Rep. Tony Klein. VTD/Josh Larkin

A bill to tweak the Act 250 environmental permitting process died from lack of enthusiasm in the House Natural Resources Committee, after it passed the Senate with no enthusiasm from any side. But this bill’s death may mean more ambitious reforms to the permitting process will be introduced next session.

Reps. David Deen, D-Westminster, and Tony Klein, D-East Montpelier, introduced last year a bill that took what Deen called a “comprehensive look at permitting.” The bill the Senate passed in April, he said, “was stripped down to the point where the death it died, it deserved.”

Act 250, the Land Use and Development Act, was passed in 1970 to review larger development projects according to 10 criteria pertaining to the environment, aesthetics and local planning goals. It is administered through nine district commissions, and their decisions can be appealed to the Environmental Court.

The bill, S.28, contained two major provisions. One would clarify language about who is eligible for party status in Act 250 permitting hearings, expanding eligibility in a way that environmentalists praised.

The other major provision would initiate a four-year experiment in three of the state’s nine districts, in which the district commissions would be empowered to make their process “on-the-record” for those cases likely to be appealed. Currently, any appeals of district commission decisions are heard “de novo” at the Environmental Court, which means the entire process starts again. With on-the-record district commission hearings, the Environmental Court would generally just review evidence presented at the commission and rule on questions of law. The Vermont Chamber of Commerce and Lake Champlain Chamber of Commerce supported on-the-record review as a way to reduce the cost of appeals.

While nobody professed to be happy with the bill as it passed the Senate, both environmental groups like the Conservation Law Foundation and Vermont Natural Resources Council and the business groups saw it as a tenuous basis for a compromise and were willing to continue the discussion in the House.

S.28 next went to the House Natural Resources and Energy Committee. There, the committee focused on the on-the-record review provision. Chair Tony Klein, pointing out that only nine district commission decisions had been appealed in the last three years, said the committee was not convinced that there was a problem to be solved.

The committee was also unimpressed with the proposed solution, said Klein. “What we heard big-time, overriding, which is why I believe the bill just ran out of gas, was that everybody, 100 percent, no matter what side of the issue they were on, [said the district commission] process works really well. It’s accessible to the public, it’s not costly, it’s easy to deal with. The solution that we were told for putting permit appeals on record at the Environmental Court was to change how the district commissions operated. You’d have to put them on record. We scratched our heads and said, ‘Wait a minute. You just told us that it works fantastic. But the solution is changing how they operate.’ That was a non-starter. That made no sense whatsoever.”

Chris Recchia, deputy secretary of the Agency of Natural Resources, looks at it differently. He was working on behalf of the administration to pass the bill. Recchia said that only 10 percent of district commission decisions are appealed, and the on-the-record review would only affect those cases. “We were trying to protect the district commission existing process for 90 percent of the cases and trying to tweak the last 10 percent so it would serve well on appeal through the court.”

The committee took testimony until they ran out of witnesses, Klein said, but lost interest in pursuing the bill. They never held a vote on the bill.

After the House committee dropped the bill, an April 24 Environmental Court decision took away much of the incentive for environmental groups to support the bill, anyway. Environmental Judge Thomas Walsh, in In re Bennington Wal-Mart Demolition/Construction Permit, overruled the Bennington District Environmental Commission, which had denied party status to VNRC and Citizens for a Greater Bennington. In the decision, Walsh appeared to reverse thinking about party status from an earlier Environmental Court decision, In re Pion Sand & Gravel Pit, which had led environmentalists to think the legislature needed to expand the party status definition in statute.

Jamey Fidel, VNRC’s general counsel, was pleased with the decision. “Judge Walsh clarified that party status should be accessible to citizens,” Fidel said.

Klein said that no one on his committee knew the court case was pending, at the time they were discussing S.28.

Like Deen, Klein pointed to a need for more comprehensive permitting reform than S.28 offered. Klein said the bill he introduced last year — which had support of the environmental community — would simplify permitting by creating “one-stop shopping,” a single board where all state environmental permits for a proposed development would be issued.

Recchia indicated that the administration still wishes to pursue permitting reform, and he left the door open for more comprehensive reform next session. “It was kind of a learning exercise in trying to make improvements to the permit process. We know that we’ve never been able to undertake the big changes that people envision when they think of permit improvement… People don’t want to just do one little piece, but it’s a huge task to do a whole thing… We’ll come back next year and think about it. I think the discussion was well served in giving us some additional information on how to proceed.”

