From Executive Order to Public Hearings: Vermont’s Wetland Changes Face Months of Debate
Rather than immediately enforcing the Governor’s order, Vermont’s Agency of Natural Resources (ANR) has chosen a deliberate approach: launching a formal rulemaking process .
In September 2025, Governor Phil Scott issued Executive Order 06-25 to accelerate housing construction by rolling back environmental regulations. But the path forward is more complicated than a simple executive directive.
Rather than immediately enforcing the Governor’s order, Vermont’s Agency of Natural Resources (ANR) has chosen a deliberate approach: launching a formal rulemaking process that subjects the Governor’s policy to public scrutiny, legislative oversight, and potential legal challenge.
This procedural choice has turned what could have been a straightforward policy change into a constitutional question about the separation of powers between Vermont’s executive and legislative branches. Environmental groups have already sent a formal demand letter arguing the changes exceed the Governor’s authority, and a lawsuit appears likely if the proposed rules move forward.
Here’s what Vermont residents need to know about the controversy, how it affects local development, and what happens next.
The Housing Crisis That Prompted Action
The Scott Administration frames Executive Order 06-25 as an emergency response to Vermont’s acute housing shortage. According to statements from Secretary of Natural Resources Julie Moore and Governor Scott, Vermont faces a deficit of approximately 30,000 to 40,000 housing units needed by 2030 to stabilize prices and accommodate workforce needs. Median home prices have reportedly doubled over the last decade.
The Administration argues that regulatory barriers are contributing significantly to this crisis by creating delays and increasing costs. Secretary Moore has characterized environmental opposition to the order as “reflexive opposition” lacking “actionable alternatives,” positioning the executive branch as taking necessary pragmatic action.
However, environmental advocates point to Vermont’s flood history—particularly the catastrophic events of July 2023 and July 2024—as evidence that weakening wetland protections could create long-term risks for the very housing developments the state seeks to build. Vermont has lost nearly 50% of its historic wetland area, with regulated wetlands continuing to disappear at a rate of approximately 20 acres annually since 1995.
What Executive Order 06-25 Actually Does
The Executive Order targets two main areas of regulation that affect housing construction:
Building Energy Codes
The order allows builders to choose between the 2020 or 2024 building energy standards. The 2024 standards, which were adopted after a multi-year stakeholder process, include more stringent insulation requirements and “EV readiness” infrastructure. Builders argued these requirements add substantial upfront costs. The order essentially offers an option to use the older, less stringent 2020 codes.
Wetland Permitting Changes
The order directs ANR to modify wetland permitting rules for housing projects in designated growth areas—specifically in areas classified under Act 181’s “Tier 1A” and “Tier 1B” zones, which include downtowns, village centers, and planned growth areas.
The proposed changes would:
Allow residential development to proceed without a wetland permit if projects only impact “unmapped” Class II wetlands
Reduce the protected buffer zone around wetlands from 50 feet to 25 feet
Eliminate the requirement for mitigation when these wetlands are filled
The “Unmapped” Distinction
A critical point of confusion: “unmapped” does not mean dry land. It means land that functions as a wetland but has not been identified on Vermont’s Significant Wetlands Inventory maps, which were created in the 1990s and are known to be incomplete. Under current law (10 V.S.A. § 913), a wetland is protected if it serves significant ecological functions, regardless of whether it appears on official maps. The proposed rule change would effectively remove protections from these functional but unmapped wetlands in growth areas.
How ANR and DEC Are Implementing the Order: The Rulemaking Strategy
This is where the story becomes procedurally significant. Rather than simply issuing guidance to staff or using enforcement discretion, ANR Secretary Julie Moore determined that the “most prudent path forward” was to formally amend the Vermont Wetland Rules through the state’s official rulemaking process.
The actual rulemaking is being conducted by the Department of Environmental Conservation (DEC), which is the department within ANR that manages wetland regulations. DEC is responsible for drafting the proposed rule amendments, holding public hearings, and processing public comments.
This choice has several important implications:
Public Process
The rulemaking process requires public notice, public hearings, and a comment period. DEC has scheduled public hearings for December 15 in Springfield and December 16 in Montpelier, with a public comment period open until January 14, 2026. Vermonters can submit written comments to WetlandsRulemakingComment@vermont.gov.
Legislative Oversight
After the comment period closes, the proposed rule goes to the Legislative Committee on Administrative Rules (LCAR) for review. LCAR has the power to object to rules it believes exceed agency authority or contradict legislative intent. If LCAR objects, the agency can still adopt the rule, but the burden of proof shifts dramatically in any future lawsuit—often a fatal blow to controversial regulations.
Implicit Acknowledgment
By choosing formal rulemaking rather than immediate enforcement, ANR implicitly acknowledges that the Executive Order alone may not be sufficient legal authority to override existing rules. Formal rulemaking creates a stronger legal defense, but it also opens the door to challenge.
Timeline
Rulemaking is deliberately slow. This process pushes any final implementation into spring 2026 at the earliest, meaning the Governor’s directive will not have immediate effect.
The Legal Challenge: Separation of Powers
As of November 2025, no lawsuit has been filed in court. However, a coalition of environmental organizations—including the Vermont Natural Resources Council, Conservation Law Foundation, Sierra Club, Vermont Conservation Voters, and VPIRG—sent a formal demand letter on October 15, 2025, laying the groundwork for litigation.
