 (Adj. Sess.), § 6, eff. June 13, 2002; 2005, No. 13 , § 3; 2005, No. 144 (Adj. Sess.), § 6; 2009, No. 31 , § 8; 2009, No. 46 , § 2, eff. July 1, 2010; 2009, No. 56 , § 20; 2009, No. 79 (Adj. Sess.), § 5, eff. April 19, 2010; 2009, No. 146 (Adj. Sess.), § F14; 2011, No. 36 , § 3, eff. May 19, 2011; 2011, No. 138 (Adj. Sess.), § 34, eff. July 1, 2013; 2011, No. 148 (Adj. Sess.), § 19; 2013, No. 112 (Adj. Sess.), § 2; 2013, No. 139 (Adj. Sess.), § 3, eff. May 22, 2014; 2013, No. 147 (Adj. Sess.), § 7, eff. June 1, 2014; 2013, No. 172 (Adj. Sess.), § 3; 2015, No. 61 , § 9, eff. June 17, 2015; 2015, No. 64 , § 21; 2015, No. 75 (Adj. Sess.), § 5; 2015, No. 76 (Adj. Sess.), § 3; 2017, No. 158 (Adj. Sess.), § 12; 2017, No. 168 (Adj. Sess.), § 7, eff. May 22, 2018; 2019, No. 21 , § 8, eff. May 15, 2019; 2019, No. 62 , § 9, eff. June 17, 2019; 2019, No. 169 (Adj. Sess.), § 3, eff. Jan. 1, 2022.

    History

    Revision note

    —2009 (Adj. Sess.). Subdiv. (a)(20), as added by 2009, No. 79 (Adj. Sess.), § 5, was redesignated as subdiv. (a)(21) to avoid conflict with subdiv. (a)(20) as added by 2005, No. 179 (Adj. Sess.), § 3.

    Amendments

    —2019 (Adj. Sess.). Subdiv. (a)(31): Added.

    —2019. Subdiv. (a)(7): Act No. 62 added “provided that the Secretary may not take action to enforce the provisions of section 1530 of this title that are enforceable by the Commissioner of Taxes”.

    Subdiv. (a)(28): Deleted “and” from the end of the subdiv.

    Subdiv. (a)(29): Added “and” at the end of the subdiv.

    Subdiv. (a)(30): Added by Act 21.

    —2017 (Adj. Sess.). Subdiv. (a)(3): Act No. 168 deleted “and” preceding “public water supply” and inserted “, and lakes in crisis” thereafter.

    Subdiv. (a)(27)-(29): Act No. 158 added (a)(29) and rewrote prior two subdivs. accordingly.

    —2015 (Adj. Sess.). Subdiv. (a)(8): Act 76 inserted “and aboveground storage tanks;” following “underground storage tanks”.

    Subdiv. (a)(28): Added by Act 75.

    —2015. Subdiv. (a)(27): Added by Act 61.

    Subsec. (b): Act 61 inserted “123” near the end.

    Subsec. (d): Added by Act 64.

    —2013 (Adj. Sess.). Subsec. (a): Act No. 147 inserted “, and the Board may take such action with respect to subdivision (10) of this subsection” at the end.

    Subsec. (a)(10): Act No. 147 inserted “, and including findings and conclusions issued under section 6086b of this title” at the end.

    Subdiv. (a)(24): Added by Act No. 172.

    Subdiv. (a)(25): Added by Act No. 112 as subdiv. (a)(24); redesignated to avoid conflict.

    Subdiv. (a)(26): Added by Act No. 139 as subdiv. (a)(24); redesignated to avoid conflict.

    —2011 (Adj. Sess.). Act No. 138 rewrote subdiv. (a)(1), which formerly read: “[Deleted.]”; and substituted “chapter 32, relating to flood hazard areas” for “chapter 23, relating to air quality” in subdiv. (a)(2).

    Act No. 148 added subdiv. (a)(23).

    —2011. Subdiv. (a)(22): Added.

    —2009 (Adj. Sess.) Subsec. (a): Act No. 146 added “and rules, permits, assurances, or orders implementing the following statutes” in the introductory paragraph.

    Subdiv. (a)(20): Added by Act No. 79.

    —2009. Act No. 31 amended subsecs. (a)(3) and (a)(5).

    Act No. 46, effective July 1, 2010, amended subsec. (a)(5).

    Act No. 56 amended subsec. (a)(17) and (a)(18) and added (a)(19).

    —2005 (Adj. Sess.). Subdiv. (a)(6): Inserted “and groundwater withdrawal” at the end.

    —2005. Subsec. (a): Added subdiv. (18).

    —2001 (Adj. Sess.) Subdivs. (a)(1), (a)(11), and (a)(14): Deleted.

    Subdiv. (a)(9): Substituted “chapter 64” for “chapter 61”, and “potable water supplies and wastewater systems” for “water supply and wastewater”.

    —1997. Subdiv. (a)(17): Added.

    —1993 (Adj. Sess.). Subdiv. (a)(16): Added.

    —1991. Subdiv. (a)(3): Deleted “and” preceding “47” and inserted “and 56” thereafter, deleted “and” preceding “water quality”, inserted “water resources management, and public water supply” following “standards”, and made minor changes in punctuation.

    Subsec. (b): Inserted “56” following “47”.

    —1989 (Adj. Sess.). Subsec. (a): Added a new subdiv. (13) and redesignated former subdivs. (13) and (14) as subdivs. (14) and (15), respectively.

    ANNOTATIONS

    Cited.

    Cited in Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995); Agency of Natural Resources v. Towns, 173 Vt. 552, 790 A.2d 450, 2001 Vt. LEXIS 290 (2001) (mem.).

    Subchapter 3. Enforcement

    § 8004. Enforcement of Act 250.

    In addition to the enforcement of chapter 151 of this title on the Secretary’s initiative, the Secretary shall institute enforcement proceedings under chapter 151 when requested by the Natural Resources Board. The Secretary and the Natural Resources Board shall develop procedures for the cooperative enforcement of chapter 151 of this title.

    HISTORY: Added 1989, No. 98 , § 1; amended 2003, No. 115 (Adj. Sess.), § 69, eff. Jan. 31, 2005; 2013, No. 11 , § 25.

    History

    Amendments

    —2013. Substituted “Natural Resources Board” for “land use panel” in the first and second sentence.

    —2003 (Adj. Sess.). Substituted “land use panel” for “board” in the first and second sentences.

    § 8005. Investigations; inspections; affidavit of compliance.

    1. Inspections and investigations.
      1. An investigator may perform routine inspections to determine compliance.
      2. An investigator may investigate upon receipt or discovery of information that an activity is being or has been conducted that may constitute or cause a violation.
      3. An investigator, upon presentation of credentials, may seek permission to inspect or investigate any portion of the property, fixtures, or other appurtenances belonging to or used by a person whose activity is required to be in compliance.  The investigator shall state the purpose of the inspection or investigation.  An inspection or investigation may include monitoring, sampling, testing, and copying of any records, reports, or other documents relating to the purposes to be served by compliance.
      4. If permission for an inspection or investigation is refused, the investigator may seek an access order from the District or Superior Court in whose jurisdiction the property is located enabling the investigator to perform the inspection or investigation.
    2. Access orders and information requests.
      1. A Superior Court judge shall issue an access order when access has been refused and the investigator, by affidavit, describes the property to be examined and identifies:
        1. a provision of a permit that authorizes the inspection; or
        2. the property as being scheduled for inspection in accordance with a neutral inspection program adopted by the Secretary or the Natural Resources Board; or
        3. facts providing reasonable grounds to believe that a violation exists and that an examination of the specifically described property will be of material aid in determining the existence of the violation.
      2. A Superior Court shall issue an order requiring compliance with an information request submitted pursuant to section 6615c of this title when:
        1. the person served with the request fails to respond to the request in the time frame identified by the Secretary;
        2. the Secretary submits, by affidavit, facts providing reasonable grounds that a release or threatened release has taken place; and
        3. the information will be of material aid in responding to the release or threatened release.
      3. Issuance of an access order shall not negate the Secretary’s authority to initiate criminal proceedings in the same matter by referring the matter to the Office of the Attorney General or a State’s Attorney.
    3. At any time, the Secretary, the Natural Resources Board, or a District Commission created pursuant to subsection 6026(b) of this title may require a permittee to file an affidavit under oath or affirmation that a facility, project, development, subdivision, or activity of the permittee is in compliance with an assurance of discontinuance or order issued under this chapter or a permit issued under a statute identified under subsection 8003(a) of this title or under a rule enforceable under authority set forth under a statute identified under subsection 8003(a) of this title. A request for an affidavit of compliance under this subsection may be delivered by hand or by certified mail. Failure to file an affidavit within the period prescribed by the Secretary, Natural Resources Board, or District Commission or the material misrepresentation of fact in the affidavit shall be a violation and shall also constitute grounds for revocation of the permit to which the affidavit requirement, assurance of discontinuance, or order under this chapter applies.

    HISTORY: Added 1989, No. 98 , § 1; amended 2003, No. 115 (Adj. Sess.), § 70, eff. Jan. 31, 2005; 2009, No. 146 (Adj. Sess.), § F16; 2013, No. 11 , § 25; 2015, No. 154 (Adj. Sess.), § 7, eff. June 1, 2016.

    History

    Amendments

    —2015 (Adj. Sess.). Subsec. (b): Inserted “and information requests” following “orders”.

    Subdiv. (b)(2): Added, and redesignated former subdiv. (b)(2) as subdiv. (b)(3).

    —2013. Subdiv. (b)(1)(B) and subsec. (c): Substituted “Natural Resources Board” for each occurrence of “land use panel”.

    —2009 (Adj. Sess.) Added subsec. (c).

    —2003 (Adj. Sess.). Subdiv. (b)(1)(B): Substituted “land use panel” for “board”.

    CROSS REFERENCES

    Powers of investigators generally, see § 906 of this title.

    ANNOTATIONS

    Cited.

    Cited in Agency of Natural Resources v. Towns, 168 Vt. 449, 724 A.2d 1022, 1998 Vt. LEXIS 227 (1998); In re Sardi, 170 Vt. 623, 751 A.2d 772, 2000 Vt. LEXIS 39 (2000) (mem.).

    § 8006. Warning; notice of alleged violation.

    1. When the Secretary determines that a violation will or is likely to occur, the Secretary may issue a written warning that shall be served on the respondent in person or by certified mail, return receipt requested. The warning shall include a brief description of the prospective violation; identification of the statute, rule, permit, assurance, or order that is the subject of the prospective violation; and a brief description of the potential enforcement actions that may be taken if the violation occurs.
    2. When the Secretary determines that a violation exists, the Secretary may issue a written notice of the alleged violation. The notice shall be served on the respondent in person or by certified mail, return receipt requested. The notice shall include a brief description of the alleged violation; identification of the statute, rule, permit, assurance, or order that is the subject of the violation; a brief description of the Secretary’s intended course of action to address the alleged violation; and, if appropriate, specific timelines and directives to achieve compliance.

    HISTORY: Added 1989, No. 98 , § 1; amended 2007, No. 191 (Adj. Sess.), § 2.

    History

    Amendments

    —2007 (Adj. Sess.) Subsec. (b): Added “and, if appropriate, specific time lines and directives to achieve compliance” following “alleged violation” in the third sentence.

    ANNOTATIONS

    Discretion of secretary.

    Environmental Division did not err when it assessed penalties for drainage swale violations by failing to give defendant notice because the language of the statute itself did not mandate notice of a probable or actual violation; rather, the statute gave the Secretary of the Agency of Natural Resources discretion in determining whether to send notice, and the administrative order notified defendant of circumstances evincing a violation and ordered him to construct the swales in accordance with the approved plans. Vermont Agency of Natural Resources v. Bean, 164 Vt. 438, 672 A.2d 469, 1995 Vt. LEXIS 134 (1995).

    § 8007. Assurances of discontinuance.

    1. As an alternative to administrative or judicial proceedings, the Secretary, or the Natural Resources Board, may accept from a respondent an assurance of discontinuance of a violation. An assurance of discontinuance shall include:
      1. a statement of the facts that provide the basis for claiming the violation exists and a description of the alleged violation determined by the Secretary or the Natural Resources Board; and
      2. an agreement by the respondent to perform specific actions to prevent, abate, or alleviate environmental problems caused by the violation, or to restore the environment to its condition before the violation, including financial responsibility for such actions.
    2. An assurance of discontinuance may include:
      1. Prevention, abatement, alleviation, or restoration schedules.
      2. Contribution toward other projects related to the violation that the respondent and the Secretary or the Natural Resources Board agree will enhance the natural resources of the area affected by the violation or their use and enjoyment. A contribution under this subdivision shall be subject to the following:
        1. The respondent shall disburse all required contributions to the project or shall be in full and continuing compliance with a payment schedule established by the assurance of discontinuance no later than 180 days after the effective date of the assurance of discontinuance requiring the funding of such project.
        2. In the event that a respondent fails to comply with subdivision (A) of this subdivision (2), the respondent shall place the funds into either an attorneys’ interest on lawyers’ trust account (IOLTA) or an escrow account until such time as the terms of the agreement between the Secretary and the respondent authorize the release of the funds, provided that the Secretary may, as a term of the agreement, require payment of the funds as a monetary penalty if noncompliance with subdivision (A) of this subdivision (2) continues.
        3. Unless otherwise contrary to requirements of federal law and except for contributions from municipalities, a contribution is not permissible where the project primarily benefits the respondent, including activities:
          1. that are required by law, likely to be required by law, or reasonably associated with the respondent’s usual course of business; or
          2. that the respondent has planned, budgeted for, initiated, or completed prior to or during the current enforcement action.
        4. Unless otherwise contrary to requirements of federal law, the Secretary may allow a contribution from a municipality to primarily benefit the municipality. For purposes of this subsection, “municipality” shall mean a city, town, or village.
      3. For a violation that does not affect the natural environment or cause any environmental harm, contribution toward public educational projects, administered by the Agency of Natural Resource or the Natural Resources Board, that will enhance the public’s awareness and compliance with statutes identified in subsection 8003(a) of this title and with any related rules or permits or related assurances of discontinuance or orders issued under this chapter. Contributions under this subdivision shall be used for the purpose stated in this subdivision and shall be deposited as follows:
        1. into the Act 250 Permit Fund established under section 6029 of this title for the portion of a settlement attributable to the resolution of a violation under authority that the Natural Resources Board enforces under subsection 8003(a) of this title; or
        2. into the Treasury for the portion of a settlement attributable to the resolution of a violation under authority that the Secretary enforces under subsection 8003(a) of this title, for use by the Secretary.
      4. Payment of monetary penalties, including stipulated penalties for violation of the assurance.
    3. An assurance of discontinuance shall be in writing and signed by the respondent and shall specify the statute or regulation alleged to have been violated. The assurance of discontinuance shall be simultaneously filed with the Attorney General and the Environmental Division. The Secretary or the Natural Resources Board shall post a final draft assurance of discontinuance to its website and shall provide a final draft assurance of discontinuance to a person upon request. When signed by the Environmental Division, the assurance shall become a judicial order. Upon motion by the Attorney General made within 14 days after the date the assurance is signed by the Division and upon a finding that the order is insufficient to carry out the purposes of this chapter, the Division shall vacate the order.
    4. If the respondent complies with an assurance of discontinuance signed by the Division, the respondent shall not be liable for additional civil or criminal penalties with respect to the facts set forth in the assurance of discontinuance.

