State Codes and Statutes

Statutes > Vermont > Title-10 > Chapter-47 > 1264a

§ 1264a. Interim stormwater permitting authority

(a) The definitions found in subsection 1264(a) of this title shall apply to this section.

(b) Prior to adopting a rule pursuant to subsection 1264(d) of this title, the secretary may issue a permit in a stormwater-impaired water for:

(1) A discharge of regulated stormwater runoff from an impervious surface equal to or greater than one acre if:

(A) A new discharge or the expanded portion of an existing discharge meets the requirements of the 2002 stormwater management manual and does not increase the sediment load in the receiving stormwater-impaired water; or

(B) A discharge from redevelopment; from an existing discharge operating under an expired stormwater discharge permit where the property owner applies for a new permit; or from any combination of development, redevelopment, and expansion meets on-site the water quality, recharge, and channel protection criteria set forth in Table 1.1 of the 2002 stormwater management manual that are determined to be technically feasible by an engineering feasibility analysis conducted under the agency procedure provided for in subsection (g) of this section and if the sediment load from the discharge approximates the natural runoff from an undeveloped field or open meadow that is not used for agricultural activity.

(2) A discharge of regulated stormwater runoff from any size of impervious surface if the secretary determines that treatment is necessary to reduce the adverse impacts of the discharge due to the size of the impervious surface, drainage pattern, hydraulic connectivity, existing stormwater treatment, or other factors identified by the secretary. In order to receive a permit under this subdivision, a discharge must meet the applicable discharge standard in subdivision (1) of this subsection.

(c) If after completion of the on-site stormwater management requirements of the 2002 stormwater management manual a discharger does not meet the discharge standard for a discharge permitted under subdivision (b)(1)(A) of this section or if after completion of the water quality, recharge, and channel protection criteria set forth in Table 1.1 of the 2002 stormwater management manual that are determined to be technically feasible by the engineering feasibility analysis required under the agency procedure set forth in subsection (g) of this section a discharger does not meet the discharge standard for a discharge permitted under subdivision (b)(1)(B) of this section, the discharger may meet the relevant discharge standard by mitigating any uncontrolled sediment load or hydrologic impact. Mitigation of the uncontrolled sediment load or hydrologic impact may be achieved by:

(1) Completing an offset on property that the permit applicant owns or controls within the watershed of the stormwater-impaired water prior to or concurrently with the permitted discharge when an engineering feasibility analysis required under the agency procedure set forth in subsection (g) of this section determines that an offset is technically feasible. If in completing an offset under this subdivision a permit applicant contracts for the construction of an offset on property that the applicant does not own within the watershed of the stormwater-impaired water, the applicant shall submit to the secretary of natural resources an access agreement or easement that demonstrates that the permit applicant shall have access to the offset; or

(2) Paying a stormwater impact fee under subsection (d) of this section when completion of an offset is not technically feasible as determined by an engineering feasibility analysis conducted under the procedure provided for in subsection (g) of this section or if the discharge standard required by subsection (b)(1) of this section is not met after completing an offset.

(d)(1) A stormwater impact fee due under subsection (c) of this section shall be $30,000.00 per acre of impervious surface. An individual discharger can reduce the stormwater impact fee through compliance with the engineering feasibility analysis under the agency procedure provided for in subsection (g) of this section. After an individual discharger of regulated stormwater completes the relevant impact fee and offset charge analysis under the agency procedure provided for in subsection (g) of this section, the discharger shall submit to the secretary of natural resources a proposed stormwater impact fee, a proposed offset charge, and documentation of the calculation of the fee and the offset charge. The secretary shall approve or disapprove of the proposed stormwater impact fee and offset charge.

(2) If the secretary of natural resources approves of a proposed stormwater impact fee and offset charge under subdivision (1) of this subsection, the secretary shall notify the applicant and shall:

(A) Certify the offset charge that will mitigate the uncontrolled sediment load or hydrologic impact of the proposed discharge;

(B) Assign the offset charge to an offset permitted under subsection (e) of this section possessing sufficient offset charge capacity to accommodate the offset charge. Offset charges for discharges allowed under subdivision (b)(1)(A) of this section shall be assigned only to an offset for which a permit has been issued pursuant to subsection (e) of this section and that will be completed prior to initiation of the discharge; and

(C) Certify the stormwater impact fee and require, as a condition of a discharge permit, payment in full of said fee to the stormwater-impaired waters restoration fund upon issuance of a local zoning or building permit authorizing construction of the discharge.

