act 250 onsite mitigation - vermont agency of agriculture ......methods for mitigating the loss of...

O n s i t eM i t i g a t i o n

Act 250

A Pilot Project in Environmental District 4

Vermont Agency of Agriculture, Food & Markets

Thank you to the following individuals who helped with theexecution of this project:

Stacy Burnstein, Land Access Specialist, Intervale Center

Nancy Everhart, Agricultural Director, Vermont Housing & Conservation Board

Emma Hanson, Intern, Tufts University Agriculture, Food, & Environmental Policy

Farm to Plate Farmland Access and Stewardship Working Group

Lauren Masseria, Act 250 Coordinator, Agency of Agriculture, Food & Markets

Jon Ramsey, Director of Farmland Access Program, Vermont Land Trust

Stephanie Smith, Chief Policy Enforcement Officer, Agency of Agriculture, Food & Markets

Ben Waterman, Beginning Farmer and Land Access Program, UVM Extension

116 State Street, Montpelier VT 05602

(802) 828-2430 | [email protected]

agriculture.vermont.gov

C O N T A C T I N F O R M A T I O N

CONTENTS

INTRODUCTION

PURPOSE

METHODOLOGY

FINDINGS

CONCLUSIONS

NEXT STEPS 13

12

10

05

04

01

OFFSITE MITIGATION

ONSITE MITIGAGION

CHITTENDEN COUNTY

DATA COLLECTION

INTERVIEWS

Act 250’s Criterion 9(B) Primary Agricultural Soils recognizesthat Prime, Statewide, and soils of Local importance are avaluable natural resource to Vermont and its residents. The Act250 Criterion 9(B) Primary Agricultural Soils regulatory reviewprocess assesses whether or not a proposed development mayresult in a reduction in the land’s agricultural potential. Shouldthe impacted soils meet the statutory definition of PrimaryAgricultural Soils (PAS), the Vermont legislature provides twomethods for mitigating the loss of the agriculturalpotential: onsite mitigation and offsite mitigation.

The goal of onsite mitigation is to preserve the best soilsin Vermont in a configuration that allows “present and futureagricultural use.” The Agency of Agriculture, Food and Market's(the Agency) research in Environmental District 4 focused onwhether farming is currently occurring on the onsite mitigationsoils. This research teased out possible barriers or limitations tofarming in order to improve the analysis of what qualifies assuitable for onsite mitigation.

To further understand this research, the Agency recommendsthat a similar research project be performed for the onsitemitigation land throughout the rest of the state. This will increasethe sample size, help to uncover themes regarding the use of theonsite mitigation land, and continue to surface improvementsthat can be made in the Agency process to ensure an efficientexecution of the mitigation program.

APPENDICES 14

1. INTRODUCTION

Photo Credit: r

Act 250 is Vermont’s land use and development law which provides a public, quasi-judicial process forreviewing and managing environmental, social and fiscal consequences of major subdivisions and developmentin Vermont through the issuance of land use permits.

Act 250’s Criterion 9(B), Primary Agricultural Soils, recognizes that Prime, Statewide, and soils of Localimportance are a valuable natural resource to the state of Vermont and its residents. The Act 250 Criterion9(B), Primary Agricultural Soils, regulatory review process assesses whether or not a proposed developmentmay result in a reduction in the land’s agricultural potential. Should the impacted soils meet the statutorydefinition of Primary Agricultural Soils (PAS), the Vermont legislature provides two methods for mitigating theloss of the agricultural potential: onsite mitigation and offsite mitigation.

D I S T R I C T 4 ON S I T E M I T I G A T I O N | 0 1

A determination by the DistrictCommission to allow offsitemitigation results in a payment intothe Vermont Housing andConservation Board (VHCB) TrustFund to purchase development rights. VHCB places conservationeasements on land “in strong farmingcommunities,” to “support agriculturalinnovation and diversification, andencourage projects that facilitatetransfers to both new and establishedfarmers.” In addition to protectingfarmland, a conservation easementsafeguards other natural resourceattributes including water quality,forestry and scenic resources, and insome instances, public access tonatural areas [1].

The Agency then provides arecommendation to the DistrictCommission on the suitability of theonsite soils, considering “the quality ofthose primary agricultural soils, andother factors as the Secretary ofAgriculture, Food and Markets maydeem relevant, including the soil'slocation; accessibility; tract size;existing agricultural operations; watersources; drainage; slope; the presenceof ledge or protected wetlands; theinfrastructure of the existing farm ormunicipality in which the soils arelocated; and the NRCS rating systemfor Vermont soils [2].” Once all ofthese materials are received, theDistrict Commission completes ananalysis of the subcriteria listed in 10V.S.A. § 6086 (a)(9)(B).

