Vermont Legislature SmartTranscripts:

[Representative Kathleen James (Chair)]: We're live. Alright. Welcome back, everybody. It's House Energy and Digital Infrastructure, and we're continuing our testimony on Wednesday, February 18 with additional discussion about H seven twenty seven and act relating to sustainable data center employment deployment. And we are gonna be talking today with Michael Grady from Ledge Council and Kevin Burke from the Department of Environmental Conservation. And we did push off. We wanted to make sure we had enough time for this discussion before four, so we did updated our agenda. We pushed off our budget discussion until tomorrow. Alrighty. So we'll go around the room and introduce ourselves, including everybody who's in the room, and then we'll have you guys come and identify yourself for the record. So I'm representative Kathleen James from Manchester.

[Representative R. Scott Campbell (Vice Chair)]: Scott Campbell from Saint John's Berry. Chris Morrow, Windham, Windsor, Bennington. Michael Southworth, Caledonia two. Christopher Howland, Rutland four. Dara Torre, Washington two.

[Representative Bram Kleppner (Member)]: Graham Kleppner, Chittenden thirteen, Burlington.

[Representative Laura Sibilia (Ranking Member)]: Arsibilia. Hi.

[Kevin Burke (DEC Watershed Management Division Director)]: Danielle Lee Perry for the Krassinger. Good afternoon.

[Representative Kathleen James (Chair)]: Audrey Leinart is running with representative Burke.

[Billy Coster (ANR Director of Planning & Policy)]: Billy Coster with the Agency of Natural Resources. Kevin Burke, DEC, Watershed Management division director. Great.

[Michael O'Grady (Legislative Counsel)]: Chair Carpenter, Lake Champlain Committee. Michael Green, legislative council.

[Representative Kathleen James (Chair)]: Great. And hello. Oh. You have to introduce yourself. You have to introduce yourself.

[Kevin Burke (DEC Watershed Management Division Director)]: Oh, I wanna ready, intern for representative Sibilia.

[Representative Kathleen James (Chair)]: Welcome. Who's on first?

[Kevin Burke (DEC Watershed Management Division Director)]: You wanna go? I would prefer I have to go somewhere else around this.

[Representative Kathleen James (Chair)]: Great. Thanks for joining us.

[Billy Coster (ANR Director of Planning & Policy)]: Sure. Thank you for

[Kevin Burke (DEC Watershed Management Division Director)]: having me.

[Representative Laura Sibilia (Ranking Member)]: Must be

[Representative Kathleen James (Chair)]: your first time in our committee. It is. Wow. Okay. Welcome.

[Kevin Burke (DEC Watershed Management Division Director)]: So thanks for having me, and gonna be the first one. For the record, my name is Kevin Burke. I am the Vermont DECW Watershed Management Division Director, a role that I've had since a little over November, taking over for our former director of twenty years. Happy to be here to speak to you about data centers. I

[Billy Coster (ANR Director of Planning & Policy)]: think,

[Kevin Burke (DEC Watershed Management Division Director)]: generally, data centers, like any other commercial project, would trigger the typical environmental permits, including stormwater permits for impervious surface, construction permits, potentially wetlands permits if not avoided, and the other kind of standard permits that, you know, you might have for crossing a stream, a stream alteration permit or something to that. The other permits that might be applicable to a data center might be something related to cooling water. So if if a center is using a fair amount of cooling water, they need to then discharge that warmer water somewhere, and that would be regulated on under a NPDS, direct discharge permit.

[Representative Kathleen James (Chair)]: NPDS?

[Kevin Burke (DEC Watershed Management Division Director)]: National pollutant discharge elimination system. That's the permits under the federal Clean Water Act that Vermont is delegated to manage. Essentially, wastewater treatment plants have an NPDS permit along with construction stormwater. There's a number industrial activities also often require NPDS permits. But in this case, if if they were discharging waste as a result of, you know, cooling the operation, that discharge would need to be permitted so that they can determine we can determine and ensure that the water quality standards are still going to be met in the receiving water, such as from thermal impacts if it's warmer water entering cold water stream or river, and, you know, potentially other pollutants that might come along with it if applicable.

[Representative Kathleen James (Chair)]: Sibilia, do you have a question? I've I've some too. Yeah.

[Representative Laura Sibilia (Ranking Member)]: Go ahead. I'm I'm looking for some context to kind of put my head around here in terms of something in Vermont now, in particular with something that is using a lot of water to cool. And so potentially consuming a lot

[Representative Kathleen James (Chair)]: of water if you're getting a

[Kevin Burke (DEC Watershed Management Division Director)]: lot of evaporation. One historical example would have been Vermont Yankee, where they use you know, they have required significant cooling, for a long time, there was a thermal impact downstream of the plant.

[Representative Laura Sibilia (Ranking Member)]: Yeah.

