Vermont Legislature SmartTranscripts:

[Speaker 0]: Bye. We're reconvening our afternoon meeting, we're going to continue to explore issues in water. And our next witness is Jared Carpenter. Welcome back.

[Jared Carpenter (Lake Champlain Committee)]: Thank you, Madam Chair. Hello, everyone. Good to see you all again. For the record, Jared Carpenter with the Lake Champlain Committee. I'm a little rusty. It's been, I think, probably the last time I testified was probably in this committee on something different. But, you know, the chair asked me to come in along with John Groban from BNRC to talk about some of the water quality issues that are currently undergoing that are on on the radar of our organizations. One I would will go into is the Lake Champlain TMDL as the Lake Champlain Committee. Obviously, the Lake Champlain TMDL is something that we watch and and follow very closely. But I was gonna touch on a few issues and then turn it over to over to John. So I've been working on water quality issues for about ten or eleven years now, not obviously nearly as long as Mike has, but probably all the way through the start of the TMDL. Actually, one of the first bills I worked on in this building was the was the shoreland protection provision. A lot of the bills that we have been working on and a lot of the provisions over the last ten years, especially the TMDL have been and the funding have been related to water quality. You know, the nutrient pollution from runoff of impervious surfaces, agriculture, natural resources, impacts on aquatic biota, drinking water sources. It's in the last couple of years that we've really been starting to talk about water quantity issues and how the two issues are interrelated to something that I've been looking at. Lake Champlain Committee has been looking at a lot more. Obviously, water quantity issues are last year was a drought. Year two years before were a flood, and we seem to be in a on a dice roll of this coming year in 2026. Are we gonna have another drought, or we'll get back to a flood or some combination thereof? These issues are are all interrelated. Water quantity issues do have impacts on drinking water supplies, on agriculture withdrawals, commercial use, in the environment, such as habitat. And they obviously have also also impact, you know, water pollution as well. So I think it behooves this body to start looking at the interrelationship between water quality and water quantity and how they how they work together. Water quality issues, just to sort of level score us. I've talked about this last year. Vermont's economy relies heavily on on tourism, people coming to enjoy the outdoors, lakes, the rivers. The treasurer's report, Beth Pierce did back in in 2017, is still one of the better, reports on the impacts of water quality on our economy. Over 2,500,000,000.0 is spent annually by visitors and vacation homeowners, much of it linked to our lakes and rivers. 2023 studies that you know, 82,200,000 in Vermont on RVing that year, 70,100,000 in boating and fishing, 31 in hiking. And it's a lot of jobs, and it's a lot of annual tourist expenditures. As a matter of fact, you know, a solid portion of the Clean Water Fund is based off of goes into a lot of these water, water quality project projects and programs comes from out of state dollars. I mean, there's the property transfer tax, clean water surcharge that we talked about last year, and that this committee actually bumped the sunset back, and and did a and did a look in. Think it's every four or five years looking at that as a as a main source of people not only buying first homes, buying second homes. And that is let's see. For f y twenty six, that's projected to be $9,000,000. Meals and room stacks? We're only doing the same one. Meals and rooms tax is another one. Actually, Vermonters spend more on the meals tax part, but, obviously, the second the the the our visitors spend more on the rooms tax, and that is, $60,260,000 for FY '26. So there's a lot of money that comes in and out, that having to do with clean water. And that's the importance to the state to not lose sight of it in all the permits we talk about and all the requirements and all the nutrient pollution. At the end of the day, this is about having clean water for a lot of different reasons and not the least of which is the phosphorus runoff feed cyano cyano blooms, not only on Lake Champlain, which is one of the photos, but we're starting to see it more and more in smaller lakes and rivers as well of nutrient runoff affecting clean water, especially with the warming of of weather and causing causing cyanobacteria blooms. So over the last decade, Mike touched on, a lot of these. There have been a number of of of statutes enacted that talk about water quality and quantity. Shoreland Protection Act, the two dealing with this with the with the Vermont Lake Champlain TMDL. Phosphorus is act 64, Vermont Clean Water Act. X 76, the Clean Water Service Provider Act. I'll go into those a little bit more, and it's right