The Vermont Statutes Online

Title 10: Conservation and Development

Chapter 037: Wetlands Protection and Water Resources Management

• Subchapter 001: GENERAL PROVISIONS

• § 901. Water resources management policy

  It is hereby declared to be the policy of the State that:

  (1) the water resources of the State shall be protected; regulated; and, where necessary, controlled under authority of the State in the public interest and to promote the general welfare;

  (2) the wetlands of the State shall be protected, regulated, and restored so that Vermont achieves a net gain of wetlands acreage; and

  (3) regulation and management of the water resources of the State, including wetlands, should be guided by science, and authorized activities in water resources and wetlands should have a net environmental benefit to the State. (Amended 1959, No. 329 (Adj. Sess.), § 42, eff. March 1, 1961; 1961, No. 100, § 1; 1965, No. 116; 1975, No. 254 (Adj. Sess.), § 142; 1981, No. 222 (Adj. Sess.), § 11; 2023, No. 121 (Adj. Sess.), § 12, eff. July 1, 2024.)

• § 902. Definitions

  Wherever used or referred to in this chapter, unless a different meaning clearly appears from the context:

  (1) “Board” means the Land Use Review Board.

  (2) “Department” means Department of Environmental Conservation.

  (3) “Waters” means any and all rivers, streams, brooks, creeks, lakes, ponds, or stored water, and groundwaters, excluding municipal and farm water supplies.

  (4) “Water resources” means the waters and the values inherent or potential in waters and their uses.

  (5) “Wetlands” means those areas of the State that are inundated by surface or groundwater with a frequency sufficient to support significant vegetation or aquatic life that depend on saturated or seasonally saturated soil conditions for growth and reproduction. Such areas include marshes, swamps, sloughs, potholes, fens, river and lake overflows, mud flats, bogs, and ponds, but excluding such areas as grow food or crops in connection with farming activities.

  (6) “Class I wetland” means:

  (A) a wetland identified on the Vermont significant wetlands inventory maps as a Class I wetland;

  (B) a wetland that the former Water Resources Board identified in rules of the Board as a Class I wetland; or

  (C) a wetland that the Secretary, based upon an evaluation of the extent to which the wetland serves the functions and values set forth in subdivision 905b(18)(A) of this title, determines is exceptional or irreplaceable in its contribution to Vermont’s natural heritage and, therefore, merits the highest level of protection.

  (7) “Class II wetland” means a wetland other than a Class I or Class III wetland that:

  (A) is a wetland identified on the Vermont significant wetlands inventory maps; or

  (B) the Secretary determines to merit protection, pursuant to section 914 of this title, based upon an evaluation of the extent to which it serves the functions and values set forth in subdivision 905b(18)(A) of this title and the rules of the Department.

  (8) “Class III wetland” means a wetland that is neither a Class I wetland nor a Class II wetland.

  (9) “Buffer zone” means an area contiguous to a significant wetland that protects the wetland’s functions and values. The buffer zone for a Class I wetland shall extend at least 100 feet from the border of the wetland, unless the Department determines otherwise under section 915 of this title. The buffer zone for a Class II wetland shall extend at least 50 feet from the border of the wetland unless the Secretary determines otherwise under section 914 of this title.

  (10) “Panel” means the Water Resources Panel of the Agency of Natural Resources.

  (11) “Significant wetland” means any Class I or Class II wetland.

  (12) “Secretary” means the Secretary of Natural Resources or the Secretary’s authorized representative.

  (13) “Dam removal” has the same meaning as in section 1080 of this title. (Amended 1969, No. 281 (Adj. Sess.), § 4; 1981, No. 222 (Adj. Sess.), § 11; 1985, No. 188 (Adj. Sess.), § 1; 1987, No. 76, § 18; 2003, No. 115 (Adj. Sess.), § 16, eff. Jan. 31, 2005; 2009, No. 31, § 3; 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012; 2023, No. 121 (Adj. Sess.), § 13, eff. July 1, 2024.)

• Subchapter 002: VERMONT WATER RESOURCES BOARD

• §§ 903-905. Repealed. 2003, No. 115 (Adj. Sess.), § 119(b), eff. Jan. 31, 2005.

• Subchapter 003: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

• § 905a. Department of Environmental Conservation

  There is created the Department of Environmental Conservation, to be administered by a Commissioner of Environmental Conservation. (Added 1981, No. 222 (Adj. Sess.), § 11; amended 1987, No. 76, § 17.)

• § 905b. Duties; powers

  The Department shall protect and manage the water resources of the State in accordance with the provisions of this subchapter and shall:

  (1) Study and investigate the streams in the State and their basins, and cooperate with federal agencies in mapping them and in collecting and compiling data relating to run off and stream flow.

  (2) Cooperate with natural resources conservation districts.

