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Permit reform is not enough

09/30/03 12:00AM By John McClaughry
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(Host) Looking ahead to the approaching legislative session, commentator John McClaughry thinks that more should be done to reform Act 250.

(McClaughry) Earlier this year the Vermont House passed a permit reform bill. The Senate wanted no part of it, offering only a noncontroversial rewrite of local planning and zoning law. So the issue will be back on the front burner in January.

The current debate is very much an inside ball game, dealing with standing rules, appeals routes, and an expanded environmental court. What legislators should be doing, but are utterly unwilling to do, is reconsider the criteria for getting an Act 250 permit.

Act 250 is built around ten criteria that applicants must satisfy to get a permit for development. Soon after Act 250 passed, its major draftsman, lawyer Jonathan Brownell of the Vermont Natural Resources Council, expressed some dark misgivings about his handiwork. In a law review article published four years after the enactment of the bill, Brownell said, "We have adopted criteria which as a theoretical matter cannot be proved to have been met." He went to say, "I suspect that, in our zeal, we may well have taxed beyond their capabilities the present structures of governmental decision making."

One would think that environmentally concerned citizens would pay close heed to Brownell's criticisms. After all, he was not only the principal author of the act, but also counsel and Chair of the lobby group that got it passed and that has defended it against every proposal of amendment, reasonable or otherwise, in all the years since. But one would be wrong. The enviro opposition to reconsidering any of the ten criteria is so intense that hardly any legislators are willing to tackle the task.

But some substantive changes are very badly needed. For instance, wetlands of less than an acre, that are not connected to a lake, stream or river, should be exempted from regulation. "Endangered species" should mean only species endangered in the United States, not merely rare in Vermont, at the far edge of their habitat. An applicant should not be required to hire archeologists to search for arrowheads or other evidence of prehistoric habitation. And the Legislature should inform that environmental board that, contrary to the board's recent finding, ordinary radio broadcasting is not "air pollution."

The intent of such amendments is not to murder the environment. It's to inject clarity and certainty, and restrict the discretion, often abused, of the Act 250 commissions and environmental board.

It's time to go through the criteria of Act 250 and peel off the barnacles that three decades of ambitious rulings and far-fetched interpretations have attached. Vermonters want and deserve strict environmental protection, but it must be made reasonable, fair, swift, and certain.

This is John McClaughry - thanks for listening.

John McClaughry is president of the Ethan Allen Institute, a Vermont policy research and education organization. He spoke to use from our studio in Norwich.
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