(3) No construction or discharge shall be initiated under a discharge permit until the offset charge for a proposed discharge has been assigned to an offset project under subdivision (2) of this subsection.

(4) If a watershed lacks an offset with sufficient capacity to accommodate a proposed offset charge, the secretary shall assign an offset charge when offset capacity becomes available and in the order of the secretary's determination that the discharge permit application is technically complete.

(e)(1) The secretary of natural resources may issue a permit for an offset project under this section. Application shall be made on a form prescribed by the secretary of natural resources. An applicant shall pay an application fee in accordance with section 2282 of Title 3. The secretary may issue such permits for the following activities or projects:

(A) Stormwater treatment of any discharge of regulated stormwater runoff initiated prior to 1978;

(B) Stormwater treatment of any discharge of regulated stormwater runoff initiated after 1978 when the secretary did not previously issue or require a stormwater discharge permit or temporary pollution permit for the discharge;

(C)(i) Conversion of land use to reduce sediment load or hydrologic impact, especially in riparian areas, provided that conversion of primary agricultural soils as that term is defined in section 6001 of this title shall be limited to establishing by easement a forested riparian buffer zone that meets the requirements of the department of environmental conservation's guidance for nonimpervious surface treatment offset projects within impaired watersheds;

(ii) Prior to approval of an offset project to be implemented on agricultural soils under this subdivision, the applicant for a stormwater discharge permit shall conduct an analysis of the viability of implementing a nonagricultural offset within the watershed of the proposed stormwater discharge. To facilitate such an analysis, the secretary of natural resources will identify any potential nonagricultural offsets in the watershed of the proposed discharge and shall provide this information to the applicant;

(D) Restoration of an eroding or unstable stream bank where supported by a geomorphic assessment;

(E) Replacement of existing undersized or deteriorated culverts that have an impact on stream channel stability; or

(F) Other stream restoration or stormwater treatment projects that the secretary deems necessary or appropriate to reduce sediment load or reduce hydrologic impact in a stormwater-impaired water.

(2)(A) The secretary shall provide notice of each application for an individual offset permit to the public and any appropriate officials of another state and the federal government, including the administrator of the United States Environmental Protection Agency, and shall provide an opportunity for written comments or a public hearing, or both, on the application before making a final ruling on the application.

(B) Prior to issuing an offset general permit, the secretary shall give notice as provided in this subsection and provide for written comments or a public hearing, or both, as provided in this subsection. When applying for coverage under an offset general permit, the applicant shall provide notice on a form provided by the secretary to the municipal clerk of the municipality in which the offset is located at the time the application is filed with the secretary, and the secretary shall provide an opportunity for written comment regarding whether the application complies with the terms and conditions of the offset general permit for ten days following receipt of the application.

(C) The secretary may require any applicant to submit any additional information which the secretary considers necessary and may refuse to grant an offset permit until the information is furnished and evaluated.

(3) If the secretary determines that a proposed offset will not violate any applicable provisions of state or federal law or regulation, the secretary shall issue an offset permit containing terms and conditions as may be necessary to carry out the purposes of this chapter and of applicable law. Those terms and conditions may include but shall not be limited to providing for specific best management practices, effluent limitations, and levels of treatment technology; monitoring, recording, and reporting standards; entry and inspection authority for state and, as determined by the secretary, federal officials; and reporting of substantial changes in the character or nature of permitted activities on waters of the state.

(4) An offset permit issued pursuant to this subsection:

(A) Shall include the requirement that any discharge that an offset is mitigating be located in the same watershed of the stormwater-impaired water in which the offset is located;

(B) Shall be allocated an offset charge capacity;

(C) Shall identify the party or parties responsible for performance of the offset;

(D) Shall, for an offset that will be completed after initiation of the discharge, include a schedule of construction reasonably designed to ensure completion of the offset within two years of issuance;

(E) Shall be completed after April 1, 2004;

(F) May include a requirement to provide financial security in the form of an authorized surety bond, a cash deposit or cash equivalent, or an irrevocable letter of credit issued by a qualified financial institution to ensure adequate construction and maintenance of the offset; and

(G) Shall include a plan for the operation and maintenance of the offset.

(5) The secretary shall establish and maintain an accounting system or ledger documenting all amounts of sediment load or hydrologic impact mitigated by offset projects and all discharges which make use of those offsets in order to attain the discharge standards.