    HISTORY: Added 1989, No. 98 , § 1; amended 1993, No. 164 (Adj. Sess.), § 12; 1993, No. 232 (Adj. Sess.), § 38, eff. March 15, 1995; 2003, No. 115 (Adj. Sess.), § 71, eff. Jan. 31, 2005; 2007, No. 191 (Adj. Sess.), § 3; 2009, No. 146 (Adj. Sess.), § F17; 2009, No. 154 (Adj. Sess.), § 236; 2013, No. 11 , § 25; 2018, No. 8 (Sp. Sess.), § 1, eff. June 28, 2018.

    History

    Amendments

    —2018 (Sp. Sess.). Subsec. (c): Substituted “within 14 days after the date” for “within 10 days of the date” in the last sentence.

    —2013. Substituted “Natural Resources Board” for “land use panel” throughout the section.

    —2009 (Adj. Sess.) Subsec. (b): Act No. 146 added new subdiv. (3) and redesignated former subdiv. (3) as subdiv. (4).

    Subsec. (c): Act No. 154 substituted “environmental division” for “environmental court” in two places.

    —2007 (Adj. Sess.) Subsec. (b): Added the second sentence in subdiv. (2) and added subdivs. (2)(A)-(D).

    Subsec. (c): Added the third sentence.

    —2003 (Adj. Sess.). Substituted “land use panel” for “board” in subsec. (a) and subdivs. (a)(1) and (b)(2).

    —1993 (Adj. Sess.). Substituted “court” for “law division” following “environmental” in the second and third sentences and “court” for “division” in two places in the fourth sentence of subsec. (c), deleted former subsec. (d), and redesignated former subsec. (e) as subsec. (d).

    § 8008. Administrative orders.

    1. The Secretary may issue an administrative order when the Secretary determines that a violation exists. When the Board determines that a violation of chapter 151 of this title exists, the Board may issue an administrative order with respect to the violation. An administrative order shall be served as provided for under the Vermont Rules of Civil Procedure. A copy of the order also shall be delivered to the Attorney General. An order shall be effective on receipt unless stayed under subsection 8012(d) of this title.
    2. An order shall include:
      1. a statement of the facts that provide the basis for claiming the violation exists;
      2. identification of the applicable statute, rule, permit, assurance, or order;
      3. a statement that the respondent has a right to a hearing under section 8012 of this title, and a description of the procedures for requesting a hearing;
      4. a statement that the order is effective on receipt unless stayed on request for a hearing filed within 15 days;
      5. if applicable, a directive that the respondent take actions necessary to achieve compliance, to abate potential or existing environmental or health hazards, and to restore the environment to the condition existing before the violation; and
      6. a statement that unless the respondent requests a hearing under this section, the order becomes a judicial order when filed with and signed by the Environmental Division.
    3. An order may include:
      1. a “stop work” order that directs the respondent to stop work until a permit is issued, compliance is achieved, a hazard is abated, or any combination of the above. The agency issuing the order shall consider the economic effect of a “stop work” order, if included, on individuals other than the respondent;
      2. a stay of the effective date or processing of a permit under section 8011 of this title; and
      3. a proposed penalty or penalty structure.
      1. The administrative order and proof of service shall be simultaneously filed with the Attorney General and the Environmental Division. The Division shall sign the administrative order in the event that: (d) (1) The administrative order and proof of service shall be simultaneously filed with the Attorney General and the Environmental Division. The Division shall sign the administrative order in the event that:
        1. the administrative order is properly served on a respondent in accordance with subsection (a) of this section;
        2. the respondent does not request a hearing in accordance with subsection (b) of this section; and
        3. the order otherwise meets the requirements of this chapter.
      2. When signed by the Environmental Division, the administrative order shall become a judicial order. Upon motion by the Attorney General made within 10 days of the date the administrative order is signed by the Division and upon a finding by the Division that the order is insufficient to carry out the purposes of this chapter, the Division shall vacate the order.

    HISTORY: Added 1989, No. 98 , § 1; amended 2007, No. 191 (Adj. Sess.), § 4; 2009, No. 146 (Adj. Sess.), § F18; 2009, No. 154 (Adj. Sess.), § 236; 2013, No. 11 , § 17.

    History

    Revision note

    —2011 (Adj. Sess.). The cross reference in subsec. (a) to “8012(e) of this title” was amended to read “8012(d) of this title” to correct an error in the reference.

    Amendments

    —2013. Subsec. (a): Added the second sentence and substituted “An administrative order” for “The order” at the beginning of the third sentence.

    Subdiv. (c)(1): In the second sentence, substituted “The agency issuing the order” for “In issuing such an order, the secretary ” at the beginning and “a ‘stop work’ order, if included” for “the order”.

    —2009 (Adj. Sess.) Subsec. (a): Substituted “as provided for under the Vermont Rules of Civil Procedure” for “on the respondent in person or by acceptance of service, in accordance with court rules, by a person designated by the respondent” in the second sentence.

    —2007 (Adj. Sess.) Subsec. (a): Substituted “acceptance of service, in accordance with court rules, by a person designated by the respondent” for “certified mail, return receipt requested” in the second sentence.

    Subsec. (b): Added subdiv. (6).

    Subsec. (d): Added.

    CROSS REFERENCES

    Emergency administrative orders, see § 8009 of this title.

    ANNOTATIONS

    Effective dates.

    Although delayed effective dates of this section and § 8010 precluded Secretary of Natural Resources from issuing administrative orders and imposing penalties prior to effective date, nothing in the language of the sections suggested that Secretary was completely precluded from administratively enforcing any violations which occurred before this time; § 8012(b), which did not have a delayed effective date, provided Environmental Division power to impose penalty, and alternative choice for imposition of civil penalties was independent action in Superior Court pursuant to § 8221, which did not have a delayed effective date either. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    Jurisdiction.

    Where defendant and Agency of Natural Resources entered into consent order in Superior Court requiring defendant to construct a new septic system and consent order made no provision for assessment of penalty if defendant failed to comply, Secretary of Natural Resources did not have jurisdiction to issue administrative order assessing penalty for noncompliance with Superior Court order. Vermont Agency of Natural Resources v. Holland, 159 Vt. 21, 613 A.2d 712, 1992 Vt. LEXIS 90 (1992).

    Cited.

    Cited in Secretary v. Henry, 161 Vt. 556, 641 A.2d 1345, 1994 Vt. LEXIS 38 (1994); Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995); Agency of Natural Resources v. Towns, 173 Vt. 552, 790 A.2d 450, 2001 Vt. LEXIS 290 (2001) (mem.).

    § 8008a. Landfill closure extension orders.

      1. The Secretary may issue a landfill closure extension order when the Secretary finds that the landfill meets the criteria of section 6605e of this title. That order shall be served upon the landfill owner and operator in person or by certified mail, return receipt requested. A copy of the order also shall be delivered to the Attorney General. An order shall be effective on receipt. (a) (1) The Secretary may issue a landfill closure extension order when the Secretary finds that the landfill meets the criteria of section 6605e of this title. That order shall be served upon the landfill owner and operator in person or by certified mail, return receipt requested. A copy of the order also shall be delivered to the Attorney General. An order shall be effective on receipt.
      2. If any proposed landfill closure extension order would extend the service area or change a permit condition, including a specified closure date, then before issuing the order, the Secretary shall provide notice of the opportunity for public comment on the proposal and on any proposed findings with respect to the order. This notice shall be provided to the persons specified in subdivisions 6605d(e)(2)(A) through (D) of this title and to any other persons that, in advance, have requested notice in writing. Upon receipt of a written request for a public informational meeting, signed by no less than 15 persons, the Secretary shall warn and hold a public informational meeting on the issuance of the order. An order may be issued no sooner than 14 days after providing notice under this subsection or, if a public informational meeting is held, no sooner than seven days after the date of the meeting.
    1. A landfill closure extension order shall include:
      1. a statement of the facts that provide the basis for the Secretary’s determination of compliance with the provisions of section 6605e of this title;
      2. a statement that the owner and operator have a right to a hearing under section 8018 of this title and a description of the procedures for requesting a hearing;
      3. a schedule for cessation of operations, closure, and commencement of postclosure care;
      4. implementation schedules and conditions regarding the operation and closure of the landfill; and
      5. a requirement that by November 15, 1992, the owner and operator will submit to the Secretary a revised closure plan that addresses the additional waste that will be accepted. This plan shall be in conformance with the solid waste management rules.

    HISTORY: Added 1991, No. 202 (Adj. Sess.), § 4, eff. May 27, 1992.

    § 8009. Emergency administrative orders; request for hearing.

    1. Grounds for issuance.   The Secretary, or the Board with respect to matters relating to land use permits under chapter 151 of this title only, may issue an order under section 8008 of this title as an emergency administrative order when:
      1. a violation presents an immediate threat of substantial harm to the environment or an immediate threat to the public health; or
      2. an activity will or is likely to result in a violation that presents an immediate threat of substantial harm to the environment or an immediate threat to the public health; or
      3. an activity requiring a permit has been commenced and is continuing without a permit.
    2. Prerequisites to issuance.   An emergency administrative order may be issued only if:
      1. the order has been presented to the Environmental Division;
      2. all reasonable efforts have been made to notify the respondent of the presentation of the order to the Environmental Division; and
      3. the Environmental Division has found that the agency issuing the order has made a sufficient showing that grounds for issuance of the order exist.
    3. Effective date of order.   An emergency order shall become effective on actual notice to the respondent.
    4. Request for hearing.   If an emergency order is issued, the respondent may request a hearing before the Environmental Division. Notice of the request for hearing shall be filed with the Environmental Division and the agency issuing the order within five business days of receipt of the order. A hearing on the emergency order shall be held at the earliest possible time and shall take precedence over all other hearings. The hearing shall be held within five business days of receipt of the notice of the request for hearing. A request for hearing on an emergency order shall not stay the order. The Environmental Division shall issue a decision within five business days from the conclusion of the hearing and no later than 30 days from the date the notice of request for hearing was received.
    5. Insufficient grounds.   An emergency order shall be dissolved upon a finding that there were insufficient grounds for its issuance.
    6. Appeals.   An appeal to the Supreme Court by the Secretary or the Board shall stay the dissolution of an emergency order; an appeal to the Supreme Court by the respondent shall not stay operation of an emergency order.

    HISTORY: Added 1989, No. 98 , § 1; amended 1993, No. 232 (Adj. Sess.), § 38, eff. March 15, 1995; 2009, No. 154 (Adj. Sess.), § 236; 2013, No. 11 , § 18; 2017, No. 11 , § 12.

    History

    Amendments

    —2017. Subsec. (d): Inserted “business” following “within five” throughout the subsec.

    —2013. Subsecs. (a), (b): Amended generally.

    Subsec. (d): Substituted “agency issuing the order” for “secretary” in the second sentence.

    Subsec. (f): Substituted “Secretary or the Board” for “secretary”.

    —2009 (Adj. Sess.) Substituted “environmental division” for “environmental court” wherever it appeared throughout the section.

    —1993 (Adj. Sess.). Subsec. (b): Substituted “court” for “law division” following “environmental” throughout the subsec.

    Subsec. (d): Substituted “court” for “law division” following “environmental” in the first, second, and sixth sentences.

    See note under § 8008 of this title.

    § 8010. Administrative penalties.

    1. An administrative penalty may be included in an administrative order issued under section 8008 of this title or in an emergency administrative order issued under subdivision 8009(a)(1) or (3) of this title. An order assessing administrative penalties shall be accompanied by an affidavit setting forth the facts establishing the date of violation.
    2. In determining the amount of the penalty, the Secretary shall consider the following:
      1. the degree of actual or potential impact on public health, safety, welfare, and the environment resulting from the violation;
      2. the presence of mitigating circumstances, including unreasonable delay by the Secretary in seeking enforcement;
      3. whether the respondent knew or had reason to know the violation existed;
      4. the respondent’s record of compliance;
      5. [Repealed.]
      6. the deterrent effect of the penalty;
      7. the State’s actual costs of enforcement; and
      8. the length of time the violation has existed.
      1. A penalty of not more than $42,500.00 may be assessed for each determination of a separate violation. In addition, if the Secretary determines that a violation is continuing, the Secretary may assess a penalty of not more than $17,000.00 for each day the violation continues. The maximum amount of penalty assessed under this subsection shall not exceed $170,000.00. (c) (1) A penalty of not more than $42,500.00 may be assessed for each determination of a separate violation. In addition, if the Secretary determines that a violation is continuing, the Secretary may assess a penalty of not more than $17,000.00 for each day the violation continues. The maximum amount of penalty assessed under this subsection shall not exceed $170,000.00.
      2. In addition to any penalty assessed under subdivision (1) of this subsection, the Secretary may also recapture economic benefit resulting from a violation up to the $170,000.00 maximum allowed under subdivision (1) of this subsection.
    3. Notwithstanding the provisions of subsection 8003(b) of this title, imposition of an administrative penalty under this section precludes imposition of any other administrative or civil penalty under any other provisions of law for the same violation.
    4. Penalties assessed under this section shall be deposited in the General Fund, except for:
      1. those penalties that are assessed as a result of a municipality’s enforcement action under chapter 64 of this title, in which case the municipality involved shall receive the penalty monies; and
      2. those penalties that are assessed as a result of the State’s actual cost of enforcement in accordance with subdivision (b)(7) of this section, in which case the penalties shall be paid directly to the Agency of Natural Resources.

