Vermont Legislature SmartTranscripts:

[Speaker 0]: Action to a bill that would ban or restrict the application of Paraquat. And during that conversation, somebody suggested that Peripop might be being used on right rights of way to control growth. And I recalled after that discussion or maybe during that discussion that every year round about now in my electric bill, I get a little insert that informs me that if I don't wanna have herbicides sprayed,

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: it's

[Speaker 0]: a way that the joins or runs through, in my case, my property, I can call a number or write a letter maybe and ask that either there'd be no herbicides sprayed or that some other steps be taken that might restrict their application. Then And I didn't think about it again until I got home on Friday, and there was my electric bill, and there was the insert. So I thought, well, let's ask the agency to come in because the agency's name and number are right there on the insert. If you have any questions, call us. Also could call the electric company, GMP in my case, and maybe the PUC or somebody else that we work with the agency generally. Let's ask the agency to talk about this. And so specifically, again, this came up first because of the paracop question, but I thought it might also be helpful to have us all understand what rights the public has in this and what risks they might be exposed to.

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: Absolutely, Mr. Chair. Thank you committee members for having me. My name is Dave Huber, Deputy Director of the Division of Plant Industry at the Vermont Agency of Agricultural Food and Markets, formerly the Public Health and Agricultural Resource Management Division. We have changed our name. We have overview of 11 statutes. They all deal with plant industry and plants and the protection of plants and crops. So it made sense to change the name. And so one thing that you will see is that we are changing our email addresses. Some of them instead of farm, fill in the blank, are now PI for plant industry or plant industry, such as plant industry info or plant industry permits or plant industry rules. So just a heads up, you might see a little bit of a change, but it's same faces. So just to address, I think the elephant in the room there, because I remember that during the introduction of the Paraquat Van bill, representative Cole did mention a host of chemicals, and then it came up in committee, potentially Paraquat was being used in the rights of way. And to my understanding, to my knowledge, and going back in history, we don't have any permits that have paraquat allowed for rights of way for the electrical utilities or any right of way for that matter. Good to know. Thank you. Yes. And so what I would like to do, if it's okay with everybody since that question is now out of the way, I'm happy to talk for as long as you like about what the right of way processes, what it is in the rule. I have a little outline here because I wasn't sure what exactly the committee wanted to hear about the rights of way, but I'm happy to share past permits, examples of permits, how we arrive at what chemicals to be used.

[Speaker 0]: Yeah. Any of that while we have you would be would be interesting. Yeah.