about the midway point. And 2022 was a Surface Water Withdrawal Act, which passed through this committee and then downstairs, which has to do with, just like it sounds, water withdrawals, from surface waters. At the time in '22, we said, oh my. We're never gonna see a drought in this state, and we're not gonna have to worry about competition between water. Well, you know, I've had a couple of folks come up to me today and say, we need to talk about surface water withdrawals for, you know, ski areas or agriculture or or all all sorts of other folks that might be starting to compete with the surface water and how much can you withdraw and how much do you leave in? Flood safety act, obviously the Scooter Pass Act 01/2021. And then last year, I will just call it the CAFO Water Quality Permit Act, which I'm gonna talk about a little bit as well. So the TMDL for phosphorus. So the TMDL, total maximum daily load, that was established in 2016 by the EPA as the budget, for phosphorus entering Lake Champlain. In 2015, the year prior was when x 64 was passed, in order to set all the regulations and standards for the reductions. So this is the Mike here. So this is the baseline. Sorry. This is the baseline back then and and all the difference. So this is the this is the amount coming from agriculture in metric tons a year, natural resources, developed lands, all your stormwater permitting. This is the load allocation. So here's the goal. We're going for a net reduction of 112.4 metric tons per year, and these are the reductions you're supposed to get by sector. So obviously the biggest one is agriculture is supposed to be down, at minus 55% of what it was up here. The next biggest one is, natural resources. Of course, we're getting some base load reductions, from from others. But this over the course of now, which is we've got ten years to get to our target set by EPA ten years ago. So we are actually at the midway point of going between the two pie charts there. And this is where we are. I mean, we're at the midway point for 2036. As of last year in the 2024 performance report, we had 54.7 metric tons of reduction, the goal of 212. So we are a quarter way through our to our goal at the midway point of 2036. The next report is due January 15, so there'll be updated numbers in about a week or so. But to explain both of these, this is these are the reductions that we've seen so far. As you can see, there's been some been some plateauing, even some reductions with agriculture. DEC, the Water Investment Division, crunches all these numbers, will explain that there is a little bit of a lagging indicator in terms of them getting some of the numbers in for projects and programs and different reductions and and calculations from the regulatory. So, actually, the estimated reports between 23 is the squares and 24. So there was a bit of a lagging indicator, kind of, how was it put? The jobs report. Get the jobs report comes out in, you know, any specific month, and a couple months later, they go, well, we've adjusted it a little bit. That's sort of the the adjustment. But still, even with the adjustment, we're at about 57. So we need to consider we need to consider how well the programs are working, how well the money is being spent, and whether or not some of this needs to be needs to be reconsidered. In the different programs by sector, this has become one of my more favorite charts. There's a lot of there's a lot of lines here. But these are the agricultural projects and practice types being used to lower phosphorus discharge. And most of these have been implemented, a lot of them by the required agricultural practices in 2018. So we're coming on about eight years of of the wraps being being in place. And you saw from the other program that some of the agriculture discharges being I was starting to plateau a little bit. Are the wraps effective? Is the money being effective? Do they need more money? Does the money needed to be spent in better areas? What impacts are drought or flooding having on the required agricultural practices in terms of of discharge? And are they, you know, are they being are they being effective? Storm water, you've gotten into some of this last year and talked about it a little bit, in terms of the various the various programs. Last year, you talked about the three acre stormwater program, which I'm sure will come up again in another couple of years. There's also the half acre for new development, the full acre requirements for redevelopment. That storm water. You see down here in natural resources, there's a lot of the natural resources that haven't been fully implemented yet, but are in progress. And a lot of it has to do with flooding. Floodplain floodplain and stream restorations, river quarry easements, wetlands restoration, wetlands easements. There's a number of these, another's programs that will not only deal with the erosion factor that goes into the phosphorus TMDL, but we're also getting back into the interrelation between water quality and water quantity.