    HISTORY: Added 1989, No. 98 , § 1; amended 2001, No. 133 (Adj. Sess.), § 7, eff. June 13, 2002; 2007, No. 191 (Adj. Sess.), § 5; 2009, No. 146 (Adj. Sess.), § F23.

    History

    Amendments

    —2009 (Adj. Sess.) Subsec. (e): Added subdiv. (2).

    —2007 (Adj. Sess.) Subdiv. (b)(5): Repealed.

    Subsec. (c): Designated the existing provisions as subdiv. (1) and raised the penalty fees in that subdiv., and added subdiv. (2).

    —2001 (Adj. Sess.) Subsec. (e): Added “except for those penalties which are assessed as a result of a municipality’s enforcement action under chapter 64 of this title, in which case the municipality involved shall receive the penalty monies”.

    See note under § 8008 of this title.

    ANNOTATIONS

    Aesthetic impact.

    Where Environmental Division found that landowner’s banners were visible from certain routes and marginally visible from Interstate 89 but also found that other area businesses had been using temporary banners during the time in question and, considering the appearance of the surrounding buildings and signs, the Division determined that landowner’s banners posed a negligible additional adverse aesthetic effect on the area, these findings were not clearly erroneous, and its conclusion that the banners slightly impacted the public health, safety and welfare was supported by the findings so that its decision not to consider environmental impact in calculating the penalty was sustainable. Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995).

    Amount of penalty.

    Environmental Division acted within its discretion in determining how to apply each of statutory factors, how any mitigating circumstances affected the amount of the penalty imposed, and its assessment of water and wastewater permit violation penalties was not unreasonable. Agency of Natural Res. v. Supeno, 2018 VT 30, 207 Vt. 108, 185 A.3d 1264, 2018 Vt. LEXIS 27, cert. denied, — U.S. —, 139 S. Ct. 313, 202 L. Ed. 2d 136, 2018 U.S. LEXIS 5102 (2018).

    Although the Agency of Natural Resources argued that the Environmental Division erred when it based penalty on defendant’s economic gain from the violations while ignoring the other penalty criteria, the Division explicitly mentioned all eight of the factors required by subsec. (b). Vermont Agency of Natural Resources v. Bean, 164 Vt. 438, 672 A.2d 469, 1995 Vt. LEXIS 134 (1995).

    The $36,497 fine issued against defendants for the renovation, expansion and use of an access road and portions of their gravel pit, without applying for a permit, was reasonable considering defendants’ continued activity for two months after receiving notification of their violation and was well within the parameters of subsec. (c). Secretary v. Earth Construction, Inc., 165 Vt. 160, 676 A.2d 769, 1996 Vt. LEXIS 21 (1996).

    Imposing penalty of two and one-half percentage of landowner’s gross receipts for unauthorized use of banners was error where none of the findings supported use of such percentage nor demonstrated how the landowner’s gross receipts benefitted from the use of the banners. Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995).

    Environmental Division’s assessment of a penalty of $10 per day of violation for failure to remove interior light fixtures, rounded to $300 per month for eleven months, was not unreasonable where in reaching this penalty amount, the Division found that although landowner obtained no economic benefit from the violation and there was no evidence relating to the cost of removing the fixtures, landowner failed to explain or justify its 11-month delay in removing them. Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995).

    Environmental Division properly found that defendant received economic benefit by waiting until 1992 to complete $10,000 worth of landscaping where defendant had use of monies which should have been spent on landscaping in 1989 and 12% interest rate over one-year period to estimate defendant’s avoided cost was reasonable measure of defendant’s additional economic benefit gained from noncompliance. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    Environmental Division correctly assessed penalty against construction company based solely on economic benefit company gained from land use law violation, since it considered all factors governing statute demanded and statute did not require that separate penalty amounts be imposed under each factor. Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 617 A.2d 143, 1992 Vt. LEXIS 135 (1992).

    Construction with other law.

    Environmental Division’s decision as to how Secretary of Natural Resources should proceed when violation occurs prior to effective date of certain of statute’s enforcement provisions lead to unreasonable result by requiring Secretary to bring action in Superior Court for first year of violation, but allowing Secretary to issue administrative order imposing administrative penalties for subsequent two years of violation, which would result in inefficient duplication of adjudication by Superior Court and Environmental Division and would require defendant and State to bear costs of litigating different periods of continuous violation in two different courts. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    Although delayed effective dates of § 8008 and this section precluded Secretary of Natural Resources from issuing administrative orders and imposing penalties prior to effective date, nothing in the language of the sections suggested that Secretary was completely precluded from administratively enforcing any violations which occurred before this time; § 8012(b)(4), which did not have delayed effective date, provided Environmental Division power to impose penalty, and alternative choice for imposition of civil penalties was independent action in Superior Court pursuant to § 8221, which did not have delayed effective date either. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    Continuing violation.

    Agency of Natural Resources acted within the statutory bounds by choosing to assess penalties against property owners and a neighbor for water and wastewater permit violations in the administrative order rather than in the initial emergency administrative order. Agency of Natural Res. v. Supeno, 2018 VT 30, 207 Vt. 108, 185 A.3d 1264, 2018 Vt. LEXIS 27, cert. denied, — U.S. —, 139 S. Ct. 313, 202 L. Ed. 2d 136, 2018 U.S. LEXIS 5102 (2018).

    Continuing violations under subsec. (c) may include any violation that persists longer than one day, regardless of whether the violation is currently ongoing or has ceased. Agency of Natural Res. v. Deso, 2003 VT 36, 175 Vt. 513, 824 A.2d 558, 2003 Vt. LEXIS 66 (2003) (mem.).

    Deterrence.

    Where Environmental Division found that, even in absence of lasting environmental or public harm, need to deter noncompliance demanded imposition of monetary penalty against defendant, but the Division did not impose added amount specifically for deterrence, the Division’s analysis was within its broad discretion in fashioning appropriate sanction. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    The Uniform Environmental Law Enforcement Act authorizes imposition of monetary penalties, even without lasting public welfare or environmental harm, in order to deter defendant and others from disregarding permit requirements. Vermont Agency of Natural Resources v. Bean, 164 Vt. 438, 672 A.2d 469, 1995 Vt. LEXIS 134 (1995).

    Where Environmental Division found that, even in absence of lasting environmental or public harm, need to deter noncompliance demanded imposition of monetary penalty against defendant, but the Division did not impose added amount specifically for deterrence, the Division’s analysis was within its broad discretion in fashioning appropriate sanction. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    Evidence.

    In calculating the costs a gas station owner avoided through noncompliance, the Environmental Division did not err by including $ 5,000 to dig up and replace underground piping for a recovery system because there was sufficient credible evidence for the court to conclude that the pipes either never worked or failed while he owned the property. Agency of Natural Res. v. Deso, 2003 VT 36, 175 Vt. 513, 824 A.2d 558, 2003 Vt. LEXIS 66 (2003) (mem.).

    Environmental Division did not err in assessing penalties against defendant because the Agency of Natural Resources (ANR) produced evidence demonstrating the potential for adverse impacts on public health and welfare resulting from four leaking manholes in defendant’s sewer line, and ANR also produced evidence that actual impacts on public welfare and environment had resulted from the failure of defendant to properly maintain erosion control devices, and that actual impacts to the aesthetics of the area resulted from defendant’s failure to maintain the grounds as required in the permits. Vermont Agency of Natural Resources v. Bean, 164 Vt. 438, 672 A.2d 469, 1995 Vt. LEXIS 134 (1995).

    Existence of economic benefit.

    Trial court erred by determining that gas station owner’s so-called “wrongful profits” — $ 161,264 earned from the sale of gasoline without an approved emission control system — was an economic benefit gained from the violation. Agency of Natural Res. v. Deso, 2003 VT 36, 175 Vt. 513, 824 A.2d 558, 2003 Vt. LEXIS 66 (2003) (mem.).

    In imposing a fine against defendants for the renovation, expansion and use of an access road and portions of their gravel pit, without applying for a permit, the Environmental Division properly based its evaluation on the following: (1) the economic benefit from the violation, based on the cost of the raw material extracted from the gravel pit; (2) the profit realized from the sale of the extracted materials; and (3) an amount for deterrent effect. Secretary v. Earth Construction, Inc., 165 Vt. 160, 676 A.2d 769, 1996 Vt. LEXIS 21 (1996).

    Environmental Division properly found that defendant received economic benefit from use of warehouse while he was in noncompliance because he leased warehouse space to another business he owned and received $9,070 in rental income, and although rent was paid from one of defendant’s businesses to another, equivalent space in area would have cost $9,000 and, therefore, defendant saved this amount by not paying elsewhere for warehouse space. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    Mitigating factors.

    Environmental Division did not fail to adequately consider mitigating factors where the Division found that Secretary’s refraining from issuing order in planting season of 1991 constituted unreasonable delay and defendant’s failure to develop plan that would have satisfied both agencies or to begin landscaping outside right-of-way precluded finding of attempted compliance. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    Particular cases.

    Trial court did not abuse its discretion when it fined the landowner $46,600 for his violations, as it evaluated all the Uniform Environmental Enforcement Act factors and found that the landowner’s failure to disclose specifics regarding his training facility/shooting range in the form of a permit application prevented the town from assessing potential risks to neighbors and the environment and that the landowner had failed to comply with the bylaws over time. Town of Pawlet v. Banyai, 2022 VT 4, 2022 Vt. LEXIS 3 (Vt. 2022).

    Procedure.

    Water and wastewater penalty assessment against property owners and a neighbor was not precluded by res judicata, as an emergency administrative order sufficiently reserved the issue of penalties for a subsequent proceeding. Agency of Natural Res. v. Supeno, 2018 VT 30, 207 Vt. 108, 185 A.3d 1264, 2018 Vt. LEXIS 27, cert. denied, — U.S. —, 139 S. Ct. 313, 202 L. Ed. 2d 136, 2018 U.S. LEXIS 5102 (2018).

    Retroactive application.

    Statute was not being applied retroactively and Secretary of Natural Resources could impose penalties under this section because, although violation began prior to effective date of statute, violation went beyond period in issue. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    Cited.

    Cited in State Agency of Natural Resources v. Riendeau, 157 Vt. 615, 603 A.2d 360, 1991 Vt. LEXIS 232 (1991); Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997).

    § 8011. Permit stays.

    1. An administrative order may stay the effective date or processing of a permit:
      1. when any activity has been commenced illegally without a permit. The order may stay the effective date of the permit for a period of time up to the number of days that the activity was commenced before the permit was issued. This period of time shall not include the time from the date that work was stopped until the date a permit is issued; or
      2. when an applicant for a permit or for an amendment to a permit is not in compliance with an administrative order or an assurance of discontinuance with respect to a violation that is directly related to the activity that is the subject of the application; or
      3. when an applicant for a permit or for an amendment to a permit has one or more current violations.
    2. A stay shall be issued under this section only if the violation was caused by the applicant, by a person under the applicant’s control, or by a person who has control of the applicant.
    3. The processing of the application may be stayed until the respondent is in compliance with the directives in the order. An order for a permit stay shall not be stayed pending a hearing.
    4. In lieu of a permit stay under subdivision (a)(2) or (3) of this section, where an applicant for a permit or an amendment to a permit is not in compliance with an administrative order or an assurance of discontinuance, an administrative order may require the applicant to post a bond or other financial surety in an amount reasonably calculated to cover the costs necessary to achieve compliance as a condition for the processing of the application.

    HISTORY: Added 1989, No. 98 , § 1; amended 2007, No. 191 (Adj. Sess.), § 6.

    History

    Amendments

    —2007 (Adj. Sess.) Subdiv. (a)(3): Deleted “which when viewed together constitute substantial noncompliance” following “current violations”.

    § 8012. Request for hearing.

    1. A respondent or the Attorney General may request a hearing on an order issued by the Secretary. Notice of a request for hearing shall be filed with the Environmental Division and the Secretary. Upon receipt of the notice, the Secretary shall forward a copy of the order to the Environmental Division.
    2. The Environmental Division shall have authority to:
      1. Determine whether a violation has occurred. An order shall be reversed when it is determined that a violation has not occurred.
      2. Affirm or vacate and remand to the Secretary an order issued under subdivision 8008(b)(5) of this title. The Environmental Division shall vacate and remand an order under this subdivision when a violation is found to exist but the procedure contained in the order is insufficient to carry out the purposes of this chapter.
      3. Affirm, modify, or reverse any provision of any order issued by the Secretary except those identified by subdivision (2) of this subsection. In deciding whether to affirm or reverse a stop work order under this subdivision, the Environmental Division shall consider the economic effect of the order on individuals other than the respondent.
      4. Review and determine anew the amount of a penalty by applying the criteria set forth in subsections 8010(b) and (c) of this title.
      5. Affirm, modify, or dissolve an emergency order.
    3. Notice of the request for hearing shall be filed within 15 days of receipt of the order. The hearing shall be held before the Environmental Division within 30 days of receipt by the Division of the notice, unless continued for good cause. The Environmental Division shall issue a written decision within 20 days of the conclusion of the hearing, and no later than 60 days from the request for hearing, unless the hearing process is extended for good cause. The decision shall be sent to the parties by certified mail, return receipt requested, and shall include:
      1. a statement of conclusion as to whether a violation exists and findings of facts in support of the conclusion;
      2. identification of the applicable statute, rule, permit, assurance, or order;
      3. the order to be imposed or penalty to be assessed, or both, if a violation is determined to exist;
      4. a statement that the respondent, the Secretary, and the Attorney General have a right to appeal the decision, and a description of the procedures for requesting an appeal; and
      5. a warning that the decision will become final if no appeal is requested within 10 days of the date the decision is received.
    4. Notice of a request for hearing shall stay the order and payment of the penalty, if imposed, pending the hearing. The Secretary may issue an emergency order with regard to the alleged violation that is the subject of the hearing, if grounds for such an order develop during the hearing process.
    5. Any claim a person may have under a private right of action that is not determined in a proceeding under this chapter shall be preserved.

    HISTORY: Added 1989, No. 98 , § 1; amended 1993, No. 232 (Adj. Sess.), § 38, eff. March 15, 1995; 2007, No. 191 (Adj. Sess.), § 6a; 2009, No. 154 (Adj. Sess.), § 236; 2011, No. 73 (Adj. Sess.), § 2.

