A Stripped Down Version of the Bill Moves to the Senate; Enhanced Environmental and Climate Change Provisions Remain
On Friday, February 28th, the House passed H.926 with a vote of 88 – 52 (8 absent). A few last minute amendments helped to ease its passage, including the following:
- authorizing the Department of Fish and Wildlife to bill an applicant for the costs of participating in any major permit application,
- revising the definition of “greenhouse gas” to align with the definition in the Air Pollution Control section of Title 10 of the Vermont Statutes, and
- revising the elevational trigger for Act 250 jurisdiction back to 2,500 feet from the proposal of 2,000 feet.
Notably, the exemptions from Act 250 jurisdiction for designated downtown development districts (24 V.S.A. § 2793) and designated neighborhood development areas (24 V.S.A. § 2793e) remain in the bill.
While the bill should have “crossed over” to the Senate after passage by the House, the as-passed bill is not yet available online. Once the bill is in the hands of the Senate, it is expected that some of the more controversial provisions that were stricken by the House may be revived and debated again. These include the structural changes to (and authority of) the Act 250 oversight bodies, and the elevational trigger for jurisdiction. Other amendments related to the environmental criteria and climate change remain in the bill and are discussed below.
1. The Capability and Development Plan
The Capability and Development Plan (“C&D Plan”) was an early component of the Act 250 law, developed by the State in order to guide land use planning and provide for coordinated, efficient and economic development of the State. The bill would require the C&D Plan to explicitly recognize the risks and drivers of climate change, articulate the goal of minimizing the State’s emission of greenhouse gasses, and consider the effects of climate change when designing and choosing materials for future development. The bill also requires the C&D Plan promote a “healthy ecosystem” in Vermont, highlighting the importance of biodiversity and limiting uses which would threaten or significantly inhibit healthy ecosystems to situations in which the public interest is clearly benefitted.
2. Act 250 Criteria
To support the goals captured in the C&D Plan revisions, the bill adds a “purpose” clause to the general provisions of the State Land Use and Development Plans statutes which highlights protecting and conserving the environment and supporting the goals of the C&D Plan and Municipal and Regional Plans.
The bill’s specific revisions to the Act 250 permit criteria include the following:
- A new criterion requiring projects to be designed and constructed to withstand and adapt to the effects of climate change.
- Reorganizing the presently-combined air and water pollution criteria into separate and more specific categories. The revised air pollution criterion would include consideration of air contaminants, greenhouse gas emissions and noise emitted by a proposed project in relation to the proximity to sensitive receptors and emission dispersion characteristics. A project’s air emissions would need to meet both state and federal air pollution control requirements.
- Reorganizing all of the water quality criteria into a single section. In addition, the floodways criterion would be expanded to include consideration of fluvial erosion hazards.
- A new (and novel) criterion which would require that a project not cause an undue adverse impact to “forest blocks” and “connecting habitat” (terms newly defined in the bill). If a project would result in an undue adverse impact to forest blocks, connecting habitat, or rare and irreplaceable natural areas, a permit could only be granted under rules to be adopted by the Natural Resources Board to avoid, minimize, and mitigate such impacts. The bill requires the Agency of Natural Resource to include forest blocks on resource maps.
- Amends criterion 9(F) (building energy standards) to require a project to implement energy efficiency measures, which must be established by certification and inspection, and to comply with statutory building energy standards.
- A new (and novel) criterion requiring that no group of people or municipality will bear a disproportionate share of the negative environmental consequences of the project.
Agency of Natural Resources’ (“ANR”) River Program
To address flooding-related impacts that are exacerbated by climate change, the bill revises the scope of ANR’s Rivers Program. ANR would be required to create rules to designate “highest priority river corridors” defined as “those that provide or have the potential to provide critical floodwater storage or flood energy dissipation thereby protecting adjacent and downstream lands and property that are highly vulnerable to flood-related inundation and erosion.” Additionally, ANR would have to establish requirements for the issuance and enforcement of permits for projects located within a “highest priority river corridor.”
If you have questions about the proposed amendments to Act 250 or you are working on a project that may be subject to Act 250, please contact any of the attorneys in our Environmental Practice, including Zoë Sajor, Vic Westgate, Brian Dunkiel, Andy Raubvogel, and Geoff Hand.