[Speaker 0]: We'll deal with a lot of

[Jared Carpenter (Lake Champlain Committee)]: the the flooding issues. Some of this was overlapped with the Flood Safety Act in dealing with river corridors and wetlands restorations and a lot of those provisions. It's a little disturbing is not the right word. It's a little concerning. The natural resources provisions are not in place quite yet this far along. That some of the stormwater provisions aren't in place quite yet. There is a hope that, you know, these everything will pick up a little bit, but

[Speaker 0]: they have a long way to

[Jared Carpenter (Lake Champlain Committee)]: go by 2036. And I'm sure at some point when when DEC comes in, they can better explain all of this than I can. But I think we've gotten to a point in terms of oversight where, you know, this body can should go in and look at the wraps, look at some of the natural resources provisions. You spent some time on 3 Acre last year creating the stakeholder utility group that has been meeting diligently monthly, to talk about these issues and talk about the three acre provisions. I think it's a good opportunity, for for this committee to sort of start peeling the onion a little bit and seeing what's working and what's not working. Maybe some needs maybe some need adjustments. Maybe they're doing fine. They just need more time. But it's concerning at about the midway through, we're only a quarter of a way to our goal in phosphorus reduction, for Lake Champlain.

[Speaker 0]: Can you talk a little bit about, a, how we measure that, and then also what these status words mean? Like, implemented not yet established. I mean, they seem kinda vague and, like so does that mean, like, if agricultural riparian buffers have been implemented, every farm has them? I know that's not true.

[Jared Carpenter (Lake Champlain Committee)]: No. I I mean, that I think it's it's

[Speaker 0]: What does that mean implemented?

[Jared Carpenter (Lake Champlain Committee)]: I think it's it means that there is a program there is a program in place that they are doing accounting to take it into rich I don't think it necessarily means that there is a buffer in place at every single font. I think there's a program. People there's

[Speaker 0]: a program in place. Someone could voluntarily use it. Or so then but then, like And in terms

[Jared Carpenter (Lake Champlain Committee)]: of the accounting, I know that's very complicated in terms of how so there's a lot of methodology and a lot of projections in terms of

[Rep. Larry Satcowitz (Ranking Member)]: Yeah.

[Jared Carpenter (Lake Champlain Committee)]: I think we of regulatory projects.

[Speaker 0]: Testimony on it last year. We'll have we'll have them in again to to do that, but I just didn't Yeah. So there's goals. Actually measured versus modeled.

[Jared Carpenter (Lake Champlain Committee)]: There's a lot of modeling. Yeah. So in order to meet the certain the in the sort of reductions annually that they're projected, there's a regulatory amount of the regulatory practices and programs, and then there's nonregulatory projects that x 76 makes up. And I think there's various I know for the nonregulatory, it's a lot of methodology in terms of if we plant five acres of riparian buffers, it's going to reduce this amount of phosphorus over the course of x number of years. And that's all projected and that's all in terms of, you know, methodology more than we could go out and measure the exact specific phosphorus reduction. Now they do, DEC monitoring does go out into the field and they do have through La Rosa program, they measure phosphorus in rivers and streams as sort of but it's a combination of accounting methods that I think, DEC Emily Bird and her folks are really the best to explain exactly how we how they calculate all of that.

[Speaker 0]: Understanding these status of accounting. Go ahead, representative.

[Unidentified Committee Member]: Just had a question. Do do you happen to know, Jared, if, the phosphorus reductions that are calculated and shown, on the chart two charts previous to this, does it matter how much water, in

[Rep. Larry Satcowitz (Ranking Member)]: other words, in terms of

[Unidentified Committee Member]: the quality and quantity relationship here, if you have a drought year, so less water is flowing into the lake, Does that mean it's going to carry less phosphorus and therefore your reductions are less or greater? Is the effect quality in the measurement of reduction? If you get a flood year or you get

[John Groveman (Vermont Natural Resources Council)]: a drought year

[Jared Carpenter (Lake Champlain Committee)]: Well, in a flood in a flood year, you're certainly getting I think it does. Yes. Obviously, because

[Unidentified Committee Member]: If there's a flood year, it's gonna kill your your Yes.

[Jared Carpenter (Lake Champlain Committee)]: Let's take agri let's take agriculture as an example. If you have a drought, you have less rain falling on on the farm field, so you have less runoff going into the river, you have less phosphorus. I think it it doesn't really matter if the, you know, the the the level of the water and the you know, it still carries the same amount of phosphorus. You just have less runoff. But I've got a chart a little I think it's a little further along that shows in the twenty twenty three floods, the amount of phosphorus discharged into Lake Champlain over the course of a couple days was a year's worth.