While the Legislature has not created any study committee for permit reform, the administration may set up its own summer process, according to Recchia. “We know who the people are who are interested in participating, and we’ll invite them back to the table and see if we can craft a compromise.”

Correction: Deen and Klein are representatives, not senators, as originally reported.

VTDigger

Contact
Brian Shupe
Phone:802-223-2328 x 120 or 802-498-5300

Montpelier, Vt – The Environmental Division of the Vermont Superior Court today ruled decisively in favor of citizen participation in Act 250 proceedings in a case involving a proposed development in Bennington.

The Vermont Natural Resources Council and a group of Bennington residents who last year had been denied a full seat at the table in the Act 250 process hailed the decision.

“This ruling clarifies that Act 250 is fully open to citizens,” said Brian Shupe, VNRC’s executive director.

Shupe continued: “The ruling in favor of the rights of citizens to fully participate in decision-making in their own communities is precisely in line with the vision of Act 250’s founders, as well as Vermont’s strong tradition of accessible government,” he said. “This is good news.”

Meg Campbell, a representative of the citizens group, said she also was pleased with the decision.

“As a group, we had information and a viewpoint to bring to the table. Being denied party status in the case effectively shut us out and, as a result, the review of the project was compromised.”

VNRC represented a group of Bennington residents who were concerned about the impacts of a proposed expansion of a Wal-Mart in Bennington. Their concerns included impacts on water quality, potential harm to the economic viability of downtown businesses, and traffic congestion.

Last fall, the District Commission in Bennington had denied the Citizens for a Greater Bennington and VNRC full party status in the case. In October, the citizens group and VNRC appealed the ruling to the Environmental Division of the Superior Court.

VTDigger

I believe that the working landscape of Vermont – that familiar tapestry of farm fields, forests, small cities and compact villages – is vital to the future of Vermont, and is endangered.

The working landscape is part of the signature of our state – important to our farm economy and our tourist economy, a place where Vermonters work, a producer of food and fiber, refreshing and beautiful to look at. It is part of our “brand” if you will, and part of who we as Vermonters are.

But that landscape is more than simply beautiful, more than something for Vermonters and visitors to take pleasure in. It is part of and a product of Vermont’s traditional rural culture. The working landscape didn’t just happen. It was made, acre by acre, sugarbush by woodlot, and field by field by the working Vermonters who came before us and who live here today, working the land.

It took more than two centuries of toil and intelligence to shape the stony land that God gave us into the pleasant open farms and forest land we see today. We are fortunate that the traditional Vermont culture that shaped Vermont as we know and love it is still with us.

But that culture – our traditional rural fabric – is now threatened by huge national and international economic and social forces that are eroding it and gradually but inexorably replacing it with a consumer-driven, suburban culture and economy that gobbles up productive farm and forest land and replaces it with housing developments, shopping malls, mass entertainments and mass values.

Not long ago on a writing assignment I visited a farm family up in the Northeast Kingdom. They are truly wonderful people. They do good work, and they work just about all the time.

They are also the last farm on their road. There used to be 10 farms there; now there is one. This is happening all over Vermont.

But agriculture, forestry, and other land-based work and places do not have to disappear from Vermont. Previous state leaders have taken bold imaginative action, and have passed legislation – like Act 250 and the Land Use Tax Bill – that have helped keep development under control and Vermont’s working lands open and productive.

The Working Lands bill before the Vermont Legislature today is another such bold step. It may not be the only answer or the ultimate answer, but it is a step in the right direction.

The House has passed this important piece of legislation and funded it adequately, an appropriate and bold move that should be applauded. Let us hope that the Vermont Senate, now considering the bill, will follow suit and approve the Working Lands bill, so that we can work together to vigorously conserve Vermont’s working lands and rural culture.

VTDigger

Controversy around the bill, S. 28, surrounds language about who is eligible to be a party to Act 250 hearings, in response to what environmentalists call an erosion of citizens’ rights to be represented.

The other provision in dispute begins a four-year pilot project in the Washington, Chittenden, and Rutland County Act 250 District Commissions that would formalize some proceedings and change the process and possibilities of appealing to the Environmental Court.

The environmental community and their allies are attracted to new language describing who has a “particularized interest” in a proposed development and therefore is eligible to be a party in Act 250 hearings.

Sen. Ginny Lyons, the sponsor of S. 28. VTD/Josh Larkin

“There’s been a noticeable narrowing of what it means to be a party in an Act 250 process,” explained Sen. Ginny Lyons, D-Chittenden.