[Kevin Burke (DEC Watershed Management Division Director)]: It's because of the river water is warmed when it's used for cooling, and then it returns to the river.

[Representative Laura Sibilia (Ranking Member)]: So would you be monitoring would we be monitoring? Do regulations require us to monitor consumption of, like, how much water?

[Kevin Burke (DEC Watershed Management Division Director)]: Currently, I believe the only surface water withdrawal regulatory requirement might be through Act two fifty.

[Billy Coster (ANR Director of Planning & Policy)]: Okay.

[Kevin Burke (DEC Watershed Management Division Director)]: The Vermont the rivers program within our division does require certain users Right. Of water that are basically conducting water withdrawals to report that to our department. I believe that is under act one twenty one to better get it for us to get a better sense as to sort of how much water is being used, particularly given the drought last summer. I think the only exemption from the reports under that would be agriculture.

[Representative Laura Sibilia (Ranking Member)]: If I could just ask one more question since GMP and the commissioner, now you have identified, the BY site as a large in different ways. But, if we had, a data center that wanted to site there, some attractive sites, got transmission, it's got some systems there, what what would happen, like, from your perspective in terms of water quality? How what are the what are the checks on that?

[Kevin Burke (DEC Watershed Management Division Director)]: In terms of the water withdrawal specifically?

[Representative Laura Sibilia (Ranking Member)]: Yeah. I mean, what are the what are the pro I I know there are a lot more processes. We've got from ANR here who could talk about act two fifty in in bigger picture, but yeah. What water processes would come into play or when would they come into play for something like that?

[Kevin Burke (DEC Watershed Management Division Director)]: I think if they're proposing to discharge to the Connecticut River, they would require a discharge permit, which would have more you know, some monitoring parameters associated with it Okay. Specific to the operation.

[Representative Laura Sibilia (Ranking Member)]: And what if

[Representative Kathleen James (Chair)]: it was proposed to be at a

[Representative Laura Sibilia (Ranking Member)]: site that was connected to bottled water? Would there be any check on that?

[Kevin Burke (DEC Watershed Management Division Director)]: I believe that, you know, I'm kind of starting to speak outside the watershed management division.

[Representative Laura Sibilia (Ranking Member)]: Okay.

[Kevin Burke (DEC Watershed Management Division Director)]: But the drinking water and groundwater protection division within our department would certainly K. Be reviewing water connections to ensure that there's capacity. Right. And whether that was perhaps you know, I don't wanna speak overly speak for that division, but I think there there's some checks and balances there. Same with wastewater.

[Representative Laura Sibilia (Ranking Member)]: And just one more. Yeah. For you, madam chair. If we do have time, it isn't on the agenda, but mister Coster is here for the DNR, and it may be helpful to also ask some questions related to active duty. I don't mean right in this moment, but if it's realistic. I a

[Kevin Burke (DEC Watershed Management Division Director)]: quick follow-up.

[Representative Kathleen James (Chair)]: Great. And I have questions too. So here we go about water.

[Kevin Burke (DEC Watershed Management Division Director)]: I think you might have answered this, but it's explicit that we have jurisdictional authority over the Connecticut River in terms of intake and discharge. On yes. On our side of the river. Okay. Which is pretty narrow for quite a lot of people. Yeah. It depends, I suppose, where, you know, where you are in the river. And, you know, there could be if there's impacts to the bank, the riverbank, there could be other rivers requirements. There's infrastructure going, say, at the flood plain. River corridor. Temperature of the water. Discharge. Is there any parameters that protect how much the temperature can vary when it goes back in? Yes. I don't have the the specifics on the liver the water quality standards, but temperature is a criteria. So there would need to be an evaluation of how the discharge, you know, would affect the temperature of the river. Similar to a wastewater treatment plant, you have, you know, obviously, like a a mixing zone Right. Where, you know, the temperature of the river combined with perhaps the the warmer discharge with mix and an evaluation need need to be made to ensure that the river isn't overly warm to protect some biota fish regulations that would cover that. Okay.

[Billy Coster (ANR Director of Planning & Policy)]: Thank you. You see there are regulations? Yes.

[Representative Kathleen James (Chair)]: So back to the I mean, staying on the water question. So being kind of a visual person, I need to bring it down even a further level. So so we're using the VY site as just a hypothetical example, but it helps me picture it. So if a a a big data center, you know, hypothetically were to want to site there, how many gallons of water does a data center like that pull out of the river? Do they suck it in through big pipes? Does it kill a bunch of fish? I I'm really trying to picture. I I could wrap my head around what this looks like.

[Kevin Burke (DEC Watershed Management Division Director)]: I don't know specifically how much water a data center would need, and I think it would depend on the scale of the data center. I don't think there would be you know, if there was an intake, I think there would be the need for, you know, a stream alteration permit. But I would hope that there would be practices in place to prevent pulling anything into their intake.

