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Act 250 Criterion 9(B)

Act 250 Criterion 9(B): Primary Agricultural Soils

Downloadable Documents & Helpful Links

Introduction to Act 250

10 V.S.A § 6001(15) was amended on July 1, 2014, revising the definition of primary agricultural soils with implications for Criterion 9(B).  Under today's law, the definition of primary agricultural soils (PAS) focuses on the important farmlands physical characteristics of the soils as mapped by the Natural Resources Conservation Service (NRCS) of the USDA, and whether the soils 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. The current definition of PAS also includes soils the District Commission finds to be of agricultural importance due to current or recent agricultural use, regardless of how the soils have been mapped by NRCS.

If a project subject to Act 250 jurisdiction contains soils that are mapped by NRCS as of “prime”, “statewide”, or "local" importance, or any soils in recent agricultural use, 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 the Agency 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, the Agency requests 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: 

Online Intake Form & Checklist

Mitigation

To determine the amount of mitigation required for impacts to primary agricultural soils, use the following multipliers which correspond to the agricultural value groups of your soils (to determine the agricultural value, map your parcel in the ANR Atlas Instructions above). The Agency's reviews will multipy the total acres of impact in each soil 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 on-site, but are outside a designated area authorizing off-site mitigation, you may seek a ruling from the District Commission for mitigation flexibility (appropriate circumstances) to allow for off-site mitigation or a combination of on-site and off-site. The “current mitigation cost per acre" is updated annually, by Act 250 District, to reflect the recent per-acre cost of conservation easement closings for primary agricultural soils in the geographic region. 10 V.S.A. § 6093 (a)(1)(C).

Guidance & Resources for the 9(B) Review Process

Act 250 Research & Available Farmland

Enforcement & Compliance

Regulatory Enforcement Process

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. Please provide copies to the Agency of exhibits (VTAAFM letters, applications, etc), any findings of fact, and any permits that reference Criterion 9(B). If this is not completed by the applicant, there may be delays that can add a few weeks to a month to the review process timeframe. Please also remember that prior applications or permits may satisfy certain criteria or contain relevant permit conditions. Therefore, 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) Balancing Flexibility and Finality of Permit Conditions, also known as the 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 the Agency's document “Reclaiming Primary Agricultural Soils in Vermont” address 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 prevent 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: If I am proposing on-site mitigation to satisfy Criterion 9(B), does the Agency have any requirements as to a minimum on-site mitigation area?

A: Yes. On-site mitigation soils must be capable of supporting or contributing to an economic or commercial agricultural operation. 10 V.S.A. § 6093 (a)(2). If you are proposing on-site mitigation to comply with Criterion 9(B), please submit a plan to the Agency's' Act 250 Coordinator showing the proposed area. While there is no requirement they be actively farmed, on-site mitigation soils must be available for present and future agricultural use and suitable access and contiguity should be provided on the plan. The Agency's practice is that on-site mitigation areas must be at least 2 contiguous acres, have at least 100-foot width, and contain no Class I or II wetlands/buffers. 

Q: Is there a threshold for impacts to primary agricultural soils (PAS), below which the Agency's review will indicate no mitigation is warranted? 

Yes. If the Agency's review finds a proposed impact to PAS will warrant less than 2 acres mitigation (after applying the stipulated multipliers), then it will find the impact is de minimis. For a de minimis impact, no mitigation is warranted today, but the Agency may request a permit condition acknowledging the impact and stating that mitigation will be warranted if and when total cumulative mitigation from this and future amendments results in a mitigation area of 2 or more acres. 

Q: I have more questions.

A: Please contact Ari Rockland-Miller, Senior Agricultural Development Coordinator, at 802-461-6798 or Ari.Rockland-Miller@vermont.gov.