(6) The secretary shall not assign an offset charge to an offset that will be completed after initiation of the discharge unless the associated offset permit is issued in accordance with the requirements of subsection 1258(b) of this title.

(7) An offset permit may be issued in conjunction with a discharge permit when the applicant for a discharge permit seeks to construct an offset that will exceed the sediment load or hydrologic impact that the discharger must mitigate to meet the discharge standard for the proposed discharge. The offset charge capacity allocated to an offset permit shall not include the sediment load or hydrologic impact that a discharge permittee is required to mitigate in order to meet the discharge standard for a permit issued under subdivision (b)(1) of this section.

(f) If the discharge of regulated stormwater runoff from the development, redevelopment, or expansion of impervious surfaces did not require a stormwater discharge permit prior to July 1, 2004, a state permit is not required under this subsection, provided that:

(1) A complete application for all local, state, and federal permits, except NPDES construction activities permits, related to either the regulation of land use or a discharge to state waters has been submitted as of July 1, 2004, and the applicant does not subsequently file an application for permit amendment that would have an adverse impact on water quality, and substantial construction of the project commences within two years of the date on which all such local, state, and federal permits become final;

(2) All local, state, and federal permits, except NPDES construction activities permits, related to either the regulation of land use or a discharge to state waters has been obtained as of July 1, 2004, and substantial construction of the project commences within two years of July 1, 2004;

(3) No local, state, or federal permit, except NPDES construction activities permits, related to either the regulation of land use or a discharge to state waters is required, and substantial construction of the project commences within two years of July 1, 2004; or

(4) The development, redevelopment, or expansion is a linear project, and an order of necessity has been issued or right-of-way acquisition has been substantially completed as of July 1, 2004, and construction of the project commences within five years after July 1, 2004.

(g) The Vermont Department of Environmental Conservation Procedure for Evaluation of Stormwater Discharges and Offsets in Stormwater Impaired Watersheds dated May 5, 2004 shall include:

(1) The method for determining the stormwater impact fee for a discharge permitted under subdivision (b)(1)(A) of this section;

(2) The method for determining the stormwater impact fee for a discharge permitted under subdivision (b)(1)(B) of this section;

(3) An engineering feasibility analysis for determining the extent or degree of stormwater treatment, the extent or degree of stormwater control, and the technical feasibility of completing an offset, including an appropriate margin of safety to account for the variability in quantifying the sediment load or hydrologic impact to be mitigated.

(h) If the secretary determines that a person has separated a single development, redevelopment, or expansion project into components in order to avoid the regulatory minimum threshold or other requirements under this section, the person shall be required to submit a permit application for the entire project. The secretary's determination under this subsection shall have the effect of a final decision and is subject to appeal under section 1269 of this title. (Added 2003, No. 140 (Adj. Sess.), § 2; amended 2005, No. 154 (Adj. Sess.), § 4, eff. May 17, 2006.)

State Codes and Statutes

Statutes > Vermont > Title-10 > Chapter-47 > 1264a

§ 1264a. Interim stormwater permitting authority

(a) The definitions found in subsection 1264(a) of this title shall apply to this section.

(b) Prior to adopting a rule pursuant to subsection 1264(d) of this title, the secretary may issue a permit in a stormwater-impaired water for:

(1) A discharge of regulated stormwater runoff from an impervious surface equal to or greater than one acre if:

(A) A new discharge or the expanded portion of an existing discharge meets the requirements of the 2002 stormwater management manual and does not increase the sediment load in the receiving stormwater-impaired water; or

(B) A discharge from redevelopment; from an existing discharge operating under an expired stormwater discharge permit where the property owner applies for a new permit; or from any combination of development, redevelopment, and expansion meets on-site the water quality, recharge, and channel protection criteria set forth in Table 1.1 of the 2002 stormwater management manual that are determined to be technically feasible by an engineering feasibility analysis conducted under the agency procedure provided for in subsection (g) of this section and if the sediment load from the discharge approximates the natural runoff from an undeveloped field or open meadow that is not used for agricultural activity.

(2) A discharge of regulated stormwater runoff from any size of impervious surface if the secretary determines that treatment is necessary to reduce the adverse impacts of the discharge due to the size of the impervious surface, drainage pattern, hydraulic connectivity, existing stormwater treatment, or other factors identified by the secretary. In order to receive a permit under this subdivision, a discharge must meet the applicable discharge standard in subdivision (1) of this subsection.