[Representative Kathleen James (Chair)]: The record?

[Billy Coster (ANR Director of Planning & Policy)]: So, Coster, Agency of Natural Resources. Kevin's correct. There's surface water withdrawals for a number of different purposes. Skier snowmaking is a popular one in Vermont. So we do regulate typically through Act two fifty, but I think through the stream alteration program that Kevin runs and some other DDC programs, both the volume and nature of that withdrawal. So whatever's in the surface water is regulated to make sure it's not sucking water at a rate that's kind of sucking fish or other things. It's not having an erosive effect on the river or lake. And then typically it's paired with some sort of storage so that you're withdrawing that water at a rate that is reasonable and then you're storing it so that if you need to dispatch it faster than what you can take from the river, you've got some headroom to do that. So that's why you see large snowmaking ponds associated with skiers and stuff like that. So you're generally not sucking out of the river at the pace you need to To cool. Yeah.

[Representative Kathleen James (Chair)]: And to to okay. That's really helpful. The ski area is easy for me And to in times of drought, the when you might not wanna be drawing from the river or you might wanna be drawing a lot less from the river, Or is there a way to make sure that the stored reserves are sufficient to keep that plant cool? Like, what what do you do if there's an extended drought and they go through their reserves?

[Kevin Burke (DEC Watershed Management Division Director)]: That's a good question. I mean, going back to the ski area, which is is is a different example, but, you know, they if if the if the stream flow goes down to a certain point, below a certain specified level, they might not be able to withdraw. That's a that's a reality that occurred going into this fall. I recall looking at some of the ski areas, you know, that might have been challenged with looking at some of these streams that were running really, really low and not being able to withdraw as much water as they wish they could. I don't know how that would affect the data center. I think you would need a sizable quantity of water. It would have to be something like the Connecticut River. Would think a sizable drainage area that would hold a fair amount of water.

[Representative Kathleen James (Chair)]: Yeah. Because it seems like a different level of problem. Like, if a ski area can't make snow, it's a bummer for them. But if a data center can't cool, that's a whole another And I don't another problem.

[Kevin Burke (DEC Watershed Management Division Director)]: If they have redundancies, you know, through the use of groundwater withdrawals, that might be something industry relies upon. I really don't know.

[Representative Kathleen James (Chair)]: For Kleppner oh, and and then, Sorry.

[Representative Bram Kleppner (Member)]: AI believes that average data center uses 300,000 gallons a day. The larger ones or in the AI, one between one and five million gallons a day. And I have read a bit about their efforts to reduce that and to develop cooling systems that reuse the same water in a closed way so they don't have to draw water all the time.

[Unidentified committee member]: Would you also have control over them having a reservoir pond that they're using to cool that they wouldn't be allowed to heat that pond water up through higher than a typical ambient. Meaning that

[Kevin Burke (DEC Watershed Management Division Director)]: If it was a constructed pond, I think, of their own, I think that would be something different than it wouldn't be regulated like a surface water pond. But if it theoretically got hot enough, other things might grow in it, and then have to

[Unidentified committee member]: treat it before they discharge it. So their dis any discharge from this plant is gonna be controlled and regulated. Correct.

[Billy Coster (ANR Director of Planning & Policy)]: I just did a little quick Googling and nuclear plants use on average 20,000 gallons of water per meter. Oh, wow. And Vermont Yankee was authorized to discharge up to five forty million gallons a day. So I think the scale of its water use sounds like it far exceeded what was contemplated for the San Jose. I think as Kevin said, Connecticut is a pretty large watershed and it's got a lot of water in it, even under drought conditions. If those numbers hold at that site, then they're plenty ahead of

[Kevin Burke (DEC Watershed Management Division Director)]: it or something like that.

[Representative Kathleen James (Chair)]: K?

[Kevin Burke (DEC Watershed Management Division Director)]: Not what else to add other than, you know, just I can't speak for other divisions within our department, but, of course, if there was any type of error emission, that could also be regulated by the department. So there could be some other requirements that would be covered, sort of permitted, but then wrapped it wrapped up into, I'd say, an I two fifty permit for public utility commission permit sort of to satisfy certain criteria.

[Representative Kathleen James (Chair)]: So the so the policy areas within your purview I don't want to put words in your mouth, it sounds like you're telling us that Vermont has through Act two fifty and then its various permitting programs that are in place, we have the authority and the ability to regulate sufficiently and protectively regulate around a data center that would come in. We don't need to add anything.

[Kevin Burke (DEC Watershed Management Division Director)]: I don't know absolutely, if that's the case, if there's any, you know, not knowing, not being a data center expert, I don't know if we're missing anything, But I think just being mindful that, you know, somewhat relying upon some of our some of our permitting requirements, say river corridor, flood plains, things like that, is through act two fifty by present there's a there's guidance that, we're expecting applicants to follow, and the the act two fifty commission may or may not require certain things currently. So if a project a data center, for example, fell into an area where if he didn't apply or was somehow exempt, there might be more protections needed.

