Now that a legislative committee has come forward with recommendations for changes to Vermont’s storied environmental legislation (known to most by its bill number from 1969, Act 250), I thought it would be useful to review the recent work of the District 5 Environmental Commission, which I chair.
The District 5 commission is one of nine such bodies in the state, and is charged with administering Act 250 in the central part of Vermont (roughly Washington and Lamoille counties). I was appointed chair in June 2017 by Gov. Scott, and succeeded Jito Coleman of Waitsfield, who had been appointed by Gov. Shumlin. There are three commissioners, the other two being Ginny Callan of Calais and Jeremy Reed of Roxbury.
In administering Act 250 in District 5, the commission carries out several functions, some of which are done by the commission itself and some by the coordinators or the NRB legal staff.
As chair of the commission, one of my goals has been to expedite the permit process without sacrificing the environmental goals of Act 250. In the past 18 months, I think we have done that. Of the 33 applications which have come before the commission, all but five have been addressed via the “minor” or draft permit process, and took on average 72 days from filing to permit. No significant changes were suggested to any draft permit. A recent NRB report said that in 2017, District 5 issued 139 permits (the most by any district in the state) and that 94 percent of permits were issued in less than 60 days.
Prior to becoming chair of the commission, I had little to no experience with Act 250 . While I am by no means now an expert, I have some observations:
— When an application proceeds to a hearing, there is actually less support for the commission than exists at most town development review boards. There is no transcript nor anyone dedicated to taking detailed notes. When the commission comes to deliberate, it comes down to recollections of testimony by commissioners and by the assigned coordinator together with whatever notes we have taken.
— Most of the applications for permits or amendments to permits are routine and as reflected above, few raise serious issues under the Act 250 criteria. To be sure, however, the necessity of completing a detailed application does tend to force compliance with some of the criteria even before the commission examines the request.
— As compared to its early days, the Act 250 process now is heavily dependent upon evidence or testimony from state employees, particularly those from the Agency of Natural Resources. Consequently, permits sometimes get delayed because of backlogs at ANR.
— Act 250 began with a list of 10 criteria that needed to be considered before a permit could issue. That list has now grown to 32, some of which are subcategories of the original 10. Most applications only touch on perhaps a quarter or less of the criteria. Even so, the list is so broad that any Commission could probably find a way to deny a permit to any applicant, especially under Criteria 8 which requires a finding that the development will not have an “undue adverse effect on the scenic or natural beauty of the area.”
— Enforcement of the law varies considerably district by district, particularly as it relates to when a permit amendment qualifies for administrative action by the coordinator and when it needs to go to a commission. In the past, District 5 has tended to limit the coordinators’ scope to issue AA’s compared to some other districts.
— In general, the Act 250 process in District 5 is highly efficient. Commissioners and alternates are unsalaried and receive a $50 per diem for days they work, plus expense reimbursement. The Commission only meets to hold hearings, to deliberate after a hearing, or to consider whether a particularly complex application should require a hearing. Most communication is via email. Hearings themselves are held close to the venue of the project, preferably in the involved town. All Act 250 paperwork, including large site plans, are uploaded to an internet site maintained by the NRB (see above) so very little paper is actually circulated.
— There needs to be better coordination or deferrals between district commissions and town development review boards. While the two bodies examine different issues (environmental impact and local zoning, respectively) there is overlap and it adds two steps to a process that could potentially be done in one. One solution would be to have the DRB consider Act 250 issues in small, local projects and the regional commission consider town zoning issues in larger regional projects.
— There needs to be improvement in the process to warn hearings. Currently, the commission relies on newspaper notices but with the decline in the circulation of papers, and the growth of digital media, other avenues need to be explored to make sure the public is aware of applications.
In closing, I want to thank the other commissioners, alternates and coordinators for their service to the district and to the state in carrying out the details of Vermont’s landmark environmental law. Those wishing to comment upon the process or any applications or permits, or this article, are welcome to contact me at firstname.lastname@example.org.
Josh Fitzhugh is a resident of Berlin and with his wife operates there a certified organic farm.