  (3) Have supervision over and act as the State’s agency in all matters affecting flood control, channel clearing, and river bank protection. To discharge this responsibility, the Department shall:

  (A) Develop flood control policies and a flood control program that balances the need to protect the environment with the need to protect public and private property. The policy and program shall direct appropriate remedial measures following significant flooding events and shall define appropriate flood hazard mitigation measures. These measures may include:

  (i) flood debris removal and streambed and stream bank maintenance and restoration practices;

  (ii) identification of disaster-prone areas;

  (iii) land use planning assistance to minimize future damage from flooding;

  (iv) flood proofing measures for existing vulnerable private or public structures;

  (v) acquisition and relocation of structures away from hazard-prone areas;

  (vi) development of State standards to protect public infrastructure from disaster damage;

  (vii) structural hazard control, such as debris basins or floodwalls to protect critical facilities; and

  (viii) educating the public regarding the availability of flood insurance and the advisability of obtaining flood insurance.

  (B) Develop and implement steps to incorporate into other programs administered by the Department measures that decrease the likelihood and impact of future flooding incidents.

  (4) Make studies and investigations or demonstrations of problems relating to water quality with respect to pollution and causes, prevention, control, and abatement thereof as it may deem advisable, and when appropriate propose remedies to the Legislature.

  (5) Encourage the construction of sewage disposal plants by municipalities and encourage the construction of septic tanks and other proper methods of waste and sewage disposal in rural and industrial areas.

  (6) After the construction or major reconstruction of sewage disposal plants and attendant facilities, and at least once every three years, and once in any 12-month period upon petition by 10 or more people in interest from the municipality or an adjacent municipality, inspect the facilities so constructed, and similar facilities constructed for the purpose, to determine the efficiency of operation and maintenance, and submit a report to the appropriate municipal officials.

  (7) Foster and encourage recreational uses of the waters of the State and for this and other purposes cooperate with municipalities of the State and with agencies of the State concerned.

  (8) Accept and acquire in the name of the State by purchase, gift, or donation property rights in the waters of the State and facilities or improvements therein and for the purposes aforesaid improve and maintain the same.

  (9) Administer loans, grants, and contracts from the federal, State, and local governments and from other sources, public and private, with the approval of the Governor, for furthering the water resources program of the State as embodied in the statutes.

  (10), (11) [Repealed.]

  (12) Make available to any municipality in the State, to the extent funds are available, assistance relating to surveys, studies, and plans for pollution abatement works.

  (13) Undertake a continuing study and investigation of the groundwater in the State and cooperate with other governmental agencies in collecting and compiling data relating to the quantity, quality, and location of groundwater.

  (14) Subject to the approval of the Governor, enter into contracts and agreements with the United States as are considered necessary and advisable to provide, subject to legislative authority, assurances of State and local cooperation when those assurances are required by the United States for the purpose of providing protection against floods under federal flood protection projects.

  (15) In order to adequately protect the interests of the State in its water resources, and subject to limitations of duties otherwise provided by law, cooperate with the appropriate agencies of the federal and Canadian governments or of this or other states, or any interstate bureau, group, division, or agency with respect to the use of water from lakes and ponds, which are without or wholly or partially contained within this State, and to endeavor to harmonize any conflicting claims that might arise therefrom.

  (16) Assist municipalities in the development of water supplies and in the construction of facilities for storage, distribution, and treatment of potable water supplies and approve all plans for the construction of such facilities. The Department may provide planning and engineering assistance as requested in matters relating to preliminary surveys, studies, and plans, if such assistance is not otherwise available.

  (17) Adopt in accord with the Administrative Procedure Act those rules necessary for the proper administration of its duties.

  (18) Study and investigate the wetlands of the State and cooperate with municipalities, the general public, other agencies, and the Board in collecting and compiling data relating to wetlands; propose to the Board specific wetlands to be designated as Class I wetlands; issue or deny permits pursuant to section 913 of this title and the rules authorized by this subdivision; issue wetland determinations pursuant to section 914 of this title; issue orders pursuant to section 1272 of this title; and in accordance with 3 V.S.A. chapter 25, adopt rules to address the following:

  (A) The identification of wetlands that are so significant they merit protection. Any determination that a particular wetland is significant will result from an evaluation of at least the following functions and values which a wetland serves:

  (i) provides temporary water storage for flood water and storm runoff;

  (ii) contributes to the quality of surface and groundwater through chemical action;

  (iii) naturally controls the effects of erosion and runoff, filtering silt, and organic matter;

  (iv) contributes to the viability of fisheries by providing spawning, feeding, and general habitat for freshwater fish;

  (v) provides habitat for breeding, feeding, resting, and shelter to both game and nongame species of wildlife;

  (vi) provides stopover habitat for migratory birds;

  (vii) contributes to an exemplary wetland natural community, in accordance with the rules of the Secretary;

  (viii) provides for threatened and endangered species habitat;

  (ix) provides valuable resources for education and research in natural sciences;

  (x) provides direct and indirect recreational value and substantial economic benefits; and

  (xi) contributes to the open-space character and overall beauty of the landscape.