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: Sure. Likewise, on Friday, I received my GMP bill higher than I was hoping. And on the last page was the page that Mr. Chair is talking about here. That last page there does say if you would like to opt out, and I'm sure the committee has seen this because you all have it in all of your electrical bills, not just GMP. It But says if you would like to opt out, you can contact your electrical provider, you can contact the agency of agriculture, those come to me, or you can contact the PUC. I don't know how many people actually do contact the PUC for that, because it really is a personal choice between the homeowner and Green Mountain Power. Now, I receive a lot of those opt outs. And when I receive an opt out from a member of the public, it usually says, Hello, agency of agriculture, please take my name and make sure that I'm not going to be receiving any herbicides on my property while right away work is going on. And I take those and then I send those over to the electrical company whose name is on that piece of paper, usually Velco, VEC, Green Mountain Power, and that's the usual process. When it comes to the actual rights of way though, I wanted to show everybody what our rule here is and how we arrive at the right of way permit. As you probably know, we have a lot of pesticide permits in the state. It is heavily regulated. And the right of way permit is the first one that we have. This dates back to 1991. And this is the right of way clearing and maintenance permit. And you'll see under a, we just walked through, there's not too many of these subdivisions here, but nobody can apply a herbicide for the purpose of clearing or maintaining it right away without first obtaining an approved permit from the secretary of the agency. And that is really the overarching theme. You need a permit. Our specialists are out conducting inspections and investigations. We will find if somebody is out there applying it right away without a permit, whether it's a complaint from the public or just driving by and seeing somebody in a right away, we have no problem stopping and walking out there. We also schedule inspections per the permit, and I'll get into that in a moment. You'll see here for a person seeking to control terrestrial invasive plant species, you have to get a separate permit. That really is the aesthetics permit, if you wanna think of it like that. We heard for years from towns, I I have knotweed. Have Japanese knotweed, and I want this out. And our response was, well, is there a threat to public health, safety, or general welfare of your citizenship? They would say, no, it's ugly. It's causing erosion, but it's not creeping up the stop sign. It's not going over the guardrail. It's not in front of the bus stop, where the kids might be hanging out and then a car come around that edge. And so we said, well, you can't really get a right of way permit for that because there has to be some sort of general health, safety, welfare issue. That's why we came up with the Section six zero eight terrestrial invasive plant control permit. So that's separate. So if you want to think of it as one is controlling for health and safety, and one is controlling for making sure that that town is keeping property values up and their land on the banks of their rivers and streams, that's six zero eight. Under section B, again, emphasizing about terrestrial invasive plants that you cannot use a right of way just to get rid of the terrestrial invasive plants. If you're an electrical company and you have a right of way, you have an overhead of power lines. You have to protect those power lines. And what the companies do is they have certain policies and protocols in place so that they know at what point do you have to cut down that tree, at what point do you have to control the vegetation. And what they're looking to do is frankly create a pollinator friendly habitat. In fact, that's one of the things that has to be met in their five year vegetative management plan, going back again to 1991. And so they make sure that no trees, or they hope to make sure that no trees are gonna be falling on those lines. And their right away extends a certain amount beyond those lines in case a tree that's on either side of those lines falls towards that line. They wanna make sure that if it falls, it doesn't fall on that line. That's the whole point of this permit for the electrical companies, make sure the power stays on. It also has to do with worker safety for those in the electrical utility industry. I'm sure you're wondering what about weed whacking? What about using a chainsaw? Keep in mind, when you use a power tool like that in the right away, especially when it's someone else's view, that's an immediate change in their view shed. That also leads to complaints, except there's no brain that cutting limb back once it's already cut. Also operator safety is key it comes to using a chainsaw. These operators are out there at all times of day and night, and they wanna make sure that they're coming home safe. I know this because the agency of Ag, we hold preseason and postseason meetings with all of our permit boards. So my staff and I go and we go to the location of the companies, and we talk about herbicide safety, we talk about updates and the rules, we talk about the ins and outs of the permit, pesticide usage, and then likewise, we get to hear what they talk about, which is the appropriate use of mechanical operations, safety protocols, how to handle emergencies, making sure everyone is aware of everyone's contact information. And so these are usually half day meetings.

[Rep. David Durfee (Chair)]: Representative O'Brien. Dave, what this section with right of ways, does this put all right of ways in in the same bucket, whether it's utilities or municipalities doing class three roads or legal trails or even property owners or you might have a right of way to a water source on somebody else's land. So does it cover all those?