Onsite mitigation is intended topreserve the best soils in the State ofVermont in a configuration that allows“present and future agricultural use...which maintain a sufficient acreage ofprimary agricultural soils on theproject tract capable of supporting orcontributing to an economic orcommercial agricultural operation...[3]” Unlike the efforts of the VermontHousing and Conservation Board,which uses offsite mitigation

If the District Commission determinesa project impacts PAS, the Agency willidentify the total number of acres thatmust be preserved as an Act 250permit condition. Once the totalnumber of acres have been identified,the applicant submits a mapidentifying the location of the acreson the project parcel to both theAgency and the District Commission.

Which soils are consideredprimary?

Soil map units are Prime Farmlandif they have the best combination

of physical and chemicalcharacteristics for producing food,

feed fiber, forage, and oilseedcrops and are also available forthese uses. The present land use

may be cropland, pasture,forestland, or other land uses, butnot urban and built-up or water.

Location, tract size, andaccessibility to markets andsupport industries are not

considered when making a PrimeFarmland determination.

Prime Farmland has the soilquality, growing season, andmoisture supply needed to

economically produce sustainedhigh yields of crops when treated

and managed according toacceptable farming methods.

These soils have an adequate anddependable water supply from

precipitation, a favorabletemperature and growing season,acceptable acidity or alkalinity,and few or no surface stones orboulders. They are permeable towater and air, are not excessivelyerodible or saturated with water

for a long period of time, and don’tflood frequently or are protected

from flooding. FarmlandClassification Systems for

Vermont Soils, 2006,

http://www.klickitatcounty.org/assessor/FilesText/Vermontimport

antfarmlands.pdf

1a. Offsite Mitigation

1b. Onsite Mitigation

as part of their municipal process. Anyproposed mitigation must be inconformance with a duly adoptedcapability and development plan, anda land use plan. An analysis regardingconformance is conducted by theDistrict Commission whenconsidering onsite mitigation. Thisstandard of conformance is similar tothat set by the VHCB in its policy tofund farmland conservation projectsusing offsite mitigation funds.

Unlike other development, activitiesdetermined to meet the statutorydefinition of farming would notrequire an Act 250 permit amendmentfor the parcel. Onsite mitigation doesnot guarantee that an agriculturalland uses will occur, and propertyowners are not required to farm theonsite mitigation land.

Municipalities address farmlandpreservation and encourageagriculture at appropriatescales within their boundaries

Before the district commission canmake a decision regarding appropriatemitigation when there is a reduction inthe agricultural potential of the PAS, itmust go through an analysis and findthat:

(i) the development or subdivision willnot significantly interfere with orjeopardize the continuation ofagriculture or forestry on adjoininglands or reduce their agricultural orforestry potential;

(ii) except in the case of an applicationfor a project located in a designatedgrowth center, there are no lands otherthan primary agricultural soils owned orcontrolled by the applicant which arereasonably suited to the purpose of thedevelopment or subdivision; and

(iii) except in the case of an applicationfor a project located in a designatedgrowth center, the subdivision ordevelopment has been planned tominimize the reduction of agriculturalpotential of the primary agriculturalsoils through innovative land use designresulting in compact developmentpatterns, so that the remaining primaryagricultural soils on the project tractare capable of supporting orcontributing to an economic orcommercial agricultural operation..,”

10 V.S.A. § 6086(a)(9)(B)(i)-(iii).

funds to conserve actively farmedland, onsite mitigation preserves PASon the project parcel via an Act 250permit condition which requires thatthe land is set aside for “farming [4]”.The Act 250 permit conditions are setby the District Commission andenforced by the Natural ResourcesBoard. Right-to-Farm language isincluded in the permit conditions and isgenerally required in a deed conveyingany portion of the project tract. Inmany instances, the permit conditionwill also require that land be kept openby brush hogging, regardless of theland use.


The Agency began this researchproject with three objectives:

1. Understand the natural featuresand land use characteristics that affectwhether or not onsite mitigation landis used for agricultural purposes.2. Consider ways that the Agency cancontinue to improve the Criterion 9(B)process to better integrate PAS fromthe outset of the project design.3. Identify the barriers linking farmersto onsite mitigation land.