  (B) The ability to reclassify wetlands, in general, or on a case-by-case basis.

  (C) The protection of wetlands that have been determined under subdivision (A) or (B) of this subdivision (18) to be significant, including rules that provide for the issuance or denial of permits and the issuance of wetland determinations by the Department under this chapter; provided, however, that the rules may only protect the values and functions sought to be preserved by the designation. The Department shall not adopt rules that restrain agricultural activities without the consent of the Secretary of Agriculture, Food and Markets and shall not adopt rules that restrain silvicultural activities without the consent of the Commissioner of Forests, Parks and Recreation.

  (19) Cooperate with the agencies of the federal government and of the province of Quebec, adjoining states, and states through which water from Vermont streams flow in all matters relating to interstate streams.

  (20) [Repealed.]

  (21) Act as the Vermont Secretary of Natural Resources mentioned in the act of Congress, entitled “An act authorizing the construction of certain public works on rivers and harbors for flood control and for other purposes,” approved December 22, 1944. In this connection, the Department shall carry out the policy of the State as defined by section 1100 of this title. (Added 1981, No. 222 (Adj. Sess.), § 11; amended 1983, No. 173 (Adj. Sess.), § 1; 1985, No. 188 (Adj. Sess.), § 3; 1987, No. 76, § 9; 1989, No. 88, § 1; 1997, No. 51, § 1; 1997, No. 137 (Adj. Sess.), § 2, eff. July 1, 1999; 2001, No. 143 (Adj. Sess.), § 55; 2003, No. 115 (Adj. Sess.), § 17, eff. Jan. 31, 2005; 2009, No. 31, §§ 4, 14(b); 2011, No. 138 (Adj. Sess.), § 20, eff. May 14, 2012; 2023, No. 53, § 13, eff. June 8, 2023; 2023, No. 85 (Adj. Sess.), § 5, eff. July 1, 2024.)

• § 906. Investigators

  Investigators employed by the Department of Environmental Conservation when designated in writing by the Commissioner of Environmental Conservation shall enforce the provisions of chapters 37, 39, 41, 43, 47 and 49 and subchapter 3 of chapter 48 of this title; Title 29, chapter 11; sections 1215 and 1217 of Title 18; section 2201 of Title 24 and sections 4411 and 4444 of Title 24 insofar as those chapters and sections contain enforceable provisions and may summons or arrest violators thereof. In those matters, they may serve criminal process and subpoenas. They shall have the same powers as other informing officers to make and subscribe to complaints for violation thereof. (1965, No. 110, eff. June 22, 1965; amended 1971, No. 255 (Adj. Sess.), § 2, eff. April 11, 1972; 1981, No. 222 (Adj. Sess.), § 11; 1987, No. 76, § 18.)

• §§ 907-910. [Omitted.]

• § 911. Entrance upon lands; records, maintenance

  The Department employee or agent may enter upon lands for the purposes of inspecting and investigating conditions relating to sources of pollution of the waters of the State or the potential pollution thereof, and to determine whether the rules and orders of the Department are being complied with. Any authorized representative of the Department may examine any records or memoranda pertaining to the operation of disposal systems or related water quality projects. The Department may require the maintenance of records relating to the operation of disposal systems. Copies of these records shall be submitted to the Department on request. (1964, No. 37 (Sp. Sess.), § 7; amended 1981, No. 222 (Adj. Sess.), § 11.)

• § 912. Temporary emergency permits

  The Secretary or the Secretary’s designee shall expedite and may authorize temporary emergency permits under this title, pursuant to 3 V.S.A. § 2822(c). (Added 2003, No. 82 (Adj. Sess.), § 6.)

• Subchapter 004: WETLANDS DETERMINATIONS AND PROTECTION

• § 913. Prohibition

  (a) Except for allowed uses adopted by the Department by rule, no person shall conduct or allow to be conducted an activity in a significant wetland or buffer zone of a significant wetland except in compliance with a permit, conditional use determination, or order issued by the Secretary.

  (b) A permit shall not be required under this section for:

  (1) any activity that occurred before the effective date of this section unless the activity occurred within:

  (A) an area identified as a wetland on the Vermont significant wetlands inventory maps;

  (B) a wetland that was contiguous to an area identified as a wetland on the Vermont significant wetlands inventory maps;

  (C) the buffer zone of a wetland referred to in subdivision (A) or (B) of this subdivision (1);

  (2) any construction within a wetland that is identified on the Vermont significant wetlands inventory maps or within the buffer zone of such a wetland, provided that the construction was completed prior to February 23, 1992, and no action for which a permit is required under the rules of the Department was taken or caused to be taken on or after February 23, 1992. (Added 2009, No. 31, § 5; amended 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.)