[Billy Coster (ANR Director of Planning & Policy)]: And I can just add, know, Kevin's division focuses largely on withdrawals and discharges to surface waters. We have another division that focuses on groundwater impacts. So if a data center were to use a groundwater source to cool or to discharge into underground wells, we do have a whole suite of regulations associated with those activities. Whether those are sufficient to address data centers is a question we can certainly get back to you on or have prior recommend that at that division come back to speak to you as well.

[Representative Kathleen James (Chair)]: That'd be great. Yeah. Yeah, I would appreciate that. I'm worried about the water. So, from Essex, Sibilia, it was from the beginning with the spill. It's one of my primary

[Representative Laura Sibilia (Ranking Member)]: concerns. So I guess just in the oh, sorry.

[Unidentified committee member]: Is it? But it's all surface water, whether it be a river or a lake. So whether it be Lake Chamblain or on this side of the lake Yeah. It would it could be regulated the same river. Temperature variations from in day to day.

[Kevin Burke (DEC Watershed Management Division Director)]: It might be different evaluated differently given that, you know, it's not a river versus a lake environment.

[Representative Laura Sibilia (Ranking Member)]: Thank you for your testimony today. And I guess just a different way of asking the question. Are there any things in particular you would suggest to us we should keep in mind or or

[Kevin Burke (DEC Watershed Management Division Director)]: Well, data centers, yeah, be very familiar with the the types of projects that go through the public utility commission. They're they're utility projects. A data center seems to be a commercial project. Doesn't seem to to fit. So I don't, you know while we participate, our division, similar in act two fifty, we would require an applicant, whether it's through the PUC or public utility or a PUC or act two fifty, require the same applicable permits. The process is a little different commercial projects. And Billy can probably speak to that in more depth.

[Representative Kathleen James (Chair)]: K. Thank you. You're welcome. Yeah.

[Kevin Burke (DEC Watershed Management Division Director)]: Thanks for having me. You bet. And if you have any other questions, by all means, reach out.

[Representative Kathleen James (Chair)]: We will. Break this.

[Michael O'Grady (Legislative Counsel)]: So, Alex, can I share?

[Representative Kathleen James (Chair)]: Just, go to the Zoom link, and then I'll make you a go. I'll just check-in there.

[Michael O'Grady (Legislative Counsel)]: Can you send the Zoom links separately from the invite?

[Representative Kathleen James (Chair)]: Yes. I sent it this morning. Okay. Sorry. Sent it. You can resend it too.

[Michael O'Grady (Legislative Counsel)]: So this is Michael Gray with legislative council. I was asked to talk about what some of the water statutory and regulatory protections there would be if there was a large volume user, not just a data center, but another applicable entity using large volumes of water. So in some respects, I'm gonna duplicate what Kevin said and and maybe even what Billy is about to say, but I can also address some of the other some of the other programs. Excuse me. So I'll first start with groundwater. And one of the things you need to to know is that both groundwater and surface water are public trust resources. It means that they are held by the state in trust for the public. And there was an environmental division decision in in 2011 about what that meant for groundwater, and it and it means that whenever there's a potential effect on groundwater, there must must be an analysis to determine whether or not the activity that will create the effect is going to be managed in order to protect public health and welfare. And a ANR was directed to to come up with that analysis, and and they had dropped adopted a rule called the groundwater protection rule and strategy. And the purpose of it is to manage water, groundwater for different classes and and to protect it and to ensure that that it's there for future uses for the public. So that that requirement is is in is integrated into almost every ANR rule, whether or not it's in a stand alone component of an ANR rule or whether or not the ANR rule cross references the groundwater protection rule and strategy. So every rule that's going to affect groundwater has to have this public trust analysis within it. So any proposed use of groundwater, depending on the site, the scope, the activity, will be going through this analysis in some form or another. And when or what permits would they be going through for for groundwater? Sorry. Just before

[Representative Kathleen James (Chair)]: you go, have one quick question. I'm sorry. This is a new water is a brand new topic for me anyway. Groundwater is only groundwater, so we are now not currently talking about rivers?

[Michael O'Grady (Legislative Counsel)]: We're we're not talking about rivers. We are literally the definition of groundwater

[Representative Kathleen James (Chair)]: is literally water in the ground.

[Michael O'Grady (Legislative Counsel)]: Water underneath the surface of the ground.

[Representative Kathleen James (Chair)]: Okay. So we are just talking about that. Right.