    History

    Amendments

    —2011 (Adj. Sess.) Substituted “insufficient to carry out the purposes of this chapter” for “not reasonably likely to achieve the intended result” in subdiv. (b)(2), deleted subsec. (d), and redesignated former subsecs. (e) and (f) as (d) and (e).

    —2009 (Adj. Sess.) Substituted “environmental division” for “environmental court” wherever it appeared throughout the section.

    —2007 (Adj. Sess.) Subdiv. (b)(4): Substituted “subsections 8010(b) and (c)” for “subsection 8010(b)”.

    —1993 (Adj. Sess.). Substituted “court” for “law division” following “environmental” wherever it appeared in subsecs. (a)-(d) and for “division” following “receipt by the” in the second sentence of the introductory paragraph of subsec. (c).

    ANNOTATIONS

    Amount of penalty.

    In imposing a fine against defendants for the renovation, expansion and use of an access road and portions of their gravel pit, without applying for a permit, the Environmental Division properly based its evaluation on the following: (1) the economic benefit from the violation, based on the cost of the raw material extracted from the gravel pit; (2) the profit realized from the sale of the extracted materials; and (3) an amount for deterrent effect. Secretary v. Earth Construction, Inc., 165 Vt. 160, 676 A.2d 769, 1996 Vt. LEXIS 21 (1996).

    The Environmental Division is authorized to review and determine anew the amount of any penalty, taking into consideration eight factors under § 8010(b), but it is not required to impose separate penalty amounts under each one. Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995).

    Where Environmental Division found that, even in absence of lasting environmental or public harm, need to deter noncompliance demanded imposition of monetary penalty against defendant, but the Division did not impose added amount specifically for deterrence, the Division’s analysis was within its broad discretion in fashioning appropriate sanction. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    Environmental Division was within its discretion to impose a larger penalty on construction company for land use violations than agency of natural resources had, since the Division could determine anew the penalty and there was no realistic likelihood of vindictiveness or violation of defendants’ due process rights in its so doing. Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 617 A.2d 143, 1992 Vt. LEXIS 135 (1992).

    Environmental Division correctly assessed penalty against construction company based solely on economic benefit company gained from land use law violation, since it considered all factors governing statute demanded and statute did not require that separate penalty amounts be imposed under each factor. Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 617 A.2d 143, 1992 Vt. LEXIS 135 (1992).

    Construction with other law.

    Although delayed effective dates of §§ 8008 and 8010 precluded Secretary of Agency of Natural Resources from issuing administrative orders and imposing penalties prior to effective date, nothing in the language of the sections suggested that Secretary was completely precluded from administratively enforcing any violations which occurred before this time; subsec. (b)(4) of this section, which did not have delayed effective date, provided Environmental Division power to impose penalty, and alternative choice for imposition of civil penalties was independent action in Superior Court pursuant to § 8221, which did not have delayed effective date either. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    Determination of violation.

    Although defendant asserted that the Environmental Division erred in penalizing him in the same way for violations because they were of two distinct types, the Division based the penalties not on the specifics of the individual violations, but on the basis that one violation is equally as punishable as another and nothing in the Uniform Environmental Law Enforcement Act precluded such an interpretation; subsec. (b)(1) gives the Division authority to determine whether a violation has occurred, and subsec. (b)(4) allows the Division to determine the appropriate penalty for such violations. Vermont Agency of Natural Resources v. Bean, 164 Vt. 438, 672 A.2d 469, 1995 Vt. LEXIS 134 (1995).

    Even though District Commission refused to approve hanging of banners once the district coordinator ruled that permit conditions prohibited banners, violation did not occur until permit with specific language prohibiting banners was issued, and thus the Environmental Division erred in concluding that a violation occurred upon District Commission’s refusal; legal opinions of the district coordinator or a notice of alleged violation of the commission are valid only when supported by the statute or permit language and it was improper to assess any penalty until such time. Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995).

    The determination of individual liability is the responsibility of the Environmental Division, and while landowners as co-permittees were both responsible for complying with the permits and share fault for the violations, by lumping them together in calculating the penalties, the Division put the landowners in an untenable position when it required them to allocate between themselves the responsibility for payment. Secretary v. Handy Family Enterprises, 163 Vt. 476, 660 A.2d 309, 1995 Vt. LEXIS 52 (1995).

    Cited.

    Cited in Agency of Natural Resources v. Upper Valley Regional Landfill Corp., 159 Vt. 454, 621 A.2d 225, 1992 Vt. LEXIS 200 (1992).

    § 8013. Conduct of hearings; appeal; stay.

    1. The agency issuing the order shall have the burden of proof by a preponderance of the evidence.
    2. Parties may be represented by counsel in hearings before the Environmental Division. The Agency of Natural Resources or the Board each may represent itself. A party may conduct cross-examination required for a full and true disclosure of the facts.
    3. An appeal from a decision of the Environmental Division may be taken by the Secretary, the Board, or the respondent to the Supreme Court. The Attorney General also may appeal if the Attorney General has appeared as a party.
    4. An appeal by a respondent or the Attorney General to the Supreme Court shall not stay an order, but shall stay payment of a penalty. A respondent may petition the Supreme Court for a stay of an order.

    HISTORY: Added 1989, No. 98 , § 1; amended 1993, No. 232 (Adj. Sess.), § 38, eff. March 15, 1995; 2009, No. 154 (Adj. Sess.), § 236; 2011, No. 73 (Adj. Sess.), § 3; 2013, No. 11 , § 19.

    History

    Amendments

    —2013. Subsec. (a): Substituted “agency issuing the order” for “secretary”.

    Subsec. (b): In the second sentence, substituted “Agency of Natural Resources or the Board each” for “agency of natural resources”.

    —2011 (Adj. Sess.). Subsec. (c): Inserted “the board” following “the secretary” in the first sentence.

    —2009 (Adj. Sess.) Substituted “environmental division” for “environmental court” wherever it appeared throughout the section.

    —1993 (Adj. Sess.). Substituted “court” for “law division” following “environmental” in the first sentence of subsecs. (b) and (c).

    CROSS REFERENCES

    Stay or injunction pending appeal, see V.R.A.P. 8.

    ANNOTATIONS

    Cited.

    Cited in Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 617 A.2d 143, 1992 Vt. LEXIS 135 (1992).

    § 8014. Enforcement of final orders; collection actions.

    1. The Secretary may seek enforcement of a final administrative order, final orders pursuant to an assurance of discontinuance, or civil citations pursuant to section 8019 of this title, or a landfill extension order in the Civil, Criminal, or Environmental Division of the Superior Court.
    2. If a penalty is assessed and the respondent fails to pay the assessed penalty within the time prescribed, the Secretary may bring a collection action in any Civil or Criminal Division of the Superior Court. In addition, when a respondent, except for a municipality, fails to pay an assessed penalty or fails to pay a contribution under subdivision 8007(b)(2) of this title within the prescribed time period, the Secretary or the Natural Resources Board shall stay the effective date or the processing of any pending permit application or renewal application in which the respondent is involved until payment in full of all outstanding penalties has been received. When a municipality fails to pay an assessed penalty or fails to pay a contribution under subdivision 8007(b)(2) of this title within the prescribed time period, the Secretary or the Natural Resources Board may stay the effective date or the processing of any pending permit application or renewal application in which the municipality is involved until payment in full of all outstanding penalties has been received. For purposes of this subsection, “municipality” shall mean a city, town, or village. The Secretary or the Natural Resources Board may collect interest on an assessed penalty that a respondent fails to pay within the prescribed time. The Secretary or the Natural Resources Board shall collect interest on a contribution under subdivision 8007(b)(2) of this title that a respondent fails to pay within the prescribed time.
    3. Notwithstanding 32 V.S.A. § 502 , the Secretary may contract with private collection agencies, or with attorneys engaged for similar purposes, for the collection of penalties or other monetary awards owed pursuant to assurances of discontinuance, final administrative orders, emergency administrative orders, or judgments after hearing or other judicial rulings. The cost of collection shall be assessed against and added to the penalty assessed against a respondent. The Secretary may agree to pay private collection agencies or attorneys a fixed rate for services rendered or a percentage of the amount actually collected by the agencies or attorneys and remitted to the Secretary.

    HISTORY: Added 1989, No. 98 , § 1; amended 1991, No. 202 (Adj. Sess.), § 6, eff. May 27, 1992; 1993, No. 232 (Adj. Sess.), § 38, eff. March 15, 1995; 1999, No. 155 (Adj. Sess.), § 8; 2007, No. 191 (Adj. Sess.), § 7; 2009, No. 154 (Adj. Sess.), § 63; 2011, No. 73 (Adj. Sess.), § 4; 2013, No. 11 , § 25.

    History

    Revision note

    —2013. Changed “civil complaints” to “civil citations” in light of 2013 Acts and Resolves No. 11, §§ 20 and 25.

    Amendments

    —2013. Subsec. (b): Substituted “Natural Resources Board” for “land use panel” throughout.

    —2011 (Adj. Sess.). Subsec. (a): Inserted “final orders pursuant to an assurance of discontinuance, or civil complaints pursuant to section 8019 of this title” following “final administrative order”.

    —2009 (Adj. Sess.) Subsec. (a): Inserted “civil, criminal, or environmental division of the” preceding “superior” and deleted “or district court or before the environmental” thereafter.

    Subsec. (b): Inserted “civil or criminal division of the” preceding “superior” and deleted “or district court ” thereafter in the first sentence.

    —2007 (Adj. Sess.) Subsec. (b): Added the second through sixth sentences.

    Subsec. (c): Added “notwithstanding 32 V.S.A. § 502 ” preceding “the secretary” in the first sentence, added the second sentence, and deleted the last sentence.

    —1999 (Adj. Sess.) Subsec. (c): Added.

    —1993 (Adj. Sess.). Subsec. (a): Substituted “court” for “law division” following “environmental”.

    —1991 (Adj. Sess.). Subsec. (a): Substituted “or a landfill extension order in the” for “in any” preceding “superior”.

    § 8015. Statute of limitations.

    Notwithstanding any other provision of law, actions brought under this chapter or chapter 211 of this title shall be commenced within the later of:

    1. six years from the date the violation is or reasonably should have been discovered; or
    2. six years from the date a continuing violation ceases.

    HISTORY: Added 1989, No. 98 , § 1; amended 2007, No. 191 (Adj. Sess.), § 8.

    History

    Amendments

    —2007 (Adj. Sess.) Substituted “later” for “latter” following “commenced within the” in the introductory paragraph.

    ANNOTATIONS

    Continuing violation.

    In a legal malpractice case stemming from a state environmental enforcement action where plaintiff was found liable for a hazardous-waste contamination on his property, summary judgment for defendants was appropriate, as a statute of limitations defense would not have succeeded in that plaintiff, as current owner of the property, was committing a continuing violation so long as the property’s contamination was unaddressed. Estate of Daniels v. Goss, 2022 VT 2, 2022 Vt. LEXIS 2 (Vt. 2022).

    Cited.

    Cited in Agency of Natural Resources v. Towns, 168 Vt. 449, 724 A.2d 1022, 1998 Vt. LEXIS 227 (1998); Agency of Natural Resources v. Towns, 173 Vt. 552, 790 A.2d 450, 2001 Vt. LEXIS 290 (2001); Agency of Natural Res. v. Deso, 2003 VT 36, 175 Vt. 513, 824 A.2d 558, 2003 Vt. LEXIS 66 (2003) (mem.).

    § 8016. Rulemaking.

    The Secretary, in consultation with the Natural Resources Board, shall adopt rules defining classes of violations and an appropriate range of administrative penalties to be assessed for each class of violation. The classes of violation and range of penalties shall take into account the degree of potential impact on public health, safety, and welfare and the environment resulting from the violation. No administrative penalty may be assessed as part of an administrative order pursuant to this chapter until applicable rules and procedures have been adopted.

    HISTORY: Added 1989, No. 98 , § 1; amended 2003, No. 115 (Adj. Sess.), § 72, eff. Jan. 31, 2005; 2013, No. 11 , § 25.

    History

    Amendments

    —2013. Substituted “Natural Resources Board” for “land use panel” in the first sentence.

    —2003 (Adj. Sess.). Substituted “land use panel” for “board” in the first sentence.

    ANNOTATIONS

    Cited.

    Cited in State Agency of Natural Resources v. Riendeau, 157 Vt. 615, 603 A.2d 360, 1991 Vt. LEXIS 232 (1991).

    § 8017. Annual report.

    The Secretary and the Attorney General shall report annually to the President Pro Tempore of the Senate, the Speaker of the House, the House Committee on Natural Resources, Fish, and Wildlife, and the Senate Committee on Natural Resources and Energy. The report shall be filed on or before February 15 on the enforcement actions taken under this chapter and on the status of citizen complaints about environmental problems in the State. The report shall describe at a minimum the number of violations, the actions taken, the disposition of cases, the amount of penalties collected, and the cost of administering the enforcement program. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this section.

    HISTORY: Added 1989, No. 98 , § 1; amended 2007, No. 191 (Adj. Sess.), § 9; 2013, No. 142 (Adj. Sess.), § 24; 2017, No. 113 (Adj. Sess.), § 49d; 2017, No. 168 (Adj. Sess.), § 19, eff. May 22, 2018.

    History

    Editor’s note

    —2017 (Adj, Sess.). The text of this section is based on the harmonization of two amendments. During the 2017 (Adj. Sess.), this section was amended twice, by Act Nos. 113 and 168, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2017 (Adj. Sess.), the text of Act Nos. 113 and 168 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

    Amendments

    —2017 (Adj. Sess.). Act Nos. 113 and 168 updated names of Legislative Committees; Act 168 changed annual report deadline from January 15 to February 15.

    —2013 (Adj. Sess.). Added the last sentence.

    —2007 (Adj. Sess.) Inserted “house committee on fish, wildlife and water resources” following “speaker of the house”, and deleted “chairs of the” preceding “senate and house committees” in the first sentence, and inserted “the number of violations” preceding “the actions taken” in the third sentence.

    § 8018. Requests for hearings on landfill closure extension orders.

