The following comments were submitted by Laura Hill-Eubanks, an active volunteer with the Sierra Club. Although, the Chapter did sign a letter opposing Governor Scott's attempts to illegally bypass Vermont wetlands rules, we have not been working on this issue as the Sierra Club. As Laura's comments are so extensive and on point, we are sharing them here.
Comments in Opposition to Wetlands Rulemaking as per EO-06-25
To: WetlandsRulemakingComment@vermont.gov
From: Laura Hill-Eubanks, Esq.
Date: 1-12-2026
1. The Proposed Rule Amendments Remove Protections from Some Wetlands, Resulting in the Loss of Critical Wetland Functions and an Increase in the Risk of Flood Impacts.
The Secretary of the Vermont Agency of Natural Resources (“the Secretary” of ANR) intends to amend the Vermont Wetlands Rules to remove some protections for wetlands, as ordered by the Governor ( Executive Order 06-25 ). The rules would allow housing to be built in wetlands, located in certain designated growth areas around the state, without a permit.1
The Class II wetlands in these areas that have not yet been mapped on the state wetlands maps will no longer be fully protected.2 Under the current rules, any wetlands that meet the criteria for a Class II wetland are considered protected—mapped or not. There are likely to be a great number of wetlands that have not yet been mapped; and many mapped wetland boundaries may underestimate the size of those wetlands.3 The new rules will mean that some of those wetlands and wetland buffers would lose protections from development.
The proposed changes to the wetlands rules would also reduce the buffer zones around all Class II wetlands in the designated growth areas: from the current 50 feet, down to 25 feet. This means that development in those areas would no longer be prohibited within 50 feet of a Class II wetland. The protected area (and setback from development) would be only 25 feet.
Wetlands are one of our most valuable natural resources. The State’s own website explains the importance of wetlands and adequate wetland buffer zones. (See Wetlands Functions and Values; and Bountiful Benefits of Wetland Buffers) Wetlands provide a number of beneficial functions and services: flood control; pollution filtration and water quality improvement; ground water recharge and discharge; drought prevention; shoreline stabilization and erosion control; carbon storage; fish and wildlife habitat; recreational and educational opportunities. Development in wetlands results in the loss of those functions.
Development closer to wetlands can have negative impacts on the wetlands, such as increased runoff, sedimentation, introduction of pollutants, diversion of water supply, introduction of invasive and exotic species, and reduced populations of wetland-dependent species. Adequate buffer zones are required to prevent impacts to the wetlands and their functions, including that of flood control. The closer to the wetland that development occurs, the greater the impacts and the potential for the loss of wetland functions.
The VT Department of Environmental Conservation has recognized the importance of wetlands in their ability to prevent increased flooding and its impacts, especially in more urban settings: Many wetlands, particularly floodplain wetlands, have the capacity to temporarily store flood waters during high runoff events. ... As flood waters recede, the water is released slowly from the wetland soils. By holding back some of the flood waters and slowing the rate that water re-enters the stream channel, wetlands can reduce the severity of downstream flooding and erosion.
In watersheds where wetlands have been lost, flood peaks may increase by as much as 80 percent. Wetlands within and upstream of urban areas are particularly valuable for flood protection. The impervious surface in urban areas greatly increases the rate and volume of runoff, thereby increasing the risk of flood damage. (emphasis added) (https://dec.vermont.gov/watershed/wetlands/functions/wetland-functions-and-values water-storage-flood-water-and-storm)
It has been estimated that Vermont has already lost at least 35% of its wetlands. The function that wetlands provide in helping to prevent flood impacts seems justification alone to protect them for the increased safety and welfare of Vermonters—especially since we are seeing more flooding due to climate change. Building housing in wetlands, and thereby increasing the risk of flooding and its impacts, seems a misguided and arguably reckless proposal.
2. State Laws as Set Out in Statute Require the Protection and Net Gain of Wetlands. The Rule Amendments are in Direct Conflict and Not Authorized by Those Statutes.