(c) If after completion of the on-site stormwater management requirements of the 2002 stormwater management manual a discharger does not meet the discharge standard for a discharge permitted under subdivision (b)(1)(A) of this section or if after completion of the water quality, recharge, and channel protection criteria set forth in Table 1.1 of the 2002 stormwater management manual that are determined to be technically feasible by the engineering feasibility analysis required under the agency procedure set forth in subsection (g) of this section a discharger does not meet the discharge standard for a discharge permitted under subdivision (b)(1)(B) of this section, the discharger may meet the relevant discharge standard by mitigating any uncontrolled sediment load or hydrologic impact. Mitigation of the uncontrolled sediment load or hydrologic impact may be achieved by:

(1) Completing an offset on property that the permit applicant owns or controls within the watershed of the stormwater-impaired water prior to or concurrently with the permitted discharge when an engineering feasibility analysis required under the agency procedure set forth in subsection (g) of this section determines that an offset is technically feasible. If in completing an offset under this subdivision a permit applicant contracts for the construction of an offset on property that the applicant does not own within the watershed of the stormwater-impaired water, the applicant shall submit to the secretary of natural resources an access agreement or easement that demonstrates that the permit applicant shall have access to the offset; or

(2) Paying a stormwater impact fee under subsection (d) of this section when completion of an offset is not technically feasible as determined by an engineering feasibility analysis conducted under the procedure provided for in subsection (g) of this section or if the discharge standard required by subsection (b)(1) of this section is not met after completing an offset.

(d)(1) A stormwater impact fee due under subsection (c) of this section shall be $30,000.00 per acre of impervious surface. An individual discharger can reduce the stormwater impact fee through compliance with the engineering feasibility analysis under the agency procedure provided for in subsection (g) of this section. After an individual discharger of regulated stormwater completes the relevant impact fee and offset charge analysis under the agency procedure provided for in subsection (g) of this section, the discharger shall submit to the secretary of natural resources a proposed stormwater impact fee, a proposed offset charge, and documentation of the calculation of the fee and the offset charge. The secretary shall approve or disapprove of the proposed stormwater impact fee and offset charge.

(2) If the secretary of natural resources approves of a proposed stormwater impact fee and offset charge under subdivision (1) of this subsection, the secretary shall notify the applicant and shall:

(A) Certify the offset charge that will mitigate the uncontrolled sediment load or hydrologic impact of the proposed discharge;

(B) Assign the offset charge to an offset permitted under subsection (e) of this section possessing sufficient offset charge capacity to accommodate the offset charge. Offset charges for discharges allowed under subdivision (b)(1)(A) of this section shall be assigned only to an offset for which a permit has been issued pursuant to subsection (e) of this section and that will be completed prior to initiation of the discharge; and

(C) Certify the stormwater impact fee and require, as a condition of a discharge permit, payment in full of said fee to the stormwater-impaired waters restoration fund upon issuance of a local zoning or building permit authorizing construction of the discharge.

(3) No construction or discharge shall be initiated under a discharge permit until the offset charge for a proposed discharge has been assigned to an offset project under subdivision (2) of this subsection.

(4) If a watershed lacks an offset with sufficient capacity to accommodate a proposed offset charge, the secretary shall assign an offset charge when offset capacity becomes available and in the order of the secretary's determination that the discharge permit application is technically complete.

(e)(1) The secretary of natural resources may issue a permit for an offset project under this section. Application shall be made on a form prescribed by the secretary of natural resources. An applicant shall pay an application fee in accordance with section 2282 of Title 3. The secretary may issue such permits for the following activities or projects:

(A) Stormwater treatment of any discharge of regulated stormwater runoff initiated prior to 1978;

(B) Stormwater treatment of any discharge of regulated stormwater runoff initiated after 1978 when the secretary did not previously issue or require a stormwater discharge permit or temporary pollution permit for the discharge;

(C)(i) Conversion of land use to reduce sediment load or hydrologic impact, especially in riparian areas, provided that conversion of primary agricultural soils as that term is defined in section 6001 of this title shall be limited to establishing by easement a forested riparian buffer zone that meets the requirements of the department of environmental conservation's guidance for nonimpervious surface treatment offset projects within impaired watersheds;

(ii) Prior to approval of an offset project to be implemented on agricultural soils under this subdivision, the applicant for a stormwater discharge permit shall conduct an analysis of the viability of implementing a nonagricultural offset within the watershed of the proposed stormwater discharge. To facilitate such an analysis, the secretary of natural resources will identify any potential nonagricultural offsets in the watershed of the proposed discharge and shall provide this information to the applicant;

(D) Restoration of an eroding or unstable stream bank where supported by a geomorphic assessment;

(E) Replacement of existing undersized or deteriorated culverts that have an impact on stream channel stability; or

(F) Other stream restoration or stormwater treatment projects that the secretary deems necessary or appropriate to reduce sediment load or reduce hydrologic impact in a stormwater-impaired water.