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: So this covers when we talk about right of ways, I want to show you what the definition is. So scroll up. I don't mean to make anyone nauseous here, but I'll make sure you see what the definition is. So the right of way means an interest in real property above on or below the ground that entitles the holder of the interest to pass over the land for the purpose of carrying, transmitting, or transporting liquids, gases, electricity, communications, vehicles, or people. For the purpose of this rule, it is immaterial whether the right of way is owned, leased, or an easement. So I hope that answers your question. When it comes to homeowners though, we try to let neighbors be neighbors. There is one instance though, where a homeowner might be doing work in there right away, and also electrical utility or NRCS or another entity might be doing work in that right away, or they might not be doing work in that right away. And what I ask is if any of these entities know that work is being done in their right of way, which they have the ability to do with a permit, but a homeowner could go into that right of way also and make an application, I ask, please let me know, because if I hear that something is adversely affected by a herbicide and I send out staff to take a sample and it comes back hot for a product that's not on the permit, that doesn't look good for the person who holds that permit. So I try to make sure that there's open lines of communication between the homeowners as well as these companies so that we're not just pointing fingers. We do do a thorough investigation regardless, but you can still going back to section six zero one. All right. So again, you can't just clear traditional invasives. If they are not part of your plan, you shouldn't be doing it. It'll be a violation here. Under sub c, a complete and accurate permit application shall be made on a form provided by the secretary before March 1 of the year of the proposed application. This deadline has changed. Prior to the pesticide rule going into effect 02/24/2023, as amended, the date was different for when these applications could come in. We think that March is a good time, everyone's getting ready for the field season, and we wanna be able to have that time to do the preseason safety and herbicide checks with all these companies. The application is accompanied by a digital or electronic map of the area proposed application that indicates the right of way boundaries, surface waters, public water sources, and potable water sources, threatened or endangered species, and a copy of the notice of intent to use an herbicide that shall be published. This is language that we worked on with the agency of natural resources over the years, and that's why it's so inclusive of T and E as well as all the water sources. You may remember when we went through LCAR a couple of years ago for the pesticide rule, We did have a conversation about potable and public water sources, and that made its decisions. As far as what the public gets, because as the chairman has said, he received a piece of paper. I have received it. Everybody here has most likely received that paper. So this is not that paper. This is different. That's an opt out. And on that opt out, you may see something that says it will cost $30 to opt out. I encourage anybody who wants to opt out to contact by phone and inquire about the $30 I have heard from some electrical companies that that's a relic of the past, and they encourage folks to get in contact. But you should hear for yourself if you're interested, and I can give you a list of all of the permittees that we have for the electrical rights of way. So that's different. What I'm gonna talk about is the notice of intent. And this has to be published not less than twenty five days nor more than sixty days prior to the anticipated first application of a herbicide. So we usually hear about this in May in anticipation of June. And then weather gets in the way, whether it's a drought or a ton of rain, and then it alters, but that notice has been made. It also has to be published for one day a week for two consecutive weeks in each two newspapers for every county to be affected by the right of way application. And then it goes on to talk about the days. So there's quite a lot of information going out to the public. It has to be at least two palms wide by three inches high. So if you can imagine what that looks like, it's pretty large and it's in these papers. It has to set forth the name and address of the permanent applicant. So whether it's Green Mountain Power or VEC or Velco, how that herbicide is gonna be applied, when it's gonna be the approximate date of application, and then any sort of contact info for that company has to be in there too. Again, this is separate. Also, they wanna know where the potable water sources are. Our mapping in the state is not up to date. I think we all know that. And so we do rely a little bit here for homeowners because they know exactly where their wells are, and they usually are very quick to say, that's where that well is, put it on your map for the future. So in addition to all that notice of intent that has to be published, further notification by one of the three following methods has to be made. Number two is usually what happens. But I'm sorry, number one is usually what happens. Three spot messages per day on each of two radio stations in the area of application on two consecutive days during the two week period prior to the commencement of application. Again, these are public areas where it's possible folks are recreating, And these companies wanna make sure that everybody is aware we're gonna be on this line at this time, a herbicide will be used. The other one's written communication to residents adjacent to the right of way during the calendar year of application, least two weeks prior by mail or email, sometimes employed. Sorry, representative Nelson. Yeah. Go ahead. All

[Rep. Richard Nelson (Ranking Member)]: your messaging work for me is I still read the newspaper, and I still listen to the radio when I'm at home. The younger generation born to this. When are you gonna update and have them reaching out to all the front page forums and all the different communities to post there?

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: Oh, so that's a good point. At at any point here, if the secretary were to deem that we wanted to have a different way of of connecting to the public, I'm sure that we would be able to do that through this rule. I

[Speaker 0]: saw a reference to electronic mail. So at some point there was an update.

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: Was 2023 was that update. Just three years ago. Yes, three years ago.

[Speaker 0]: So up until then, there was not an email requirement.

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: No, email didn't exist in 1991 to the extent that it does today. And that rule was thirty two years by the time that we amended it, which if everyone in the committee remembers at that time, one of the big things here in this rule was getting it into the twenty first century. Here, this is probably very pertinent of interest, I would imagine, the committee. Under G, the permit applicant shall submit an IVM plan, an integrated vegetative management plan, every five years to the secretary. If they don't, they don't get a permit. And here it lists everything that that plan needs to entail. Now this is usually a national plan. So we're talking about companies that operate throughout the country. So because the electoral companies will hire contractors, and those contractors are employed throughout The United States. And so they have these plans. Some electoral companies have their own, and I would encourage you to talk to National Grid. They do have quite a robust plan that talks about their history of pollinator protection. It pretty interesting. But the big key thing here for everybody is under five, they have to establish standards and practices for wetlands, pollinator habitat, wildlife, erosion control, and aesthetic considerations. And those five things are probably what the biggest complaints would be if they were not considered in their plan. Because everybody says my view shed is affected, or what are you gonna do about the water? Or pollinator protection is huge. What are you doing for the wildlife? They wanna increase wildlife in these corridors. The corridors are a great way, the right of way are a great way for animals to move.