State lawmakers have recognized that wetlands are important to the interests of the state and the welfare of its people. Wetlands are protected under the laws of the state of Vermont, as set out in statute (Title 10, Chapter 37). The policy to be followed under the law is clearly stated: It is hereby declared to be the policy of the State that:
(2) the wetlands of the State shall be protected, regulated, and restored so that Vermont achieves a net gain of wetlands acreage; and
(3) regulation and management of the water resources of the State, including wetlands, should be guided by science, and authorized activities in water resources and wetlands should have a net environmental benefit to the State. (10 V.S.A. § 901)
The Vermont state legislature recently passed Act 121 (“The Flood Safety Act”) with bipartisan support. This law provides a clear mandate to not only prevent wetland loss in Vermont, but to achieve wetland gains as part of an effort to increase flood resilience. Under the new law, the Secretary of ANR “shall amend the Vermont Wetlands Rules ... to clarify that the goal of wetlands regulation and management in the State is the net gain of wetlands to be achieved through protection of existing wetlands and restoration of wetlands that were previously adversely affected. ... The Vermont Wetlands Rules shall prioritize the protection of existing intact wetlands from adverse effects.” (10 V.S.A. § 918)
The statutes further require that the buffer zone for a Class II wetland “shall extend at least 50 feet from the border of the wetland” based on the functions and values listed in the statute. (10 V.S.A. §§ 902(9), 914) The buffer zone is not meant to be determined, or reduced--as these rules would, for an entire general category of wetland types (such as Class II wetlands in growth areas).4
Currently, wetlands that meet the criteria of Class II are protected by law, whether they are mapped or unmapped. The determination as to whether a wetland is a Class II and merits protection “shall be based upon an evaluation of the extent to which it serves the functions and values” listed in the statute, or its identification on the Vermont significant wetlands inventory maps. (§§ 905b(18)(A); 914; 902(7)). Note that one of the important wetland functions included in the statute is flood control (“provides temporary water storage for flood water and storm runoff” (10 V.S.A. 905b(18)(A)(i))
Not all wetlands have been mapped. As part of the effort to more effectively protect the state’s wetlands, the statutes require that state wetland maps be updated annually; and, after all areas (or “basins”) of the state have been mapped, every five years. (10 V.S.A. § 916) Mapping is an ongoing process and helps to identify and locate as many wetlands as possible, thereby raising awareness of their locations, and increasing the likelihood that they will be protected. But the intent of the laws is clearly that all wetlands that meet the criteria for Class II be protected, mapped or not.
The statutory goal of “net gain” of wetlands is intended to be achieved, in part, by requiring that any activity in a wetland that would adversely impact more than 5000 square feet, be compensated by the permit applicant through restoration, enhancement, or creation of a wetland or buffers. (10 V.S.A. § 918) Under the amendment to the rules proposed by the Secretary, there would be no permit required for building housing in an unmapped Class II wetland, or in part of the buffer of any Class II wetland. This seems to imply that, under the rule amendments, no compensation for permanent impacts would be required in these instances. This is not at all in keeping with the “net gain” goal required to be met in the law.
It’s difficult to see how wetlands will be protected--and a net gain achieved--under rules that would allow for their destruction in some cases. In addition, the statute does not say that only mapped wetlands will be protected; the statute states very clearly that existing wetlands shall be given priority for protection. The rule amendments run counter to the statutes and their intent to protect existing Class II wetlands, and buffers of at least 50 feet. The Secretary may have some discretion in the implementation of the statute, but they cannot fully ignore its clear intent. The Secretary has essentially given up jurisdiction and, in so doing, the protection of an entire category of those wetlands (all unmapped, and 25” of buffers, in growth areas). The statute does not authorize this action and therefore, the rule amendments should be rejected.5
3. The Secretary Fails to Recognize that State Policies They Cited Recommend Both Compact Growth AND the Protection of Wetlands to Address the Impacts of Climate Change.
