Act 250 Reform Rebooted?

After being bogged down with a wide ranging Act 250 reform proposal last year, the House Natural Resources, Fish, and Wildlife Committee has started working through a new proposal developed in negotiations between the Administration and VNRC.  Still broad in scope, the proposal includes more positive provisions proposed by the Administration, while also containing a number of provisions raising concerns.

We will be providing more detailed information and analysis on various provisions in future updates, but listed below are summaries of some of the key provisions. To review the proposal, click here.  For an annotated walk through of legislative language, click here.

Below are some highlights of the proposal:

Act 250 Permit Fees; Industrial Parks 

This section clarifies the existing process to waive or reduce Act 250 application fees for development in industrial parks where a master plan has been completed.  Master planning at industrial parks allows for an up front and comprehensive review of all potential site constraints and impacts, which makes the review of individual construction permit applications simpler, faster and more predictable.  Clarifying that a fee waiver is available for construction permits in industrial parks where master planning has occurred will encourage master planning at these sites.

Presumptions for ANR permits in Act 250 Proceedings

Currently, state permits receive a presumption in Act 250 if the Natural Resources Board adopts those permit programs in a rule as having a presumption.  This section proposes to make all permits have a presumption automatically without adoption in a rule.  This does not affect the treatment of municipal permits before the Board.  It also does not alter the weight of the presumption given to State permits.

Enhanced Natural Resources Board

One of the centerpieces of the new proposal is the creation of a more “professional” Natural Resources Board to handle major development projects in central forum rather than having such projects be handled by individual districts.

All Act 250 applications would be filed with administrative districts.  Administrative districts  would make jurisdictional opinions; make determinations as to whether an application was a major, minor, or administrative amendment; and issue permit decisions (and amendments) for administrative amendments and minor permits.  Decisions by the administrative district would be made by the district coordinator.

The Board would have original jurisdiction over contested cases for major permit application review.  Hearings for major applications would need to be held in the location where the project is located unless the parties agree to an alternate location.  The Board would also have original jurisdiction over all for cause permit amendments or permit revocations.  The Board would have appellate jurisdiction over jurisdictional opinions; downtown board designations of designated downtowns and new neighborhood areas; and regional planning commission approvals of municipal plans and review of municipal zoning ordinances for purposes of interstate exit jurisdiction.  When rendering a decision, the regional commissioners would be voting members on factual issues but not on Act 250 policy or legal interpretations.  This is to provide a regional perspective as to the project but also consistency to Act 250 policy regardless of where the project is located.

Appeals from the Board would be directly to the Supreme Court, in the same manner that the  previous environmental board decisions were directly appealed.

The revised Board would consist of a chair, two permanent members, and two regional commissioners.  The two regional commissioners would be from the area where the project is located and sit on the Board to make factual findings with respect to a case.  The bill proposes that the Board members have experience in land use, natural resources, economic development, or environmental justice areas.  The bill also directs the Governor when making selections to the Board to consider gender, racial, and economic diversity in the appointment process.

The chair and two members would be selected using the judicial nominating committee.  All board members, including regional commissioners, serve six year terms and would be removable only for cause and would be subject to increased ethical standards.

Review of Environmental Permit Appeals

This section requires that the Agency of Natural Resources review and make recommendations on whether appeals of Agency permits should be on the record.  The Agency is required to conduct a stakeholder process in making these recommendations.

Climate Change

This section proposes to modify Act 250 criteria to better address climate change from both a mitigation and adaptation perspective by requiring compliance with the residential stretch code and by requiring project design, layout, and materials adequate to withstand the effects of climate change now and into the future.

Expanded Jurisdiction to Development Near Interstate Interchanges

This section proposes to amend Act 250 jurisdiction to require permits for commercial and industrial developments near points of access or exit from the interstate highway system.  The jurisdictional radius can be modified by demonstrated that local planning processes address issues of concern with development in interstate exits.

Critical resource protection; Act 250 jurisdiction over ridgeline development

This section proposes to amend existing Act 250 jurisdiction to include the construction of improvements for commercial, industrial or residential use on ridgelines between 1,500’ and 2500’, excluding improvements for forestry and agriculture.  Construction of improvements above 2500’ is already subject to Act 250 jurisdiction and will remain so.  This proposal defines the physical characteristics of a ‘ridgeline’ and statewide GIS mapping will depict those defined areas across the landscape.

Critical resource protection; Act 250 Jurisdiction over fragmentation

This section proposes to amend existing Act 250 jurisdiction to include new road construction of a certain length.  Small-scale development has the potential to fragment intact forest blocks or connecting habitat if that development encroaches far from existing roads into undeveloped areas; however, Act 250’s current jurisdictional triggers may not capture this type of development.  This proposal requires an Act 250 permit for any new road and associated driveway that exceeds 2000’ in length and provides access to a parcel greater than 1 acre.

Protection of Forest Blocks and Connecting Habitat 

This section proposes to expand the Act 250 Wildlife criteria to consider impacts to forest blocks and connecting habitat.  Maintaining intact forest blocks and the network of habitat that connects them is a critical climate change adaptation strategy.  Fragmentation of these landscape features is an emerging issue in Vermont and this change to criteria, along with the expanded jurisdiction over new, long roads proposed in Sec. 1.B, above, will provide Act 250 with effective tools to address this issue.

More Information and Contacting Legislators

For more information about this issue, including options for engaging with legislators, please contact us at info@aivt.org.

If you want to find your legislators and their contact information, click here.  You can also leave messages for legislators with the Sergeant at Arms Office at 802.828.2228.