• § 914. Wetlands determinations

  (a) The Secretary may, upon a petition or on his or her own motion, determine whether any wetland is a Class II or Class III wetland. Such determinations shall be based on an evaluation of the functions and values set forth in subdivision 905b(18)(A) of this title and the rules of the Department.

  (b) The Secretary may establish the necessary width of the buffer zone of any Class II wetland as part of any wetland determination pursuant to the rules of the Department.

  (c) The provisions of chapter 170 of this title shall apply to issuance of determinations under this section.

  (d) [Repealed.]

  (e) The Secretary may recommend to the panel that a wetland be classified as a Class I wetland under section 915 of this title. (Added 2009, No. 31, § 5; amended 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012; 2015, No. 150 (Adj. Sess.), § 9, eff. Jan. 1, 2018.)

• § 915. Class I wetlands

  The classification of any wetland as a Class I wetland, the reclassification of a Class I wetland as a Class II or III wetland, the reclassification of any Class II or III wetland as a Class I wetland, or the modification of the buffer zone of a Class I wetland shall be made by the Department pursuant to the rulemaking provisions of 3 V.S.A. chapter 25. (Added 2009, No. 31, § 5; amended 2011, No. 138 (Adj. Sess.), § 27, eff. May 14, 2012.)

• § 916. Update of Vermont Significant Wetlands Inventory maps

  (a) On or before January 1, 2026, and not less than annually thereafter, the Agency of Natural Resources shall update the Vermont Significant Wetlands Inventory (VSWI) maps. The annual updates to the VSWI shall include integration of georeferenced shapefiles or similar files for all verified delineations performed within the State and submitted to the Agency of Natural Resources as part of a permit application, as well as a wetlands determination issued under section 914 of this title and rulemaking conducted pursuant to section 915 of this title. The VSWI layer shall include integration of any additional town specific inventories of otherwise unmapped wetlands performed by consultants on the Agency’s Wetland Consultant List if the consultant has presented the map to a municipality or the Agency of Natural Resources.

  (b) On or before January 1, 2030, the Secretary of Natural Resources shall complete High Quality Wetlands Inventory (NWI) Plus level mapping for all of the tactical basins in the State. The high-quality mapping shall include a ground truthing component, as recommended by the U.S. Fish and Wildlife Service (USFWS). Once all tactical basins are mapped, the Agency shall evaluate the need for NWI Plus level map updates on a five-year cycle, simultaneously with updates to the corresponding tactical basin plan. (Added 2009, No. 31, § 5; amended 2023, No. 121 (Adj. Sess.), § 14, eff. July 1, 2024.)

• § 917. Appeals

  Any act or decision of the Secretary under this subchapter may be appealed in accordance with chapter 220 of this title. (Added 2009, No. 31, § 5.)

• § 918. Net gain of wetlands; State goal; rulemaking

  (a) On or before July 1, 2025, the Secretary of Natural Resources shall amend the Vermont Wetlands Rules pursuant to 3 V.S.A. chapter 25 to clarify that the goal of wetlands regulation and management in the State is the net gain of wetlands to be achieved through protection of existing wetlands and restoration of wetlands that were previously adversely affected. This condition shall not apply to wetland, river, and flood plain restoration projects, including dam removals.

  (b) The Vermont Wetlands Rules shall prioritize the protection of existing intact wetlands from adverse effects. Where a permitted activity in a wetland will cause more than 5,000 square feet of adverse effects that cannot be avoided, the Secretary shall mandate that the permit applicant restore, enhance, or create wetlands or buffers to compensate for the adverse effects on a wetland. The amount of wetlands to be restored, enhanced, or created shall be calculated, at a minimum, by determining the acreage or square footage of wetlands permanently drained or filled as a result of the permitted activity and multiplying that acreage or square footage by two, to result in a ratio of 2:1 restoration to wetland loss. Establishment of a buffer zone contiguous to a wetland shall not substitute for the restoration, enhancement, or creation of wetlands. Adverse impacts to wetland buffers shall be compensated for based on the effects of the impact on wetland function.

  (c) At a minimum, the Wetlands Rules shall be revised to:

  (1) Require an applicant for a wetland permit that authorizes adverse impacts to more than 5,000 square feet of wetlands to compensate for those impacts through restoration, enhancement, or creation of wetland resources.

  (2) Incorporate the net gain rule into requirements for permits issued after September 1, 2025.

  (3) Establish a set of parameters and restoration ratios applicable to permittee-designed restored wetland restoration projects, including a minimum 2:1 ratio of restoration to loss to compensate for permanently filled or drained wetlands. These parameters shall include consideration of the following factors:

  (A) the existing level of wetland function at the site prior to mitigation or restoration of wetlands;

  (B) the amount of wetland acreage and wetland function lost as a result of the project;

  (C) how the wetland acreage and functions will be restored at the proposed compensation site;

  (D) the length of time before the compensation site will be fully functional;

  (E) the risk that the compensation project may not succeed;

  (F) the differences in the location of the adversely affected wetland and the wetland subject to compensation that affect the services and values offered; and

  (G) the requirement that permittees conduct five years of post- restoration monitoring for the restored wetlands, at which time the Agency can decide if further action is needed.

