Vermont § 1253 - Classification of waters designated; reclassification

§ 1253. Classification of waters designated; reclassification

• (a) The waters of all lakes, ponds, and reservoirs, natural or artificial, used exclusively
  as a public water source prior to July 1, 1971, and all waters flowing into such lakes,
  ponds, and reservoirs, and all waters located above 2,500 feet altitude, National
  Geodetic Vertical Datum, are designated Class A waters and shall be maintained as
  such unless reclassified. (b) The remaining waters are designated Class B(2) waters and shall be maintained as such
  unless reclassified. (c) On its own motion, or on receipt of a written request that the Secretary adopt, amend,
  or repeal a reclassification rule, the Secretary shall comply with 3 V.S.A. § 806 and may initiate a rulemaking proceeding to reclassify one or more uses of all or
  any portion of the affected waters in the public interest. In the course of this proceeding,
  the Secretary shall comply with the provisions of 3 V.S.A. chapter 25 and may hold a public hearing convenient to the waters in question. If the Secretary
  finds that the established classification is contrary to the public interest and that
  reclassification is in the public interest, he or she shall file a final proposal
  of reclassification in accordance with 3 V.S.A. § 841. If the Secretary finds that it is in the public interest to change the classification
  of any pond, lake, or reservoir designated as Class A for a public water source, the
  Secretary shall so advise and consult with the Department of Health and shall provide
  in its reclassification rule a reasonable period of time before the rule becomes effective.
  During that time, any municipalities or persons whose water source is affected shall
  construct filtration and disinfection facilities or convert to a new water source. (d)(1) Through the process of basin planning, the Secretary shall determine what degree of
  water quality and classification should be obtained and maintained for those waters
  not classified by the Board before 1981 following the procedures in sections 1254 and 1258 of this title. Those waters shall be classified in the public interest. The Secretary shall prepare
  and maintain an overall surface water management plan to assure that the State water
  quality standards are met in all State waters. The surface water management plan shall
  include a schedule for updating the basin plans. The Secretary, in consultation with
  regional planning commissions and the Natural Resources Conservation Council, shall
  revise all 15 basin plans and update the basin plans on a five-year rotating basis.
  On or before January 15 of each year, the Secretary shall report to the House Committees
  on Agriculture, Food Resiliency, and Forestry and on Environment and to the Senate
  Committees on Agriculture and on Natural Resources and Energy regarding the progress
  made and difficulties encountered in revising basin plans. The report shall include
  a summary of basin planning activities in the previous calendar year, a schedule for
  the production of basin plans in the subsequent calendar year, and a summary of actions
  to be taken over the subsequent three years. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this
  subsection. (2) In developing a basin plan under this subsection, the Secretary shall: (A) identify waters that should be reclassified outstanding resource waters or that should
  have one or more uses reclassified under section 1252 of this title; (B) identify wetlands that should be reclassified as Class I wetlands; (C) identify projects or activities within a basin that will result in the protection
  and enhancement of water quality; (D) review the evaluations performed by the Secretary under subdivisions 922(a)(1) and
  (2) of this title and update those findings based on any new data collected as part
  of a basin plan; (E) for projects in the basin that will result in enhancement of resources, including
  those that protect high quality waters of significant natural resources, the Secretary
  shall identify the funding needs beyond those currently funded by the Clean Water
  Fund; (F) ensure that municipal officials, citizens, natural resources conservation districts,
  regional planning commissions, watershed groups, and other interested groups and individuals
  are involved in the basin planning process; (G) ensure regional and local input in State water quality policy development and planning
  processes; (H) provide education to municipal officials and citizens regarding the basin planning
  process; (I) develop, in consultation with the regional planning commission, an analysis and formal
  recommendation on conformance with the goals and objectives of applicable regional
  plans; (J) provide for public notice of a draft basin plan; (K) provide for the opportunity of public comment on a draft basin plan; and (L) identify opportunities to mitigate impacts of severe precipitation events on communities
  through implementation of nature-based restoration projects or practices that increase
  natural flood water attenuation and storage. (3) The Secretary shall, contingent upon the availability of funding, negotiate and issue
  performance grants to the Vermont Association of Planning and Development Agencies
  or its designee, the Natural Resources Conservation Council or its designee, and to
  Watersheds United Vermont or its designee to assist in or to produce a basin plan
  under the schedule set forth in subdivision (1) of this subsection in a manner consistent
  with the authority of regional planning commissions under 24 V.S.A. chapter 117 and the authority of the natural resources conservation districts under chapter 31
  of this title. When negotiating a scope of work with the Vermont Association of Planning