With continued improvements in theCriterion 9(B) process, the Agency hasasked more critical questions to gaugethe success of the onsite mitigationprogram, such as:

• Is the onsite mitigation land activelyfarmed?• Does the onsite mitigation processpreserve quality farmland at acreagesthat allow agriculture to occur?• Historically, what are the physicalcharacteristics of the land set asidefor mitigation?

The onsite preservation of Prime,Statewide, and soils of Localimportance not only protects avaluable natural resource, but alsobenefits Vermont's local foodeconomy. By making land available tofarming the Agency hopes to increaseaccess to local food, increaseproximity to potential consumers,

create opportunities for education,and generate broad ecological, socialand health benefits [5]. The Agencywould like to better understand howto integrate onsite mitigation into thebeginning stages of project design, andto re-frame Criterion 9(B) as adevelopment asset to achieve some ofthese goals.

This research is the first step toanswering these questions andexploring ways to encourageagriculture on land that has been usedas mitigation for developmentimpacts.

2. PURPOSE

In the summer of 2014, the Agencyand other partners began a project tomap all land set aside as onsitemitigation post July 1, 2006. Themapping work was completed byJanuary 2015 and resulted in a data-set available on the Agency of NaturalResources Atlas (Atlas). This timeframe was chosen because of thepassage of Act 183, which significantlychanged Criterion 9(B). The Agencycontinues to track onsite mitigation aspermits are issued and updates theAtlas as resources allow.

Building on the onsite mitigationmapping, the Agency conducted

research throughout the summer of2015 in Environmental District 4 toassess the conditions of mitigation sites,and to find common features amongthem that made them suitable orunsuitable for agriculture.

The Agency explored whether or notthe mitigation land:

• meets the definition of primeagricultural soil;• is currently used for agriculture or islikely to be used in the future; and• is capable of supporting orcontributing to an economic orcommercial agricultural operation.

The Agency’s research focused on thelocation of onsite mitigation land inrelation to surrounding farmland, theland’s physical condition and naturalfeatures, and the use of land today.The research attempts to identify realand perceived barriers by comparingthe characteristics of mitigation landcurrently in agricultural use versusthose of land not in agriculture use. Finally, the Agency looked critically atthe PAS review process, from initialengagement with the applicantconcerning development onagricultural soil, to technicalassistance and outreach opportunitiespost permit issuance.

Onsite Mitigation Parcel Size by District


# of Parcels Per District (Total = 92)

3. METHODOLOGY

Quick Facts

Total Population= 156,540

This report analyzes the condition of onsite mitigation land inEnvironmental Conservation District 4, which has common boundarieswith Chittenden County. District 4 was chosen as the study area forthis research project due to the comparatively high percentage of landset aside as onsite mitigation and the continued growth of this region.While onsite mitigation land is a very small percentage of the county’stotal land area, or only 0.1%, District 4 contains 26% of the state’sonsite mitigation parcels, and comprises 28% [6] of the land, in acres,set aside for mitigation. District 4 contains mitigation acreages in avariety of parcel sizes with the majority being 5 acres and under.

Throughout Vermont, a total of 92 parcels have been preserved usingonsite mitigation via an Act 250 permit condition. Of these 92 parcels,10 are 30 acres or larger, 40% of which are located in District 4. Thirty-four of the state’s 92 onsite mitigated parcels are less than 5 acres insize, and 26% of those are located in District 4.

According to the 2012 National Agricultural Statistics Service (NASS),there are 587 farms and 73,583 acres of land in farms in ChittendenCounty. The average size of farm in Chittenden County is 125 acreswith a statewide average of 171 acres. In comparison to the rest ofVermont, Chittenden County rates 7th of the 14 counties, or contains8% of total numbers of farms. Similarly, roughly 6% of the total acres infarming use is locatedin Chittenden County. According to the 2012 and2007 NAAS data, the total acres in farms had decreased 9,799 acres,from 83,382 to 73,583 acres. This drop in acreage brings ChittendenCounty down from a ranking of 7th in 2007 to 8th in 2012 of the 14counties in total acres of land in farming. [7]

536 sq miles &3rd Smallest (area)County in Vermont

Population Density =291 / sq mile

3a. Chittenden Co., Environmental District 4

Using information available on the Act250 Database [8], the Agency reachedout to the primary contact personlisted on the Act 250 application for aninterview. After making contact itquickly became clear that the scope ofthe research questions (Appendix B)was impractical. Not all landownersare familiar with the goals ofonsite mitigation or the conditions intheir permits. In some caseslandowners were not even familiarwith the location of the onsitemitigation areas they control. Onlyone landowner was informed enoughto address all of the questions. Engineers were often aware of thecurrent use of the mitigation land andconditions in the permit, but could notspeak to future plans for the land.