Ron Shems is chair of the Natural Resources Board, the state agency that administers environmental permitting. He says the bill aims to clarify existing law on party status, not change it. “It’s basically to ensure that people who have a right to participate, can participate.”

A 2010 Environmental Court decision (In re Pion Sand & Gravel Pit) is cited in the bill itself as an “overly rigorous” decision that the bill corrects, because it wrongfully excluded legitimate parties. In the decision, Environmental Judge Thomas Durkin kept neighbors of the proposed sand and gravel pit out of the District Commission hearings on the grounds that they hadn’t provided proof that the pit would affect their water supply or that dust, possibly containing asbestos, would blow onto their land.

As Sen. Dick McCormack, D-Windsor, put it, “Under present law, to establish you have a particularized interest, you have to basically win your case before you get party status. Party status is really supposed to just get you in the door, so you can try to win your case.”

On the other hand, Sen. Randy Brock, R-Franklin, said Friday that some business groups were interested in amending the bill’s language about party status and that he expected an amendment on Tuesday. By Monday, however, Dawn Francis of the Lake Champlain Regional Chamber of Commerce said they would wait until the bill reached the House to try to amend it.

Business groups have said publicly and privately that they want Vermont to use a federal standard under Article III of the U.S. Constitution, and similar language is already in the bill itself. However, Brian Shupe, executive director of the Vermont Natural Resources Council (VNRC), is skeptical. Access to the District Commission under Vermont law has historically been a low bar to clear, he said. “Neighbors have a right to be heard. We are concerned about going to a federal standard that raises the bar. … If Article III does create a low bar, we’re willing to consider how to phrase the party status provision.”

The other major issue in S. 28 is known as “on-the-record review.” Under current law, if a party appeals a decision of the District Commission, the case goes to the Environmental Court, where it is given a de novo hearing — basically starting over. Environmental advocates say the process allows citizens to participate in the less formal, quasi-judicial process of the District Commissions with the knowledge that they can start over with the help of an attorney if the case is appealed.

Business groups say they have been working for some time to save costs for everyone by not having the same case presented twice. “We advocated in 2004 to eliminate the need to hear a case all over again at the Environmental Court level,” said Francis.

With on-the-record review, the proceedings at the District Commission level would gather evidence that would be a permanent part of the case’s record. If the case is appealed, the Environmental Court would receive videos of the District proceedings plus written submittals, but it would not take new testimony except under “extraordinary circumstances.”

The bill empowers the District Commission in three of the state’s nine districts to experiment with on-the-record review for four years, after which the Legislature would evaluate the effects of using the procedure.

The change goes in the wrong direction, according to some advocates and legislators. Sen. Mark MacDonald, D-Orange, said, “You have people with money, who keep coming back over and over again [to change the permit process], to tell us that citizens can’t come back over and over again.”

MacDonald explained that he was looking at the change of law in light of this century’s history of changes to environmental permitting. “The folks who came in to ask us to change the law — they came in eight years ago to ask us to change the law, and we changed it. Then they came in two years ago to ask us to change the law, and we changed it. And now they’re back again this year to ask us, once again, for the third time, to change the same law. And the law they want us to change says you should do your homework and get a bite at the apple to begin with, and you shouldn’t be able to come back over and over again.”

At the Conservation Law Foundation, Louis Porter indicated the organization is dubious of the bill as written, particularly the on-the-record review pilot. “It’s not something we’re necessarily opposed to, but it has the potential to reduce public involvement and public engagement in what really is their permitting process.”

Shems at the Natural Resources Board acknowledged concerns of both sides, but he likes the idea of the four-year pilot project. “Everyone agrees that it’s difficult to have to duplicate evidence and duplicate testimony; that’s an expense we can look to trim. But some people are concerned that going on the record would create too much formality with the District Commissions,” he said. “The other school of thought is that District Commissions, being a forum that is much more accessible than a court, for example, you create a record that preserves citizens participation, because that’s where they can have their say, and it’s memorialized by the record. A pilot project would let us find out who’s right.”

Other parts of the bill have generated little or no controversy. One would specify a process for a party to force a district commissioner to be recused from a case where the commissioner has a conflict of interest, with the chair of the Natural Resources Board making the final decision. Shupe at VNRC said, “This is something that should have happened decades ago.”

The other major provision would create a new magistrate position at the Environmental Court; the Senate Appropriations Committee has proposed an amendment that the additional staffing be at the level of a staff attorney, who would command a lower salary.

The bill barely passed out of the Senate Natural Resources and Energy Committee last week, on a 3-2 vote. One of the no votes was from McCormack. By Friday, McCormack said he was ready to vote for the bill, because he likes the language describing who has access to the District Commission through party status — language some business groups are looking to change.

