The Vermont Statutes Online

Title 10: Conservation and Development

Chapter 170: Department of Environmental Conservation; Standard Procedures

• Subchapter 001: GENERAL PROVISIONS

• § 7701. Department of Environmental Conservation; standard procedures

  The purpose of this chapter is to establish standard procedures for public notice, public meetings, and decisions relating to applications for permits issued by the Department of Environmental Conservation. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.)

• § 7702. Definitions

  As used in this chapter:

  (1) “Adjoining property owner” means a person who owns land in fee simple, if that land:

  (A) shares a property boundary with a tract of land where proposed or actual activity regulated by the Department is located; or

  (B) is adjacent to a tract of land where such activity is located and the two properties are separated only by a river, stream, or public highway.

  (2) “Administrative amendment” means an amendment to an individual permit, general permit, or notice of intent under a general permit that corrects typographical errors, changes the name or mailing address of a permittee, authorizes a transfer of a permit when authorized under rule, or makes other similar changes to a permit that do not require technical review of the permitted activity or the imposition of new conditions or requirements.

  (3) “Administrative record” means the application and any supporting data furnished by the applicant; all information submitted by the applicant during the course of reviewing the application; the draft permit or notice of intent to deny the application; the fact sheet and all documents cited in the fact sheet, if applicable; all comments received during the public comment period; the recording or transcript of any public meeting or meetings held; any written material submitted at a public meeting; the response to comments; the final permit; any document used as a basis for the final decision; and any other documents contained in the permit file.

  (4) “Administratively complete application” means an application for a permit for which all initially required documentation has been submitted, and any required permit fee, and the information submitted initially addresses all application requirements but has not yet been subjected to a complete technical review.

  (5) “Agency” means the Agency of Natural Resources.

  (6) “Clean Air Act” means the federal statutes on air pollution prevention and control, 42 U.S.C. § 7401 et seq.

  (7) “Clean Water Act” means the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.

  (8) “Commissioner” means the Commissioner of Environmental Conservation or the Commissioner’s designee.

  (9) “Department” means the Department of Environmental Conservation.

  (10) “Document” means any written or recorded information, regardless of physical form or characteristics, that the Department produces or acquires in the course of reviewing an application for a permit.

  (11) “Environmental notice bulletin” or “bulletin” means the website and e-mail notification system required by 3 V.S.A. § 2826.

  (12) “Fact sheet” means a document that briefly sets forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing a draft decision.

  (13) “General permit” means a permit that applies to a class or category of discharges, emissions, disposal, facilities, or activities within a common geographic area, including the entire State or a region of the State.

  (14) “Individual permit” means a permit that authorizes a specific discharge, emission, disposal, facility, or activity that contains terms and conditions that are specific to the discharge, emission, disposal, facility, or activity.

  (15) “Major amendment” means an amendment to an individual permit or notice of intent under a general permit that necessitates technical review.

  (16) “Minor amendment” means an amendment to an individual permit or notice of intent under a general permit that requires a change in a condition or requirement, does not necessitate technical review, and is not an administrative amendment.

  (17) “Notice of intent under a general permit” means an authorization issued by the Secretary to undertake an action authorized by a general permit.

  (18) “Permit” includes any permit, certification, license, registration, determination, or similar form of permission required from the Department by law. However, the term excludes a professional license issued pursuant to chapter 48, subchapter 3 (licensing of well drillers) of this title and sections 1674 (water supply operators), 1936 (UST inspector licenses), 6607 (hazardous waste transporters), and 6607a (waste transportation) of this title.

  (19) “Person” shall have the same meaning as under section 8502 of this title.

  (20) “Person to whom notice is federally required” means a person to whom notice of an application or draft decision must be given under federal regulations adopted pursuant to the Clean Air Act or Clean Water Act.

  (21) “Public meeting” means a meeting that is open to the public and recorded or transcribed, at which the Department shall provide basic information about the draft permit decision, an opportunity for questions to the applicant and the Department, and an opportunity for members of the public to submit oral and written comments.

