This story, by Report for America corps member Carly Berlin, was produced through a partnership between VTDigger and Vermont Public.
The Vermont Legislature and Republican Gov. Phil Scott are mired in a fight over how easy it should be to build housing near wetlands.
On Thursday, a legislative oversight committee issued a formal rebuke against the Scott administration’s efforts to loosen rules around building near wetlands, arguing that the move ran afoul of lawmakers’ intent to protect these ecosystems and amounted to an overstep of executive power.
The Scott administration has pushed for the rule changes as part of a broader effort to ease building regulations and spur more home construction.
“It’s unfortunate that they’ve decided to walk back on their commitment to addressing the housing crisis,” Scott’s press secretary, Amanda Wheeler, said in a statement about the committee’s move to reject the rule changes.
The objection by the Legislative Committee on Administrative Rules is not final. Scott administration officials have two weeks to respond to the rejection and could decide to implement the rule regardless of the committee’s decision. Wheeler said administration officials are evaluating their next steps “to implement this modest change to support housing creation.”
The wetlands fight kicked off in September, when Scott issued an executive order aimed at hastening housing development via rolling back environmental regulations and streamlining permitting.
Among other provisions, the order sought to allow housing development to proceed without a permit in certain wetlands that are not officially mapped by the state — specifically in areas that the state has designated for growth. The order also cut in half the buffer zone around a wetland that developers would need to avoid, from 50 feet to 25 feet.
Homebuilders cheered the move, saying the changes would increase the number of homes they could build on properties with wetlands.
One prominent example is the Prospect Heights project in Barre, a large-scale proposed development on higher ground in the flood-prone city. Under current rules, the site could accommodate 90 new units at best, said Josh Jerome, executive director of Barre Area Development, Inc. With the loosened wetlands rules in place, Jerome estimated the area could accommodate 120 homes.
But environmental organizations cried foul last fall, arguing that Scott’s order — issued while lawmakers were not in session — violated the separation of powers. Soon after, Attorney General Charity Clark issued an opinion suggesting the Scott administration ought to go through a formal rulemaking process to implement the changes it sought.
Now, the legislative oversight committee rejected those rules in a 5-3 party-line vote on Thursday, with Democrats voting in the majority.
“I think it very clearly is outside legislative intent … which is to — just to put it in the simplest terms – to protect wetlands, and actually to, if anything, expand the number of wetlands to the extent that that’s possible,” said Sen. Seth Bongartz, D-Bennington, a member of the oversight committee. Wetlands help mitigate flood damage by absorbing water, he said.
Jon Groveman, policy and water program director at the Vermont Natural Resources Council, cheered the committee’s decision.
“Building houses in wetlands is not going to help people who are going to live in those houses,” Groveman said, adding that the homes and related infrastructure would degrade with exposure to a wet environment and could be at risk of flooding.
The state should devote resources to better mapping wetlands to cut down on uncertainty for builders, Groveman said — work that is already underway at the Department of Environmental Conservation. Developers are often caught off guard when the state’s maps diverge greatly from what wetland surveyors find during field studies.
Housing advocates and developers like Jerome expressed their disappointment in the committee’s move Thursday, saying the action endorses a status quo that ensnares homebuilding in excessive red tape.
“The status quo is crushing Vermont families,” said Miro Weinberger, executive chair of the lobbying group Let’s Build Homes, in a statement Thursday. “It is driving up housing costs, forcing people out of the communities they love, and taking a real human toll on our state.”
The oversight committee’s decision comes as lawmakers and administration officials have been ensnared in a wider public debate over the land-use law Act 181 — prompting questions around where Vermont should encourage housing growth and where the state should strengthen environmental protections.
“To set things up as if there’s an actual conflict between protecting wetlands and building housing is preposterous."Sen. Seth Bongartz, D-Bennington
To Bongartz, an architect of Act 181, these goals need not contradict each other.
“To set things up as if there’s an actual conflict between protecting wetlands and building housing is preposterous,” Bongartz said.
If the Scott administration decides to proceed with the wetland rule changes over lawmakers’ objections, the Vermont Natural Resources Council would likely take legal action, Groveman said.
“If they move forward with it, I don’t see a scenario where we wouldn’t challenge the rule in court,” he said.