In addition to statutory protections for wetlands, planning policies have recently been put in place by the state of Vermont to address and prevent the very real, and at times devastating, impacts caused by climate change. In the filing of the proposed rule with the Secretary of State's Office (“Rules Filing” of November 1, 2025), the Secretary of ANR points to these plan documents to make the case that we should allow housing to be built in wetlands to support smart growth in compact growth areas. (“The Vermont Climate Action Plan (CAP) and the Resilience Implementation Strategy (RIS) support smart growth. ... Both the Vermont Climate Action Plan and Resilience Implementation Plan advocate for compact growth.” (the Secretary of ANR in Rules Filing at pp. 9, 13))
But the Secretary fails to recognize or acknowledge two key points: 1) “smart growth” is defined as growth that includes protections for the State’s important natural resources, including wetlands (24 V.S.A. § 2791(13,14); and 2) the plans and policies they cite (CAP and RIS) strongly recommend protecting wetlands for their value in increasing climate change resilience by providing flood protection, clean water, habitat for wildlife, and protections from drought. The plans recognize that safe and effective development strategies in the face of climate change will require policies that strike a balance and work to accomplish both objectives: compact growth AND flood resilience.
The Vermont Resilience Implementation Strategy (cited by the Secretary) explained that the loss of wetlands means the loss of the monetary value of flood protection and the other functions they provide, and recommends conserving intact wetlands:
Studies show that the benefits of adaptation projects often go beyond the value of losses they prevent. This means that investing in adaptation is worthwhile even if a future disaster does not occur. ... Projects that reduce climate risks, like protecting natural lands and restoring floodplains and wetlands, provide direct economic value. For example, restoring the Otter Creek floodplains and wetlands near Middlebury is estimated to deliver at least $126,000, and possibly as much as $450,000, in flood protection every year. An analysis of Vermont’s investment in land conservation found that for every dollar the state spent, communities received about nine dollars’ worth of natural benefits. These include not only flood protection, but also cleaner water, better habitat for wildlife, and other important co-benefits.
... [Recommendation]: Revise the project selection and scoring criteria for Vermont's clean water funding programs to explicitly prioritize prevention-focused projects, such as conserving intact wetlands, floodplains, and river corridors, that build climate resilience. (emphasis added) (pp. 5-6, 42)
The Vermont Climate Action Plan 2025 (cited by the Secretary) recognizes the importance of wetlands--and recommends their expansion--as part of the effort to increase flood resilience: Since the adoption of the initial Climate Action Plan in 2021, the following important steps have been taken towards building resilience in Vermont communities and the built environment:
.... The enactment of the Flood Safety Act (Act 121 of 2024), which will move regulation of development in high-hazard river corridors to the state, establish a net-gain wetlands policy, ... and study how flood hazard policy might be more effectively administered.
... The plan ... recommends the promotion of healthy, connected river corridors, floodplains, and wetlands, through expansion of wetlands, floodplains, riparian forests and/or river corridor easements that support co-benefits of increased resilience to climate change, enhanced biological diversity, and water quality benefits. These nature-based, cost-effective approaches increase resilience of natural and human communities to future flooding and droughts. The effect of the floodplain wetlands in the Otter Creek watershed on maximum flood heights in Middlebury during Tropical Storm Irene in 2011 is particularly telling [Galford et al. 2014]. Watson et al. (2016) estimated that these wetlands reduced the potential damage to Middlebury by at least 6 times and perhaps as much as 20 times. (emphasis added) (pp. 49, 186)
Citing the Climate Action Plan, the recently enacted Flood Safety Act (Act 121) recognized the importance of increased flood resilience in developing “compact settlements”: Promoting existing compact settlements, located along Vermont waterways, will require improved flood resilience efforts, as described in the initial Vermont Climate Action Plan of 2021, such as managing flood and fluvial erosion hazards to protect Vermont’s compact settlements, which will be a critical component of a successful climate adaptation response.” (emphasis added) (Act 121, Findings at Sec. 2(6))
The Secretary stated that, “While wetlands provide important environmental and economic benefits, such as, flood control and water quality functions, the impact to wetland functions will be confined to a limited number of wetlands located in designated areas. Any negative impacts will be balanced by advancing housing construction in compact growth areas.” (Rule Filing at p. 9) Is this statement true? They provide no evidence to support this assertion. In fact, the reports they cite (above), and the findings provided in Act 121, make clear that wetlands must be preserved, and even expanded by restoration, if we are to continue to develop urban “compact growth” areas in a safe and climate-resilient manner.
Building houses in wetlands could result in an increase in the risk of floods—and likely the costs of housing, as residents are confronted with the resulting flood damages. Evidence based in science and data argues for protecting and restoring wetlands and their buffers—it does not support the Secretary’s proposal to remove protections and build houses in them.