[Michael O'Grady (Legislative Counsel)]: But I was asked to talk about how a data center might affect the public water system. Yes. And and public water systems don't all draw from surface waters. Many of them are drawing from groundwater sources. And and if there is that that groundwater source as you have to do source water permitting, you have to identify what your source is. You have to identify its use. You have to identify its proposed scope of use effectively what it's the maximum capacity of it is. And so then anytime and Kevin was referencing this earlier when there's a connection from a existing waterline to a public water system, there has to be a permit, and ANR needs to issue that permit. There's actually a bill in the senate right now that would create a general permit for connections. And part of the the issue with that is how to determine capacity, whether or not your public water system has capacity. If you were going to connect a data center with, I can't Billy, did you say 300,000 gallons a day? Silver.

[Kevin Burke (DEC Watershed Management Division Director)]: Silver. Yeah.

[Michael O'Grady (Legislative Counsel)]: And and you would have to determine that that connection, that water supply, have the capacity to supply that data center while also supplying the other users of the system. So that would be part of a connection to a public water system. And conversely, when you have water on a public water system, you're probably gonna have your wastewater on a public wastewater treatment system, and you're gonna have a connection to that as well. And you have to determine whether or not your treatment plan has the capacity to handle that amount of wastewater per day as well. So, again, whether or not you could use these public systems for a data center depends on the scope and scale of what what they are doing and the scope and scale of what systems you have. You can't put something that uses millions of gallons of water a day on a small town public water system, your fire district system, because it wouldn't handle it. So that that is part of the review and evaluation for them.

[Representative Laura Sibilia (Ranking Member)]: So if you had a data system proposed to hook into a public water supply and there was not enough capacity, what would happen? Like, would would what would happen? So would they have the option of because this is something I think that we have seen nationally, paying to upgrade the system?

[Michael O'Grady (Legislative Counsel)]: That's that's actually what we there's potential for that. There's potential for the the applicant to say, hey. We will find you another groundwater source. We will find you more supply in order for for us to be located here and to to join your system. There's there's potential for that.

[Representative Laura Sibilia (Ranking Member)]: Would it but well, so it would be there's

[Representative Kathleen James (Chair)]: not enough water. So either you're not going here or we're gonna figure something else out. It's just you're gonna pay for there to be more water.

[Michael O'Grady (Legislative Counsel)]: Or as Kevin referenced earlier, the multiple redundancies that could be used. Maybe you are taking some water from surface water. Maybe you're taking some water from a groundwater well, which isn't connected to your public water system. So it's a private well, and maybe you're taking it some from a public water system as well in order to always have those redundancies so that if there is a drought, you would have some backup. And that that is not unusual in Vermont. The the example that I could give you is cheese making in Vermont. Okay. Though there are cheese makers that are hooked up to both the public water system and have groundwater wells so that they always have a necessary supply of water for their processing.

[Representative Kathleen James (Chair)]: And do

[Representative Laura Sibilia (Ranking Member)]: do we require any kind of monitoring of the consumption of water or the amount of discharge?

[Michael O'Grady (Legislative Counsel)]: So if you're hooked up to a public water system, you're getting charged for that.

[Billy Coster (ANR Director of Planning & Policy)]: Okay. Right.

[Michael O'Grady (Legislative Counsel)]: Right. And and but if you're taking from a groundwater well, you potentially have to, get a groundwater withdrawal permit. And you can see over here when you would need that permit when you were withdrawing greater than 57,600 gallons per day. It's a weird number, but it's about, like, the rate that your well can pump in a minute, and that that is how they set that standard. So if you are going to be withdrawing more than that per day, you have to get a a large volume groundwater, which are all permit, and there are reporting requirements underneath that. There are reporting requirements.

[Representative Laura Sibilia (Ranking Member)]: So what can can you say briefly what those are?

[Michael O'Grady (Legislative Counsel)]: I was just gonna say No. It's I've only cut and paste a little bit of it. You have to you have to report your usage. Is it, like, to

[Representative Laura Sibilia (Ranking Member)]: DEC? To DEC. Yes.

[Michael O'Grady (Legislative Counsel)]: And so first, you have to protect your source, then you have to protect or regulate the amount you're pulling out of groundwater. And then there's the connections, which is the wastewater system and potable water supply, and you have to make sure that those systems, you connect, have capacity for the proposed use. But as representative Sibilia just said, there's opportunity for people to pay Yeah.

[Kevin Burke (DEC Watershed Management Division Director)]: For

[Michael O'Grady (Legislative Counsel)]: upgrade, increase supply, maybe redo your wastewater treatment plan so that you can handle the supply of wastewater that's being discharged to that system.

[Representative Laura Sibilia (Ranking Member)]: Madam chair, we are trying to get a national expert on water and data centers that you could testify, I think, to that practically speaking. Right?