  (d) When amending the Vermont Wetlands Rules under this section, the Secretary shall establish a Vermont in-lieu fee (ILF) compensation program for wetlands impacts that may be authorized as compensation for an adverse effect on a wetland when the permittee cannot achieve restoration. The Secretary may implement a Vermont ILF compensation program through agreements with third-party entities such as the U.S. Army Corps of Engineers or environmental organizations, provided that any ILF monetary compensation authorized under the rules shall be expended on restoration, reestablishment, enhancement, or conservation projects within the State at the HUC 8 level of the adversely affected wetland when practicable. (Added 2023, No. 121 (Adj. Sess.), § 15, eff. July 1, 2024.)

• § 919. Wetlands program reports

  (a) On or before April 30, 2025, and annually thereafter, the Secretary of Natural Resources shall submit to the House Committee on Environment and Energy and to the Senate Committee on Natural Resources and Energy a report on annual losses and gains of significant wetlands in the State. The report shall include:

  (1) the location and acreage of Class II wetland and buffer losses permitted by the Agency in accordance with section 913 of this title, for which construction of the permitted project has commenced;

  (2) the acreage of Class II wetlands and buffers gained through permit-related enhancement and restoration;

  (3) the number of site visits and technical assistance calls conducted by the Agency of Natural Resources, the number of permits processed by the Agency, and any enforcement actions that were taken by the Agency or the Office of the Attorney General in the previous year for violations of this chapter; and

  (4) an updated mitigation summary of the extent of wetlands restored on-site compared with compensation performed off-site, in-lieu fees paid, or conservation.

  (b) On or before April 30, 2027, and every five years thereafter, the Agency of Natural Resources shall submit to the House Committee on Environment and Energy and to the Senate Committee on Natural Resources and Energy a comprehensive report on the status of wetlands in the State. The report shall include:

  (1) an analysis of historical trends of wetlands, including data analyzing the projects for which wetland permits were issued by county and tactical basin;

  (2) the results of each NWI Plus Mapping Project, including net acres mapped, dominant vegetative composition, connected tributaries, locations of confirmed ground truthing, if applicable, and any other hydrologic soil or vegetative observations or trends noted; and

  (3) relevant updates related to Class I and Class II wetlands to include additional wetlands identified under these categories, their composition and general characteristics, potential threats, patterns of use, and other unique features. (Added 2023, No. 121 (Adj. Sess.), § 15, eff. July 1, 2024.)

• § 920. [Reserved.]

• Subchapter 005: WATER QUALITY RESTORATION AND IMPROVEMENT

• § 921. Definitions

  As used in this subchapter:

  (1) “Administrative cost” means program and project costs incurred by a clean water service provider or a grantee, including costs to conduct procurement, contract preparation, and monitoring, reporting, and invoicing.

  (2) “Basin” means a watershed basin designated by the Secretary for use as a planning unit under subsection 1253(d) of this title.

  (3) “Best management practice” or “BMP” means a schedule of activities, prohibitions, practices, maintenance procedures, green infrastructure, or other management practices to prevent or reduce water pollution.

  (4) “Clean water project” means a best management practice or other program designed to improve water quality to achieve a target established under section 922 of this title that:

  (A) is not subject to a permit under chapter 47 of this title, is not subject to the requirements of 6 V.S.A. chapter 215, exceeds the requirements of a permit issued under chapter 47 of this title, or exceeds the requirements of 6 V.S.A chapter 215; and

  (B) is within the following activities:

  (i) developed lands, sub-jurisdictional practices related to developed lands including municipal separate storm sewers, operational stormwater discharges, municipal roads, and other developed lands discharges;

  (ii) natural resource protection and restoration, including river corridor and floodplain restoration and protection, wetland protection and restoration, riparian and lakeshore corridor protection and restoration, and natural woody buffers associated with riparian, lakeshore, and wetland protection and restoration;

  (iii) forestry; or

  (iv) agriculture.

  (5) “Co-benefit” means the additional benefit to local governments and the public provided by or associated with a clean water project, including flood resilience, ecosystem improvement, and local pollution prevention.

  (6) “Design life” means the period of time that a clean water project is designed to operate according to its intended purpose.

  (7) “Maintenance” means ensuring that a clean water project continues to achieve its designed pollution reduction value for its design life.

  (8) “Standard cost” means the projected cost of achieving a pollutant load reduction per unit or per best management practice in a basin. (Added 2019, No. 76, § 1.)