The Core Constitutional Argument
The environmental groups argue that the Governor and ANR are attempting to rewrite laws passed by the Legislature, violating Vermont’s constitutional separation of powers. Their argument rests on several statutory conflicts:
Unmapped Wetlands
Vermont statute (10 V.S.A. § 913) protects all “significant” wetlands, with significance determined by ecological function, not mapping status. Environmental advocates argue that exempting unmapped wetlands contradicts this statutory requirement.
Buffer Zones
The statute defines buffers as “at least 50 feet.” A rule setting buffers at 25 feet appears to contradict this statutory floor.
Energy Codes
The Legislature mandated the 2024 energy code updates through statute (30 V.S.A. § 51). Critics argue the Governor cannot unilaterally suspend a law by offering an “option” to use outdated codes.
Net Gain Conflict
Vermont law includes a policy goal of achieving a “net gain of wetlands” (10 V.S.A. § 918). The proposed rule, by allowing wetland filling without mitigation, would guarantee a net loss in designated areas—creating a direct conflict with statutory mandate.
The Administration’s Counter-Argument
The Scott Administration argues that the Secretary of Natural Resources has discretion under statute (10 V.S.A. § 914) to determine wetland classifications and can prioritize mapped resources. They also assert that the executive branch has broad emergency powers to address economic crises like the housing shortage.
What This Means for Vermont Municipalities and Property Owners
The legal uncertainty creates practical challenges for municipalities and developers:
Enforcement Confusion
Cities like South Burlington have noted that if the state effectively has two energy codes running in parallel (2020 and 2024), local enforcement becomes legally ambiguous. Some municipalities require the “stretch version” of the applicable state code, making the situation even more complex.
Development Risk
If a municipality permits development in a wetland based on the Executive Order’s provisions, and that order is later found unconstitutional, the validity of those permits could be challenged. This creates potential liability for both municipalities and developers who proceed under the new rules.
Act 181 Compromise at Risk
Act 181 was a carefully negotiated legislative compromise. The Legislature agreed to relax Act 250 review in downtown and village areas on the condition that other environmental protections—including wetland rules and energy codes—remained intact to prevent environmental degradation. Environmental advocates view the Executive Order as breaking that compromise by stacking additional exemptions without legislative consent.
The Stakeholder Positions
Supporting the Executive Order
The Scott Administration, Department of Public Service, and housing developers argue that reducing regulatory barriers is essential to address Vermont’s housing emergency. They contend that the changes target growth areas where development is already expected and where impacts can be managed.
Opposing the Executive Order
Environmental organizations, including the Vermont Natural Resources Council and Conservation Law Foundation, argue that the order exceeds executive authority and threatens flood resilience. They emphasize that many village centers are located in river valleys where wetlands provide critical flood protection.
ANR’s Position
As a cabinet agency reporting to the Governor, ANR is implementing the Governor’s policy directive through DEC’s rulemaking process. While individual staff scientists within DEC may have reservations about ecological impacts, the Agency’s official stance is one of compliance. Secretary Moore has publicly defended the order while acknowledging the need for proper legal process through rulemaking.
What Happens Next
December 15-16, 2025: Public Hearings
The Department of Environmental Conservation will hold public hearings on the proposed wetland rule amendments. These hearings provide the primary opportunity for Vermonters to voice support or concerns on the record. Expect heated testimony from both housing advocates and environmental groups.
January 14, 2026: Comment Period Closes
Written comments must be submitted by this date to WetlandsRulemakingComment@vermont.gov. DEC is required to review and respond to substantive comments.
Spring 2026: Legislative Committee Review
The proposed rule will go before the Legislative Committee on Administrative Rules (LCAR). This committee review is crucial. If LCAR objects to the rule as exceeding agency authority, it significantly strengthens any future legal challenge. LCAR’s decision will likely determine whether the environmental groups proceed with litigation.
Potential Lawsuit: Spring/Summer 2026
If the rule moves forward despite LCAR objection or environmental concerns, the coalition of environmental groups is expected to file suit in Vermont Superior Court. The lawsuit would argue that the rule exceeds statutory authority and violates separation of powers. A court injunction could halt implementation while the case proceeds.
Legislative Action: Possible 2026 Session
The Vermont Legislature could intervene by passing clarifying legislation that either explicitly authorizes the changes or explicitly prohibits them. Given that Act 181 was a carefully negotiated compromise, legislative action could either resolve the dispute or intensify it depending on which direction lawmakers take.
What Property Owners Should Know
Until the legal questions are resolved, property owners and developers should proceed with caution. Permits issued under the new rules could be challenged if the Executive Order is found unconstitutional. Consulting with municipal planning offices and legal counsel before beginning wetland-related development is advisable.
The procedural path ANR has chosen—directing DEC to conduct formal rulemaking rather than immediate enforcement—reflects the legal complexity of the Governor’s directive. While this approach may delay implementation, it also ensures that fundamental questions about executive authority, legislative intent, and environmental protection receive proper scrutiny through democratic processes. The outcome will shape not only Vermont’s housing policy but also the balance of power between the state’s branches of government.
How to Participate
Vermonters wishing to participate in the process can:
Attend public hearings on December 15 (Springfield) or December 16 (Montpelier)
Submit written comments to WetlandsRulemakingComment@vermont.gov by January 14, 2026
Follow legislative committee proceedings through the Vermont Legislature website
Contact local representatives about concerns or support
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