Carly Berlin covers housing and infrastructure for Vermont Public, in partnership with VTDigger.
Gov. Phil Scott’s administration is moving forward with rule changes that will make it easier to build housing near wetlands, despite repeated objections from lawmakers.
Scott officials have narrowed the scope of the changes and, in doing so, won backing from environmental organizations that had threatened to sue the state.
“We’re agreeing that we’re not going to challenge it in court because we think this is a good faith effort to move forward,” said Jon Groveman, policy and water program director at the Vermont Natural Resources Council.
The fight over wetland rules has played out while Vermont’s leaders have been locked in a wider debate over land use regulations, prompting questions around where the state should encourage home construction and where it ought to bolster environmental reviews.
Nearly one year ago, Scott, a Republican, issued an executive order that would allow housing development to proceed without a permit in certain wetlands that are not officially mapped by the state — specifically in areas that the state has designated for growth. The order also cut in half the buffer zone around a wetland that developers would need to avoid, from 50 feet to 25 feet.
Homebuilders cheered the move, but environmental organizations cried foul, arguing that Scott’s order — issued while lawmakers were not in session — violated the separation of powers. Soon after, Attorney General Charity Clark issued an opinion suggesting the Scott administration ought to go through a formal rulemaking process.
When the Scott administration brought those rule changes to a legislative oversight committee in May, the panel rejected them in a 5-3 party line vote. Democratic lawmakers argued that the rule changes would defy the Legislature’s intent to expand the number of wetlands in Vermont in an effort to mitigate future flood damage. The Vermont Natural Resources Council threatened to sue if the Scott administration enacted the changes over lawmakers’ rebuke.
After that, environmental groups, housing advocates and officials from the Agency of Natural Resources met to chart a path forward. The agency ultimately agreed to pare back the proposed reforms to avoid litigation, scrapping the provision that would have allowed homebuilding in unmapped wetlands but keeping the measure that reduces buffer zones from 50 feet to 25 feet in villages and downtowns.
“We have estimated that that should free up or create about 2,000 acres of additional developable land within our designated areas statewide,” said Agency of Natural Resources Secretary Julie Moore. The agency has argued that denser building in these designated areas will reduce sprawl and cut down on lengthy commutes.
When administration officials brought their narrowed proposal to lawmakers for sign-off last month, the oversight panel rejected it again, arguing that the rule changes still defied legislative intent and the separation of powers.
“A wetland is a wetland, regardless of where it is,” said Sen. Seth Bongartz, a Democrat from Manchester, at a hearing on July 23. He pointed to state law that stipulates that wetlands regulation should be guided by science. “I haven’t heard any evidence that reducing that buffer from 50 to 25 is actually somehow going to enhance the value of the wetland.”
Scott issued a withering statement shortly after the committee’s rejection. “If the legislative majority cannot come together around a compromise supported by both housing and environmental advocates, it’s hard to see how we’ll solve Vermont’s affordability crisis without having more mainstream legislators in Montpelier,” he said.
Now, the Agency of Natural Resources is moving forward with the latest rule changes despite lawmaker’s objections, according to Moore. The organizations Let’s Build Homes, Vermont Natural Resource Council, Conservation Law Foundation, and Lake Champlain Committee signed onto an agreement with the agency supporting the changes on Tuesday. The agreement lays out a long-term plan to map more of the state’s wetlands and create a simplified permit process to streamline homebuilding.
In the near term, homebuilders seeking to build within 26-50 feet of a wetland will need to register with the state before starting construction, according to Moore.
The rule change will go into effect on Aug. 8, and sunset at the end of 2029.