• § 922. Water quality implementation planning and targets

  (a) After listing a water as impaired on the list of waters required by 33 U.S.C. § 1313(d), the Secretary shall include in the implementation plan for the water a strategy for returning the water to compliance with the Vermont Water Quality Standards. With respect to a water that is impaired due to sources outside the State or if there is insufficient data or no data available to quantify reductions required by this subchapter, the Secretary shall not be required to implement the requirements of this subchapter; however, the Secretary shall provide an alternate strategy for attaining water quality standards in the implementation plan for the water. For waters determined to be subject to this subchapter, the Secretary shall include the following in an implementation plan:

  (1) An evaluation of whether implementation of existing regulatory programs will achieve water quality standards in the impaired water. If the Secretary determines that existing regulatory programs will not achieve water quality standards, the Secretary shall determine the amount of additional pollutant reduction necessary to achieve water quality standards in that water. When making this determination, the Secretary may express the pollutant reduction in a numeric reduction or through defining a clean water project that must be implemented to achieve water quality standards.

  (2) An allocation of the pollutant reduction identified under subdivision (a)(1) of this section to each basin and the clean water service provider assigned to that basin pursuant to subsection 924(a) of this title. When making this allocation, the Secretary shall consider the sectors contributing to the water quality impairment in the impaired water’s boundaries and the contribution of the pollutant from regulated and nonregulated sources within the basin. Those allocations shall be expressed in annual pollution reduction goals and five-year pollution reduction targets as checkpoints to gauge progress and adapt or modify as necessary.

  (3) A determination of the standard cost per unit of pollutant reduction. The Secretary shall publish a methodology for determining standard cost pollutant reductions. The standard cost shall include the costs of project identification, project design, and project construction.

  (b)(1) The Secretary shall conduct the analysis required by subsection (a) of this section for previously listed waters as follows:

  (A) For phosphorous in the Lake Champlain watershed, not later than November 1, 2021.

  (B) For phosphorous in the Lake Memphremagog watershed, not later than November 1, 2022.

  (2) By not later than November 1, 2023, the Secretary shall adopt a schedule for implementing the requirements of this subchapter in all other previously listed impaired waters, including Lake Carmi, not set forth in subdivision (1) of this subsection.

  (c) When implementing the requirements of this section, the Secretary shall follow the type 3 notice process established in section 7714 of this title. (Added 2019, No. 76, § 1.)

• § 923. Quantification of pollution reduction; clean water projects

  (a) After listing a water as impaired on the list of waters required by 33 U.S.C. § 1313(d), the Secretary shall publish a methodology for calculating pollution reduction values associated with a clean water project in that water. When establishing a pollutant reduction value, the Secretary shall consider pollution reduction values established in the TMDL; pollution reduction values established by other jurisdictions; pollution reduction values recommended by organizations that develop pollutant reduction values for a clean water project; applicable monitored data with respect to a clean water project, if available; modeled data, if available; or a comparison to other similar projects or programs if no other data on a pollution reduction value or design life exists. Pollution reduction values established by the Secretary shall be the exclusive method for determining the pollutant reduction value of a clean water project.

  (b) After listing a water as impaired on the list of waters required by 33 U.S.C. § 1313(d), the Secretary shall publish a methodology for establishing a design life associated with a clean water project. The design life of a clean water project shall be determined based on a review of values established in other jurisdictions, values recommended by organizations that regularly estimate the design life of clean water projects, actual data documenting the design life of a practice, or a comparison to other similar practices if no other data exists. A design life adopted by the Secretary shall be the exclusive method for determining the design life of a best management practice or other control.

  (c)(1) If a person is proposing a clean water project for which no pollution reduction value or design life exists for a listed water, the Secretary shall establish a pollution reduction value or design life for that clean water project within 60 days following a request from the person proposing the clean water project. A pollution reduction value or design life established under this subdivision shall be based on a review of pollution reduction values established in the TMDL; pollution reduction values or design lives established by other jurisdictions; pollution reduction values or design lives recommended by organizations that develop pollutant reduction values or design lives for a clean water project; applicable monitored data with respect to a clean water project, if available; modeled data, if available; actual data documenting the design life of a clean water project; or a comparison to other similar projects or programs if no other data on a pollution reduction value or design life exists. Any estimate developed under this subsection by the Secretary shall be posted on the Agency of Natural Resources’ website.

  (2) Upon the request of a clean water service provider, the Secretary shall evaluate a proposed clean water project and issue a determination as to whether the proposed clean water project is eligible to receive funding as a part of a Water Quality Restoration Formula Grant awarded by the State pursuant to section 925 of this title.

  (d)(1) The Secretary shall conduct the analysis required by subsections (a) and (b) of this section for clean water projects and design lives related to phosphorous not later than November 1, 2021.

  (2) By not later than November 1, 2023, the Secretary shall adopt a schedule for implementing the requirements of subsections (a) and (b) of this section for clean water projects and design lives related to all other impairments not listed under subdivision (1) of this subsection.