(2)(A) The secretary shall provide notice of each application for an individual offset permit to the public and any appropriate officials of another state and the federal government, including the administrator of the United States Environmental Protection Agency, and shall provide an opportunity for written comments or a public hearing, or both, on the application before making a final ruling on the application.

(B) Prior to issuing an offset general permit, the secretary shall give notice as provided in this subsection and provide for written comments or a public hearing, or both, as provided in this subsection. When applying for coverage under an offset general permit, the applicant shall provide notice on a form provided by the secretary to the municipal clerk of the municipality in which the offset is located at the time the application is filed with the secretary, and the secretary shall provide an opportunity for written comment regarding whether the application complies with the terms and conditions of the offset general permit for ten days following receipt of the application.

(C) The secretary may require any applicant to submit any additional information which the secretary considers necessary and may refuse to grant an offset permit until the information is furnished and evaluated.

(3) If the secretary determines that a proposed offset will not violate any applicable provisions of state or federal law or regulation, the secretary shall issue an offset permit containing terms and conditions as may be necessary to carry out the purposes of this chapter and of applicable law. Those terms and conditions may include but shall not be limited to providing for specific best management practices, effluent limitations, and levels of treatment technology; monitoring, recording, and reporting standards; entry and inspection authority for state and, as determined by the secretary, federal officials; and reporting of substantial changes in the character or nature of permitted activities on waters of the state.

(4) An offset permit issued pursuant to this subsection:

(A) Shall include the requirement that any discharge that an offset is mitigating be located in the same watershed of the stormwater-impaired water in which the offset is located;

(B) Shall be allocated an offset charge capacity;

(C) Shall identify the party or parties responsible for performance of the offset;

(D) Shall, for an offset that will be completed after initiation of the discharge, include a schedule of construction reasonably designed to ensure completion of the offset within two years of issuance;

(E) Shall be completed after April 1, 2004;

(F) May include a requirement to provide financial security in the form of an authorized surety bond, a cash deposit or cash equivalent, or an irrevocable letter of credit issued by a qualified financial institution to ensure adequate construction and maintenance of the offset; and

(G) Shall include a plan for the operation and maintenance of the offset.

(5) The secretary shall establish and maintain an accounting system or ledger documenting all amounts of sediment load or hydrologic impact mitigated by offset projects and all discharges which make use of those offsets in order to attain the discharge standards.

(6) The secretary shall not assign an offset charge to an offset that will be completed after initiation of the discharge unless the associated offset permit is issued in accordance with the requirements of subsection 1258(b) of this title.

(7) An offset permit may be issued in conjunction with a discharge permit when the applicant for a discharge permit seeks to construct an offset that will exceed the sediment load or hydrologic impact that the discharger must mitigate to meet the discharge standard for the proposed discharge. The offset charge capacity allocated to an offset permit shall not include the sediment load or hydrologic impact that a discharge permittee is required to mitigate in order to meet the discharge standard for a permit issued under subdivision (b)(1) of this section.

(f) If the discharge of regulated stormwater runoff from the development, redevelopment, or expansion of impervious surfaces did not require a stormwater discharge permit prior to July 1, 2004, a state permit is not required under this subsection, provided that:

(1) A complete application for all local, state, and federal permits, except NPDES construction activities permits, related to either the regulation of land use or a discharge to state waters has been submitted as of July 1, 2004, and the applicant does not subsequently file an application for permit amendment that would have an adverse impact on water quality, and substantial construction of the project commences within two years of the date on which all such local, state, and federal permits become final;

(2) All local, state, and federal permits, except NPDES construction activities permits, related to either the regulation of land use or a discharge to state waters has been obtained as of July 1, 2004, and substantial construction of the project commences within two years of July 1, 2004;

(3) No local, state, or federal permit, except NPDES construction activities permits, related to either the regulation of land use or a discharge to state waters is required, and substantial construction of the project commences within two years of July 1, 2004; or

(4) The development, redevelopment, or expansion is a linear project, and an order of necessity has been issued or right-of-way acquisition has been substantially completed as of July 1, 2004, and construction of the project commences within five years after July 1, 2004.