4. In Their Rules Filing, the Secretary Failed to Provide a Cost-Benefit Analysis of Building Housing in Wetlands. An Analysis Would Likely Show the Costs Could Be Significant.
In the Rules Filing, the Secretary was required to provide an Economic Impact Analysis—an analysis of the costs and benefits of the proposed wetlands rule. There is no tangible economic analysis provided in the filing, however. The Secretary merely asserts that any negative impacts to wetlands will be balanced by building in compact growth areas. No monetary values or comparisons, or any factual data, are given to support these assertions.
Wetlands provide important environmental and economic functions. ... Wetland water storage helps to lessen flood damage from more extreme storms to downstream properties and also provides for water in times of drought allowing us to be more resilient to the effects of climate change. ... This rule will negatively impact some wetlands and their functions in designated areas. However, the extent of those impacts will be limited and balanced by facilitating home building and densification in designated areas reducing sprawl and its associated environmental and climate-related impacts. ... Any negative impacts will be balanced by advancing housing construction in compact growth areas. (emphasis added) (the Secretary in Rules Filing, pp. 4-5, 9, 17)
Where is the factual data and analysis to support these claims made by the Secretary?
If the Secretary had undertaken an adequate economic analysis, they would likely have found that building housing in wetlands is more costly than building on more suitable dry land—and may not result in an increase of housing that is affordable.
Building a house in a wetland will increase the impervious surface, while also removing the capacity for water storage in that wetlands area. This could increase runoff and flood risk and impact the properties nearby. There are potential costs for the homeowners impacted by development nearby or downstream of those wetlands that have been lost to development.
In addition, the total costs to build housing in a wetland may be doubled or tripled in comparison to the average homes built on dry land. The added costs to prevent water and flood damage can include soil stabilization through added soils, compaction, and drainage systems; special foundations that may involve pilings to ensure stability; special engineering and construction personnel; and flood insurance. Building in an area with a high water table (like wetlands) can lead to failed wastewater and septic systems. Even if the house can be built, the wet soils and raised water levels during heavy rains can cause shifting soils, damaged foundations, damp and wet areas of the home, mold, erosion, and increased flood risks.
If the house is not built to be resistant to flood and water infiltration, then the homeowner may experience more impacts than if it had been. Long-term, the costs could be significant. And will the average homeowner have the ability to pay the costs of damages to their home? Will builders choose to build on wetlands because it may be cheaper to acquire and build on them than on a more suitable dry building lot? If so, are we creating a two-tier system--where lower income residents end up living in wet and inadequate housing developments?
Allowing people to build where no wetlands have been mapped may also provide a false sense of security. Homeowners may be led to believe that it is safe to build in an area where no wetlands have been mapped. Homeowners, as well as builders, may not know that wetlands do in fact exist in these areas if they have not been mapped. Will the state require that homeowners in these areas be provided notice of the potential for housing built in wetlands? Will developers or the state be liable for damages in these areas?
The EPA estimates that 15% of a watershed that is maintained as wetland can reduce flood peaks by as much as 60%.6 One study found that wetlands and floodplains prevented 84-95% in flood damages to buildings in Middlebury during Tropical Storm Irene, saving them as much as $1.8 million.7 Another study of the upper Midwest found that in Indiana, for example, residential flood mitigation from wetlands is valued at $477 million per year. These values can be much higher when all flood damages (in addition to impacts on residential buildings) are taken into account.8 Tropical Storm Irene alone caused flood damages in Vermont estimated at more than $600 million.
The loss of a wetland due to development also results in a loss of the beneficial ecosystem services that an intact wetland can provide: storage of flood waters and flood mitigation; water filtration and improved water quality; drought prevention; carbon storage; fish and wildlife habitat. These services provide economic value; and would be costly to replace if necessary to protect health and safety.
There are real costs to development of housing in wetlands, both environmental and economic. Those costs have not been provided by the Secretary in this rulemaking process.