[Michael O'Grady (Legislative Counsel)]: So surface waters are also a public trust, and there is a declaration of that in a in a weird chapter of law. It's in the public property law where you, the general assembly, it's declared the surface waters to be public property and within the public trust. So it has the same sort of analysis. There's an analysis that's required by a court precedent about determining whether or not the use of a surface water is is going to sufficiently protect the public interest in that water. However and there there are things like the the source surface water permit where you have to you're going to be drawing from a surface water for your potable water for your public water system. Do you have to get this permit? There's different standards from from the groundwater source protection permit, but it is still intended to protect that use of that water. So it is in used wisely and in the public benefit. And there is a surface water withdrawal report, but there's not necessarily a permit as of yet.

[Representative Kathleen James (Chair)]: Wait. What?

[Michael O'Grady (Legislative Counsel)]: Right. You have to report your surface water withdrawals. Anyone who withdraws 10,000 gallons or more surface water within twenty four hours or a 150,000 gallons or more in thirty days is required to fill out an online form to register and report. So you're registering, but you're not getting permitted. And this was a whole part of the discussion back when we did surface water withdrawal in 2022. Ultimately, you're supposed to move towards a permit program, but right now, I don't believe you are permitting.

[Billy Coster (ANR Director of Planning & Policy)]: I'll just add that if a project is jurisdictional act two fifty, they do regulate withdrawals through the DEC Rivers program. They enter into a flow agreement that specifies the rate at which they can withdraw water based on the volume in the source. So there's an analysis that occurs around this issue of surface water withdrawal through the Act two fifty process, there are conditions put in place there. That's what we see with, skier is, yes, the most common. But so when projects go through Act two fifty and involve a surface water withdrawal, there is a regulation there is regulation and permit conditions through the Act two fifty process.

[Michael O'Grady (Legislative Counsel)]: There's also a separate ski area rule for surface water withdrawal for ski storm water water ponds at ski areas, which has additional conditions and criteria that apply to all of them that that are separate from act two fifteen. Yes. So that that was done decades ago. Now So

[Representative Kathleen James (Chair)]: You go go ahead, madam. I was so Vermont Yankee did not

[Billy Coster (ANR Director of Planning & Policy)]: need a permit? That was regulated by the PUC, so all the same Acting 50 criteria applied. So they I I don't I and that may have I don't know. That's that was way before me. I'm not sure how their surface water withdrawals were rated then.

[Michael O'Grady (Legislative Counsel)]: So they were discharging. Remember that temperature is a pollutant. And so even though their intake not may not have been regulated, their out take their discharge was, and the state did litigate that to determine what the sufficiency of their discharges were for purposes of of temperature because there was concern that the temperature discharges were were killing or making aquatic habitat Mhmm. Not meet the standards. Mhmm. So that that was that was litigated over several years, and and the state mostly won.

[Representative Kathleen James (Chair)]: So through act two fifty, there are criteria that have to be met and conditions that would be levied or put in place. Right. But that's different from applying for a permit.

[Representative Laura Sibilia (Ranking Member)]: Correct. Automatically.

[Michael O'Grady (Legislative Counsel)]: This is some of the requirements for water management under act two fifteen. So development means any withdrawal of more than 340,000 gallons of water per day from any well or spring. So that triggers act two fifteen regardless if you trigger it any other way, it can trigger it. And now you have tier one a, and that might trigger the the requirement and demonstrating that the public water and wastewater systems have the capacity to support additional development within the tier one a area.

[Representative Kathleen James (Chair)]: Sorry. And how many I'm sorry. Can you go back up? How many gallons did we say data center might go?

[Michael O'Grady (Legislative Counsel)]: I think it was said that they were using 300,000 gallons of groundwater or of water.

[Representative Kathleen James (Chair)]: Water. So this could be below that.

[Michael O'Grady (Legislative Counsel)]: It would be below that. But in addition to that requirement, there's all of these and I don't have all of the criteria, though you know the criteria that well, this is long. But one of them is its effect on groundwater. And so in reviewing if it triggers the act two fifty permit criteria and one of the the commission is is authorized to look at how it would affect groundwater and would have the ability, as mister Costa just said, to set conditions on

[Kevin Burke (DEC Watershed Management Division Director)]: on

[Michael O'Grady (Legislative Counsel)]: the use of that. That's that's part of act two fifty. So it's not just act two fifty because municipalities have authority too. One of the things that Kevin mister Burke referenced earlier is river card or development or NFIP development. Does anyone know what NFIP? NFIP is a national flood insurance program that's run by FEMA. You're located within a flood hazard area. You generally wanna get flood insurance, and people the only people, really, that you can get flood insurance from is through the FEMA NFIP program. And NFIP has specific requirements for development and what can be allowed within that flood hazard area. Now you, the general assembly, a couple of years ago, also went to river corridor permit river corridor development permitting, which the agency has been developing river corridor permits and is moving towards a permitting program for development in the river corridor. I would expect that Vermont Yankee is going to be in a river corridor if it's not already in a flood hazard area. So it will have to comply with both the NFIP requirements and the river corridor permitting for any new activity upon that site. So that that's that's part of the land use requirements that could apply to that site as well.