[Unidentified Committee Member]: Right. So how does that affect our our reduction toward the TMBL? Does it count, or does it does it not count? I mean, I I I don't know if you know the answer

[Speaker 0]: to that.

[Jared Carpenter (Lake Champlain Committee)]: It would it would count, but I think it's you know, if I I guess you could argue if we had ten years of drought, we probably we probably have a lot less phosphorus runoff running into running into the lake.

[Unidentified Committee Member]: Yeah. That's that's the kind of way. Yeah. Covers quantity and quality, really, when we're counting reductions reductions. So we will falling in, but reductions from some standards.

[Speaker 0]: Yeah. We'll have I mean, Neil Cameron from DC is gonna be with us on Thursday afternoon. Can get his out the piece.

[Jared Carpenter (Lake Champlain Committee)]: Yeah. And this gets into this gets, again, into some of it in terms of water quantity. You know, this is this is one of the charts from, like you said, July 10 through and and eleventh from 2023. With the amount of water that got deposited, you know, you're seeing these are the these are the flows. So this was this was the daily. Yeah. This is from Matt Vaughn, who is at the Lake Champlain Basin program, and it does a lot of this. This is the this is the phosphorus discharge in in into the lake. You have about one point seven five point four metric tons delivered on July 11 alone by his calculations, and that's a lot. That blows that blows the phosphorus budget pretty pretty well out of out of the water, so to speak. So when you're taking into account for water quality and quantity, how do you slow down How do you slow this down? How do you prevent, these massive amounts of discharge coming off of, say, you know, three inches of rain coming into, a three acre parcel and slow and slow that water down so it infiltrates into the ground rather than all running into the into the surface water. How do you the wraps need to be adjusted to address water quantity as well as water quality in terms of runoff coming off of the, coming off of the farm field. So I think there's ways to look at at both programs. This is this is the, obviously, the drought chart, from the last from last year. So the one that I wanted to try to find one that was a little more, you know, interest oriented over the course of a couple years. Could we could we find one that explains, like, '23, '24, you know, the the two rainfalls? But I couldn't. I had to settle for something that was, a little bit more a little broader, but it does show it does show the drought impacts throughout Vermont and then going up and going up into New England. So the Vermont resilience implementation strategy that was developed by the governor and by the treasurer does does get into some of this, priority items to look at to look at the programs of of co benefits of look. How do you look at our current water quality programs, funded by the Clean Water Fund and have water quantity, flood resilience as a co benefit? And how do you incorporate those two together? I think there's some ways to look at the clean water initiative, the clean water fund, and some of those programs and say, well, if we can start doing more projects that also will help reduce runoff, that will help, not only the phosphorus discharge, but the quantity of water, that's running. And there's a lot of different items here. Section 15 of, of the Vermont resilience implementation strategy does have some suggestions of, you know, revising project selections and scoring on how projects are done and how projects are prioritized, that focuses on flood resilience. This is getting down into the weeds more of f 64 and f 76 of relating of how we take the clean water fund and expand it so it is doing the benefits of flood resilience as well as phosphorus reduction. And I think that's something that needs to be looked at in terms of not only attacking these two problems at the same time, but also that more and more we're seeing a limited pot of money that needs to be stretched further and further. So how can we make it so so it does both? I know DEC has been considering some of this on different levels. I wish DEC would consider it in some other areas. In some spots, they're you know, they've had a program for a while, and they seem to be wedded to