If the bill passes the Senate, the House Natural Resources and Energy Committee is prepared to take three days of testimony on it this week, according to committee Chair Tony Klein, D-East Montpelier. He’s waiting to hear the testimony before declaring a position on the bill. Klein did note that he and Rep. David Deen, D-Putney, introduced a comprehensive permit reform bill last year, and he expressed their disappointment that this more narrow bill is what it evolved to.

Asked about the narrow nature of this bill compared to the Klein-Deen bill, Shems said, “It’s been very difficult to move this incremental step. I think it would be even more difficult to move a more comprehensive step, so we’ve taken the approach to try to do it incrementally. Hopefully this is a step in the right direction and it will be expanded, and the end results will be the same.”

VTDigger

There is a fundamental problem with the way that wind farm development is occurring in our mountains, resulting from a lack of planning which would provide citizens and regulators with a better opportunity to know where these projects may be sited in the future.

On other issues Vermont has a long history of protection of its ridgelines through a public process that allows for more thoughtful and orderly consideration. One example is the report of the Gibb Commission which led to the adoption of Act 250 in 1970. All development over 2,500 feet was subjected to Act 250 review regardless of its size. Criterion 8 of that act protects aesthetic and scenic values. However, public utility development is not subject to these rules.

When major issues of ridgeline development have arisen in the past, the voice of the citizens has been powerful, and Vermont stands out as a place where public opinion and participation in these major issues is possible. An example is the Green Mountain Parkway, proposed along the spine of the Green Mountains. In this case, the legislature concluded that this dramatic change required a vote of the people, and it was promptly rejected by the voters. In its place we have the Green Mountain Club’s “footpath in the wilderness” – the Long Trail.

With this history in mind, I think we could do a much better job in planning for the development of wind projects, keeping in mind our proud history of recognizing that our mountains, ridgelines and hill tops have great value and importance in making Vermont such a special place, and where we have managed to avoid some of the type of development which would seriously impact our values as well as our tourist-based economy.

Under the present situation, there is no advance opportunity to understand where the next proposal will occur, and to what extent these projects will cumulatively compromise the beauty of our mountains. Grandpa’s Knob and the recent approval by the Green Mountain National Forest are two of the latest examples of projects where we are confronted with dramatic changes to our ridgelines in a less than transparent manner. With the governor’s recently published energy policy, and the potential opening of all public land to consideration, it is clear that such development could occur anywhere.

Therefore, I believe that the Agency of Natural Resources, consulting with the Public Service Board, should undertake a planning process to determine the ultimate scope of wind power development, the appropriate criteria, and where the most suitable sites will be. It would define the extent to which Vermont’s ridgelines would be impacted, and would help to guide the location of individual projects. Citizen involvement needs to be an important part of this planning process. A proactive, rather than reactive, approach is badly needed.

Wind power is important – but until we develop clearer public policy, transparency in location, and a process for citizen involvement, then the landscape in Vermont may be compromised without adequate review.

VTDigger

It happened again.

With increasing frequency, national articles about Vermont are published within weeks of each other. One will attest to the resiliency of Vermont’s economy and the other will acknowledge our great quality of life.

On Dec. 6, the United Health Foundation ranked Vermont as the healthiest state in the union for the third year in a row. We ranked first in 15 of 23 measures of public health (http://www.americashealthrankings.org/Rankings). One week later, on the 13th, Bullhorn, a national recruiting software company, issued its annual report on new job openings. Vermont leads the nation in creating jobs with a 62 percent increase over last year (http://www.bullhorn.com/news-event/job-opportunity-index). (Coincidently, Alabama, which United Health Foundation ranked the 46th healthiest state, was the only state in the Bullhorn ranking to post a negative job openings number.)

Earlier this year, CNN Money ranked Vermont as the fifth smartest state in the country while the Wall Street Journal reported that Vermont might be the best place to secure an SBA loan due to the state’s lowest-in-the-nation default rate.

We are regularly ranked the greenest state, the best state in which to raise a family and the safest state. And, according to the Bureau of Economic Analysis, Vermont ranked 10th among the 50 states in real GDP growth in 2010 and the Federal Reserve reports that over the previous eight years, Vermont’s GDP grew at 2.5 percent, outpacing the federal growth rate of 2.1 percent.

By conventional measures, Vermont is not “friendly” to business. Our high taxes and tough regulations are supposed to make us unattractive to business investment. But the data in many recent articles and reports indicate that our quality of life is a real engine of economic development, as first evidenced in 1956 when Thomas Watson Jr. decided to build an IBM plant close to the ski areas he so enjoyed.