In addition to collecting data, theAgency identified and interviewed theprimary Act 250 contact regarding theuse of the onsite mitigation land.Some discussion points were: knownlimitations that would impactagriculture use such as no access, thecondition of the land, any perceivedadjacent conflicting land uses, or howthey have been successful at havingtheir land farmed. Theseconversations also provided a chancefor the Agency to provide informaltechnical assistance on programs thatcould be of value to thelandowner such as opportunities toconnect farmers to the farmland.

3c. InterviewsThe Agency reviewedorthophotographs, conducted sitevisits, and used publicly availableinformation to collect data on thephysical characteristics for eachonsite mitigation area. Informationcollected included: soil type, access,current land use, and other naturalfeatures that might be a barrier tofarming such as steep slopes,wetlands, and rock outcroppings.The Agency also looked at thesurrounding land uses, includingproximity to nearby farms, thelocation of grocers as potentialmarkets for agricultural products,or the opportunity for use byschools as community gardens.

3b. Data Collection


The Agency reconsidered the initialinterview questions and limited them tothe following three:

1. How is the land currently being used?2. What are the future plans for thisland?3. What barriers exist to putting it intoagriculture?

This revised list secured the mostimportant information. Follow upquestions were asked when appropriateto help individuals elaborate on theprocess, the plans for the mitigated land,or their experience with Act 250. Thesemost commonly included:

1. Is there access to water or electricityat the site of mitigation?

2. Would you be interested in listing theland on Vermont Land Link, a websitemanaged by the Vermont FarmlandAccess Network, that was created tohelp farm seekers and Vermont farmproperty holders connect.

In the instances where the primarycontact was either unreachable oruninformed on the current land use, theAgency conducted visual assessments. Visual assessments were completedfrom public rights of way to determineif agricultural activities are taking placeon the land and if there was roadaccess. Often the information containedin the permit led to a single point on theproperty, which made it difficult todetermine the boundaries of themitigation land. However, it was

possible to come to more generalconclusions about access and use.

Today, the Agency requires a map ofthe soils set aside for mitigation. TheAgency will include a reference to themap in the review letters to theDistrict Commissions. The DistrictCommissions will often reference themap in the final permit. BeginningJanuary 2016, these plans will bedigitized and offered as a layer in theAgency of Natural Resources Atlas.

Primary Contact Person

http://vermontlandlink.org/


One land owner relayed his frustrationat the inability to entice any farmers touse his 2.14 acres of roadside onsitemitigation. He shared that he hascontacted local farmers and offeredthe land at no cost to them. All of thecontacted farmers said the acreagewas too small to be worth their timeand resources.

The goal of onsite mitigation is topreserve the best soils in Vermont in aconfiguration that allows “present andfuture agricultural use.” The Agency’sresearch in District 4 focused onwhether farming is currently occurringon the onsite mitigation soils. Thisresearch teased out possible barriersor limitations to farming in order toimprove the analysis of what qualifies

as suitable for onsite mitigation. It isimportant to recognize that this workwas completed for one district,however, we recommend that asresources become available, this workis done for the entire state.

In District 4, there are 371.51 totalacres, or 25 parcels, of onsitemitigation land. Of this total, 207.16acres, or 55%, are in agricultural use:five are hayed, two are grazed, andone is used to raise and managehorses. Four of the 25 parcels aregreater than 30 acres in size; three ofwhich are in agricultural use. 18%, or68.5 acres, of the onsite mitigationland is restricted from farming use bynatural features, which may includeforest land, wetlands, steep slope orrock outcroppings. Finally, 66% of theland in agricultural use had directaccess from a publicly accessible rightof way.

Several participants expressedopenness to someone farming theirland if there was interest in doing so. Two of the seven parcels in thiscategory were forested with ratedsoils and determined to be suitable formitigation.

Plot perceived to be toosmall to be appealing tofarmersPoor access optionsForestedMarshyOngoing construction ondevelopment side of projectNot interested.

Reasons for not putting theland into agricultural useincluded:

4. FINDINGS

District 4 Parcel Size% of Total (371.51) Acres


District 4 Findings

Median Parcel Sizein Agricultural Use

District 4 Land Use

% of Onsite MitigationParcels in Agricultural

Use

Hayed

371.51 Acres & 25 Parcels Total

Grazed BrushHogged

Restrictedby NaturalFeatures

Horse Farm

Recreation

of 371.51 Acres ofOnsite Mitigation in

Agricultural Use

Total Acres are inAgricultural Use

24.04 Acres

207.16 Acres

36%

55%

There is an agricultural renaissance in Vermont and accessto quality soils is integral for its success. Encouragingengineers and landowners to design and develop projectswith the goals of onsite mitigation in mind can potentiallyadd value to their development, the general public, andthe agricultural sector. Small, incremental steps towardsthis shift would mean a more successful Criterion 9(B)process and a more vibrant agricultural community.

