A panel of lawmakers figuring out how to update wetlands regulations has come up with a different idea: asking two state agencies who both oversee wetlands protection to “mend their relationship.”
For the past two years, Vermont lawmakers have wrestled with simplifying the state’s wetlands regulations. Unable to figure out what to do last session, they created a study committee to further look at whether to change the law.
In a letter last week to House and Senate leaders, the committee recommended that the Legislature not change wetlands law right now. The panel hopes an ongoing Agency of Agriculture, Food and Markets process to write new rules for some on-farm wetlands will clear up some of the confusion.
And they are calling on the state Agency of Natural Resources and Agency of Agriculture to work together better.
“The Study Committee insists that the agencies mend their relationship and improve cooperation and coordination, especially with regard to the regulation of farming in wetlands,” states the report.
The Agency of Natural Resources proposed changes to wetlands law last session, including aligning the state wetlands definition with the federal one and limiting what activities need a wetlands permit.
Currently, “areas used to grow food or crops in connection with farming activities” are excluded from the state’s definition for what counts as a wetland. While there’s broad agreement that cropland or land used to grow food for livestock is excluded from ANR’s wetlands permitting, the agriculture agency and ANR disagree about how to interpret the last five words of that definition.
“The ‘in connection with farming activities’ I think is the sticking point,” said Alyson Eastman, deputy secretary of the Agency of Agriculture, Food and Markets, “because ANR’s adopted wetland rules do not recognize ‘in connection with farming activities’ but it does recognize areas that grow food or crops.”
The agriculture agency thinks that other farm practices, like building cow fences or laneways, should fall under that exclusion, she said.
When asked whether ANR views the exclusion as applying to a separate category of farming activities beyond cropland, Moore said that “no, that’s not how we’ve historically interpreted it.” She pointed to a 2016 Supreme Court decision, ANR vs. McGee, in which the court says that the farming exemption is to be applied “narrowly” and “requires current and ongoing use of land for growing crops.”
“To the extent that land is no longer available for the growing of food or crops, we consider it to no longer be an exempt activity,” Moore said.
Moore added that there is “broad agreement” between the two agencies about making it easier for farmers to implement at times mandatory water quality improvement practices. In that vein, ANR a year and a half ago started allowing farmers to not have to go through wetlands permitting if they are doing a water quality project on 5,000 square feet or less of a wetland or buffer, she said.
Last session ANR suggested that the exclusion be removed from the wetlands definition, with a separate carve-out put into law to exempt farming activities, including water quality projects, from wetlands permitting.
Meanwhile, lawmakers last year required the agriculture agency to update on-farm water quality requirements to apply to those excluded wetlands.
Eastman said it became clear to the agriculture agency through testimony last session that farmers need to better understand what areas of their operations fall under wetlands permitting.
“We at the agency see this as an opportunity to hopefully reach a resolution that meets our water quality goals and gives our farmers the predictability they need,” she said of the rule-making.
Lawmakers on the study panel said in last week’s letter that the agriculture agency should finish drafting the new rules before any changes to wetlands law are contemplated. They write that while “there may be some anxiety at ANR or among other interested parties” about what those rules will look like, they could “resolve many of the tensions or disagreements between ANR and AAFM.”
Moore said that the agriculture agency has “committed” to working with her agency on those rules and that she would reserve judgment until a draft comes out. She also noted that while lawmakers required the agriculture agency to write new wetlands rules last session, they did not change ANR’s jurisdiction over on-farm wetlands.
“It continues to leave the sticky situation that was in place before,” she added.
Eastman and Moore both said that the overlapping jurisdiction over wetlands on farms has been challenging for their respective agencies.
“For us, though perceived and I think seen as a disagreement, I would say that when there’s areas of multi-jurisdiction … it gets really interesting,” said Eastman.
During a public hearing in October, lawmakers on the wetlands panel heard an earful from landowners frustrated with what they say are convoluted and at times conflicting environmental permitting requirements.
The legislative panel called on ANR to continue convening its wetlands stakeholder group to gain input on the “technical and legal issues that arise” from wetlands regulation. They also requested the agency add more farmers to the group. Moore said that ANR plans to “immediately” continue working with that group to reach consensus about possible changes to wetlands law.
