Lawmakers on Thursday rejected an effort by Gov. Phil Scott to weaken wetland protections as a way to spur more housing.
The 5-3 decision from the Legislative Committee on Administrative Rules is significant but not final. Members could revisit the decision after the Scott administration responds. The Agency of Natural Resources could also implement the rule over the committee’s objection.
The decision stems from a sweeping executive order Scott issued in September to roll back regulations he said were hindering the production of housing. Part of the order sought to cut in half the size of buffer zones around key wetlands.
Current rules restrict building within 50 feet of Class II wetlands — those considered ecologically significant because they provide important benefits such as flood storage, water filtration, and wildlife habitat.
Scott sought to cut that buffer to 25 feet in areas designated for housing.
Vermont Attorney General Charity Clark found that Scott exceeded his authority in trying to unilaterally change rules that lawmakers had previously enacted.
In response, Julie Moore, secretary of the Agency of Natural Resources, went through the lengthy process of formally asking lawmakers to revise existing rules. On Thursday, the Legislative Committee on Administrative Rules said no.
Administration officials and housing advocates immediately denounced the decision.
“Impeding progress on pro-housing, smart-growth regulatory changes undermines housing availability and affordability,” Alex Farrell, commissioner of the Department of Housing & Community Development, said in statement.
Miro Weinberger, executive chair of advocacy group Let’s Build Homes, also expressed disappointment.
“Let’s be clear: today’s decision was not a legal decision. It was a value judgment. And it was the wrong one,” Weinberger said in a statement.
The decision by lawmakers represented the status quo, he said.
“But the status quo is crushing Vermont families. It is driving up housing costs, forcing people out of the communities they love, and taking a real human toll on our state,” Weinberger said.
Environmental groups, including Vermont Natural Resources Council, Conservation Law Foundation, Lake Champlain Committee and the Connecticut River Conservancy, praised the decision.
“Rather than working cooperatively, Governor Scott is once again trying to insist that Vermonters need to make a false choice between building housing or protecting the environment,” Lauren Hierl, executive director of VNRC, said in an statement. “He claims that we must allow the destruction of wetlands to build more housing, when in fact wetlands provide vital flood protection for housing in our communities.”
The vote was along party lines, with the five Democrats supporting it and three Republicans opposing it.
Sen. David Weeks (R-Rutland) noted that wetlands represent a tiny fraction of Vermont lands. He said Republicans were “simply looking for a balance to address the housing problem” and the economic crisis the lack of housing creates.
But Rep. Larry Satcowitz (D-Randolph) said rules changes were not justified.
“We are here to provide a check on the administration and to make sure they’re doing their job,” Satcowitz said. “It’s clear to me that they did not do their job properly in this case.”
Rep. Carol Ode (D-Burlington) said the committee heard testimony from a property owner who said it took the Agency of Natural Resources a year to give them a definitive decision on whether their property was in a wetland or not. If the agency really wanted to help property owners develop their properties more quickly, she said, the agency could simply speed up the wetland identification process. She called up an image of Dorothy from the Wizard of Oz to make her point.
“The agency has the slippers,” Ode said. “They just need to click their heels and make it happen for the developers.”
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