But quality of life is an elusive concept and unless we can monetize it, it won’t factor into our economic strategies and formulae. It’s common to believe the Vermont we all love is built upon some old-fashioned values such as a sense of community, an aversion to debt and a strong work ethic. But Vermont is also the result of bold financial choices that can surely be monetized. Here are some examples:

•Vermont’s decision to ban billboards in 1968 had measurable economic impact. Ad agencies lost revenues. Businesses lost customer traffic. Farmers lost lease payments for billboards placed on their land. Despite this financial impact, Vermont invested in its quality of life. As the U.S. Supreme Court ruled (Berman v Parker, 1954), “It is within the power of the legislature to determine that the community should be beautiful as well as healthy.”

•Two years later, Vermont adopted Act 250 to ensure that real estate development does not compromise state assets such as natural resources, civic capacity, public infrastructure and scenic beauty. The law’s provisions have withstood four decades of complaints that it discourages businesses from moving to or remaining in Vermont and has scared away millions of dollars of investment capital. The cost appears to have the support of Vermonters as the law has remained essentially unchanged for 40 years.

•Vermont passed the first “bottle bill” in 1953 banning non-refillable bottles. It was overturned in 1957 due to intense lobbying by the beer industry. But in 1972 we became the second state to regulate bottle redemption to reduce litter and promote recycling. A 2007 report by DSM Environmental, reported net costs of the bottle bill to distributors and bottlers in excess of $5 million.

•The current commitment to health care reform is a long-term investment in the well-being of all Vermonters. The costs and savings are still to be distributed but universal access to health care will be a major boost to Vermont’s quality of life.

By these and many other initiatives, Vermont has made real investments in its quality of life. Now the relative strength and resiliency of our economy suggest that those investments are paying handsome dividends.

Maybe the old-fashioned value that most effectively nourishes the Vermont economy is the realization that there’s more to life than money.

VTDigger

Mormon Temple, Salt Lake City

Editor’s note: This piece by Jeffrey Thomson first appeared on the SCOV Law Blog.

In re Times and Seasons, 2011 VT 76

The sensible side of me takes great consolation in Vermont’s Act 250 and its role as a barrier (often the only barrier) to some of the more baroque development proposals in many of Vermont’s zoning-free towns. Yet, the part of me that relishes the “schemes of folly” has always wanted to go and see the Joseph Smith Theme Park & Gift Shop! At least, the gift shop portion that is—welcoming me to the commercially friendly park of Latter Day Saints!

If you are still confused by my ironic enthusiasm, consider this: the Joseph Smith Memorial—the birth place of the founder of Mormonism—is located on a little traveled and less improved road on the far-side of a remote mountain at the outskirts of South Royalton. Marked only by few innocuous direction signs. The Memorial is a tasteful, hidden treasure situated on a hilltop that inspires awe, wonder, and bit of reverence that no doubt inspired the young Smith during his formative years. If sticking an enormous South-of-the-Border on this pristine site still sounds like a perfectly sensible idea to you, then I apologize for my sarcasm.

The Time and Seasons deli and gift shop is an idea that has been around since my Vermont Law School days. Having lived in Royalton and hiked the sublime lands around the Joseph Smith Memorial, I believe that if Act 250 is designed to prevent foolish land use ideas, then this is perfect test case. This is why during my time at VLS, my friends and I joked about the “Joseph Smith Memorial Theme Park” venture as the embodiment of what was wrong with unregulated development.

In all fairness, though, Time and Seasons, LLC is a serious venture that has been fighting hard to get its Act 250 permit despite denials from the District Commission, the Environmental Board, the Natural Resources Board, and Environmental Court.

The main sticking point in litigation for the Time and Seasons’ plan has been its reduction of “primary agricultural soils.” At the time of its initial Act 250 application, criterion 9(B) of the act required projects to “not significantly reduce the agricultural potential of the primary agricultural soils.” In the alternative, if a significant reduction existed, then Applicant needed to prove through four sub-criteria that this use was essentially unavoidable, the only reasonable use for the land, a minimum impact, and would not impact adjoining agriculture or forest lands. The old Environmental Board found that there were 2.8 acres of primary agricultural soils on the 7.3-acre project site and that the project would significantly reduce the agricultural potential of 1.9 acres of these primary agricultural soils. Finding this loss of two-thirds of the primary agricultural soils on the site to be a significant reduction under the statute, the Board concluded that applicant failed to carry its burden to comply with Act 250.