  (e) The Secretary shall periodically review pollution reduction values and design lives established under this section at least every five years to determine the adequacy or accuracy of a pollution reduction value or design life.

  (f)(1) When implementing the requirements of subsections (a) and (b) of this section, the Secretary shall follow the type 3 notice process established in section 7714 of this title.

  (2) When implementing the requirements of subsection (c) of this section, the Secretary shall follow the type 4 notice process in section 7715 of this title. (Added 2019, No. 76, § 1.)

• § 924. Clean water service provider; responsibility for clean water projects

  (a) Clean water service providers; establishment.

  (1) On or before November 1, 2020, the Secretary shall adopt rules that assign a clean water service provider to each basin in the Lake Champlain and Lake Memphremagog watersheds for the purposes of achieving pollutant reduction values established by the Secretary for the basin and for identification, design, construction, operation, and maintenance of clean water projects within the basin. For all other impaired waters, the Secretary shall assign clean water service provider no later than six months prior to the implementation of the requirements of this subchapter scheduled by the Secretary under subdivision 922(b)(2) of this title. The rulemaking shall be done in consultation with regional planning commissions, natural resource conservation districts, watershed organizations, and municipalities located within each basin.

  (2) An entity designated as a clean water service provider shall be required to identify, prioritize, develop, construct, verify, inspect, operate, and maintain clean water projects in accordance with the requirements of this subchapter.

  (3) The Secretary shall adopt guidance on a clean water service provider’s obligation with respect to implementation of this chapter. The Secretary shall provide notice to the public of the proposed guidance and a comment period of not less than 30 days. At a minimum, the guidance shall address the following:

  (A) how the clean water service provider integrates, prioritizes, and selects projects consistent with the applicable basin plan, including how to account for the co-benefits provided by a project;

  (B) minimum requirements with respect to selection and agreements with subgrantees;

  (C) requirements associated with the distribution of administrative costs to the clean water service provider and subgrantees;

  (D) the Secretary’s assistance to clean water service providers with respect to their maintenance obligations pursuant to subsection (c) of this section; and

  (E) the Secretary’s strategy with respect to accountability pursuant to subsection (f) of this section.

  (4) In carrying out its duties, a clean water service provider shall adopt guidance for subgrants consistent with the guidance from the Secretary developed pursuant to subdivision (a)(3) of this section that establishes a policy for how the clean water service provider will issue subgrants to other organizations in the basin, giving due consideration to the expertise of those organizations and other requirements for the administration of the grant program. The subgrant guidance shall include how the clean water service provider will allocate administrative costs to subgrantees for project implementation and for the administrative costs of the basin water quality council. The subgrant guidance shall be subject to the approval of the Secretary and basin water quality council.

  (5) When selecting clean water projects for implementation or funding, a clean water service provider shall prioritize projects identified in the basin plan for the area where the project is located and shall consider the pollutant targets provided by the Secretary and the recommendations of the basin water quality council.

  (b) Project identification, prioritization, selection. When identifying, prioritizing, and selecting a clean water project to meet a pollutant reduction value, the clean water service provider shall consider the pollution reduction value associated with the clean water project, the co-benefits provided by the project, operation, and maintenance of the project, conformance with the tactical basin plan, and other water quality benefits beyond pollution reduction associated with that clean water project. All selected projects shall be entered into the watershed projects database.

  (c) Maintenance responsibility. A clean water service provider shall be responsible for maintaining a clean water project or ensuring the maintenance for at least the design life of that clean water project. The Secretary shall provide funding for maintenance consistent with subdivision 1389(e)(1)(A) of this title.

  (d) Water quality improvement work. If a clean water service provider achieves a greater level of pollutant reduction than a pollutant reduction goal or five-year target established by the Secretary, the clean water service provider may carry those reductions forward into a future year. If a clean water service provider achieves its pollutant reduction goal or five-year target and has excess grant funding available, a clean water service provider may:

  (1) carry those funds forward into the next program year;

  (2) use those funds for other eligible projects;

  (3) use those funds for operation and maintenance responsibilities for existing constructed projects;

  (4) use those funds for projects within the basin that are required by federal or State law; or

  (5) use those funds for other work that improves water quality within the geographic area of the basin, including protecting river corridors, aquatic species passage, and other similar projects.

  (e) Reporting. A clean water service provider shall report annually to the Secretary. The report from clean water service providers shall be integrated into the annual clean water investment report, including outcomes from the work performed by clean water service providers. The report shall contain the following:

  (1) a summary of all clean water projects completed that year in the basin;

  (2) a summary of any inspections of previously implemented clean water projects and whether those clean water projects continue to operate in accordance with their design;

  (3) all administrative costs incurred by the clean water service provider;

  (4) a list of all of the subgrants awarded by the clean water service provider in the basin; and

  (5) all data necessary for the Secretary to determine the pollutant reduction achieved by the clean water service provider during the prior year.