  (22) “Secretary” means the Secretary of Natural Resources or designee.

  (23) “Technical review” means the application of scientific, engineering, or other professional expertise to the facts to determine whether activity for which a permit is requested meets the standards for issuing the permit under statute and rule. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018; amended 2021, No. 170 (Adj. Sess.), § 10, eff. July 1, 2022.)

• § 7703. Rules; additional notice or procedures

  (a) Rules.

  (1) Implementing rules. The Secretary may adopt rules to implement this chapter.

  (2) Complex projects; preapplication process. The Secretary shall adopt rules to determine when a project requiring a permit is large and complex. These rules shall provide that an applicant proposing such a project, prior to filing an application for a permit, shall initiate a project scoping process pursuant to 3 V.S.A. § 2828 or shall hold an informational meeting that is open to the public. The rules shall ensure that:

  (A) Written notice of an informational meeting under this section is sent to the owner of the land where the project is located if the applicant is not the owner; the municipality in which the project is located; the municipal and regional planning commissions for any municipality in which the project is located; if the project site is located on a boundary, any Vermont municipality adjacent to that boundary and the municipal and regional planning commissions for that municipality; and each adjoining property owner. At the time this written notice is sent, the Secretary also shall post the notice to the environmental notice bulletin.

  (B) The notice to adjoining property owners informs them of how they can continue to receive notices and information through the environmental notice bulletin concerning the project as it is reviewed by the Secretary.

  (C) The applicant furnishes by affidavit to the Secretary the names of those furnished notice and certifies compliance with the notice requirements of this subsection.

  (D) The applicant and the Secretary or designee shall attend the meeting. The applicant shall respond to questions from other attendees.

  (b) Additional notice.

  (1) The Secretary may require, by rule or in an individual case, measures in addition to those directed by this chapter using any method reasonably calculated to give direct notice to persons potentially affected by a decision on the application.

  (2) In an individual case, the Secretary may determine to apply the procedures of section 7713 (Type 2) of this chapter to the issuance of a permit otherwise subject to the procedures of section 7715 (Type 4) or section 7716 (Type 5) of this chapter.

  (c) Extension of deadlines. A person may request that the Secretary extend any deadline for comment or requesting a public informational meeting established by this chapter. The person shall submit the request before the deadline and include a brief explanation of why the extension is justified. If the request is granted, the Secretary shall provide notice of the new deadline through the environmental notice bulletin. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.)

• § 7704. Administrative record

  (a) The Secretary shall create an administrative record for each application for a permit and shall make the administrative record available to the public.

  (b) The Secretary shall base a draft or final decision on each application for a permit on the administrative record.

  (c) With respect to permits issued under the Clean Air Act and Clean Water Act, the Secretary shall comply with any requirements under those acts concerning the maintenance and availability of the administrative record. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.)

• § 7705. Time; how computed

  In this chapter:

  (1) When time is to be reckoned from a day, date, or an act done, the day, date, or day when the act is done shall not be included in the computation.

  (2) Computation of a time period shall use calendar days. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.)

• Subchapter 002: STANDARD PROCEDURES

• § 7711. Permit procedures; standard provisions

  (a) Notice through the environmental notice bulletin. When this chapter requires notice through the environmental notice bulletin:

  (1) The bulletin shall generate and send an e-mail to notify:

  (A) each person requiring notice under section 7712 of this chapter;

  (B) the applicant;

  (C) each person on an interested persons list;

  (D) each municipality in which the activity to be permitted is located, except for notice of a draft or final general permit; and

  (E) each other person to whom this chapter directs that a particular notice be provided through the bulletin.