Applicants originally appealed this decision to the SCOV in 2008. The SCOV affirmed the Board’s determination and concluded that the project did not meet the criteria for the reduction of primary agricultural soils.

However, during the course of that litigation, a statutory amendment to Act 250 changed the definition of “primary agricultural soils” in such a way that could arguably be beneficial to the Time and Seasons’ application. In 2008, Time and Seasons filed a reconsideration request with the District Commission pursuant to 10 V.S.A. § 6087(c), which allows an applicant to apply for reconsideration within six months of a final Act 250 permit application denial, if the applicant certifies that the deficiencies causing the denial have been corrected. The District Commission applied the amended definition and found that applicant’s project still failed to satisfy criterion 9(B) and denied the application. On appeal to the Environmental Court, the court found that the applicant could not rely on the amended definition of “primary agriculture soils,” and again denied the application.

In today’s case, the SCOV tackles the issue of whether or not Time and Seasons could rely on the amended definition of “primary agricultural soils” on appeal. The issue takes us into an interesting area of law, the vested rights doctrine, in which the SCOV has adopted the minority view. In Vermont, an applicant gains a vested right in the governing laws and regulations in existence when a complete permit application is filed. Therefore, Time and Seasons has a vested right to the laws in effect at the time of its original Act 250 permit application for the deli and gift shop project.

The SCOV explains that it adopted its interpretation on which regulation applies—which most states do not apply—because it was easier to administer, was likely to avoid protracted litigation and maneuvering, and gave the parties a degree of certainty.

The SCOV finds that the submission of an Act 250 reconsideration application is not a “separate vesting event,” but simply a continuation of the initial application process. The SCOV sheds further light of the vesting rights doctrine, stating that “an applicant on reconsideration may not simultaneously take advantage of the laws in effect at the time of the initial application and those in effect at the time of the reconsideration application—it is not a two-way street.” To allow Applicant or anyone else to take advantage of new regulations by filing a motion for reconsideration would violate the spirit and principles behind these purposes.

In the end, Time and Seasons could not even prove that a favorable change in the law brought their plan into compliance with Act 250. They still had the burden of showing that changes to the project itself corrected the deficiencies within the initial plan. However, this does not prevent them from submitting a new Act 250 application and relying on the new statutory language. I have a feeling that we haven’t heard the last from The Joseph Smith Memorial Theme Park! The line for tickets starts here.

VTDigger

Over the past four decades, Vermont has enacted a patchwork of planning and regulatory systems to guide land development while protecting our natural resources. And although the state’s planning and zoning laws, water quality standards, Act 250 and other regulations might be protective, effective and user-friendly in and of themselves, they often work poorly together, costing Vermonters and state government more than we can afford.

There are many of us in Vermont who think it’s time to make some structural adjustments to our permitting process.

A new entity — the Department of Environmental Quality — could be established to hear appeals from Agency of Natural Resources permits and Act 250 land-use and local-zoning decisions.”

It’s been 40 years since Act 250 was passed, and in the years since, many state and federal laws have been put into place. Yet we have never taken the time to step back from these regulatory processes to assess their redundancies and inefficiencies, nor their cumulative effectiveness in protecting natural resources.

As a result, Vermont does not have a “permit process” per se. We have many individual permit processes — and therein lies the problem.

Our permit systems have become more redundant and litigious, requiring legal assistance, stamina and capital. This shuts many Vermonters out of the process. There are inefficiencies, issues of fairness and access, and unnecessary time and expense to all participants, including applicants.

The 1970s and the 1980s were the years when most of our environmental regulations and planning laws were passed. This era of intense legislative action was a response to rampant growth and pollution. Climate change and energy security were hardly on the radar screen and were barely part of our vocabulary until the 1990s.

Today we have a very different set of economic and environmental concerns that arise from the effects of climate change and the transition into a new energy future. Energy conservation and efficiency, increased transportation options for Vermonters, affordable housing, smarter land-use patterns that concentrate growth in town centers and leave working landscapes for the production of food and fuel — all could help Vermont flourish in the 21st century.

There is a broad cross-section of lawmakers, interested groups and individuals who have worked during the past year to build consensus on an approach to aligning the various permitting processes that is comprehensive and addresses a changing Vermont. Last year this idea was drafted into two bills sponsored by the chairs of the House Fish, Wildlife and Water Resources and House and Senate Natural Resources and Energy committees, but failed to progress for lack of time. However, earlier this month, the Senate began discussing a similar version of that legislation.

