§754. Flood hazard area rules; uses exempt from municipal regulation

Link to law: http://legislature.vermont.gov/statutes/section/10/032/00754
Published: 2015

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Title

10

:
Conservation and Development






Chapter

032

:
FLOOD HAZARD AREAS











 

§

754. Flood hazard area rules; uses exempt from municipal regulation

(a) Rulemaking

authority.

(1) On or before

November 1, 2014, the Secretary shall adopt rules pursuant to 3 V.S.A. chapter

25 that establish requirements for the issuance and enforcement of permits

applicable to:

(i) uses exempt

from municipal regulation that are located within a flood hazard area or river

corridor of a municipality that has adopted a flood hazard bylaw or ordinance

under 24 V.S.A. chapter 117; and

(ii) State-owned

and -operated institutions and facilities that are located within a flood

hazard area or river corridor.

(2) The

Secretary shall not adopt rules under this subsection that regulate

agricultural activities without the consent of the Secretary of Agriculture,

Food and Markets, provided that the Secretary of Agriculture, Food and Markets

shall not withhold consent under this subdivision when lack of such consent

would result in the State's noncompliance with the National Flood Insurance

Program.

(3) The Secretary

shall seek the guidance of the Federal Emergency Management Agency in

developing and drafting the rules required by this section in order to ensure

that the rules are sufficient to meet eligibility requirements for the National

Flood Insurance Program.

(b) Required

rulemaking content. The rules shall:

(1) set forth

the requirements necessary to ensure uses exempt from municipal regulation are

regulated by the State in order to comply with the regulatory obligations set

forth under the National Flood Insurance Program.

(2) be designed

to ensure that the State and municipalities meet community eligibility

requirements for the National Flood Insurance Program.

(3) require that

the Secretary provide notice to a municipality in which a use exempt from municipal

regulation will occur of an application received under this section and a copy

of the permit issued, unless a use is authorized to occur without notification

of or reporting to the Secretary.

(c)

Discretionary rulemaking. The rules may establish requirements that exceed the

requirements of the National Flood Insurance Program for uses exempt from

municipal regulation, provided that any rules adopted under this subsection

that exceed the minimum requirements of the National Flood Insurance Program shall

be designed to prevent or limit a risk of harm to life, property, or

infrastructure from flooding.

(d) General

permit. The rules authorized by this section may establish requirements for a

general permit to implement the requirements of this section, including

authorization under the general permit to conduct a specified use exempt from

municipal regulation without notifying or reporting to the Secretary or an

agency delegated under subsection (g) of this section.

(e) Consultation

with interested parties. Prior to submitting the rules required by this section

to the Secretary of State under 3 V.S.A. § 838, the Secretary shall solicit the

recommendations of and consult with affected and interested persons and

entities such as: the Secretary of Commerce and Community Development; the

Secretary of Agriculture, Food and Markets; the Secretary of Transportation;

the Commissioner of Financial Regulation; representatives of river protection

interests; representatives of fishing and recreational interests; representatives

of the banking industry; representatives of the agricultural community;

representatives of the forest products industry; the regional planning

commissions; municipal interests; and representatives of municipal

associations.

(f) Permit

requirement. Beginning March 1, 2015, no person shall commence or conduct a use

exempt from municipal regulation in a flood hazard area or river corridor in a

municipality that has adopted a flood hazard area bylaw or ordinance under 24

V.S.A. chapter 117 or commence construction of a State-owned and -operated

institution or facility located within a flood hazard area or river corridor,

without a permit issued under the rules required under subsection (a) of this

section by the Secretary or by a State agency delegated permitting authority

under subsection (g) of this section.

(g) Delegation.

(1) The

Secretary may delegate to another State agency the authority to implement the

rules adopted under this section, to issue a permit under subsection (f) of

this section, and to enforce the rules and a permit.

(2) A memorandum

of understanding shall be entered into between the Secretary and a delegated

State agency for the purpose of specifying implementation of requirements of

this section and the rules adopted under this section, issuance of a permit or

coverage under a general permit under this section, and enforcement of the

rules and permit required by this section.

(3) Prior to

entering a memorandum of understanding, the Secretary shall post the proposed

memorandum of understanding on its website for 30 days for notice and comment.

When the memorandum of understanding is posted, it shall include a summary of

the proposed memorandum; the name, telephone number, and address of a person

able to answer questions and receive comments on the proposal; and the deadline

for receiving comments. A final copy of a memorandum of understanding entered

into under this section shall be sent to the chairs of the House and Senate

Committees on Natural Resources and Energy, the House Committee on Fish,

Wildlife and Water Resources, and any other committee that has jurisdiction

over an agency that is a party to the memorandum of understanding.

(h) Municipal

authority. This section and the rules adopted under it shall not prevent a

municipality from adopting substantive requirements for development in a flood

hazard area bylaw or ordinance under 24 V.S.A. chapter 117 that are more

stringent than the rules required by this section, provided that the bylaw or

ordinance shall not apply to uses exempt from municipal regulation. (Added

2011, No. 138 (Adj. Sess.), § 1, eff. May 14, 2012; amended 2013, No. 107 (Adj.

Sess.), § 1, eff. April 18, 2014.)
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