12-024 Code Vt. R. 12-030-024-X
The purpose of this Rule is to:
A majority of communities in Vermont are enrolled in NFIP and are required to adopt and enforce minimum NFIP regulatory standards. It is the policy of the State to ensure that Vermont communities remain in good standing with NFIP. The Vermont Agency of Natural Resources (Agency or ANR) provides municipalities and agencies of state government regulatory technical assistance in evaluating land development proposals in designated flood hazard areas and river corridors.
NFIP minimum standards seek to reduce the risk to new structures in the flood hazard area, but do not provide an adequate means of protecting the beneficial functions of the floodplain resource or development that is already located within floodplains. In addition, NFIP maps and standards do not recognize the dynamic processes that take place within the river corridor that are essential to maintain floodplain function. Undeveloped floodplains and river corridors provide a suite of social, economic, and ecological benefits.
The State recognizes that flood hazard vulnerability is due to loss of natural and beneficial floodplain functions and it is in the interest of the State to protect and restore floodplain function to the maximum extent possible. Floodplain functions that reduce flood hazards include attenuation of flood flows, storage of sediment and debris, water quality protection, and groundwater infiltration. Over the last two centuries, humans have attempted to secure investments located in floodplains by employing channel management practices, such as riverbank armoring, straightening, dredging, and berming. Combined with the effects of changing land uses, these practices have created a degraded condition in many Vermont rivers and streams where flows are largely kept within the channel, resulting in increased stream power and reduced access to floodplains. Loss of floodplain access can trigger physical instability in a river system and lead to greater sensitivity to erosion hazards such as bank failures, dramatic changes in stream path, enlargement of the channel, and severe flood damages. NFIP maps and regulations fail to consider loss of floodplain access, which exacerbates the problem. Protection of the river corridor provides rivers and streams with the lateral space necessary to maintain or reestablish floodplain access and stability through natural, physical processes.
Violations of this Rule are subject to enforcement under applicable Vermont law including, 10 V.S.A. Chapter 32 and 10 V.S.A. Chapters 201 and 211. Failure to comply with the requirements of this Rule as outlined in a general or individual permit shall constitute a violation of this Rule.
For the purposes of this Rule, the following terms shall have the specified meaning. If a term is not defined, it shall have its common meaning.
"Accessory structure" means a structure which is:
"Agency" or "ANR" means the Vermont Agency of Natural Resources.
"Base flood" means the flood having a one percent chance of being equaled or exceeded in any given year.
"Base Flood Elevation" (BFE) means the elevation of the water surface elevation resulting from a flood that has a one percent chance of equaling or exceeding that level in any given year. On the Flood Insurance Rate Map the elevation is usually in feet, in relation to the National Geodetic Vertical Datum of 1929, the North American Vertical Datum of 1988, or other datum referenced in the Flood Insurance Study report, or the average depth of the base flood, usually in feet, above the ground surface.
"Basement" means any area of a building having its floor elevation below ground level on all sides, including crawlspaces.
"BFE" see Base Flood Elevation.
"Channel" means an area that contains continuously or periodic flowing water that is confined by banks and a streambed.
"Compensatory storage" means a volume not previously used for flood storage and which shall be incrementally equal to the theoretical volume of flood water at each elevation, up to and including the base flood elevation, which would be displaced by the proposed project. Such compensatory volume shall have an unrestricted hydraulic connection to the same waterway or water body. Further, with respect to waterways, such compensatory volume shall be provided within the same reach of the river, stream, or creek.
"Construction trailer" means a vehicle which is:
"Critical facility" means development exempt from municipal regulation that is state-owned and operated and vital to public health and safety or a facility regulated under 30 V.S.A. § 248. For the purposes of this definition state-owned and operated facilities include facilities that provide services or functions related to public health and safety during emergency response and recovery and facilities that must be protected to a higher standard to protect public health and safety.
"Designated center" means a downtown, village center, new town center, growth center, or neighborhood development area designated pursuant to 24 V.S.A. chapter 76A.
"Development" means any human-made change to improved or unimproved real estate, including buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations, or storage of equipment or materials.
"Development exempt from municipal regulation" means the following for the purposes of this Rule: development and substantial improvements to structures that a municipality is prohibited by law from regulating, including:
"Farm production area" means the part of a farm that includes the animal confinement area, the manure storage area, the feed storage area, the waste containment areas, washing or processing areas, the fertilizer and pesticide storage areas, and areas used for the storage, handling, treatment, or disposal of mortalities.
"FEMA" means the Federal Emergency Management Agency.
"Fill" means any placed material that permanently changes the natural grade, increases the elevation, or diminishes the flood storage capacity at a site. Temporary storage of material is not considered fill.
"FIRM" see Flood Insurance Rate Map.
"Flood" means
"Floodplain" means any land area susceptible to being inundated by water from any source (see definition of "Flood").
"Flood fringe" means the area that is outside of the floodway but still inundated by the designated base flood (the flood having a one percent chance of being equaled or exceeded in any given year).
"Flood hazard" means those hazards related to inundation damages.
"Flood hazard area" means the land in the floodplain within a community subject to a one percent or greater chance of flooding in any given year. The term has the same meaning as "area of special flood hazard" under 44 C.F.R. § 59.1.
"Flood Insurance Rate Map" (FIRM) means an official map of a community, on which the Federal Insurance Administrator has delineated both the special flood hazard areas and the risk premium zones applicable to the community.