The basic proposal calls for a consolidation of three state agencies: the Vermont Environmental Court, the Vermont Natural Resources Board and the permitting functions of the Department of Environmental Conservation at the Agency of Natural Resources. This new entity would be called the Department of Environmental Quality (DEQ). A three- to five-member professional board appointed through a judicial nominating process would be established to hear appeals from Agency of Natural Resources permits and Act 250 land-use and local-zoning decisions.

The proposal also would begin to integrate the myriad local zoning standards and processes with state regulations through better growth-center planning and modifications to the criteria of Act 250 to address today’s land-use and environmental concerns.

We have grave needs resulting from the threats of climate change and energy insecurity, economic contraction and a shortage of affordable housing. Yet these demands bring with them unique opportunities to rethink Vermont’s permitting infrastructure and criteria.

This proposal would save Vermonters money and better protect our invaluable natural resources. It would create incentives to develop and redevelop our town centers, streamline cumbersome elements of permitting and result in better outcomes for the economy, the environment and all Vermonters.

VTDigger

CONTACT: David Mace (802) 828-5229

February 24, 2010

Revised Rule Clarifies Protection Of Archeological Sites and Historic Resources

MONTPELIER, Vt. – The state has officially filed a proposed revised rule for protecting archeological and historical sites during development, beginning the formal process of review.

Officials with the Agency of Commerce and Community Development’s Division for Historic Preservation said the changes reflected the feedback received during five public meetings this summer around the state.

“The public meetings to get informal feed-back on the proposed changes were very well attended. We heard from a broad spectrum of the archeology and applicant communities about the proposed rule changes,” said Giovanna Peebles, the State Historic Preservation Officer and head of the Division for Historic Preservation. “Based on that, we have further revised our original suggested changes to clarify all aspects of the original rule, including the roles of the participants in the Act 250 process.”

Under Act 250, the state’s environmental protection and development review law, the Division for Historic Preservation makes recommendations to the district environmental commissions on whether a proposed development would impact “historic sites,” including archeological sites.

The proposed rule revisions clarify that District Commissions, not the Division, have the final decision-making authority about such questions as whether to require additional field studies, and whether a site is historically significant enough to warrant protecting it.

“We don’t issue permits,” Peebles said. “The Division provides testimony to the District Commission about historic and archeological resources, on whether or not a project will adversely affect an ‘historic site,’ and on how much field study should be done to determine whether an area is historically significant and should be protected if a permit is issued. The District Commission makes those decisions.”

One concern raised by the archeology community was that undiscovered “potential” sites must continue to be considered and protected where possible. Peebles, who is also the State Archeologist, says that the revised rule clearly provides for this within the ability of existing state law.

Peebles said that the revised rules clarify that the definition of “historic site” includes archeological sites that have not yet been discovered, and encourages applicants to work with the Division as early as possible in the planning process to identify and protect sites, even well before an Act 250 application is submitted.

“Based on several steps during project review, Division staff can identify an area as historically significant and recommend to the District Commission that an archeological investigation be conducted by the applicant to ensure no undue adverse effect to significant archeological sites,” Peebles said. “The applicant still has the opportunity to present evidence to the commission disputing that.”

The proposed revised rule also sets additional time limits for reviews to make the process more predictable for permit applicants, with exceptions for winter months when the ground may be frozen and archeological field assessments impossible.

After review by the Interagency Committee on Administrative Rules, the proposed rule revisions will be submitted to the Secretary of State’s Office. The formal rules adoption process includes a public hearing.

After that the rule must be reviewed by the joint Legislative Committee on Administrative Rules before it can be put in place.

Additional details and the draft guidelines are available at www.HistoricVermont.org

VTDigger

It’s not clear yet what will distinguish any one candidate from another in the 2010 governor’s race, given the general agreement on issues among the pack of five Democrats so far and the extremely cordial kickoff debate held by the Vermont League of Conservation Voters in Burlington last night. Lieutenant governor and gubernatorial candidate Brian Dubie didn’t attend the event.

Two and a half weeks ago, Vtdigger.org reported that each of the five Democrats had made a commitment to close Vermont Yankee. Last night, Secretary of State Deb Markowitz, Sen. Susan Bartlett, Sen. Doug Racine, Senate President Peter Shumlin and former Sen. Matt Dunne reiterated the reasons why they believe the nuclear power plant should be shut down in 2012. They also agreed that the Act 250 permitting system has flaws, but vowed to keep the goals of the law intact; they vehemently supported the state’s affordable housing and conservation programs; and they each voiced concern about wastewater and stormwater pollution.