  (2) At a minimum, each notice generated by the bulletin shall contain:

  (A) the name and contact information for the person at the Agency processing the permit;

  (B) the name and address of the permit applicant, if applicable;

  (C) the name and address of the facility or activity to be permitted, if applicable;

  (D) a brief description of the activity for which the permit would be issued;

  (E) the length of the period for submitting written comments and the process for submitting those comments, if applicable, and notice of the requirements regarding submission of comments during that period or at a public meeting in order to appeal under chapter 220 of this title;

  (F) the process for requesting a public meeting, if applicable;

  (G) when a public meeting has been scheduled, the time, date, and location of the meeting and a brief description of the nature and purpose of the meeting;

  (H) when issued, the draft permit or notice of intent to deny a permit, and the period and process for submitting written comments on that draft permit or notice;

  (I) when issued, the final decision issuing or denying a permit, and the process for appealing the decision; and

  (J) any other information that this chapter directs be included in a particular notice to be generated by the bulletin.

  (3) The environmental notice bulletin shall provide notice by mail as required by 3 V.S.A. § 2826.

  (b) Notice to adjoining property owners. When this chapter requires notice of an application to adjoining property owners, the applicant shall provide notice of the application by U.S. mail to all adjoining property owners, on a form developed by the Secretary, at the time the application is submitted to the Secretary. The form shall state how the property owners can continue to receive notices and information concerning the project as it is reviewed by the Secretary. The applicant shall provide a signed certification to the Secretary that all adjoining property owners have been notified of the application. However, if the applicant has provided written notice to adjoining property owners as part of the preapplication engagement process for complex projects under rules adopted in accordance with subsection 7703(a) of this title, then instead of the written notice required of the applicant by this subsection, the Department shall provide notice of the application through the environmental notice bulletin to those adjoining property owners who have requested notice.

  (c) Comment period length. When this chapter requires the Secretary to provide a public comment period, the length of the period shall be at least 30 days, unless this chapter applies a different period for submitting comments on the particular type of permit.

  (d) Period to request a public meeting. When this chapter allows a person to request a public meeting on a draft decision, the person shall submit the request within 14 days of the date on which notice of the draft decision is posted to the environmental notice bulletin, unless this chapter specifies a different period for requesting a hearing on the particular type of permit.

  (e) Public meeting; notice; additional comment period. When the Secretary holds a public meeting under this chapter:

  (1) The Secretary shall:

  (A) provide at least 14 days’ prior notice of the public meeting through the environmental notice bulletin, unless this chapter specifies a different notice period for a public meeting on the particular type of permit;

  (B) include in the notice, in addition to the information required by subsection (a) of this section, the date the Secretary gave notice of an administratively complete application, if applicable; and

  (C) hold the period for written comments open for at least seven days after the meeting.

  (2) The applicant or applicant’s representative and the Secretary or designee shall attend the meeting. The applicant shall cause to be present those professionals retained in the preparation of the application. At the meeting, the applicant and the Secretary each shall answer questions relevant to the application or draft decision to the best of their ability.

  (f) Draft decisions. When this chapter requires the Secretary to post a draft decision or draft general permit to the environmental notice bulletin, the Secretary shall post to the bulletin the draft decision or draft general permit and all documents on which the Secretary relied in issuing the draft. This post shall include instructions on how to inspect and how to request a copy of each other document that is part of the administrative record of the draft decision or permit.

  (g) Response to comments. When this chapter requires the Secretary to provide a response to comments, the Secretary shall provide a response to each comment received during the comment period and the basis for the response. The Secretary also shall specify each provision of the draft decision that has been changed in the final decision and the reasons for each change. The Secretary shall post the response to comments to the environmental notice bulletin and send it to all commenters.

  (h) Final decisions; content; notice.

  (1) The Secretary’s final decision on an application for a permit or on the issuance of a general permit shall include a concise statement of the facts and analysis supporting the decision that is sufficient to apprise the reader of the decision’s factual and legal basis. The final decision also shall provide notice that it may be appealed and state the period for filing an appeal and how and where to file an appeal.