[Rep. David Durfee (Chair)]: Representative O'Brien? Dave, does the public have a right to rights of way, like utility lines? I know I crossed over one in Cambridge, Chelsea, and it says, I think, that spring was here, so there's no trespassing. Is that a property owner or is that Green Mountain Power putting that sort of thing up? So

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: the way that we read it in the rule is that that is a right of way, and that the person who owns that interest is able to use it to go over it. But it doesn't preclude somebody else who has that underlying interest from walking across it. Now, that's our interpretation of what a right of way means. If you were to ask the property owner of that right of way, they may have a different answer as to what their legal definition of right of way would be. Some allow for folks to walk in it, some don't, but it would be up to that actual company. I think when they put up a sign like that, they are making a statement that, hey, just a heads up, you don't want an attractive nuisance for

[Rep. John O'Brien (Member)]: anything like Whether you're allowed to hunt, attention. I want

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: to contact them. That's outside pesticides.

[Rep. Richard Nelson (Ranking Member)]: There's a lot of deer shacks.

[Speaker 0]: The the events that are that would prompt the application of an herbicide event that would prompt public notice, is is that the same event that the homeowners get in

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: their electric bill this month? So, yes. So if they get that notice, which they do, which is the opt out, that does not say in there, here's the products we're applying. That's completely separate.

[Speaker 0]: I know that there's I don't have that I don't have my electric bill with me, but I know there was a rule referenced right at the top. Is it this rule or is it a different rule?

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: I would have to take a look, but the pesticide rule is the overarching rule for primacy on pesticides. The one

[Speaker 0]: thing that jumped out that has jumped out of me since I first started recognizing that or looking at the bill or reading of our care play, I guess, was that if I want to opt out, I have to write a letter put it in the mail, which seems like it's also twentieth century. Has there been any conversation about making a portal or some way that I could go online? There will be. And that's because I have

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: to contact all the utilities to update our email address. So going back to what I started with at the beginning, this is a very good avenue to open up that conversation and say, how can we make this more of a notification that would suit everybody. Consumer friendly. Do you have any sense of how many

[Speaker 0]: Vermonters every year ask for some kind of relief from this?

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: There's two categories of that. In the letter that you're referencing, I get about a dozen 15 a year, and then I forward those on to the appropriate company. I don't know how many the PUC gets, and I don't know how many the company gets, but I would imagine the company gets the bulk of those, because it's between the homeowner and the company. Now, there's also the other folks who are chemically sensitive, and they'll give a call to us and say, We want to make sure that we're not going to be sprayed. So when you know that somebody is spraying, can you let me know twenty four hours ahead of time? The reason why they're calling is because of those three spot messages on the radio, because now they're alerted that it's coming their way, or it's because of what they read in the newspaper, which was that two columns by three inches wide. They've read that and they now know something is coming my way as far as herbicides go, I should contact the agency. What we did this past year was in years past, we would respond to all these inquiries and we would have conversations with these folks. We'll let you know. But then whether we get in the way and the application wouldn't be had, then and we would call back the individual and say, Hey, sorry, there's no application. It's raining. It's not gonna happen. We'll call you once there's another application, which could be at the end of the summer. And so that person's left waiting for us to call. We put that burden on the companies this past permit cycle and made it a permit condition and said, the onus is only you to make that phone call to the chemically sensitive folks, because it's not between the agency and that individual. This really is between you, the company and that individual, and if you cancel because of weather, you should bear that burden of contacting that individual.

[Speaker 0]: We should probably wrap it up. Sure.

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: I do just wanna show everybody, you can access these on our website on our right away. And if you were to click the public comment here, public review and comment, it will take you to another website or another page. And here you can find our responsiveness summary. So similar to what we do for rulemaking, we also post a public comment response summary. And if you were to look in our public comment response summaries going back to 2022, when we first started these summaries, you'll see that for electrical companies, there's only been four comments. They were in 2023, and they're all to Green Mountain Power. So one year, four comments. Every other year, no comments for the electrical.

[Speaker 0]: All right. Thank you for coming in. Of course. And thanks for clarifying about the credit block too. We haven't had more conversation about that since we first had the walkthrough. If we have any more, maybe we'll be hearing more from you. I'm not sure.

[Dave Huber, Deputy Director, Division of Plant Industry, Vermont Agency of Agriculture, Food & Markets]: Absolutely. Thank you. Thank you. Thank you, members of committee.

[Speaker 0]: Okay, we'll take lunch break. And