[Representative Kathleen James (Chair)]: We you're right. We passed that bill two years ago, last year. 2024, I believe. 2024. And it's in rulemaking?

[Michael O'Grady (Legislative Counsel)]: The the agency is seeking some deadline extensions.

[Billy Coster (ANR Director of Planning & Policy)]: There's a lot of work happening with it right now. Yeah. But the the rule making hasn't been invincible. They were doing the background, analytical work in public relations. And let as mister Brady suggest that I believe there's working role in the more.

[Representative Kathleen James (Chair)]: That's right. And this was a bill that basically moved us to a statewide Correct. Regulatory approach from river corridors rather than the town by town.

[Representative Laura Sibilia (Ranking Member)]: But there

[Representative Kathleen James (Chair)]: back to me now.

[Michael O'Grady (Legislative Counsel)]: There is town by town. You still have town by town. There is authority there, and some town might already be regulating in the river corridor. And so it's possible that if a data center elects to drop into a town, the town is already regulating that that development within the river corridor underneath their municipal authority because they have shoreland regulation authority. They have wetlands regulation authority. Municipalities have significant water resource regulation authority. And so that's something to keep in mind if a municipality was concerned about the effects on its water resources. It it has some authority to regulate that. Okay. And I I would just say that all of this is dependent on-site specific conditions. You know, where it's going, what system is there, the scope, the the scale, what is going to be used, how many people are gonna be there. We didn't even talk about it. Do you have a certain number of people you on-site every day using drinking water, using That's fine. Toilets, wastewater, then you need another permit. And if you are a certain type of industry, you're gonna need as Kevin referenced earlier, you're gonna need a construction general permit and a separate industrial storm water permit. So you the you scope and universe of well, how a site like this could be regulated is pretty significant. And do you the general assembly, the state, the agency has has multiple tools to use to ensure that the water is managed the way it's supposed to according to the public trust for the benefit of everyone and so that it is available for for all public trust uses, except both groundwater and surface water.

[Representative Kathleen James (Chair)]: So is there anything in particular that you would advise us to think about or risks that you see that are

[Representative Laura Sibilia (Ranking Member)]: not covered based on what you understand now?

[Michael O'Grady (Legislative Counsel)]: I I do think, and I think this could probably be handled through Act two fifty, that the surface water withdrawal provisions are are not as as vigorous as they could be. It's not as vigorous as they are in other states. After seeing the drought conditions last year, you you should have some concerns about how to manage that. And I think there's something so called seven q ten when the the flow of a river drops below its lowest point, generally, over seven consecutive days in in the tenth month period, like, in the in August effectively. When you hit seven q ten, you you can't do a lot. You can't do a lot with that surface water. And then what would the conditions be if that water hits seven q 10? I I don't I don't know. It would really depend on the the use of the site and what needs they have, which is why if I were a data center, I have redundancy. I I'd have a connection to a public water system. I'd have a private groundwater well. If I was close enough to the surface water and the conditions for the use of the surface water were not too numerous, I would get a permit for that as well. And so that that is that is the other thing to think about. It's it's not just and this is why I say acting 50 is a potential tool. It's it's about the combined effect, which acting 50 is supposed to review.

[Billy Coster (ANR Director of Planning & Policy)]: So in terms of service surface water,

[Representative Laura Sibilia (Ranking Member)]: what do you have suggestions for how? Should we lower the amount

[Representative Kathleen James (Chair)]: that's necessary for

[Michael O'Grady (Legislative Counsel)]: You know, I I I think I having sat through and drafted some of the surface water withdrawal bill, it's it's a pretty sensitive subject because it's it's your it's your municipalities. It's their it's your public drinking water. It's it's some of your industries are using it. It's your agriculture. And getting to a permit for that, I mean, I I would wanna talk to ANR about where they are and the status for that, like, where they stand, if they think it's necessary or whether they can basically control it through the discharge permits that they have.

[Representative Kathleen James (Chair)]: With lowering the amount for the

[Kevin Burke (DEC Watershed Management Division Director)]: trigger? For reporting?

[Michael O'Grady (Legislative Counsel)]: Yeah. So you wouldn't I mean, that's a possibility.

[Representative Kathleen James (Chair)]: Would that be as contentious potentially? Because we have

[Michael O'Grady (Legislative Counsel)]: I I you know, the the people that had the most concern about the trigger were the farmers. Mhmm. And the the farmers basically said, you know, in a time in normal times, we don't have to go to the surface water because we have a a groundwater well. We have enough water. We have enough rain. But if we need to go to the surface water in one day, depending on our crop, we could exceed that. And do you wanna bring us into a regulatory program for one day of use? So that's why they report to the agency of agriculture, and they don't report to DEC because the agency of agriculture is a more familiar umbrella for them. Okay. And so they don't feel like they're being brought into FDA in our regulatory scheme, but they are.