it, rather than wanting to tinker with it. But in some spots, I think they're able they're they're willing to, start tinkering and make making some changes to some of their programs. And I think that's worth worth exploring to address both problems, quality and quantity. So that's sort of a broad brush strokes on a on a on sort of a complicated problem. Two other issues that are coming up this year, and I'll turn it over to to John as it's getting along in the day. The chloride reduction bill is, currently down in Senate Natural Resources, Energy Committee. It finished the end of the year, on the wall, but it is very similar to the bill that this committee discussed and that let, that was voted out. One of the provisions that has changed is the liability provision has has changed to an affirmative defense. So a slight a a shift on the defendant and burden, but it still does offer liability protection for commercial applicators. Otherwise, it still has best management practices for applicators, commercial and municipal. It does set the voluntary certification program, so people are not required to do this, but very much encouraged to do so. It has the study on salt and sand salt and sand storage facilities, their proximity to surface waters, costs and how much it would move. And, you know, and it does provide that liability protection. I'm hoping that that bill will move out of Senate Natural relatively soon, and you will see it again at some point, but it'll probably be as a stand alone, stand alone bill coming out of there. So that is something that has been, it's seen chloride chloride pollution is is seen as one of the up and you know, as as one of the more prevalent issues that's coming up. It is something that you see more and more with drought because chloride gets into gets into groundwater. You know, when it gets gets spread on in into into the road medians and perk and percolates itself down into the ground groundwater. When a river level drops, the surface water drops, it starts drawing in the groundwater around it. And so you see chloride, you actually see an increase in chloride concentration, during drought when the water level drops. I think at the moment, DEC is working on seven or maybe up to eight now TMDLs for specific segments having to do with chloride pollution in that they are seeing, the Sunnyside Brook is in Colchester and is right next to the right next to the Costco parking lot. So that is one of the areas that has seen a real spike in chloride, not only acutely, but chronically. And so DEC is in the process of playing whack a mole of how these little how they're gonna lower chloride levels in different stream segments. So obviously this this program would allow DEC to approach this from a more statewide level rather than a whack a mole level. And this is because the issues with chloride are going to become more and more acute as they go on. So that's one provision. And then the CAFO provision, s one twenty four passed last year. It is now I can't remember the act number. 36. DE I just will briefly say that DEC, and AFM have missed the first two deadlines by 09/01/2025. There's supposed to be a new memorandum of understanding be released for co public comment. We haven't haven't seen one. 12/15/2025, they were supposed to release a CAFO general permit and a notice of intent. They haven't seen one. However, I believe they're asking for an extension on one of those. The k the stakeholder group has been meeting. The farmer the farmers have been meeting separate from the environmental advocates, and we've been sort of, hashing through some of the issues. I don't think they're gonna meet the February 15 stakeholder the deadline for the report back to this body. It's a little disappointing. I understand it's a complicated a complicated topic, but, you know, we're talking about it, and that's another thing I think that ANR and AFM can come in and discuss. By July 1, they're supposed to have the applications and the individual CAFO permits that that ready so farmers can start applying for permits. But, obviously, the stakeholder groups are gonna discuss exactly what that's gonna look like within the parameters of the federal statute and the parameters of s one twenty four. So that hasn't gotten very far since it left this body last May, but it is it is being worked on.