    1. The applicant or the Attorney General may request a hearing on the decision of the Secretary under sections 6605e and 8008a of this title. Additionally, a municipality in which the landfill is located or an interested person may request such a hearing if a proposed landfill closure extension order would increase the volume of waste disposed on a quarterly basis by 30 percent or more over the volume of waste disposed during the first quarter of 1992. Notice of a request for hearing shall be filed with the Environmental Division and the Secretary within 15 days of the date of receipt of the Secretary’s decision. Upon receipt of the notice, the Secretary shall forward a copy of the decision to the Environmental Division.
    2. The Environmental judge shall have authority to determine whether the Secretary’s decision is in conformance with the provisions of sections 8008a and 6605e of this title. The Environmental judge may affirm, modify, or reverse the Secretary’s decision and any provision of any order issued by the Secretary under sections 8008a and 6605e of this title.
    3. The hearing shall be held before the Environmental Division within 30 days of receipt by the Division of the notice, unless continued for good cause. The Environmental Division shall issue a written decision within 20 days of the conclusion of the hearing, and no later than 60 days from the request for hearing, unless the hearing process is extended for good cause. The decision shall be sent to the parties by certified mail, return receipt requested, and shall include:
      1. a statement that the parties have a right to appeal the decision to the Supreme Court, and a description of the procedures for requesting an appeal; and
      2. a warning that the decision will become final if no appeal is requested within 10 days of the date the decision is received.
    4. Notice of a request for hearing shall not stay the order, pending the hearing.
    5. The Environmental Division may grant party status to an interested person in a hearing under this section.
    6. As used in this section, “interested person” means a person who demonstrates that the interest of the person is not adequately represented by any other party and who has:
      1. an ownership, leasehold, or contractual interest in real property affected by the order; or
      2. an interest in the outcome of the proceeding that is distinct from the interest of the public-at-large because of the person’s place of residence, place of employment, or place of business.

    HISTORY: Added 1991, No. 202 (Adj. Sess.), § 5, eff. May 27, 1992; amended 1993, No. 232 (Adj. Sess.), § 38, eff. March 15, 1995; 2009, No. 154 (Adj. Sess.), § 236.

    History

    Amendments

    —2009 (Adj. Sess.) Substituted “environmental division” for “environmental court” wherever it appeared throughout the section.

    —1993 (Adj. Sess.). Substituted “court” for “law division” following “environmental” in the third and fourth sentences of subsec. (a), the first and second sentences of the introductory paragraph of subsec. (c), and in subsec. (e), and deleted “law” preceding “judge” in the first and second sentences of subsec. (b).

    § 8019. Civil citations.

    1. The Secretary and the Board each shall have the authority to adopt rules for the issuance of civil citations for violations of their respective enabling statutes or rules adopted under those statutes that are enforceable in the Environmental Division. Any proposed rule under this section shall include the full, minimum, and waiver penalty amounts for each violation. The maximum civil penalty for any violation brought under this section shall not exceed $3,000.00 exclusive of court fees.
    2. A civil citation issued under this section shall preclude the issuing entity from seeking an additional monetary penalty for the violation specified in the citation when any one of the following occurs: the waiver penalty is paid, judgment is entered after trial or appeal, or a default judgment is entered. Notwithstanding this preclusion, the Agency and the Board may issue additional citations or initiate an action under chapter 201 of this title, including a monetary penalty when a violation is continuing or is repeated, and may also bring an enforcement action to obtain injunctive relief or remediation and, in such additional action, may recover the costs of bringing the additional action and the amount of any economic benefit the respondent obtained as a result of the underlying violation in accordance with subdivisions 8010(b)(7) and (c)(1) of this title.
    3. The Secretary or Board Chair and his or her duly authorized representative shall have the authority to amend or dismiss a citation by so marking the citation and returning it to the Environmental Division or by notifying the hearing officer or judge at the hearing.
    4. Subsequent to the issuance of a civil citation under this section and the conclusion of any hearing and appeal regarding that citation, the following shall be considered part of the respondent’s record of compliance when calculating a penalty under section 8010 of this title:
      1. the respondent’s payment of the full or waiver penalty stated in the citation;
      2. the respondent’s commission of a violation after the hearing before the Environmental Division on the citation;
      3. the respondent’s failure to appear or answer the citation resulting in the entry of a default judgment;
      4. a finding after appeal that the respondent committed a violation.
    5. Penalties assessed under this section shall be deposited in the General Fund.

    HISTORY: Added 2009, No. 54 , § 57, eff. June 1, 2009; amended 2011, No. 73 (Adj. Sess.), § 5; 2013, No. 11 , §§ 20, 25.

    History

    Amendments

    —2013. Substituted “civil citations” for “civil complaints” in the section heading and in subsec. (a), and substituted “civil citation” for “civil complaint” in subsecs. (b) and (d).

    —2011 (Adj. Sess.). Section amended generally.

    § 8020. Public participation in enforcement.

    1. Aggrieved person.   As used in this section, an “aggrieved person” means a person who alleges an injury to a particularized interest protected by a statute listed under subsection 8003(a) of this section, and the alleged injury is attributable to a violation addressed by an assurance of discontinuance, administrative order, emergency order, or civil citation issued under this chapter. An organization or association is an aggrieved person under this section when one or more of its members would be an aggrieved person in his or her own right, the interests at stake are germane to the purposes of the organization or association, and neither the claim asserted nor the relief requested by the organization or association requires participation of the individual member.
    2. Draft and final action.   Prior to issuing an administrative order, assurance of discontinuance, or civil citation under this chapter and sending it to the Environmental Division, the Secretary or the Board shall post a draft copy of the administrative order, assurance of discontinuance, or civil citation for public notice and written comment for 30 days. At the conclusion of the 30-day notice and written comment period, the Secretary or the Board shall evaluate the proposed action pursuant to the written comments received. After the evaluation of the written comments, the Secretary or the Board may withdraw an administrative order, assurance of discontinuance, or civil citation. At the conclusion of the 30-day notice period, if no comments have been received, the Secretary or the Board shall file the draft as a final administrative order, assurance of discontinuance, or civil citation with the Environmental Division, and the Environmental Division may review and approve as an order of the court the administrative order, assurance of discontinuance, or civil citation as set out elsewhere in this chapter. When the Secretary or Board issues a final administrative order, assurance of discontinuance, or civil citation, it shall be sent to the Environmental Division along with any written comments received during the 30-day comment period. Concurrent with filing with the Environmental Division, the Secretary or Board shall post the final proposed action for public notice for 14 days.
    3. Filing with court.   If a comment was received on the draft document, the Environmental Division shall hold the administrative order, assurance of discontinuance, or civil citation for 14 days from the date of filing to allow any person who has filed written comments under subsection (b), who is not satisfied with the final action of the Agency or the Board, and who meets the definition of “aggrieved person” under subsection (a) of this section to file a motion for permissive intervention pursuant to the procedure in Rule 24(c) of the Vermont Rules of Civil Procedure.
    4. Court action without motion to intervene.   If no comment was filed on the draft document or if, at the conclusion of the 14-day period, no motion to intervene has been filed, the Environmental Division in its discretion, with or without a hearing, shall issue an order to affirm, vacate, or remand the administrative order, assurance of discontinuance, or civil citation.
    5. Condition precedent to intervention.   In order for a person to intervene permissively in an administrative order, assurance of discontinuance, or civil citation, the person shall have filed written comments with the Agency or Board setting out the specific objection to the proposed action during the 30-day comment period required under subsection (b) of this section.
    6. Court action upon motion to intervene.   A motion for permissive intervention shall clearly state the basis for the claim that the administrative order, assurance of discontinuance, or civil citation is insufficient to carry out the purposes of this chapter. A hearing may be held on the motion for permissive intervention in the discretion of the Environmental Division. When the Environmental Division determines that a motion to intervene fails to meet the requirements for permissive intervention, the court shall deny the motion.
    7. Emergency administrative order.   When the Secretary issues an emergency administrative order, the prefiling public notice and comment provisions contained in this section shall not apply. The Environmental Division, without comment or hearing, shall act on the emergency administrative order as required by section 8009 of this title and may issue its own order. The Secretary shall publish the emergency administrative order concurrent with filing it with the Environmental Division. A person shall have 14 days from the date the emergency administrative order is filed to file a motion for permissive intervention. A motion to intervene shall not stay an emergency administrative order.
    8. Standard of review on motion to intervene.   The Environmental Division shall evaluate a motion from an aggrieved person for permissive intervention in light of Rule 24(b)(1) of the Vermont Rules of Civil Procedure. When the Environmental Division permits an aggrieved person to intervene, it shall be for the sole purpose of establishing that the terms of an administrative order, emergency administrative order, assurance of discontinuance, or civil citation are insufficient to carry out the purposes of this chapter. The intervenor shall have the burden of proof by a preponderance of the evidence that the administrative order, emergency administrative order, assurance of discontinuance, or civil citation is insufficient to carry out the purposes of this chapter. A hearing may be held on the claim that the administrative order, emergency administrative order, assurance of discontinuance, or civil citation is insufficient to carry out the purposes of this chapter in the discretion of the Environmental Division. The Environmental Division, upon finding that the proposed action is insufficient to carry out the purposes of this chapter, shall inform the parties in writing and shall include the basis of its decision and shall vacate the proposed action.
    9. Authority of Secretary or Board to object.   The Secretary or Board shall not oppose any motion filed for permissive intervention. When the Environmental Division permits a person to intervene, the Secretary, the Board, or the respondent may oppose the intervenor’s claim that the proposed action is insufficient to carry out the purposes of this chapter.
    10. Response to citizen citations.   The Secretary shall investigate all citizen complaints of a violation of a federally authorized or delegated program and shall respond to known complainants in writing.

    HISTORY: Added 2011, No. 73 (Adj. Sess.), § 6; amended 2013, No. 11 , §§ 21, 25.

    History

    Amendments

    —2013. Subsec. (a): Substituted “civil citation” for “civil complaint” in the first sentence.

    Subsec. (b): Substituted “civil citation” for “civil complaint” throughout.

    Subsec. (c): Substituted “If a comment was received on the draft document, the Environmental Division” for “The environmental division” and “citation” for “complaint” preceding “for 14 days from the date of filing”.

    Subsec. (d): Added “If no comment was filed on the draft document or if” preceding “at the conclusion of the 14-day period, no motion to intervene has been filed, the” at the beginning and substituted “Environmental Division” for “environmental division shall take into consideration any comments received and” and “citation” for “complaint”.

    Subsecs. (e), (f), and (h): Substituted “civil citation” for “civil complaint”.

    § 8021. Cost recovery.

    1. In addition to any existing authority, the Secretary, in issuing an administrative order, emergency order, or assurance of discontinuance under this chapter, may recover monies expended from a special fund for a cleanup related to an environmental violation, provided that such recovered monies not exceed $20,000.00.
    2. When monies are recovered under this section, they shall be deposited into the special fund from which they were expended.

    HISTORY: Added 2011, No. 73 (Adj. Sess.), § 7.

    Chapter 211. Civil Enforcement

    § 8221. Civil enforcement.

    1. The Secretary, or the Natural Resources Board with respect to matters relating to land use permits under chapter 151 of this title only, may bring an action in the Civil Division of the Superior Court to enforce the provisions of law specified in subsection 8003(a) of this title, to ensure compliance, and to obtain penalties in the amounts described in subsection (b) of this section. The action shall be brought by the Attorney General in the name of the State.
    2. The court may grant temporary and permanent injunctive relief and may:
      1. Enjoin future activities.
      2. Order remedial actions to be taken to mitigate hazard to human health or the environment.
      3. Order the design, construction, installation, operation, or maintenance of facilities designed to mitigate or prevent a hazard to human health or the environment or designed to assure compliance.
      4. Fix and order compensation for any public or private property destroyed or damaged.
      5. Order reimbursement from any person who caused governmental expenditures for the investigation, abatement, mitigation, or removal of a hazard to human health or the environment.
      6. Levy a civil penalty as provided in this subdivision. A civil penalty of not more than $85,000.00 may be imposed for each violation. In addition, in the case of a continuing violation, a penalty of not more than $42,500.00 may be imposed for each day the violation continues. In fixing the amount of the penalty, the court shall apply the criteria set forth in subsections 8010(b) and (c) of this title. The cost of collection of penalties or other monetary awards shall be assessed against and added to a penalty assessed against a respondent.
      1. In any civil action brought pursuant to this section in which a temporary restraining order or preliminary injunction is sought, relief shall be obtained upon a showing that there is the probability of success on the merits and that: (c) (1) In any civil action brought pursuant to this section in which a temporary restraining order or preliminary injunction is sought, relief shall be obtained upon a showing that there is the probability of success on the merits and that:
        1. a violation exists; or
        2. a violation is imminent and substantial harm is likely to result.
      2. In such an action, the Secretary or Board need not demonstrate immediate and irreparable injury, loss, or damage.
    3. Any balancing of the equities in actions under this section may affect the time by which compliance must be attained, but not the necessity of compliance within a reasonable period of time.

    HISTORY: Added 1989, No. 98 , § 3; amended 2003, No. 115 (Adj. Sess.), § 73, eff. Jan. 31, 2005; 2007, No. 191 (Adj. Sess.), § 10; 2009, No. 154 (Adj. Sess.), § 53d; 2013, No. 11 , § 25; 2015, No. 97 (Adj. Sess.), § 40.

    History

    Amendments

    —2015 (Adj. Sess.). Subsec. (c): Redesignated subdivs. (c), (c)(1), and (c)(2) as (c)(1), (c)(1)(A), and (c)(1)(B); and redesignated the remaining text as (c)(2).

    —2013. Subsec. (a): Substituted “Natural Resources Board” for “land use panel of the natural resources board” at the beginning of the first sentence.

    —2009 (Adj. Sess.) Subsec. (a): Inserted “the civil division of the” preceding “superior court” in the first sentence.

    —2007 (Adj. Sess.) Subdiv. (b)(6): Substituted “$85,000.00” for “$50,000.00” in the first sentence, “$42,500.00” for “$25,000.00” in the second sentence, inserted “and (c)” following “8010(b)” in the third sentence, and added the fourth sentence.

    —2003 (Adj. Sess.). Subsec. (a): Inserted “land use panel of the natural resources” preceding “board” and “with respect to matters relating to land use permits under chapter 151 of this title only” following “board”.

    CROSS REFERENCES

    Statute of limitations, see § 8015 of this title.

    ANNOTATIONS

    Construction with other law.