  (2) When this chapter requires that the Secretary post a final decision to the environmental notice bulletin, the Secretary also shall send a copy of the final decision to all commenters. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.)

• § 7712. Type 1 Procedures

  (a) Purpose; scope.

  (1) The purpose of this section is to establish the public notice and comment requirements that the Department must follow when adopting general permits and considering applications for individual permits under the Clean Air Act and Clean Water Act.

  (2) This section governs each application for a permit to be issued by the Secretary pursuant to the requirements of the Clean Air Act or Clean Water Act and to each general permit to be issued under one of those acts. However, the subsection does not apply to a notice of intent under a general permit. The procedures under this section shall be known as Type 1 Procedures.

  (b) Notice of application.

  (1) The applicant shall provide notice to adjoining property owners.

  (2) At least 15 days prior to posting a draft decision, the Secretary shall provide notice of an administratively complete application through the environmental notice bulletin. The environmental notice bulletin shall send notice of such an application to each person to whom notice is federally required.

  (3) This subsection shall not apply to a general permit issued under this section.

  (c) Notice of draft decision or draft general permit. The Secretary shall provide notice of a draft decision or draft general permit through the environmental notice bulletin and shall post the draft decision or permit to the bulletin. In addition to the requirements of section 7711 of this chapter:

  (1) The Secretary shall post a fact sheet to the bulletin.

  (2) The environmental notice bulletin shall send notice of the draft to each person to whom notice is federally required.

  (3) The Secretary shall provide newspaper notice of the draft decision as required by this subdivision (3).

  (A) If the draft decision pertains to an application for an individual permit, the Secretary shall provide notice in a daily or weekly newspaper in the area of the proposed project if the project is classified as major pursuant to the Clean Water Act or chapter 47 of this title or if required by federal statute or regulation.

  (B) If the draft decision is a draft general permit, the Secretary shall provide notice in daily or weekly newspapers in each region of the State to which the draft general permit will apply.

  (C) In addition to the requirements of this chapter and 3 V.S.A. § 2826, the notice from the environmental notice bulletin and the newspaper notice shall include all information required pursuant to applicable federal statute and regulation.

  (d) Comment period. The Secretary shall provide a public comment period.

  (e) Public meeting. On or before the end of the comment period, any person may request a public meeting on the draft decision or draft general permit issued under this section. The Secretary shall hold a public meeting whenever any person files a written request for such a meeting. The Secretary otherwise may hold a public meeting at his or her discretion. The Secretary shall provide at least 30 days’ notice of the public meeting through the environmental notice bulletin. If the notice of the public meeting is not issued at the same time as the draft decision or draft general permit, the Secretary also shall provide notice of the public meeting in the same manner as required for the draft decision or permit under subsection (c) of this section.

  (f) Notice of final decision or final general permit. The Secretary shall provide notice of the final decision or final general permit through the environmental notice bulletin and shall post the final decision or permit to the bulletin. When the Secretary issues the final decision or final general permit, the Secretary shall provide a response to comments.

  (g) Compliance with Clean Air and Water Acts. With respect to issuance of a permit under the Clean Air Act or Clean Water Act, if a requirement under those acts directs the Secretary to provide the public with greater notice, opportunity to participate, or access to information than the corresponding requirement of this chapter, the Secretary shall comply with the federal requirement. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.)

• § 7713. Type 2 Procedures

  (a) Purpose; scope.

  (1) The purpose of this section is to establish the public notice and comment requirements that the Department must follow when considering applications for individual permits, except for individual permits specifically listed in other sections of this subchapter, and when considering other permits listed in this section.

  (2) The procedures under this section shall be known as Type 2 Procedures. This section governs an application for each of the following:

  (A) an individual permit issued pursuant to the Secretary’s authority under this title and 29 V.S.A. chapter 11, except for permits governed by sections 7712 and 7714-7716 of this chapter;

  (B) [Repealed.]

