Act 250: Criterion 9(B) Primary Agricultural Soils

Contents:

 

Downloadable Documents & Helpful Links

 

Introduction to Act 250

On July 1, 2014, 10 V.S.A § 6001(15) was amended affecting Criterion 9(B).  Under the new law, the definition of primary agricultural soils focuses on the important farmlands physical characteristics of the soils and whether they have lost their agricultural potential due to: impacts from previously constructed improvements; presence of Class I or II wetlands; topographic or physical barriers that cannot be reasonably overcome; or other relevant factors, as determined by the District Commission, with recommendation from the Agency.

If a project subject to Act 250 jurisdiction contains soils that are mapped by the NRCS as “prime” and/or “statewide” agricultural soils” the Agency will review and provide recommendations under Criterion 9(B).  It is in the Applicant’s best interest to submit the project information directly to our office early in the application process so that the Agency’s comments can be included with the application.  In order to complete a thorough and timely review, we request that Applicants submit an Intake Form as well as the materials listed on the Review Checklist.

Regulations

Materials Required for a 9(B) Review

Please fill out the following Intake Form to trigger a 9(B) review: 

Mitigation

To determine the amount of mitigation required for impacts to primary agricultural soils, use the following multipliers which correspond to the agriclutural values of your soils (to determine the agricultural value, map your parcel in the ANR Atlas Instructions above). Multiply the total acres of impact in each soils type by the following to arrive at the sum total mitigation required:

  • Soils with an agricultural value 1, multiply by 3
  • Soils with an agricultural value 2, multiply by 2.75
  • Soils with an agricultural value 3, multiply by 2.5
  • Soils with an agricultural value 4, multiply by 2.25
  • Soils with an agricultural value 5 - 7, multiply by 2

If you do not own enough land to mitigate for your impacts, you may seek a ruling from the District Commission for mitigation flexibility. The “current mitigation cost per acre” is updated annually.

Guidance & Resources for the 9(B) Review Process

Act 250 Research & Available Farmland 

Enforcement & Compliance

 

Frequently Asked Questions

Q: How long does it typically take for the Agency to write a review?
A: If all of the information needed to do a review is provided, typically around two weeks.

Q: If I am working on an amendment, should I read through all of the old applications, permits, and findings to see if there are any references to criterion 9(B)?
A: Yes and you should provide copies to the Agency of exhibits (VTAAFM letters, applications, etc), any findings of facts, and any permits that reference criterion 9(B). If this is not completed by the applicant, there may be delays and can add a few weeks to a month to the review process timeframe. Please also remember that prior applications can satisfy certain criterion, so if your last application stated that the rest of your farmland will remain open; please share this with the agency.

Q: What if I am doing an amendment and I want to develop land that has been previously set aside for on-site mitigation?
A: You will need to apply to your district commission for a rule 34 (e) (E) Balancing Flexibility and Finality of Permit Conditions: (Stowe Club Highlands Analysis).

Q: Can a property owner reclaim primary agricultural soil after operation of a gravel pit?
A: Yes, The guidelines set out in our document “Reclaiming Primary Agricultural Soils in Vermont” addresses the steps to protect the soils to ensure proper reclamation, including required documentation of the rated soils pre-disturbance, how to preserve soil integrity when removing soils and preventing erosion during operation of the pit, and how to reclaim the pit and replace stockpiled soils at the conclusion of operation.  This process also includes testing to ensure pre-distrubance and post distrubance soil bulk density is materially the same.  

Q: I have more questions.
A: Please contact Ari Rockland-Miller, Senior Agricultural Development Coordinator, at 802-828-5399.