[PHOTOS: Any of the photos on the design, build page]
When embarking on a trail project, it is important to understand what permits you need to apply for or review processes you must complete before you break ground. Please consider the following information on wetlands program permits, archaeological review, and Vermont’s Act 250 to be general guidance and not the final word.
The single most important thing to remember is that you should always check with your local Act 250 District Coordinator for a jurisdictional ruling before any work begins. District Coordinators have the authority to decide whether a project requires a permit. Each trail project is unique, and there are a number of factors that will influence a District Coordinator’s jurisdictional determination.
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Act 250
+/- What is Act 250?
Act 250, enacted in 1970 in response to heightened development and environmental pressure, is administered by the Natural Resources Board (NRB) and governs land use and development in Vermont. Act 250 jurisdiction covers everything from large industrial construction to oil and gas exploration to residential housing units. Critically, Act 250 can cover trail projects in Vermont as part of its jurisdiction over commercial construction on land tracts of a certain size, depending on subdivision and zoning bylaws.
If a trail project is believed to meet any of the Act 250 jurisdictional criteria (described below), the case is first reviewed by a District Coordinator, who issues a jurisdictional opinion (JO) as to whether an Act 250 permit is indeed required. If so, Act 250 is “triggered” and the project goes into a permitting process in which the applicant must catalog impacts across 10 criteria: air and water quality, water supplies, traffic, local schools and services, municipal costs, historic and natural resources, including scenic beauty, impacts of growth, and municipal and regional plans.
Many trail projects can avoid triggering Act 250 altogether, saving considerable time and resources. Landowers, too, will often only support trail building on their property if they can be assured an Act 250 permit will not be required.
+/- What triggers Act 250 for a trail project?
There are four major factors that come into play when evaluating whether or not a trail project is likely to be subject to Act 250: construction of improvements; whether the trail is private or public; the area of the parcel(s) or the area that is physically disturbed; and whether or not there is an existing Act 250 permit on the property.
+/- Construction of improvements
Act 250 only requires a permit for construction of improvements, not maintenance. While an important distinction, the difference between the two can be fuzzy and may require direction from the District Coordinator. For example, the rerouting of a trail in some cases can be considered “maintenance.” The balance of this document assumes that a trail project has been determined to be construction rather than maintenance.
+/- Private vs. public trails
All trail projects in Vermont are considered either “private” or “public.” On public lands, Act 250 jurisdiction is triggered when the construction of the trail and its related infrastructure (such as parking lots) will physically disturb ten acres or more. This is the rough equivalent of 20+ miles of handbuilt trail or 10+ miles of machine-built trail.
For trails on private land, Act 250 states that a permit may be required if the project is on a tract or tracts of land over ten acres in size, or if it “involves” a tract or tracts of land which, when combined, are over ten acres in a town with municipal zoning and subdivision regulations. If the town lacks such regulations, the threshold area that triggers Act 250 is just one acre. The default for private land is that the length of the trail is not a factor in determining Act 250 jurisdiction; it is the size of the land on which the trail will run that controls the question of jurisdiction. If, however, the trail is designated a part of the Vermont Trail System, the project is considered “public” and the jurisdictional trigger becomes the same as for a trail on public land: 10 or more acres must be physically disturbed. This is very good news for avoiding Act 250 permitting on private land.
+/- The Vermont Trails System
The Vermont Trails System (VTS), established by statute, is made up of trail networks designated by the Secretary of Natural Resources upon recommendation by the Vermont Trails and Greenways Council. The VTS designation acknowledges these trails as public assets, and they are therefore treated as public projects, meaning that 10 or more acres must be physically disturbed before triggering Act 250, as noted above. In order to be considered part of the VTS, Chapters must have a signed agreement with the landowner in advance of construction. A shape file of the completed trail must also be submitted, which is retained by the State of Vermont and can be made available upon request. VTS designation does not, however, require landowners to provide maps, either physical or digital, of their trails.
+/- Trails on property with an existing Act 250 permit
If there has been a previous Act 250 permit issued for a project on the land where a trail is proposed, an amendment to that permit may be required for any projects on that land. This is due to the fact that Act 250 has “continuing jurisdiction” over land once a permit has been issued, with some District Coordinators arguing that there is no statute of limitations on such permits. The question of whether or not a trail project meets any of the Act 250 permit criteria listed above is also entirely up to the discretion of the District Coordinator. It is no wonder many landowners are keen to avoid triggering Act 250. To acquire an amendment, chapters, trail builders, or landowners should contact their District Coordinator.
+/- Trails that connect public and private lands
As a general rule, where proposed trails pass through both state and private lands, Act 250 jurisdiction on the state land is triggered if there are ten or more acres of disturbance (see above), and Act 250 jurisdiction is triggered on the private land if the parcel meets the acreage (one or ten acres) threshold. Trails passing through municipal and private land are treated as private projects, unless the project is designated part of the VTS as described above.
Wetlands Program Permits
The alteration of the physical and vegetative characteristics of wetlands and their buffer zones (areas within 50 feet of the wetland boundary) to install trails are the activities that typically trigger wetland jurisdiction. Please study the Forest, Parks, and Recreation wetlands program guidance carefully to evaluate whether you will need a permit.
Archaeological Review
Whether or not the trail you are building requires an archaeological review, respect the people who have gone before us: don’t disturb rock walls or take from them to build your trail or disturb old home sites.
All federal project funds, including the Recreation Trails Program (RTP) and Land and Water Conservation Fund (LCWF), and state projects that trigger act 250, require an archaeological review. Read about the State Archaeology program review process within the Vermont Division for Historic Preservation.