  (C) an individual shoreland permit under chapter 49A of this title;

  (D) a public water system source permit under section 1675 of this title;

  (E) a provisional certification issued under section 6605d of this title; and

  (F) a corrective action plan under section 6648 of this title.

  (b) Notice of application.

  (1) The applicant shall provide notice of the application to adjoining property owners.

  (A) For public water system source protection areas, the applicant also shall provide notice to all property owners located in:

  (i) zones 1 and 2 of the source protection area for a public community water system source; and

  (ii) the source protection area for a public nontransient noncommunity water system source.

  (B) For an individual shoreland permit under chapter 49A of this title:

  (i) The notice to adjoining property owners shall be to the adjoining property owners on the terrestrial boundary of the shoreland.

  (ii) This chapter does not require notice to owners of property across the lake as defined in that chapter.

  (2) The Secretary shall provide notice of an administratively complete application through the environmental notice bulletin.

  (c) Notice of draft decision; comment period. The Secretary shall provide notice of a draft decision through the environmental notice bulletin and shall post the draft decision to the bulletin. The Secretary shall provide a public comment period.

  (d) Public meeting. The Secretary shall hold a public meeting whenever any person files a written request for such a meeting. The Secretary otherwise may hold a public meeting at his or her discretion.

  (e) Notice of final decision. The Secretary shall provide notice of the final decision through the environmental notice bulletin and shall post the final decision to the bulletin. When the Secretary issues the final decision, the Secretary shall provide a response to comments. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018; amended 2021, No. 170 (Adj. Sess.), § 11, eff. July 1, 2022.)

• § 7714. Type 3 Procedures

  (a) Purpose; scope.

  (1) The purpose of this section is to establish the public notice and comment requirements that the Department must follow when adopting general permits, except for general permits governed by section 7712 of this chapter, and when considering other permits listed in this section.

  (2) The procedures under this section shall be known as Type 3 Procedures. This section governs each of the following:

  (A) Each general permit issued pursuant to the Secretary’s authority under this title other than a general permit subject to section 7712 of this chapter. However, this section does not apply to a notice of intent under a general permit.

  (B) Issuance of a dam safety order under chapter 43 of this title, except for an unsafe dam order under section 1095 of this title.

  (C) An application or request for approval of:

  (i) an aquatic nuisance control permit under chapter 50 of this title;

  (ii) a change in treatment for a public water supply under chapter 56 of this title;

  (iii) a collection plan for mercury-containing lamps under section 7156 of this title;

  (iv) an individual plan for the collection and recycling of electronic waste under section 7554 of this title;

  (v) a primary battery stewardship plan under section 7586 of this title; and

  (vi) a covered household hazardous products collection plan under section 7183 of this title.

  (b) Notice of application. The Secretary shall provide notice of an administratively complete application through the environmental notice bulletin.

  (c) Notice of draft decision; comment period. The Secretary shall provide notice of the draft decision through the environmental notice bulletin and shall post the draft decision to the bulletin. The Secretary shall provide a public comment period.

  (d) Public meeting. The Secretary shall hold a public meeting whenever any person files a written request for such a meeting. The Secretary otherwise may hold a public meeting at his or her discretion.

  (e) Notice of final decision. The Secretary shall provide notice of the final decision through the environmental notice bulletin and shall post the final decision to the bulletin. The Secretary shall provide a response to comments. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018; amended 2017, No. 74, § 20; 2023, No. 58, § 5, eff. June 12, 2023.)

• § 7715. Type 4 Procedures

  (a) Purpose; scope.

  (1) The purpose of this section is to establish the public notice and comment requirements that the Department must follow when considering applications for notice of intent under a general permit and other permits listed in this section.