  (f) Accountability for pollution reduction goals. If a clean water service provider fails to meet its allocated pollution reduction goals or its five-year target or fails to maintain previously implemented clean water projects, the Secretary shall take appropriate steps to hold the clean water service provider accountable for the failure to meet pollution reduction goals or its five-year target. The Secretary may take the following steps:

  (1) include in grant agreements with the clean water service provider requirements, benchmarks, conditions, or penalty provisions to provide for ongoing accountability;

  (2) enter a plan to ensure that the clean water service provider meets current and future year pollution reduction goals and five-year targets; or

  (3) initiate rulemaking to designate an alternate clean water service provider as accountable for the basin.

  (g) Basin water quality council.

  (1) A clean water service provider designated under this section shall establish a basin water quality council for each assigned basin. The purpose of a basin water quality council is to establish policy and make decisions for the clean water service provider regarding the most significant water quality impairments that exist in the basin and prioritizing the projects that will address those impairments based on the basin plan. A basin water quality council shall also participate in the basin planning process.

  (2) A basin water quality council shall include, at a minimum, the following:

  (A) two persons representing natural resource conservation districts in that basin, selected by the applicable natural resource conservation districts;

  (B) two persons representing regional planning commissions in that basin, selected by the applicable regional planning commission;

  (C) two persons representing local watershed protection organizations operating in that basin, selected by the applicable watershed protection organizations;

  (D) one representative from an applicable local or statewide land conservation organization selected by the conservation organization in consultation with the clean water service provider; and

  (E) two persons representing municipalities within the basin, selected by the clean water service provider in consultation with municipalities in the basin.

  (3) The designated clean water service provider and the Agency of Natural Resources shall provide technical staff support to the basin water quality council. The clean water service provider may invite support from persons with specialized expertise to address matters before a basin water quality council, including support from the University of Vermont Extension, staff of the Agency of Natural Resources, staff of the Agency of Agriculture, Food and Markets, staff of the Agency of Transportation, staff from the Agency of Commerce and Community Development, the Natural Resource Conservation Service, U.S. Department of Fish and Wildlife, and U.S. Forest Service. (Added 2019, No. 76, § 1.)

• § 925. Clean water service provider; Water Quality Restoration Formula Grant Program

  The Secretary shall administer a Water Quality Restoration Formula Grant Program to award grants to clean water service providers to meet the pollutant reduction requirements under this subchapter. The grant amount shall be based on the annual pollutant reduction goal established for the clean water service provider multiplied by the standard cost for pollutant reduction including the costs of administration and reporting. Not more than 15 percent of the total grant amount awarded to a clean water service provider shall be used for administrative costs. (Added 2019, No. 76, § 1.)

• § 926. Water Quality Enhancement Grant Program

  The Secretary shall administer a Water Quality Enhancement Grant Program. This program shall be a competitive grant program to fund projects that protect high quality waters, maintain or improve water quality in all waters, restore degraded or stressed waters, create resilient watersheds and communities, and support the public’s use and enjoyment of the State’s waters. When making awards under this program, the Secretary shall consider the geographic distribution of these funds. Not more than 15 percent of the total grant amount awarded shall be used for administrative costs. (Added 2019, No. 76, § 1.)

• § 927. Developed Lands Implementation Grant Program

  The Secretary shall administer a Developed Lands Implementation Grant Program to provide grants or financing to persons who are required to obtain a permit to implement regulatory requirements that are necessary to achieve water quality standards. The grant or financing program shall only be available in basins where a clean water service provider has met its annual goals or is making sufficient progress, as determined by the Secretary, towards those goals. This grant program shall fund or provide financing for projects related to the permitting of impervious surface of three acres or more under subdivision 1264(g)(3) of this title. Not more than 15 percent of the total grant amount awarded shall be used for administrative costs. (Added 2019, No. 76, § 1.)

• § 928. Municipal Stormwater Implementation Grant Program

  The Secretary shall administer a Municipal Stormwater Implementation Grant Program to provide grants to any municipality required under section 1264 of this title to obtain or seek coverage under the municipal roads general permit, the municipal separate storm sewer systems permit, a permit for impervious surface of three acres or more, or a permit required by the Secretary to reduce the adverse impacts to water quality of a discharge or stormwater runoff. The grant program shall only be available in basins where a clean water service provider has met its annual goals or is making sufficient progress, as determined by the Secretary, towards those goals. Not more than 15 percent of the total grant amount awarded shall be used for administrative costs. (Added 2019, No. 76, § 1.)

• § 929. Clean water project technical assistance

  The Secretary shall provide technical assistance upon the request of any person who, under this chapter, receives a grant or is a subgrantee of funds to implement a clean water project. (Added 2019, No. 76, § 1.)

• § 930. Rulemaking

  The Secretary may adopt rules to implement the requirements of this subchapter. (Added 2019, No. 76, § 1.)