[Rep. Sarah "Sarita" Austin (Clerk)]: Representative Austin? Why am I missing the deadlines? I mean, is it capacity?

[Jared Carpenter (Lake Champlain Committee)]: I am not gonna I'm not gonna I don't I don't know. It could be it could be capacity. It could be differences of agreement between the two agencies on what should be in the MOU or what should be in the general permit. It could be just, you know, wanting to make sure that the t's are crossed and the i's are dotted before they issue something. But we they haven't they haven't shared with us on why, at least not that I've heard, why why the delay is particularly in, like, the MOU. That's the end for me. I'll hand it over to John.

[Speaker 0]: Thank you.

[Jared Carpenter (Lake Champlain Committee)]: If there's no more questions.

[John Groveman (Vermont Natural Resources Council)]: Thanks, Jared. Good afternoon. Thank you for having me in on day one. I really appreciate it. I really do. The opportunity to talk about some of the issues we're focused on this year. But just as a I'm John Groveman. I'm the policy and water program director for the Vermont Natural Resources Council. I'm not going go through all my background again, but I always love listening to Mike talk because I think we've been doing this for as long as each other, basically. I've worked for ANR. I've been the general counsel there working with Mike. I used to manage what was the Water Resources Board that used to adopt the water quality standards and the wetland rules in the state. I've the privilege of working with Mike and many other people over those years. I've been around these water issues for a really long time. As I said, I'll talk about some of the issues that we're focused on this year, but happy to answer questions. We're involved with most of the things that Mike had gone over. I don't know how many of those issues are going to come up in the legislature this year, but happy to answer questions today or any time if you want to delve into those issues. Really, our focus this year we don't have a lot of new initiatives. There's a chloride bill that Jared noted, and there's a bill that we call a restoration bill that I'll talk about really briefly in a second. But for the most part, we really want to make sure we stay on track implementing the measures that you, as a body, have already passed. And in particular, with regard to water, that's the Flood Safety Act and some parts of Act 181. The sort of common denominator is that the Flood Safety Act, it was obviously response to the extreme flooding that we've seen over a number of years in Vermont, and it called for improved wetland protection. It called for regulation of development in river corridors. The questions that you asked about the wetland maps and the river corridor maps, and Mike answered. So, that's all in place still and being implemented through regulations at the agency. And we want to make sure we stay on track with those issues. Component of Act 181 was, as you know, the major overhaul of our land use planning laws in the state that created the Land Use Review Board. And so that is sort of the common denominator. We want to make sure that we meet our deadlines, and I'm going talk about some other deadlines that haven't been met just to get them on your radar screen. I agree with Jared. I think with the question of why are deadlines being missed and what's happening, I think we're relying on your committee and the legislature to do some oversight and to ask these questions because we can't get answers. We don't know the answers to the questions, but we want to see these programs implemented. So, let me go over some specifics, and I'll start with wetlands. Under the Flood Safety Act, Flood Safety Act had three main parts: How do we do a better job of mitigating the impacts of flood? Let's protect wetlands better. It's indisputable that basically since we've been measuring development and impacts on wetlands, we've lost 35% of the wetlands in Vermont, and that's consistent with across the whole country. Because for decades and decades and decades, really up until we had the Clean Water Act, as Mike went over, we were disallowing development. We weren't regulating water quality issues, including wetlands. We lost at least 35% of our wetlands. Wetlands are incredible ecological features. They are nature's way of naturally holding back flood water. They are nature's way of naturally filtering pollutants. Modern planning techniques in cities across the country is, step one is yes, you could build stormwater infrastructure and other infrastructure to deal with mitigating floodwaters and to mitigating pollution from stormwater. But the first thing you do is leave the wetlands. Leave the wetlands to do what nature had created them to do in the first place. So the Flood Safety Act said, we're going to set a policy in Vermont recognizing we've lost up to 35% of our wetlands. We're going to have a net gain policy of wetlands. We want to actually claw back some of the losses that we've seen over the years because we know how effective wetlands are in dealing with floodwaters and pollution. And even in our developed areas, we've seen the devastation that flooding has caused, whether it's in Barrie City, whether it's in Downtown Plainfield, whether it's in Lindenville. We can go on and on. But it's not there are plenty of flood damage in our even our growth areas that wetlands helps to mitigate. On implementing the Flood Safety Act provisions of the wetlands, the wetland provisions of the Flood Safety Act, ANR has missed the deadline. They were supposed to, I have a rule out by this July, and they have not done that. Instead, they've been working on implementing the Governor's Executive Order that you heard Michael discuss. From our perspective, they've gone in the wrong direction. They haven't implemented net gain policies. And actually, were some mapping improvements that I think everybody supports better mapping of wetlands. That was part of the Flood Safety Act. That hasn't happened. And instead, the rule that Michael went over with you is actually a proposed rule. So it's in the rulemaking process now. And that rule would do what Michael said. It would allow exemptions for housing in certain growth areas and allow impacts of wetlands that right now under Vermont law are not allowed. It's been really difficult for us to kind of analyze the different proposals that the administration and ANR have come up with regard to wetlands? Because they haven't really identified the problem. What I mean by that is, and we've had a