  (2) The procedures under this section shall be known as Type 4 Procedures. This section applies to each of the following:

  (A) a notice of intent under a general permit issued pursuant to the Secretary’s authority under this title;

  (B) an application for each of the following permits:

  (i) construction or operation of an air contaminant source or class of sources not identified in the State’s implementation plan approved under the Clean Air Act;

  (ii) construction or expansion of a public water supply under chapter 56 of this title, except that a change in treatment for a public water supply shall proceed in accordance with section 7714 of this chapter;

  (iii) a category 1 underground storage tank under chapter 59 of this title;

  (iv) a categorical solid waste certification under chapter 159 of this title;

  (v) a medium scale composting certification under chapter 159 of this title; and

  (C) a wetland determination under section 914 of this title.

  (b) Notice of application. The Secretary shall provide notice of an administratively complete application through the environmental notice bulletin.

  (c) Notice of draft decision; comment period. The Secretary shall provide notice of the draft decision through the environmental notice bulletin and shall post the draft decision to the bulletin. The Secretary shall provide a public comment period of at least 14 days on the draft decision.

  (d) Notice of final decision. The Secretary shall provide notice of the final decision through the environmental notice bulletin and shall post the decision to the bulletin. The Secretary shall provide a response to comments. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018; amended 2021, No. 170 (Adj. Sess.), § 12, eff. July 1, 2022.)

• § 7716. Type 5 Procedures

  (a) Purpose; scope.

  (1) The purpose of this section is to establish the public notice and comment requirements that the Department must follow when issuing emergency permits and other permits listed in this section.

  (2) The procedures under this section shall be known as Type 5 Procedures. This section shall govern each of the following:

  (A) issuance of temporary emergency permits under section 912 of this title;

  (B) applications for public water system operational permits under chapter 56 of this title;

  (C) issuance of authorizations, under a stream alteration general permit issued under chapter 41 of this title, for reporting without an application, for an emergency, and for activities to prevent risks to life or of severe damage to improved property posed by the next annual flood;

  (D) issuance of emergency permits issued under section 1268 of this title;

  (E) issuance of emergency sludge and septage disposal approvals under section 6605 of this title;

  (F) shoreland registrations authorized under chapter 49A of this title; and

  (G) issuance of authorization under the Construction General Permit or individual stormwater permits issued pursuant to chapter 47 of this title, for discharges of stormwater runoff related to emergency construction activities; emergency construction activities are those necessary to address imminent risk to life or a risk of damage to public or private property, including damage to lifeline infrastructure, as determined by the Secretary.

  (b) Notice of final decision. The Secretary shall provide notice of the final decision through the environmental notice bulletin and shall post the decision to the bulletin. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018; amended 2023, No. 79, § 15, eff. July 1, 2023.)

• § 7717. Amendments; renewals

  (a) A major amendment shall be subject to the same procedures applicable to the original permit decision under this chapter.

  (b) For all permits except those subject to Type 5 Procedures, a minor amendment shall be subject to the Type 4 Procedures, except that the Secretary need not provide notice of the administratively complete application. For Type 5 Procedures, a minor amendment shall be subject to the same procedures applicable to the original permit decision under this chapter.

  (c) An administrative amendment shall not be subject to the procedural requirements of this chapter.

  (d) A person may renew a permit under the same procedures applicable to the original permit decision under this chapter.

  (e) With respect to amending a permit issued under the Clean Air Act or Clean Water Act, if a requirement under those acts directs the Secretary to provide the public with greater notice, opportunity to participate, or access to information than the corresponding requirement of this chapter, the Secretary shall comply with the federal requirement. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018; amended 2021, No. 170 (Adj. Sess.), § 13, eff. July 1, 2022.)

• § 7718. Exemptions

  This subchapter shall not govern an application or petition for:

  (1) an unsafe dam order under section 1095 of this title;

  (2) a potable water supply and wastewater permit under subsection 1973(j) of this title;

  (3) a hazardous waste facility certification under section 6606 of this title; and

  (4) a certificate of need under section 6606a of this title. (Added 2015, No. 150 (Adj. Sess.), § 1, eff. Jan. 1, 2018.)