    Environmental Division’s decision as to how Secretary of Natural Resources should proceed when violation occurs prior to effective date of certain of statute’s enforcement provisions lead to unreasonable result by requiring Secretary to bring action in Superior Court for first year of violation, but allowing Secretary to issue administrative order imposing administrative penalties for subsequent two years of violation, which would result in inefficient duplication of adjudication by Superior Court and Environmental Division and would require defendant and State to bear costs of litigating different periods of continuous violation in two different courts. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    Although delayed effective dates of §§ 8008 and 8010 precluded Secretary of Natural resources from issuing administrative orders and imposing penalties prior to effective date, nothing in the language of the sections suggested that Secretary was completely precluded from administratively enforcing any violations which occurred before this time; § 8012(b)(4), which did not have delayed effective date, provided Environmental Division power to impose penalty, and alternative choice for imposition of civil penalties was independent action in Superior Court pursuant to this section, which did not have delayed effective date either. Agency of Natural Resources v. Godnick, 162 Vt. 588, 652 A.2d 988, 1994 Vt. LEXIS 175 (1994).

    Environmental harm.

    Court at trial for water pollution violations did not err in imposing civil penalties on loggers without considering harm to environment, where subdiv. (b)(6) and criteria requiring such consideration did not apply, and court was free to impose civil penalty even if it found little or no environmental damage. State Agency of Natural Resources v. Riendeau, 157 Vt. 615, 603 A.2d 360, 1991 Vt. LEXIS 232 (1991).

    Other penalties.

    Environmental Board’s initiation of action in Superior Court to enjoin violations of Act 250 permit did not create a due process barrier to its continuation of hearing on petition to revoke the permit. In re Crushed Rock, Inc., 150 Vt. 613, 557 A.2d 84, 1988 Vt. LEXIS 226 (1988). (Decided under prior law.)

    Environmental Board’s initiation of action in Superior Court to enjoin violations of Act 250 permit and its continuation of hearing on petition to revoke the permit did not violate section 61(a) of Title 12, requiring disqualification of person acting in judicial capacity; mere combination of functions did not make Board “interested” and therefore disqualified to act on petition for revocation. In re Crushed Rock, Inc., 150 Vt. 613, 557 A.2d 84, 1988 Vt. LEXIS 226 (1988). (Decided under prior law.)

    Power of court.

    Together, the statutes governing liability and corrective procedures under the Vermont Waste Management Act and the statute governing civil enforcement in environmental cases create a scheme delegating broad authority to the courts to order the investigation and remediation of hazardous-waste spills; the statutory language squarely authorizes the court to order remedial actions and specifies the steps that a liable party must take to address hazardous-waste contamination. Here, the court order, which required defendant to conduct an investigation and address contamination at the site, progressively tracking the procedures specified in the corrective action statute, was clearly within the trial court’s authority as outlined by the statutory provisions. State Agency of Natural Res. v. Parkway Cleaners, 2019 VT 21, 209 Vt. 620, 210 A.3d 445, 2019 Vt. LEXIS 41 (2019).

    Trial court did not err in ordering wells brought into compliance with modern health standards, even though conditions of 1974 Act 250 permit did not require defendant’s decedent to warrant quality of water, and deeds given by him specifically disclaimed any such guarantee; court’s order had no direct effect on deed obligations and did not rewrite them, and court was within its remedial powers in making the order. State v. Therrien, 161 Vt. 26, 633 A.2d 272, 1993 Vt. LEXIS 99 (1993).

    Right to jury trial.

    Civil-penalties remedy under the statute pertaining to civil enforcement in environmental cases is essentially equitable. Accordingly, when the State sought civil penalties against an oil company, the company was not entitled to a jury trial under the Vermont Constitution. State v. Irving Oil Corp., 2008 VT 42, 183 Vt. 386, 955 A.2d 1098, 2008 Vt. LEXIS 45 (2008).

    Chapter 220. Consolidated Environmental Appeals

    § 8501. Purpose.

    It is the purpose of this chapter to:

    1. consolidate existing appeal routes for municipal zoning and subdivision decisions and acts or decisions of the Secretary of Natural Resources, district environmental coordinators, and District Commissions, excluding enforcement actions brought pursuant to chapters 201 and 211 of this title and the adoption of rules under 3 V.S.A. chapter 25;
    2. standardize the appeal periods, the parties who may appeal these acts or decisions, and the ability to stay any act or decision upon appeal, taking into account the nature of the different programs affected;
    3. encourage people to get involved in the Act 250 permitting process at the initial stages of review by a District Commission by requiring participation as a prerequisite for an appeal of a District Commission decision to the Environmental Division;
    4. assure that clear appeal routes exist for acts and decisions of the Secretary of Natural Resources;
    5. consolidate appeals of decisions related to renewable energy generation plants and telecommunications facilities with review under, respectively, 30 V.S.A. §§ 248 and 248a, with appeals and consolidation of proceedings pertaining to telecommunications facilities occurring only while 30 V.S.A. § 248a remains in effect.

    HISTORY: Added 2003, No. 115 (Adj. Sess.), § 74, eff. Jan. 31, 2005; amended 2009, No. 154 (Adj. Sess.), § 236; 2009, No. 159 (Adj. Sess.), § 16; 2011, No. 53 , § 5, eff. May 27, 2011.

    History

    Amendments

    —2011. Subdiv. (5): Inserted “and telecommunications facilities” following “plants”; deleted “by the public service board” preceding “under”; inserted “respectively” following “under”; and substituted “§§ 248 and 248a, with appeals and consolidation of proceedings pertaining to telecommunications facilities occurring only while 30 V.S.A. § 248a remains in effect” for “§ 248”.

    —2009 (Adj. Sess.) Act No. 154 substituted “environmental division” for “environmental court” in subdiv. (3).

    Act No. 159 made a minor change in subdiv. (1) and added subdiv. (5).

    § 8502. Definitions.

    As used in this chapter:

    1. “District Commission” means a District Environmental Commission established under chapter 151 of this title.
    2. “District coordinator” means a district environmental coordinator attached to a District Commission established under chapter 151 of this title.
    3. “Environmental Court” or “Environmental Division” means the Environmental Division of the Superior Court established by 4 V.S.A. § 30 .
    4. “Natural Resources Board” or “Board” means the Board established under chapter 151 of this title.
    5. “Party by right” means the following:
      1. the applicant;
      2. the landowner, if the applicant is not the landowner;
      3. the municipality in which the project site is located and the municipal and regional planning commissions for that municipality;
      4. if the project site is located on a boundary, any Vermont municipality adjacent to that border and the municipal and regional planning commissions for that municipality;
      5. the solid waste management district in which the land is located, if the development or subdivision constitutes a facility pursuant to subdivision 6602(10) of this title;
      6. any State agency affected by the proposed project.
    6. “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; any federal agency; or any other legal or commercial entity.
    7. “Person aggrieved” means a person who alleges an injury to a particularized interest protected by the provisions of law listed in section 8503 of this title, attributable to an act or decision by a district coordinator, District Commission, the Secretary, or the Environmental Division that can be redressed by the Environmental Division or the Supreme Court.
    8. “Secretary” means the Secretary of Natural Resources or the Secretary’s duly authorized representative. As used in this chapter, “Secretary” shall also mean the Commissioner of Environmental Conservation, the Commissioner of Forests, Parks and Recreation, and the Commissioner of Fish and Wildlife, with respect to those statutes that refer to the authority of that commissioner or department.

    HISTORY: Added 2003, No. 115 (Adj. Sess.), § 74, eff. Jan. 31, 2005; amended 2009, No. 154 (Adj. Sess.), §§ 53e, 236; 2013, No. 11 , § 22.

    History

    Revision note

    —2013. In subdiv. (8), in the second sentence, substituted “As used in” for “For the purposes of” preceding “this chapter” to conform to V.S.A. style.

    Amendments

    —2013. Subdiv. (4): Inserted “or Board” preceding “means”.

    Amendments

    —2009 (Adj. Sess.) Subdiv. (3): Act 154, § 53e substituted “division of the superior court established by 4 V.S.A. § 30 ” for “court established under 4 V.S.A. chapter 27”.

    ANNOTATIONS

    Intervention.

    Environmental Division did not exceed its discretion in granting landowners’ motion to intervene in neighbors’ appeal of Agency of Natural Resources’ decision to authorize an applicant to discharge stormwater at a proposed project site pursuant to a multi-sector general permit. The landowners sought to intervene once their direct interest in the matter was implicated by neighbors’ request for a site visit; their motion did not require revisiting already litigated issues; the landowners were “parties by right” and thus entitled to intervene; and the only harm neighbors alleged as a result of intervention was general demands of cost and time to the parties. In re Snowstone LLC Stormwater Discharge Authorization, 2021 VT 36, 256 A.3d 62, 2021 Vt. LEXIS 47 (Vt. 2021).

    § 8503. Applicability.

    1. This chapter shall govern all appeals of an act or decision of the Secretary, excluding enforcement actions under chapters 201 and 211 of this title and rulemaking, under the following authorities and under the rules adopted under those authorities:
      1. The following provisions of this title:
        1. chapter 23 (air pollution control);
        2. chapter 50 (aquatic nuisance control);
        3. chapter 41 (regulation of stream flow);
        4. chapter 43 (dams);
        5. chapter 47 (water pollution control; lakes in crisis);
        6. chapter 48 (groundwater protection);
        7. chapter 53 (beverage containers; deposit-redemption system), except for those acts or decisions of the Commissioner of Taxes under section 1530 of this title;
        8. chapter 55 (aid to municipalities for water supply, pollution abatement, and sewer separation);
        9. chapter 56 (public water supply);
        10. chapter 59 (underground and aboveground liquid storage tanks);
        11. chapter 64 (potable water supply and wastewater system permit);
        12. section 2625 (regulation of heavy cutting);
        13. chapter 123 (protection of endangered species);
        14. chapter 159 (waste management);
        15. chapter 37 (wetlands protection and water resources management);
        16. chapter 166 (collection and recycling of electronic waste);
        17. chapter 164A (collection and disposal of mercury-containing lamps);
        18. chapter 32 (flood hazard areas);
        19. chapter 49A (lake shoreland protection standards);
        20. chapter 83, subchapter 8 (importation of firewood);
        21. chapter 168 (product stewardship for primary batteries and rechargeable batteries).
        22. Subdiv. (a)(1)(V) effective January 1, 2022.

          chapter 124 (trade in covered animal parts or products).

      2. 29 V.S.A. chapter 11 (management of lakes and ponds).
      3. 24 V.S.A. chapter 61, subchapter 10 (relating to salvage yards).
      4. 3 V.S.A. § 2810 (interim environmental media standards).
    2. This chapter shall govern:
      1. all appeals from an act or decision of a District Commission under chapter 151 of this title, excluding appeals of application fee refund requests;
      2. appeals from an act or decision of a district coordinator under subsection 6007(c) of this title;
      3. appeals from findings of fact and conclusions of law issued by the Natural Resources Board in its review of a designated growth center for conformance with the criteria of subsection 6086(a) of this title, pursuant to authority granted at 24 V.S.A. § 2793c(f) .
    3. This chapter shall govern all appeals arising under 24 V.S.A. chapter 117, the planning and zoning chapter.
    4. This chapter shall govern all appeals from an act or decision of the Environmental Division under this chapter.
    5. This chapter shall not govern appeals from rulemaking decisions by the Natural Resources Board under chapter 151 of this title or enforcement actions under chapters 201 and 211 of this title.
    6. This chapter shall govern all appeals of acts or decisions of the legislative body of a municipality arising under 24 V.S.A. chapter 61, subchapter 10, relating to the municipal certificate of approved location for salvage yards.
    7. This chapter shall govern all appeals of an act or decision of the Secretary of Natural Resources that a solid waste implementation plan for a municipality proposed under 24 V.S.A. § 2202a conforms with the State Solid Waste Implementation Plan adopted pursuant to section 6604 of this title.

    HISTORY: Added 2003, No. 115 (Adj. Sess.), § 74, eff. Jan. 31, 2005; amended 2005, No. 183 (Adj. Sess.), § 9; 2009, No. 31 , § 9; 2009, No. 46 , § 3, eff. July 1, 2010; 2009, No. 56 , § 21; 2009, No. 79 (Adj. Sess.), § 6, eff. April 19, 2010; 2009, No. 154 (Adj. Sess.), § 236; 2011, No. 36 , § 4, eff. May 19, 2011; 2011, No. 138 (Adj. Sess.), § 35, eff. May 14, 2012; 2011, No. 148 (Adj. Sess.), § 20; 2013, No. 11 , §§ 23, 25; 2013, No. 11 2 (Adj. Sess.), § 3; 2013, No. 139 (Adj. Sess.), § 4, eff. May 22, 2014; 2013, No. 172 (Adj. Sess.), § 5; 2015, No. 150 (Adj. Sess.), § 35, eff. May 31, 2016; 2017, No. 168 (Adj. Sess.), § 8, eff. May 22, 2018; 2019, No. 21 , § 9, eff. May 15, 2019; 2019, No. 62 , § 10, eff. June 17, 2019; 2019, No. 169 (Adj. Sess.), § 4, eff. Jan. 1, 2022.

    History

    Revision note

    —2015. In subdivs. (a)(1)(B) and (U), corrected the chapter title references.

    —2011. Reference in subdiv. (a)(1)(Q) to “chapter 164 (collection and disposal of mercury-containing lamps)” was revised to read “chapter 164A (collection and disposal of mercury-containing lamps)” to reference the correct chapter in the Vermont Statutes Annotated.

    Amendments

    —2019 (Adj. Sess.). Subdiv. (a)(1)(V): Added.

    —2019. Subdiv. (a)(1)(G): Act No. 62 added “except for those acts or decisions of the Commissioner of Taxes under section 1530 of this title”.

    Subdiv. (a)(4): Added by Act 21.

    —2017 (Adj. Sess.). Subdiv. (a)(1)(E): Inserted “; lakes in crisis” following “control”.

    —2015 (Adj. Sess.). Subdiv. (b)(2): Substituted “a district coordinator under subsection 6007(c) of this title” for “the Natural Resources Board under subsection 6007(d) of this title”.

    —2013 (Adj. Sess.). Subdiv. (a)(1)(S): Added by Act No. 172(a).

    Subdiv. (a)(1)(T): Added by Act No. 112 as subdiv. (a)(1)(S); redesignated to avoid conflict.

    Subdiv. (a)(1)(U): Added by Act No. 139 as subdiv. (a)(1)(S); redesignated to avoid conflict.

    —2013. Subdiv. (b)(2): Substituted “an act or decision of the Natural Resources Board under subsection 6007(d)” for “district coordinator jurisdictional opinions under chapter 151”.

    Subdiv. (b)(3): Substituted “Natural Resources Board” for “land use panel”.