(g) The Vermont Department of Environmental Conservation Procedure for Evaluation of Stormwater Discharges and Offsets in Stormwater Impaired Watersheds dated May 5, 2004 shall include:

(1) The method for determining the stormwater impact fee for a discharge permitted under subdivision (b)(1)(A) of this section;

(2) The method for determining the stormwater impact fee for a discharge permitted under subdivision (b)(1)(B) of this section;

(3) An engineering feasibility analysis for determining the extent or degree of stormwater treatment, the extent or degree of stormwater control, and the technical feasibility of completing an offset, including an appropriate margin of safety to account for the variability in quantifying the sediment load or hydrologic impact to be mitigated.

(h) If the secretary determines that a person has separated a single development, redevelopment, or expansion project into components in order to avoid the regulatory minimum threshold or other requirements under this section, the person shall be required to submit a permit application for the entire project. The secretary's determination under this subsection shall have the effect of a final decision and is subject to appeal under section 1269 of this title. (Added 2003, No. 140 (Adj. Sess.), § 2; amended 2005, No. 154 (Adj. Sess.), § 4, eff. May 17, 2006.)


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State Codes and Statutes

Statutes > Vermont > Title-10 > Chapter-47 > 1264a

§ 1264a. Interim stormwater permitting authority

(a) The definitions found in subsection 1264(a) of this title shall apply to this section.

(b) Prior to adopting a rule pursuant to subsection 1264(d) of this title, the secretary may issue a permit in a stormwater-impaired water for:

(1) A discharge of regulated stormwater runoff from an impervious surface equal to or greater than one acre if:

(A) A new discharge or the expanded portion of an existing discharge meets the requirements of the 2002 stormwater management manual and does not increase the sediment load in the receiving stormwater-impaired water; or

(B) A discharge from redevelopment; from an existing discharge operating under an expired stormwater discharge permit where the property owner applies for a new permit; or from any combination of development, redevelopment, and expansion meets on-site the water quality, recharge, and channel protection criteria set forth in Table 1.1 of the 2002 stormwater management manual that are determined to be technically feasible by an engineering feasibility analysis conducted under the agency procedure provided for in subsection (g) of this section and if the sediment load from the discharge approximates the natural runoff from an undeveloped field or open meadow that is not used for agricultural activity.

(2) A discharge of regulated stormwater runoff from any size of impervious surface if the secretary determines that treatment is necessary to reduce the adverse impacts of the discharge due to the size of the impervious surface, drainage pattern, hydraulic connectivity, existing stormwater treatment, or other factors identified by the secretary. In order to receive a permit under this subdivision, a discharge must meet the applicable discharge standard in subdivision (1) of this subsection.

(c) If after completion of the on-site stormwater management requirements of the 2002 stormwater management manual a discharger does not meet the discharge standard for a discharge permitted under subdivision (b)(1)(A) of this section or if after completion of the water quality, recharge, and channel protection criteria set forth in Table 1.1 of the 2002 stormwater management manual that are determined to be technically feasible by the engineering feasibility analysis required under the agency procedure set forth in subsection (g) of this section a discharger does not meet the discharge standard for a discharge permitted under subdivision (b)(1)(B) of this section, the discharger may meet the relevant discharge standard by mitigating any uncontrolled sediment load or hydrologic impact. Mitigation of the uncontrolled sediment load or hydrologic impact may be achieved by:

(1) Completing an offset on property that the permit applicant owns or controls within the watershed of the stormwater-impaired water prior to or concurrently with the permitted discharge when an engineering feasibility analysis required under the agency procedure set forth in subsection (g) of this section determines that an offset is technically feasible. If in completing an offset under this subdivision a permit applicant contracts for the construction of an offset on property that the applicant does not own within the watershed of the stormwater-impaired water, the applicant shall submit to the secretary of natural resources an access agreement or easement that demonstrates that the permit applicant shall have access to the offset; or

(2) Paying a stormwater impact fee under subsection (d) of this section when completion of an offset is not technically feasible as determined by an engineering feasibility analysis conducted under the procedure provided for in subsection (g) of this section or if the discharge standard required by subsection (b)(1) of this section is not met after completing an offset.