Should Vermont Yankee be shut down in 2012? The candidates say yes

The sound bites

Racine: “Entergy has given me no confidence that they are operating Yankee safely and that’s a bottom line issue for me.”

Shumlin: “How many people have been told that we need this cheap power. If it’s so cheap, why won’t they tell us what the price will be?”

Dunne: “Every day goes by that we are not clear about what we’re going to do about Vermont Yankee is simply irresponsible.”

Markowitz: “Vermont Yankee is not part of our energy future. Our future rests with local renewable energy and efficiency.”

Bartlett: “Our future is in renewable energy. Every year Vermonters send out of state $1 billion. That’s basically the size of our General Fund budget, just think if we kept half that — $500 million a year in state.”

Answers to questions about Act 250, the Vermont Housing and Conservation Trust Board and water pollution follow.

Does Act 250 need to be changed?

The sound bites

Dunne: “We need to make sure that important laws like Act 250 are not the scapegoats for the fact that we have not had an economic development plan in this state for the last eight years. That doesn’t mean we can’t make changes to Act 250 to make it better.” Dunne is calling for a more predictable and transparent permitting process. He would make redevelopment of brownfields a priority.

Markowitz: “What I’ve heard is that it isn’t the standards aren’t the problem with Act 250, it’s really the process. Folks want a thumbs up or thumbs down. We have to look at the bureaucracy of the Agency of Natural Resources.” Markowitz says ANR has “lost its way.”

Racine: “Act 250 works. Are there shortcomings? Yes. Can we make it better? Yes. But to me it’s about management, it’s about having a governor who’s committed to a clean environment and who is committed to making the system work and who is committed to not letting flaws in the system become excuses to diminish our environmental protections.”

Bartlett: “What’s wrong with the permit process? It’s too long, it’s too difficult for citizens to be involved. The fundamental flaw in attempts at permit reform has been the failure to integrate the 40-50 permits ANR issues. Act 250 needs to be simple, fast and affordable.”

Shumlin: “Act 250 has served us well, and the reason we don’t have the problems of Las Vegas and Miami and the rest is because we don’t speculate here. We have a process that allows us to plan.” The Douglas administration, George Crombie and the rest have almost single-handedly destroyed environmental protection in this state.”

Would you continue to fund the Vermont Housing and Conservation Board?

The sound bites

Markowitz: “These are investments that pay back in our communities. We can think of it as our permanent stimulus fund.”

Bartlett: “It’s great economic development.” Bartlett says she would use bonded dollars to fund VHCB investments.

Racine: “We would have to go to the Capital Bill to fund it. Businesses make investments even when times are tough. It’s only at their peril that they ignore making investments. And the state is no different.”

Shumlin: “The Douglas administration will propose not to do conservation in tough economic times.” Shumlin says land conservation is even more important than ever with the onset of global warming.

Dunne: “It’s important to stay focused on this longterm goal.” Dunne’s father helped to found the Vermont Land Trust.

How would you protect Vermont’s waterways from stormwater pollution?

The sound bites

Bartlett: “We have failed to implement this (stormwater) policy for at least the last 10 years. … There are inexpensive easy ways to mitigate stormwater.”

Racine: “I would start by enforcing our existing laws. I would address suburban sprawl and work with communities that are addressing make sure taking maximum advantage of visionary laws and programs with downtowns and growth centers as a way of targeting development.”

Dunne: “Developers who are trying to cutting corners and adding to pollution (should) pay for it.”

Markowitz: “One of the major contributors to pollution is government.”

Shumlin: “The tension between dairy farmers and businesses has to end. Farmers don’t want to be polluting the resources precious to Vermont, so the question is, how do we give them the tools to make sure they’re not polluting the streams.”

The candidate’s pitches

The sound bites

Markowitz: We’ve been offered a false choice by Jim Douglas and the Republicans that every time we choose the environment, we’re doing it at the expense of the economy.

Bartlett: “This election is going to be about government learning how to restructure itself, how we offer as government the services people need in a better, faster, more efficient manner.”

Racine: “Climate change is the biggest threat to the human race and our planet since the dawn of the nuclear age. Vermont can take the lead, has taken the lead and should continue to lead.”

Shumlin: “As we as a society get off our addiction to oil and move to renewable energy technology, there’s going to be a huge economic boom created. This transformation is going to affect everything that we do, how we move around, how we produce our food, how we build our homes.”

Dunne: “In order to turn this economic corner and to be a leader in the country in terms of green jobs, we must be a leader in the environmental movement.”

VTDigger