    —2011 (Adj. Sess.). Subdiv. (a)(1)(R): Added by Act No. 138.

    Subsec. (g): Added by Act No. 148.

    —2011. Subdiv. (a)(1)(Q): Added.

    —2009 (Adj. Sess.) Subdiv. (a)(1)(P): Added by Act No. 79

    Subsec. (d): Act No. 154 substituted “environmental division” for “environmental court”.

    —2009. Subdiv. (a)(1)(B): Act No. 31 amended generally.

    Subdiv. (a)(1)(B): Act No. 46, effective July 1, 2010 amended.

    Subdiv. (a)(3) and subsec. (f): Act No. 56 added.

    —2005 (Adj. Sess.). Subdiv. (b)(3): Added.

    Effective date and applicability of 2015 (Adj. Sess.) amendments. 2015, No. 150 (Adj. Sess.), § 38(3) provides: “Secs. 33 through 37 (Act 250 jurisdictional opinions; appeals) [which amended this section and 10 V.S.A. §§ 6007 , 6089 and 8504] shall take effect on passage [May 31, 2016] and shall apply to appeals of jurisdictional opinions issued on or after the effective date of those sections. Notwithstanding the repeal of its authority to consider jurisdictional opinions, the Natural Resources Board shall have authority to complete its consideration of any jurisdictional opinion pending before it as of that effective date, and appeal of the Board’s decision shall be governed by the law as it existed immediately prior to that date.”

    ANNOTATIONS

    Jurisdiction.

    Plain language of the statute governing environmental appeals and the larger statutory scheme lead to the conclusion that parties may challenge a Natural Resources Board rulemaking decision in accordance with the Vermont Administrative Procedure Act by bringing a declaratory-judgment action in the Civil Division of the Washington Superior Court. There is no indication, however, that by establishing this avenue for challenging Act 250 rulemaking decisions, the legislature intended to divest the Environmental Division of jurisdiction to invalidate an Act 250 regulation when exercising its exclusive jurisdiction over the subject matters outlined in the appeals statute. In re Mt. Top Inn & Resort, Jo 1-391, 2020 VT 57, 212 Vt. 554, 238 A.3d 637, 2020 Vt. LEXIS 71 (2020).

    § 8504. Appeals to the Environmental Division.

    1. Act 250 and Agency appeals.   Within 30 days of the date of the act or decision, any person aggrieved by an act or decision of the Secretary, a District Commission, or a district coordinator under the provisions of law listed in section 8503 of this title, or any party by right, may appeal to the Environmental Division, except for an act or decision of the Secretary under subdivision 6086b(3)(E) of this title or governed by section 8506 of this title.
    2. Planning and zoning chapter appeals.
      1. Within 30 days of the date of the act or decision, an interested person, as defined in 24 V.S.A. § 4465 , who has participated as defined in 24 V.S.A. § 4471 in the municipal regulatory proceeding under that chapter may appeal to the Environmental Division an act or decision made under that chapter by a board of adjustment, a planning commission, or a development review board; provided, however, that decisions of a development review board under 24 V.S.A. § 4420 with respect to local Act 250 review of municipal impacts are not subject to appeal but shall serve as presumptions under chapter 151 of this title.
      2. Notwithstanding subdivision (1) of this subsection, an interested person may appeal an act or decision under 24 V.S.A. chapter 117 if the Environmental judge determines that:
        1. there was a procedural defect that prevented the person from obtaining interested person status or participating in the proceeding;
        2. the decision being appealed is the grant or denial of interested person status; or
        3. some other condition exists that would result in manifest injustice if the person’s right to appeal was disallowed.
    3. Notice of the filing of an appeal.
      1. Upon filing an appeal from an act or decision of the District Commission, the appellant shall notify all parties who had party status as of the end of the District Commission proceeding, all friends of the Commission, and the Natural Resources Board that an appeal is being filed. In addition, the appellant shall publish notice not more than 10 days after providing notice as required under this subsection, at the appellant’s expense, in a newspaper of general circulation in the area of the project that is the subject of the decision.
      2. Upon the filing of an appeal from the act or decision of the Secretary under the provisions of law listed in section 8503 of this title, the appellant shall provide notice of the filing of an appeal to the following persons: the applicant before the Agency of Natural Resources, if other than the appellant; the owner of the land where the project is located if the applicant is not the owner; the municipality in which the project is located; the municipal and regional planning commissions for the municipality in which the project is located; if the project site is located on a boundary, any adjacent Vermont municipality and the municipal and regional planning commissions for that municipality; any State agency affected; the solid waste management district in which the project is located, if the project constitutes a facility pursuant to subdivision 6602(10) of this title; all persons required to receive notice of receipt of an application or notice of the issuance of a draft permit; and all persons on any mailing list for the decision involved. In addition, the appellant shall publish notice not more than 10 days after providing notice as required under this subsection, at the appellant’s expense, in a newspaper of general circulation in the area of the project that is the subject of the decision.
      3. In the case of appeals under 24 V.S.A. chapter 117, notice shall be as required under 24 V.S.A. § 4471 .
    4. Requirement to participate before the District Commission or the Secretary.
      1. Participation before District Commission.   An aggrieved person shall not appeal an act or decision that was made by a District Commission unless the person was granted party status by the District Commission pursuant to subdivision 6085(c)(1)(E) of this title, participated in the proceedings before the District Commission, and retained party status at the end of the District Commission proceedings. In addition, the person may only appeal those issues under the criteria with respect to which the person was granted party status. However, notwithstanding these limitations, an aggrieved person may appeal an act or decision of the District Commission if the Environmental judge determines that:
        1. there was a procedural defect that prevented the person from obtaining party status or participating in the proceeding;
        2. the decision being appealed is the grant or denial of party status; or
        3. some other condition exists that would result in manifest injustice if the person’s right to appeal was disallowed.
      2. Participation before the Secretary.
        1. An aggrieved person shall not appeal an act or decision of the Secretary unless the person submitted to the Secretary a written comment during the comment period or an oral comment at the public meeting conducted by the Secretary. In addition, the person may only appeal issues related to the person’s comment to the Secretary.
          1. To be sufficient for the purpose of appeal, a comment to the Secretary shall identify each reasonably ascertainable issue with enough particularity so that a meaningful response can be provided.
          2. The appellant shall identify each comment that the appellant submitted to the Secretary that identifies or relates to an issue raised in his or her appeal.
          3. A person moving to dismiss an appeal or an issue raised by an appeal pursuant to this subdivision (A) shall have the burden to prove that the requirements of this subdivision (A) are not satisfied.
        2. Notwithstanding the limitations of subdivision (2)(A) of this subsection, an aggrieved person may appeal an act or decision of the Secretary if the Environmental judge determines that:
          1. there was a procedural defect that prevented the person from commenting during the comment period or at the public meeting or otherwise participating in the proceeding;
          2. the Secretary did not conduct a comment period and did not hold a public meeting;
          3. the person demonstrates that an issue was not reasonably ascertainable during the review of an application or other request that led to the Secretary’s act or decision; or
          4. some other condition exists that would result in manifest injustice if the person’s right to appeal was disallowed.
    5. Act 250 jurisdictional determinations by a district coordinator.
      1. The appellant shall provide notice of the filing of an appeal to each person entitled to notice under subdivisions 6085(c)(1)(A) through (D) of this title, to each person on an approved subdivision 6085(c)(1)(E) list, and to the Natural Resources Board.
      2. Failure to appeal within the time required under subsection (a) of this section shall render the decision of the district coordinator under subsection 6007(c) of this title the final determination regarding jurisdiction under chapter 151 of this title unless the underlying jurisdictional opinion was not properly served on persons listed in subdivisions 6085(c)(1)(A) through (D) of this title and on persons on a subdivision 6085(c)(1)(E) list approved under subsection 6007(c) of this title.
    6. Stays.
      1. The filing of an appeal shall automatically stay the act or decision in the following situations:
        1. acts or decisions involving stream alteration permits or shoreline encroachment permits issued by the Secretary;
        2. the denial of interested person status by a board of adjustment, planning commission, or development review board.
      2. Upon petition by a party or upon its own motion for a stay of an act or decision, the Environmental Division shall perform the initial review of the request and may grant a stay. Any decision under this subsection to issue a stay shall be subject to appeal to the Supreme Court according to the Rules of Appellate Procedure.
    7. Consolidated appeals.   The Environmental Division may consolidate or coordinate different appeals where those appeals all relate to the same project.
    8. De novo hearing.   The Environmental Division, applying the substantive standards that were applicable before the tribunal appealed from, shall hold a de novo hearing on those issues that have been appealed, except in the case of:
      1. a decision being appealed on the record pursuant to 24 V.S.A. chapter 117;
      2. a decision of the Commissioner of Forests, Parks and Recreation under section 2625 of this title being appealed on the record, in which case the court shall affirm the decision, unless it finds that the Commissioner did not have reasonable grounds on which to base the decision.
    9. Deference to Agency technical determinations.   In the adjudication of appeals relating to land use permits under chapter 151 of this title, technical determinations of the Secretary shall be accorded the same deference as they are accorded by a District Commission under subsection 6086(d) of this title.
    10. Appeals of authorizations or coverage under a general permit.   Any appeal of an authorization or coverage under the terms of a general permit shall be limited in scope to whether the permitted activity complies with the terms and conditions of the general permit.
    11. Limitations on appeals.   Notwithstanding any other provision of this section:
      1. there shall be no appeal from a District Commission decision when the Commission has issued a permit and no hearing was requested or held, or no motion to alter was filed following the issuance of an administrative amendment;
      2. a municipal decision regarding whether a particular application qualifies for a recorded hearing under 24 V.S.A. § 4471(b) shall not be subject to appeal;
      3. if a District Commission issues a partial decision under subsection 6086(b) of this title, any appeal of that decision must be taken within 30 days of the date of that decision.
    12. Representation.   The Secretary may represent the Agency of Natural Resources in all appeals under this section. The Chair of the Natural Resources Board may represent the Board in any appeal under this section, unless the Board directs otherwise. If more than one State agency, other than the Board, either appeals or seeks to intervene in an appeal under this section, only the Attorney General may represent the interests of those agencies of the State in the appeal.
    13. Precedent.   Prior decisions of the Environmental Board, Water Resources Board, and Waste Facilities Panel shall be given the same weight and consideration as prior decisions of the Environmental Division.
    14. Intervention.   Any person may intervene in a pending appeal if that person:
      1. appeared as a party in the action appealed from and retained party status;
      2. is a party by right;
      3. is the Natural Resources Board;
      4. is a person aggrieved, as defined in this chapter;
      5. qualifies as an “interested person,” as established in 24 V.S.A. § 4465 , with respect to appeals under 24 V.S.A. chapter 117; or
      6. meets the standard for intervention established in the Vermont Rules of Civil Procedure.
    15. With respect to review of an act or decision of the Secretary pursuant to 3 V.S.A. § 2809 , the Division may reverse the act or decision or amend an allocation of costs to an applicant only if the Division determines that the act, decision, or allocation was arbitrary, capricious, or an abuse of discretion. In the absence of such a determination, the Division shall require the applicant to pay the Secretary all costs assessed pursuant to 3 V.S.A. § 2809 .
    16. Administrative record.   The Secretary shall certify the administrative record as defined in chapter 170 of this title and shall transfer a certified copy of that record to the Environmental Division when:
      1. there is an appeal of an act or decision of the Secretary that is based on that record; or
      2. there is an appeal of a decision of a District Commission, and the applicant used a decision of the Secretary based on that record to create a presumption under a criterion of subsection 6086(a) of this title that is at issue in the appeal.

    HISTORY: Added 2003, No. 115 (Adj. Sess.), § 74, eff. Jan. 31, 2005; amended 2009, No. 146 (Adj. Sess.), §§ F15, F24; 2009, No. 154 (Adj. Sess.), § 236; 2009, No. 159 (Adj. Sess.), § 17; 2013, No. 11 , § 24; 2013, No. 147 (Adj. Sess.), § 8, eff. June 1, 2014; 2015, No. 150 (Adj. Sess.), § 5, eff. Jan. 1, 2018; 2015, No. 150 (Adj. Sess.), §§ 36, 37, eff. May 31, 2016.

    History

    Revision note

    —2015. In subsec. ( o ), changed “court” to “Division” pursuant to 2009, No. 154 (Adj. Sess.), § 236.

    Amendments

    —2015 (Adj. Sess.). Subsec. (a): Substituted “a District Commission, or a district coordinator” for “the Natural Resources Board, or a District Commission”.

    Subsec. (d): Rewritten.

    Subsec. (e): Substituted “a district coordinator” for “the Natural Resources Board”.

    Subdiv. (e)(1): Added “, and to the Natural Resources Board” at the end.

    Subdiv. (e)(2): Substituted “district coordinator under subsection 6007(c)” for “Board under subsection 6007(d)”, and deleted “issued by the district coordinator” following “jurisdictional opinion”.

    Subsec. (p): Added.

    —2013 (Adj. Sess.). Subsec. (a): Inserted “under subdivision 6086b(3)(E) of this title or” following “of the Secretary”.

    Subsec. (a): Substituted “Secretary, the Natural Resources Board” for “secretary, a district coordinator”.

    Subsec. (e): Amended generally.

    Subsec. ( l ): Substituted “Chair of the Natural Resources Board” for “chair of the natural resource board, on behalf of the board or either panel” preceding “may” and “Board” for “board or either panel of the natural resources board” preceding “directs” and “either”.

    Subdiv. (n)(3): Substituted “Natural Resources Board” for “natural resources board, or either panel of the board” following “the”.

    —2009 (Adj. Sess.) Act No. 146 substituted “of authorizations or coverage” for “to discharge” in the first sentence, and “or coverage” for “to discharge” in the second sentence of subsec. (j), and added subsec. ( o )

    Act No. 154 substituted “environmental division” for “environmental court” wherever it appeared throughout the section.

    Act No. 159 added “except for an act or decision of the secretary governed by section 8506 of this title” in subsec. (a).

    Effective date and applicability of 2015 (Adj. Sess.) amendments. 2015, No. 150 (Adj. Sess.), § 38(3) provides: “Secs. 33 through 37 (Act 250 jurisdictional opinions; appeals) [which amended this section and 10 V.S.A. §§ 6007 , 6089 and 8503] shall take effect on passage [May 31, 2016] and shall apply to appeals of jurisdictional opinions issued on or after the effective date of those sections. Notwithstanding the repeal of its authority to consider jurisdictional opinions, the Natural Resources Board shall have authority to complete its consideration of any jurisdictional opinion pending before it as of that effective date, and appeal of the Board’s decision shall be governed by the law as it existed immediately prior to that date.”