(d)(1) A stormwater impact fee due under subsection (c) of this section shall be $30,000.00 per acre of impervious surface. An individual discharger can reduce the stormwater impact fee through compliance with the engineering feasibility analysis under the agency procedure provided for in subsection (g) of this section. After an individual discharger of regulated stormwater completes the relevant impact fee and offset charge analysis under the agency procedure provided for in subsection (g) of this section, the discharger shall submit to the secretary of natural resources a proposed stormwater impact fee, a proposed offset charge, and documentation of the calculation of the fee and the offset charge. The secretary shall approve or disapprove of the proposed stormwater impact fee and offset charge.

(2) If the secretary of natural resources approves of a proposed stormwater impact fee and offset charge under subdivision (1) of this subsection, the secretary shall notify the applicant and shall:

(A) Certify the offset charge that will mitigate the uncontrolled sediment load or hydrologic impact of the proposed discharge;

(B) Assign the offset charge to an offset permitted under subsection (e) of this section possessing sufficient offset charge capacity to accommodate the offset charge. Offset charges for discharges allowed under subdivision (b)(1)(A) of this section shall be assigned only to an offset for which a permit has been issued pursuant to subsection (e) of this section and that will be completed prior to initiation of the discharge; and

(C) Certify the stormwater impact fee and require, as a condition of a discharge permit, payment in full of said fee to the stormwater-impaired waters restoration fund upon issuance of a local zoning or building permit authorizing construction of the discharge.

(3) No construction or discharge shall be initiated under a discharge permit until the offset charge for a proposed discharge has been assigned to an offset project under subdivision (2) of this subsection.

(4) If a watershed lacks an offset with sufficient capacity to accommodate a proposed offset charge, the secretary shall assign an offset charge when offset capacity becomes available and in the order of the secretary's determination that the discharge permit application is technically complete.

(e)(1) The secretary of natural resources may issue a permit for an offset project under this section. Application shall be made on a form prescribed by the secretary of natural resources. An applicant shall pay an application fee in accordance with section 2282 of Title 3. The secretary may issue such permits for the following activities or projects:

(A) Stormwater treatment of any discharge of regulated stormwater runoff initiated prior to 1978;

(B) Stormwater treatment of any discharge of regulated stormwater runoff initiated after 1978 when the secretary did not previously issue or require a stormwater discharge permit or temporary pollution permit for the discharge;

(C)(i) Conversion of land use to reduce sediment load or hydrologic impact, especially in riparian areas, provided that conversion of primary agricultural soils as that term is defined in section 6001 of this title shall be limited to establishing by easement a forested riparian buffer zone that meets the requirements of the department of environmental conservation's guidance for nonimpervious surface treatment offset projects within impaired watersheds;

(ii) Prior to approval of an offset project to be implemented on agricultural soils under this subdivision, the applicant for a stormwater discharge permit shall conduct an analysis of the viability of implementing a nonagricultural offset within the watershed of the proposed stormwater discharge. To facilitate such an analysis, the secretary of natural resources will identify any potential nonagricultural offsets in the watershed of the proposed discharge and shall provide this information to the applicant;

(D) Restoration of an eroding or unstable stream bank where supported by a geomorphic assessment;

(E) Replacement of existing undersized or deteriorated culverts that have an impact on stream channel stability; or

(F) Other stream restoration or stormwater treatment projects that the secretary deems necessary or appropriate to reduce sediment load or reduce hydrologic impact in a stormwater-impaired water.

(2)(A) The secretary shall provide notice of each application for an individual offset permit to the public and any appropriate officials of another state and the federal government, including the administrator of the United States Environmental Protection Agency, and shall provide an opportunity for written comments or a public hearing, or both, on the application before making a final ruling on the application.

(B) Prior to issuing an offset general permit, the secretary shall give notice as provided in this subsection and provide for written comments or a public hearing, or both, as provided in this subsection. When applying for coverage under an offset general permit, the applicant shall provide notice on a form provided by the secretary to the municipal clerk of the municipality in which the offset is located at the time the application is filed with the secretary, and the secretary shall provide an opportunity for written comment regarding whether the application complies with the terms and conditions of the offset general permit for ten days following receipt of the application.

(C) The secretary may require any applicant to submit any additional information which the secretary considers necessary and may refuse to grant an offset permit until the information is furnished and evaluated.