5. The Rules Amendments are Arbitrary, Run Counter to State Law and Policy That Protects Wetlands for Increased Climate Change Resilience of Vermont, and Should be Rejected
In the Rules Filing, the Secretary was required to explain why the proposed rule is not arbitrary.9 The Secretary answered that the rule is not arbitrary, in part, because it is supported by “data collected by state government, as well as Agency staff and wetland professionals.” (Rules Filing, p. 4) If that is the case, where is that data? Where is the evidence of that support? Where is the science that the statutes intend any wetlands regulations be based on? (10 V.S.A. § 901) Are “Agency staff and wetlands professionals” really willing to support and work under rules that are not based on fact, science, or reasoned analysis, and that run counter to statutes as enacted by the state of Vermont?
The Vermont legislature recognized the need for protection of wetlands as part of an effort to protect people and property from the increasingly frequent and intense flooding caused by climate change. They enacted laws in statutes that clearly require increasing protections for wetlands—not removing protections.
As climate change causes the flood waters to continue to rise, the costs will rise along with them. To enact these rules would be a step backwards in our efforts to protect our state and its residents from flooding and other impacts. The rules as proposed by the Secretary would increase the risk of flooding and the risk to the safety and welfare of the residents of our state.
On a personal note: I live in Northfield, a town that experienced devastating floods in some areas, caused by Tropical Storm Irene. After the floods, some homes in the hardest hit areas of town had to be rebuilt. A number of houses along one side of the Dog River in the Village were so badly damaged, they were bought out by FEMA and torn down. There is now a riverside park where those houses once stood. The park serves as a protected floodplain, including a wetland, so the properties nearby and downstream will get some protection from the next floods. The wetland in the park, and another upstream, are within the exempted growth areas under this rulemaking. I certainly hope no development occurs in or near those wetlands, or in other wetlands that may be unmapped; because there are many homes and businesses downstream that could be impacted and that have been impacted by the previous floods.
I am an attorney with a master’s degree in environmental law and policy. I have served as Chair of my town Planning Commission, Chair of my Regional Planning Commission, and as a member of our town Conservation Commission. My perspective is that a reasonable but careful balance
must be struck between the need for development and the need to protect valuable natural resources. Both are necessary for the health, safety, and welfare of our society. But that balance is not being struck in this rulemaking. If this policy came before a commission that I served on, I would not vote to approve it—because I feel a responsibility to do my best to ensure that everyone that may be impacted by a potential policy is as safe from harm as I can reasonably keep them. This rulemaking does the opposite—it increases the risk of harm to our residents.
We can create affordable housing without destroying a natural resource as valuable as wetlands —one that provides us with the means to keep areas of development safer and more resilient. If, as has been stated, the Secretary wants the environmental community to provide them with
alternatives to building in unmapped wetlands and buffers, I suggest they request resources that would allow ANR to identify and map the remaining wetlands in the designated growth areas—before deciding it’s acceptable to fill them in and build houses on them.
For all the reasons above, the amendments to the Vermont Wetlands Rules should be rejected.
1 https://dec.vermont.gov/watershed/wetlands/wetlands-rulemaking
2 See Vermont Significant Wetlands Inventory (VSWI)
3 See https://dec.vermont.gov/watershed/wetlands/wetland-maps
4 See VT Attorney General Charity Clark opinion as to validity of the Secretary’s potential action in the Wetlands Rulemaking, Op. No. 2025-01, p. 5 (Nov. 20,2025) 5 See VT Attorney General Charity Clark opinion as to validity of the Secretary’s potential action in the Wetlands Rulemaking (Op. No. 2025-01 (Nov. 20,2025)); citing In re Agency of Admin. State Blds. Div., 141 Vt. 68, 76 (1982) (agency cannot use rulemaking to enlarge statutory authority)
6 https://www.epa.gov/sites/production/files/2021-01/documents/economic_benefits_of_wetlands.pdf 7 https://library.weconservepa.org/library_items/1634/files/1822;
8 https://www.ucsusa.org/sites/default/files/2024-12/wetlands-full-report.pdf]
9 3 V.S.A. § 801(b)(13)(A): “Arbitrary,” when applied to an agency rule or action, means that one or more of the following apply: (i) There is no factual basis for the decision made by the agency; (ii) The decision made by the agency is not rationally connected to the factual basis asserted for the decision; (iii) The decision made by the agency would not make sense to a reasonable person.