    Legislative purpose. 2015, No. 150 (Adj. Sess.), § 5b, effective July 1, 2018 provides[ “The purposes of the amendments contained in Secs. 5 (appeals to the Environmental Division) [which amended 10 V.S.A. § 8504 and 5a (renewable energy plant; telecommunications facility; appeals) [which amended 10 V.S.A. § 8506 ] of this act are to:

    “(1) require participation in the permitting process of the Department of Environmental Conservation (DEC) and identification of concerns about an application early in that process so that DEC and the applicant have an opportunity to address those concerns where possible before a permit becomes final and subject to appeal; and

    “(2) require that an issue raised on appeal be identified or related to an issue identified in a comment to the Secretary while guarding against creating an overly technical approach to the preservation of issues for the purpose of appeal when interpreting whether an appeal satisfies requirements of 10 V.S.A. § 8504(d)(2)(A) .”

    ANNOTATIONS

    Construction.

    Legislature’s use of the words “participate” and “proceeding” in the statute governing planning and zoning appeals indicates that the activity must take place while the municipal decision-making process is still ongoing; participation necessarily assumes that there is a proceeding or activity in which an interested person can join, and participation would be meaningless if commenced after the municipal body resolved the issue. Furthermore, the use of the word “proceeding” demonstrates the Legislature’s intent that participation occur before a decision is made since the proceeding would be concluded once a final decision is rendered. In re Verizon Wireless Barton Permit, 2010 VT 62, 188 Vt. 262, 6 A.3d 713, 2010 Vt. LEXIS 66 (2010).

    Intervention.

    Environmental Division did not exceed its discretion in granting landowners’ motion to intervene in neighbors’ appeal of Agency of Natural Resources’ decision to authorize an applicant to discharge stormwater at a proposed project site pursuant to a multi-sector general permit. The landowners sought to intervene once their direct interest in the matter was implicated by neighbors’ request for a site visit; their motion did not require revisiting already litigated issues; the landowners were “parties by right” and thus entitled to intervene; and the only harm neighbors alleged as a result of intervention was general demands of cost and time to the parties. In re Snowstone LLC Stormwater Discharge Authorization, 2021 VT 36, 256 A.3d 62, 2021 Vt. LEXIS 47 (Vt. 2021).

    Standing.

    Examining the plain language of the statute governing appeals to the Environmental Division, the Vermont Supreme Court recognizes that statutory standing to appeal from an agency decision may be predicated on allegations, and the showing required to establish statutory standing is minimal. In re Snowstone LLC Stormwater Discharge Authorization, 2021 VT 36, 256 A.3d 62, 2021 Vt. LEXIS 47 (Vt. 2021).

    Neighbors, who challenged the Agency of Natural Resources’ decision to authorize an applicant to discharge stormwater at a proposed project site pursuant to a multi-sector general permit, had standing to appeal when they not only alleged that the potential stormwater runoff might injure them, but also proffered an affidavit from an engineer who described with specificity the way that the asserted inadequacy of the design of the proposed stormwater system might affect their particularized interests in their property. In re Snowstone LLC Stormwater Discharge Authorization, 2021 VT 36, 256 A.3d 62, 2021 Vt. LEXIS 47 (Vt. 2021).

    Neighbors had sufficiently claimed interested-party status when they expressly claimed party status in their notice of appeal to the Environmental Division on the basis that they did not receive the required pre-hearing notice of the proceeding and further reiterated in their statement of questions that they were asserting a right to appeal based on lack of notice. Further, the undisputed facts demonstrated that they met the statutory requirements because a procedural defect — the town’s failure to provide them with notice of the development review board hearing — prevented them from participating in the proceeding and obtaining interested-person status. In re Mahar Conditional Use Permit, 2018 VT 20, 206 Vt. 559, 183 A.3d 1136, 2018 Vt. LEXIS 14 (2018).

    Neighbors had established interested-person status, and therefore standing, under the statute governing appeals to the Environmental Division, as it was undisputed that they were adjacent property owners, and they had alleged that the project would have an adverse impact, citing the effect on the surrounding neighborhood, the location and layout of the structure, the existence of a second curb cut, and the size of the structure, among other things. In re Mahar Conditional Use Permit, 2018 VT 20, 206 Vt. 559, 183 A.3d 1136, 2018 Vt. LEXIS 14 (2018).

    Environmental Division did not err in denying party status to appellants, who sought to challenge the approval of an application for a planned unit development but had not participated in the hearing before the development review board (DRB). As the DRB complied with the regulatory and statutory framework for providing both constructive and actual notice of the hearing, regardless of whether appellants had received actual notice, appellants were on constructive notice of the hearing; furthermore, there was no requirement that the notice apprise appellants and others of the potential success of the application. In re Appeal of MDY Taxes, 2015 VT 65, 199 Vt. 248, 123 A.3d 1184, 2015 Vt. LEXIS 44 (2015).

    Appellants had failed to demonstrate that any injustice, let alone manifest injustice, would result from denying them the right to appeal the decision of the development review board (DRB) when they had not participated in the hearing before the DRB. The constructive notice provided adhered to the requirements of the law and expressly stated that the applicant was seeking to construct a car wash on its property; the fact that neither appellant actually viewed or scrutinized the notices provided did not make it manifestly unjust to deny them the ability to appeal. In re Appeal of MDY Taxes, 2015 VT 65, 199 Vt. 248, 123 A.3d 1184, 2015 Vt. LEXIS 44 (2015).

    District Commission granted appellant adjoining landowner party status because it had a particularized interest in co-applicants’ application. Given appellant’s party status in this regard, the statute governing appeals from decisions of District Commissions did not prevent appellant from appealing procedural matters relating to the use of an Act 250 rule. In re SP Land Co., 2011 VT 104, 190 Vt. 418, 35 A.3d 1007, 2011 Vt. LEXIS 111 (2011).

    Neighbors did not appear at a zoning board of adjustment (ZBA) hearing and did not submit any information at that time, and by the time they called and sent a letter, the ZBA had already reached a decision on whether to grant the applicant a conditional use permit. Because the automatic right to appeal depended upon participation in the actual decision-making process, the neighbors did not have standing to appeal as participants. In re Verizon Wireless Barton Permit, 2010 VT 62, 188 Vt. 262, 6 A.3d 713, 2010 Vt. LEXIS 66 (2010).

    It was undisputed that neighbors seeking to appeal from the grant of a conditional use application did not move for party status. The trial court did not err in declining to construe either their notice of appeal or their amended statement of questions as a request for party status. In re Verizon Wireless Barton Permit, 2010 VT 62, 188 Vt. 262, 6 A.3d 713, 2010 Vt. LEXIS 66 (2010).

    Neighbors seeking to appeal from the grant of a conditional use application did not move for party status, and although it was within the trial court’s discretion to allow the neighbors to make their arguments, the trial court certainly was not obligated to consider a late-filed motion for party status, let alone affirmatively suggest to the neighbors that they make such a filing. Similarly, the neighbors’ initial pro se status alone was not sufficient for the Court to conclude that the trial court erred. In re Verizon Wireless Barton Permit, 2010 VT 62, 188 Vt. 262, 6 A.3d 713, 2010 Vt. LEXIS 66 (2010).

    Stays.

    Notwithstanding the title of this section, subsec. (f) on stays applies to appeals both to and from the Environmental Division within the context of the chapter on environmental appeals. In re Route 103 Quarry, 2007 VT 66, 182 Vt. 569, 933 A.2d 189, 2007 Vt. LEXIS 165 (2007).

    A party seeking a stay of an order issued by the Environmental Division pending an appeal to the Supreme Court must seek the stay, in the first instance, from the Division, which must examine the traditional criteria, and other relevant factors, in determining whether to grant or deny the stay. In re Route 103 Quarry, 2007 VT 66, 182 Vt. 569, 933 A.2d 189, 2007 Vt. LEXIS 165 (2007).

    Timeliness.

    Appeal period for appeals to the Environmental Division is a single time period; it does not differ for each prospective appellant. The governing statute states that the appeal period is triggered by the date of the decision, not the date of notice; therefore, the period begins to run when judgment is entered. In re Mahar Conditional Use Permit, 2018 VT 20, 206 Vt. 559, 183 A.3d 1136, 2018 Vt. LEXIS 14 (2018).

    Environmental Division did not err in finding that a neighbor’s direct appeal from the grant of a wastewater permit was untimely, as the neighbor had notice of her issues with respect to the grant of the permit two months before she filed for revocation of the permit, and almost a full year before she filed her appeal; furthermore, she was accorded the opportunity to have the Environmental Division examine her property interests in the dispute against applicants through its consideration of her permit-revocation request. In re Musto Wastewater Sys., 2014 VT 103, 197 Vt. 514, 106 A.3d 929, 2014 Vt. LEXIS 109 (2014).

    § 8505. Appeals to the Supreme Court.

    1. Any person aggrieved by a decision of the Environmental Division pursuant to this subchapter, any party by right, or the Board may appeal to the Supreme Court within 30 days of the date of the entry of the order or judgment appealed from, provided that:
      1. the person was a party to the proceeding before the Environmental Division; or
      2. the decision being appealed is the denial of party status; or
      3. the Supreme Court determines that:
        1. there was a procedural defect that prevented the person from participating in the proceeding; or
        2. some other condition exists that would result in manifest injustice if the person’s right to appeal were disallowed.
    2. An objection that has not been raised before the Environmental Division may not be considered by the Supreme Court, unless the failure or neglect to raise that objection is excused by the Supreme Court because of extraordinary circumstances.
    3. Only the Attorney General may represent the State in all appeals under this section.

    HISTORY: Added 2003, No. 115 (Adj. Sess.), § 74, eff. Jan. 31, 2005; amended 2009, No. 154 (Adj. Sess.), § 236.

    History

    Revision note

    —2013. In subsec. (a), deleted “or either panel of the board” in light of 2013 Acts and Resolves No. 11, Secs. 9, 15, and 25.

    Amendments

    —2009 (Adj. Sess.) Substituted “environmental division” for “environmental court” wherever it appeared throughout the section.

    § 8506. Renewable energy plant; telecommunications facility; appeals.

    1. Within 30 days of the date of the act or decision, any person aggrieved by an act or decision of the Secretary, under the provisions of law listed in section 8503 of this title, or any party by right may appeal to the Public Utility Commission if the act or decision concerns a renewable energy plant for which a certificate of public good is required under 30 V.S.A. § 248 or a telecommunications facility for which the applicant has applied or has served notice under 30 V.S.A. § 248 a(e) that it will apply for approval under 30 V.S.A. § 248a . This section shall not apply to a facility that is subject to section 1004 (dams before the Federal Energy Regulatory Commission) or 1006 (certification of hydroelectric projects) or chapter 43 (dams) of this title. This section shall not apply to an appeal of an act or decision of the Secretary regarding a telecommunications facility made on or after July 1, 2017.
    2. For the purpose of this section, “Commission,” “plant,” and “renewable energy” have the same meaning as under 30 V.S.A. § 8002 , and “telecommunications facility” has the same meaning as under 30 V.S.A. § 248a .
    3. The provisions of subdivisions 8504(c)(2) (notice of appeal), (d)(2) (participation before the Secretary), and (f)(1)(A) (automatic stays of certain permits), and subsections 8504(j) (appeals under a general permit), (n) (intervention), and (p) (administrative record) of this title shall apply to appeals under this section except that, with respect to subsection (p), the Secretary shall transfer a certified copy of the administrative record to the Commission.
    4. The Public Utility Commission may consolidate or coordinate appeals under this section with each other and with proceedings under 30 V.S.A. §§ 248 and 248a, where those appeals and proceedings all relate to the same project, unless such consolidation or coordination would be clearly unreasonable. In such a consolidated proceeding, the Commission’s decision may be issued as a single order that includes the necessary findings of fact and conclusions of law and, if the decision is to approve the plant or facility, any and all conditions of approval. This authority to consolidate or coordinate appeals and proceedings shall not confer authority to alter the substantive standards at issue in an appeal or proceeding.
    5. In an appeal under this section, the Public Utility Commission, applying the substantive standards that were applicable before the Secretary, shall hold a de novo hearing on those issues that have been appealed. In such an appeal, the Commission shall give the same weight and consideration to prior decisions of the Environmental Division and of the entities described in subsection 8504(m) (precedent) of this title as the Commission gives to its prior decisions.
    6. 30 V.S.A. §§ 9 (court of record), 10 (service of process), 11 (pleadings; rules of practice; findings of fact), and 12 (review by Supreme Court) shall apply to appeals under this section.

    HISTORY: Added 2009, No. 159 (Adj. Sess.), § 18, eff. June 4, 2010; amended 2011, No. 53 , § 6, eff. May 27, 2011; 2013, No. 190 (Adj. Sess.), § 21, eff. June 16, 2014; 2013, No. 199 (Adj. Sess.), § 31; 2015, No. 150 (Adj. Sess.), § 5a, eff. Jan. 1, 2018.

    History

    Revision note

    —2017. In subsecs. (a), (d), and (e), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

    Revision note—. In subsecs. (b), (c), (d), and (e), substituted “Commission” for “Board” in accordance with 2017, No. 53 , § 12.

    Amendments

    —2015 (Adj. Sess.). Subsec. (c): Amended generally.

    —2013 (Adj. Sess.). Subsec. (a) amended by Act No. 190 and 199: Substituted “July 1, 2017” for “July 1, 2014” at the end.

    —2011. Section heading: Inserted “; telecommunications facility’‘ following “plant.”

    Subsec. (a): Inserted “or a telecommunications facility for which the applicant has applied or has served notice under 30 V.S.A. § 248a (e) that it will apply for approval under 30 V.S.A. § 248a ” following “§ 248” and added the last sentence.

    Subsec. (b): Inserted “and ‘telecommunications facility” has the same meaning as under 30 V.S.A. § 248a ” following “§ 8002.”

    Subsec. (d): Substituted “§§ 248 and 248a” for “§ 248” and added the present second sentence.

    Legislative purpose. See note under 10 V.S.A. § 8504 regarding the purposes of the amendments contained in 2015, No. 150 (Adj. Sess.), §§ 5 and 5a.