"Flood insurance study" means an examination, evaluation, and determination of flood hazards and, if appropriate, the corresponding water surface elevations or an examination, evaluation, and determination of mudslide (i.e., mudflow) and/or flood related erosion hazards.
"Flood proofing" means any combination of structural and non-structural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures, and their contents.
"Floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot at any point. Flood hazard areas and floodways may be shown on separate map panels.
"Fluvial erosion hazards" means those hazards related to the erosion or scouring of riverbeds and banks during high flow conditions of a river.
"Functionally dependent use" means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water (e.g., bridges and culverts).
"Historic structure" means any structure that is:
"Infill development" means, for the purposes of designated centers, construction , installation, modification, renovation, or rehabilitation of land, interests in land, buildings, structures, facilities, or other improvements in an area that was not previously developed but is surrounded by existing development. For the purposes of farm production areas, infill development means construction on a vacant area within the farm production area.
"Letter of Map Amendment" (LOMA) is a letter issued by FEMA officially removing a structure or lot from the flood hazard area based on information provided by a certified engineer or surveyor. This is used where structures or lots are located above the base flood elevation and have been inadvertently included in the mapped special flood hazard area.
"Lowest floor" means the lowest floor of the lowest enclosed area of a building, including the basement, except an unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access, or storage in an area other than a basement area is not considered a building's lowest floor provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of 44 C.F.R. § 60.3.
"New construction" means structures for which the start of construction commenced on or after the effective date of the floodplain management regulation adopted by the community and includes any subsequent improvements to such structures.
"NFIP" means the National Flood Insurance Program.
"Public water access" means a state-owned access to a water of the State and, except for toilet facilities, shall not include structures as defined in this Rule.
"Recreational vehicle" means a vehicle which is:
"Redevelopment" means construction, installation, modification, renovation, or rehabilitation of land, interests in land, buildings, structures, facilities, or other improvements in a previously developed area within a designated center or farm production area. The term includes substantial improvements and repairs to substantially damaged buildings.
"Replacement structure" means a new building placed in the same location, footprint, and orientation as the pre-existing building.
"River corridor" means the land area adjacent to a river that is required to accommodate the dimensions, slope, planform, and buffer of the naturally stable channel and that is necessary for the natural maintenance or natural restoration of a dynamic equilibrium condition and for minimization of fluvial erosion hazards, as delineated by the Agency in accordance with river corridor protection procedures. ( 10 V.S.A. § 1422(12)) .
"Secretary" means the Secretary of Natural Resources or his or her authorized representative.
"Special flood hazard area" is synonymous with "flood hazard area" and "area of special flood hazard" ( 44 C.F.R. § 59.1) , and is the floodplain within a community subject to a one percent or greater chance of flooding in any given year. This area is usually labeled Zone A, AO, AH, AE, or A1-30 in the most current flood insurance studies and on the maps published by FEMA. Base flood elevations have not been determined in Zone A where the flood risk has been mapped by approximate methods. Base flood elevations are shown at selected intervals on maps of special flood hazard areas that are determined by detailed methods. Please note, where floodways have been determined they may be shown on separate map panels from the Flood Insurance Rate Maps.
"Start of construction" includes substantial improvements, and means the date the building permit was issued provided the actual start of construction, repair, reconstruction, rehabilitation, addition placement, or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footing, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, regardless of whether that alteration affects the external dimensions of the building.
"Structure" means a walled and roofed building, as well as a manufactured home, including gas or liquid storage tanks.
"Substantial damage" means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.
"Substantial improvement" means any reconstruction, rehabilitation, addition, replacement, or other improvement of a structure for which a building permit is issued after the date of adoption of this Rule, the cost of which, over five years, cumulatively equals or exceeds 50 percent of the market value of the structure before the "start of construction" of the improvement. This term includes structures which have incurred "substantial damage", regardless of the actual repair work performed. The term does not, however, include either:
"Transportation network" means municipally-owned transportation infrastructure for which the Vermont Agency of Transportation is the responsible party under this Rule or state-owned roads and transportation infrastructure, including state forest highways and management roads. "Transportation network" shall not include "structures," as defined in this Rule.
"Utility network" means above or below ground linear facilities subject to 30 V.S.A. § 248 or 248a.
"Violation" means noncompliance with the requirements of this Rule.
"Watercourse" means any perennial stream and shall not include ditches or other constructed channels primarily associated with land drainage or water conveyance through or around private or public infrastructure.
"Wet-floodproofing" means permanent or contingent measures applied to a structure that prevent or provide resistance to damage from flooding by allowing water to enter the structure in accordance with Technical Bulletin 7 published by FEMA.
The following activities shall not require approval under this Rule:
This subchapter sets forth a process for the development and issuance of general permits required by this Rule.
The Secretary may modify a general permit in the same manner as described in § 29-503 of this Rule.
Appeals from any act or decision of the Secretary under this Rule are governed by 10 V.S.A. § 8504 or 10 V.S.A. § 8506.
A permit for development exempt from municipal regulation shall not be required for a project that has applied for or obtained all necessary local, state, and federal permits as of March 1, 2015. If no local, state, or federal permit is required for a project, but construction commences prior to March 1, 2015, a permit under this Rule shall not be required.
12-024 Code Vt. R. 12-030-024-X
EFFECTIVE DATE: March 1, 2015 Secretary of State Rule #14-039