  and Development Agencies or its designee, the Natural Resources Conservation Council
  or its designee, and Watersheds United Vermont or its designee to assist in or produce
  a basin plan, the Secretary may require the Vermont Association of Planning and Development
  Agencies, the Natural Resources Conservation Council, or Watersheds United Vermont
  to: (A) conduct any of the activities required under subdivision (2) of this subsection (d); (B) provide technical assistance and data collection activities to inform municipal officials
  and the State in making water quality investment decisions; (C) coordinate municipal planning and adoption or implementation of municipal development
  regulations better to meet State water quality policies and investment priorities;
  or (D) assist the Secretary in implementing a project evaluation process to prioritize water
  quality improvement projects within the region to ensure cost-effective use of State
  and federal funds. (e) In determining the question of public interest, the Secretary shall give due consideration
  to, and explain his or her decision with respect to, the following: (1) existing and obtainable water qualities; (2) existing and potential use of waters as a public water source, recreational, agricultural,
  industrial, and other legitimate purposes; (3) natural sources of pollution; (4) public and private pollution sources and the alternative means of abating the same; (5) consistency with the State water quality policy established in section 1250 of this title; (6) suitability of waters as habitat for fish, aquatic life, and wildlife; (7) need for and use of minimum streamflow requirements; (8) federal requirements for classification and management of waters; (9) consistency with applicable municipal, regional, and State plans; and (10) any other factors relevant to determine the maximum beneficial use and enjoyment of
  waters. (f) Notwithstanding the provisions of subsection (c) of this section, when reclassifying
  waters to Class A, the Secretary need find only that the reclassification is in the
  public interest. (g) The Secretary under the reclassification rule may grant permits for only a portion
  of the assimilative capacity of the receiving waters or may permit only indirect discharges
  from on-site disposal systems, or both. [Subsection (h) effective upon amendment of Vermont Water Quality Standards.] (h)(1) The Secretary shall administer a Clean Water Act Section 401 certification program
  to review activities that require a federal license or permit or activities subject
  to regulation under chapter 41, subchapter 4 of this title to ensure that a proposed
  activity complies with the Vermont Water Quality Standards, as well as with any other
  appropriate requirement of State law, including: (A) 10 V.S.A. chapter 37 (wetlands protection and water resources management); (B) 10 V.S.A. chapter 41 (regulation of stream flow); (C) 10 V.S.A. § 1264 (stormwater management); (D) 29 V.S.A. chapter 11 (management of lakes and ponds); and (E) the Agency of Natural Resources Rules for Water Withdrawals for Snowmaking. (2) The Secretary of Natural Resources shall not grant an application for certification
  under Section 401 of the Clean Water Act unless the applicant demonstrates all of
  the following: (A) there is no practicable alternative to the proposed activity that would have a less
  adverse impact on waters and wetlands of the State and provided that any proposed
  alternative shall not have other significant adverse human health, safety, or environmental
  consequences; (B) the proposed activity will not result in the violation of any applicable water quality
  criteria established in the Vermont Water Quality Standards; and (C) the proposed activity will not result in a violation of the State’s antidegradation
  policy. (3)(A) An alternative is considered practicable under subdivision (2)(A) of this subsection
  (h) if it is available and capable of being completed after taking into consideration
  cost, existing technology, and logistics in light of overall purposes of the proposed
  activity. (B) Failure to comply with the requirements of subdivision (2)(A) of this subsection (h)
  shall not be the basis for denial of an application for a certification under Section
  401 of the Clean Water Act if the proposed activity is exempt from those requirements
  under a rule adopted by the Secretary. (4) The Secretary may issue a certification required by this subsection to any general
  permit or authorization issued by a federal agency. An applicant’s compliance with
  that federal permit or authorization shall be presumed to be in compliance with the
  certification unless the Secretary determines that an individual review of the applicant’s
  activity is necessary to assure compliance with the Vermont Water Quality Standards
  and other appropriate State laws. (Amended 1961, No. 100, § 2; 1964, No. 37 (Sp. Sess.), § 4; 1969, No. 252 (Adj. Sess.), § 2, eff. July 1, 1971; 1973, No. 3, eff. Feb. 8, 1973; 1973, No. 103, § 16, eff. April 24, 1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 6, eff. May 17, 1986; 1987, No. 154 (Adj. Sess.), §§ 1, 2, eff. April 20, 1988; 1991, No. 211 (Adj. Sess.), § 3; 1999, No. 114 (Adj. Sess.), § 2, eff. May 19, 2000; 2003, No. 115 (Adj. Sess.), § 26, eff. Jan. 31, 2005; 2009, No. 33, § 25; 2011, No. 138 (Adj. Sess.), § 22, eff. May 14, 2012; 2013, No. 142 (Adj. Sess.), § 18; 2015, No. 64, § 26; 2015, No. 79 (Adj. Sess.), § 2, eff. April 28, 2016; 2015, No. 154 (Adj. Sess.), § 12, eff. June 1, 2016; 2017, No. 113 (Adj. Sess.), § 44c; 2017, No. 168 (Adj. Sess.), § 4, eff. May 22, 2018; 2019, No. 76, § 2; 2021, No. 32, § 1; 2021, No. 135 (Adj. Sess.), § 2, eff. July 1, 2022; 2023, No. 121 (Adj. Sess.), § 25, eff. July 1, 2024.)