Before any conclusive statements can be made regardingthe characteristics of onsite mitigation land successfullybeing used for agriculture, the Agency recommends thatthis research be completed for the entire state to ensure astatistically significant sample size. General themes thatarose from this pilot project were: the importance ofaccess to the land, the larger areas of mitigation are morelikely to be in agricultural use, and due to the lack ofutilities the majority of areas in agricultural use are usedfor animals and haying. This research also providedinsights into:

• what landowners know and understand about permitconditions addressing onsite mitigation; and• the need for improvements in the outreach andcommunications surrounding the goals of the onsitemitigation program.

5. CONCLUSIONS


Additional procedural recommendations for the Criterion9(B) review process and onsite mitigation:

• continue to work with District Coordinators on theimportance of Criterion 9(B) and suitable onsitemitigation;• begin to digitize onsite mitigation plans to improveprecision in identifying and monitoring the land use toencourage the use of onsite mitigation land foragriculture;• create distribution materials alerting landowners to theopportunities and benefits of maximizing the agriculturalpotential of their land;• work with engineers to encourage agricultural siteplanning in the beginning design stages.• educate engineers and designers on effective ways toincorporate Primary Agricultural Soils into thedevelopment;• provide guidance materials on characteristics of suitableonsite mitigation.

1. In 2014, VHCB committed state funds to conserve 2,808 acres on 25 farm properties. The Act 250 offsite

mitigation payment leverages other funds from public and private -local, regional and federal sources for the

permanent protection of quality farmland.

2. 10 V.S.A. § 6093 (a)(2), http://legislature.vermont.gov/statutes/section/10/151/06093

3. 10 V.S.A. §6093, http://legislature.vermont.gov/statutes/section/10/151/06093

4. 10 V.S.A. §6001 (22), http://legislature.vermont.gov/statutes/section/10/151/06001

5. https://www.uvm.edu/vtvegandberry/factsheets/buylocal.html

6. Onsite mitigation parcels since 2006.

7. 2007 and 2012 USDA Census of Agriculture National Agricultural Statistics Service (NASS)

http://www.agcensus.usda.gov/Publications/2012/Full_Report/Volume_1,_Chapter_2_County_Level/Vermont/

8. Vermont Agency of Natural Resources Act 250 Database: https://anrweb.vt.gov/ANR/ANR/Act250.aspx

How to Determine the Right Farm Rental Rate, UVM Ext.

http://www.uvm.edu/newfarmer/land/RentalGuide.pdf

Vermont Land Link


Right to Farm

http://vnrc.org/resources/community-planning-toolbox/land-use-law/right-to-farm/

Prime, Statewide, and Local Importance - Detailed Soil Definitions and Explanations

http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs142p2_010210.pdf

A D D I T I O N A L R E S O U R C E S

E N D N O T E S

Appendix A: Onsite Mitigation Area Data

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Appendix B: Onsite Mitigation Survey Questions

1. How is the mitigated land currently in use? How do you maintain it as open land? Brush hog?

2. If someone was farming near you, what would your biggest concern be? What would you most enjoy?

3. Would you be interested in having a farmer put your land into use? Why or why not?

4. What potential do you see for the space?

5. What barriers do you see to putting your land into use?

6. There are many different models to consider. Would you be open to: lease opportunities, conveyance

to a farmer, community garden, non-profit community farm?

7. Would you expect to be compensated for the use of your land? If so, monetarily or non-monetarily (ie,

free vegetables, help around the rest of your land, etc)

8. What infrastructure would a farmer have access to on your land?

a. Is there vehicular, water, or electrical access on this parcel?

b. Are there any structures on this land?

9. Would you like to learn about how to advertise your parcel on Land Link, a service through UVM

extension that matches land owners with farmers looking for land?

10. Would you be willing to make improvements or contribute to improvements that make the land more

attractive to farmers?

11. Are you aware of the Use Value Appraisal/Current use program?

C O N T A C T I N F O R M A T I O N

agriculture.vermont.gov

116 State Street, Montpelier VT 05602

(802) 828-2430 | [email protected]

act 250 onsite mitigation - vermont agency of agriculture ......methods for mitigating the loss of...

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