(3) If the secretary determines that a proposed offset will not violate any applicable provisions of state or federal law or regulation, the secretary shall issue an offset permit containing terms and conditions as may be necessary to carry out the purposes of this chapter and of applicable law. Those terms and conditions may include but shall not be limited to providing for specific best management practices, effluent limitations, and levels of treatment technology; monitoring, recording, and reporting standards; entry and inspection authority for state and, as determined by the secretary, federal officials; and reporting of substantial changes in the character or nature of permitted activities on waters of the state.

(4) An offset permit issued pursuant to this subsection:

(A) Shall include the requirement that any discharge that an offset is mitigating be located in the same watershed of the stormwater-impaired water in which the offset is located;

(B) Shall be allocated an offset charge capacity;

(C) Shall identify the party or parties responsible for performance of the offset;

(D) Shall, for an offset that will be completed after initiation of the discharge, include a schedule of construction reasonably designed to ensure completion of the offset within two years of issuance;

(E) Shall be completed after April 1, 2004;

(F) May include a requirement to provide financial security in the form of an authorized surety bond, a cash deposit or cash equivalent, or an irrevocable letter of credit issued by a qualified financial institution to ensure adequate construction and maintenance of the offset; and

(G) Shall include a plan for the operation and maintenance of the offset.

(5) The secretary shall establish and maintain an accounting system or ledger documenting all amounts of sediment load or hydrologic impact mitigated by offset projects and all discharges which make use of those offsets in order to attain the discharge standards.

(6) The secretary shall not assign an offset charge to an offset that will be completed after initiation of the discharge unless the associated offset permit is issued in accordance with the requirements of subsection 1258(b) of this title.

(7) An offset permit may be issued in conjunction with a discharge permit when the applicant for a discharge permit seeks to construct an offset that will exceed the sediment load or hydrologic impact that the discharger must mitigate to meet the discharge standard for the proposed discharge. The offset charge capacity allocated to an offset permit shall not include the sediment load or hydrologic impact that a discharge permittee is required to mitigate in order to meet the discharge standard for a permit issued under subdivision (b)(1) of this section.

(f) If the discharge of regulated stormwater runoff from the development, redevelopment, or expansion of impervious surfaces did not require a stormwater discharge permit prior to July 1, 2004, a state permit is not required under this subsection, provided that:

(1) A complete application for all local, state, and federal permits, except NPDES construction activities permits, related to either the regulation of land use or a discharge to state waters has been submitted as of July 1, 2004, and the applicant does not subsequently file an application for permit amendment that would have an adverse impact on water quality, and substantial construction of the project commences within two years of the date on which all such local, state, and federal permits become final;

(2) All local, state, and federal permits, except NPDES construction activities permits, related to either the regulation of land use or a discharge to state waters has been obtained as of July 1, 2004, and substantial construction of the project commences within two years of July 1, 2004;

(3) No local, state, or federal permit, except NPDES construction activities permits, related to either the regulation of land use or a discharge to state waters is required, and substantial construction of the project commences within two years of July 1, 2004; or

(4) The development, redevelopment, or expansion is a linear project, and an order of necessity has been issued or right-of-way acquisition has been substantially completed as of July 1, 2004, and construction of the project commences within five years after July 1, 2004.

(g) The Vermont Department of Environmental Conservation Procedure for Evaluation of Stormwater Discharges and Offsets in Stormwater Impaired Watersheds dated May 5, 2004 shall include:

(1) The method for determining the stormwater impact fee for a discharge permitted under subdivision (b)(1)(A) of this section;

(2) The method for determining the stormwater impact fee for a discharge permitted under subdivision (b)(1)(B) of this section;

(3) An engineering feasibility analysis for determining the extent or degree of stormwater treatment, the extent or degree of stormwater control, and the technical feasibility of completing an offset, including an appropriate margin of safety to account for the variability in quantifying the sediment load or hydrologic impact to be mitigated.

(h) If the secretary determines that a person has separated a single development, redevelopment, or expansion project into components in order to avoid the regulatory minimum threshold or other requirements under this section, the person shall be required to submit a permit application for the entire project. The secretary's determination under this subsection shall have the effect of a final decision and is subject to appeal under section 1269 of this title. (Added 2003, No. 140 (Adj. Sess.), § 2; amended 2005, No. 154 (Adj. Sess.), § 4, eff. May 17, 2006.)


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