[Kevin Burke (DEC Watershed Management Division Director)]: I mean, they're part of the program now.

[Michael O'Grady (Legislative Counsel)]: Well, lowering it, I think you would create more anxiety for people.

[Representative Laura Sibilia (Ranking Member)]: So do you have any recommendation? I

[Michael O'Grady (Legislative Counsel)]: think you're pretty well protected. Okay. I I think considering that I don't see how one of these is built that skirts at two fifty, maybe at nine and a half acres, but, you know, in a 10 acre town. But then I think the municipality would probably assert some jurisdiction there. I think the municipality would have control over the connection to its public water system and wastewater system. I there I are enough controls as as long as you're allowing controls. Like, if you put it into two forty eight and municipality doesn't have that regulatory authority, just advisory authority, then that's different. Yeah.

[Representative Kathleen James (Chair)]: But that's not what we're contemplating. That's right. Great. Thank you, someone. Do you wanna do we have questions for the ear?

[Representative Laura Sibilia (Ranking Member)]: I would I'm just interested if he has any, you know, information he'd like us to know. Sure. So, I think, you know, Mr. O'Grace Go

[Billy Coster (ANR Director of Planning & Policy)]: to God. Sure. Take a bite.

[Representative Laura Sibilia (Ranking Member)]: Mhmm. Is that all?

[Representative Kathleen James (Chair)]: Oh, yeah. Sorry. Alex, can you add him to the agenda? Yes. For his name, please.

[Billy Coster (ANR Director of Planning & Policy)]: For reference, I'm of planning and policy for the agency and effort resources. In my division, I have both the Climate Action Office and the EHFR regularly through Jane and that wonderful team. I also have the Planning Office, which represents the agency in Act 15 of Section two forty eight proceedings and does a lot of the policy work that crosses all of our departments. So this sits squarely in that part of my work. And I think, Mr. Grady, if Brady has cracked that, largely there is probably sufficient protections in place to regulate these sorts of facilities if they go through Act two fifty. And we can certainly bring in folks to speak in more detail about the stream flow and surface water withdrawal question and any groundwater withdrawal questions. So if that would be helpful, we can line those folks up. But I do think generally speaking, if Act two fifty is triggered for a facility of this scale, the sorts of concerns that you have shared are going to be considered. I think the one exemption, the one gap is again what Mr. O'Grady spoke to. You know, in towns with zoning bylaws, zoning and subdivision bylaws, commercial development in Act two fifty is only triggered on parcels greater than 10 acres. So if you have a data center on a relatively small parcel in a town with zoning and subdivision bylaws, it may be exempt from Act two fifty. Or in a tier one a area, which is unlikely but possible. Right? So easy fix for that is just to put add to act two fifty a very simple jurisdictional trigger that says, you know, data centers or some generic facility of a certain magnitude like 20 megawatts or whatever the the size you all are I don't know how the data center sizing.

[Representative Kathleen James (Chair)]: What's in the bill? 20 MW.

[Billy Coster (ANR Director of Planning & Policy)]: Yeah, so whatever, however it's defined in that bill, just simply say that an Act two fifty permit is required for these facilities. Full stop, no matter where it is in the state. And then you would ensure that these would go through Act two fifty review. I would suggest you confer with the Land Use Review Board just to make sure that they agree that that's the best way to do it. But I think as long as these go through Act two fifty, you both have the opportunity for the towns and, you know, citizens to engage in the process and you have the whole suite of criteria that are applicable and then you do have all the collateral limits at our agency issues. So it's certainly possible that a facility like this could meet all the regulatory burdens in Vermont and be successful, but if there was risk of not doing that, Act two fifty and the collateral permits would likely catch up.

[Representative Laura Sibilia (Ranking Member)]: So, I'm just,

[Representative Kathleen James (Chair)]: frankly jotting this suggestion down. That Act two fifty would be required for a project 20 meter wide or higher, and it's a testimony from

[Billy Coster (ANR Director of Planning & Policy)]: the letter. Yeah, I would just invite them to basically suggest the best way to make sure that no matter where these are proposed, if they reach a certain scale, that active 50 or older people would get.

[Representative Kathleen James (Chair)]: K. And we haven't heard from them yet on this. That would be helpful.

[Kevin Burke (DEC Watershed Management Division Director)]: Yeah. Sure. There's a coming up top.

[Billy Coster (ANR Director of Planning & Policy)]: Great.

[Representative Kathleen James (Chair)]: K. Folks have additional questions? Alright. Thanks everybody for being here. That was really helpful. We can go off live, and we are back tomorrow.