number of meetings and we've asked the questions, and I would encourage you all to ask the question. And the question we've asked is, What evidence do you have that even in these growth areas that wetlands are a significant barrier to building housing? And we've heard some anecdotes. We've heard a couple of anecdotes, but not really a body of evidence that says, Well, this is systematically what we're seeing as a problem with regard to how the wetland program is being run-in Vermont, and it's having this impact on housing. So I think that's an area that's ripe for this committee to get into. But even putting that to the side, we did raise concerns about the executive order, similar to the concerns that Legislative Counsel and the AG's office had raised. And now we are kind of beyond that, we're looking at the proposed rule. And I'll just go over The comments are due on the proposed rule next week, so we're actually putting together our formal comments. But here's some of our concerns with the proposed rule, and they do mirror a number of things that Mike had said. So one concern we have is that we're weakening wetland protection, and that seems to be counter to the Flood Safety Act. The Flood Safety Act said that net gain policy in statute and we're going to allow for greater wetland impact. So we want to understand how the proposal is consistent with the statute that the legislature passed two years ago. As Michael said, we have significant concerns that they don't have the legal authority, ANR does it, to create these broad allowed uses or exemptions for wetlands. My analysis is really exactly the same as Michael. There are allowed uses, exemptions, in the wetland rules, but they're for small, small impacts. They're literally for things like mowing a lawn or having a barbecue pit. Just practical, really de minimis activities that I think that the state, through the wetland rules, wanted to say, No, no, no, you don't need a permit for those kind of really small activities. There are also some allowed uses for the only thing that is more significant is for utility projects and for some road projects. And the rationale there is those are linear projects. So even though they could be more significant, they're along a corridor. And even with those exemptions, are best management practices that both VTrans and utility companies need to follow to protect wetlands. Housing projects it's completely unprecedented. They're much broader. They could be a giant house, a giant housing project. It could have roads and driveways. And it's just it's like one of these things is not like the other. But more importantly, legally and I think this gets to the question that Representative North was raising earlier, which is that our read on the statute is the wetland statute, the whole purpose of that statute is to protect wetland functions and values. The Secretary may make decisions based on a functions and values analysis, well, it shouldn't be class two, or a buffer should be diminished. But you can't, in our reading of the law, is just, without doing that functional analysis, just say, Because of this type of project, in these type of areas, because we want these type of projects in these type of areas, we're going to basically skip that functional analysis. We're not going to know if there are wetlands that aren't mapped that are providing flood benefits, water quality benefits, we're just going say you could build in them. That is not consistent with the statute. If the administration wants to pursue this, and we have policy concerns about that, which I'll note a few of them in a second, we think they have to come to you to change the statute. And that's going to be part of our comment on the rule, that this is beyond the authority of a state agency to basically override the statute with the rule. If people want to change how the functional analysis is applied, if they want to carve out areas and growth areas, we could have that debate. But the rule, we think, is bypassing the legislature and the authority is not there. And we also do have concerns with how they're defining growth areas. It's not limited. We think if we're going to have a discussion again, difficult to have because we don't really fully understand the problem We do think it's really important to understand the problem that people are having. But if there is an issue in the growth areas where we said we want growth areas where housing will be facilitated, that's the Land Use Review Board's process of reviewing the plans and the maps and creating the Tier 1B areas and drawing those maps. We think that the discussion should be limited to those areas because there's a planning effort underway right now, including looking at natural resources in those areas, including wetlands and river corridors. But the way that the rule is written, the wetland exemption would apply in something that's called an opportunity zone, which we don't have yet in Vermont. To mine, I think it's a federal designation sewer service areas, basically. And so where sewer lines run could be well beyond what the Land Use Review Board would say is a discrete growth area. So anyway, so there are those sort of policy issues as well. But we'll be following our comments. We'll send our comments to you. But we do think that there are some significant legal issues, with ANR's rulemaking proposal. And I would say again, just for emphasis, that it's just not smart to build in wetlands. Even when you have the flood impacts and wetlands do mitigate floods, the flooding that's happened in those growth centers that we have now, the wetlands have helped. We don't know how much we help. We haven't analyzed where these wetlands are, what their functions are, how much they're helping prevent flood damage. But just putting the flood issues aside, you don't want to build in a wetland. You don't want to put a septic system in a wetland. You don't want to put your foundation in a wetland. It's going to lead to problems for the person who's doing the building down the road. And good planning is not to torture people. It's to basically avoid these future impacts and to build smart. So we just don't think it's wise to allow people to build in areas that are wetlands that could be highly functional wetlands just because they're not on a map. And that's very arbitrary. So, all the practical issues. Even if the A and R rule went through, it doesn't have to do anything with federal permitting. There's still federal wetland permitting that would exist. So you could actually be creating uncertainty for developers. They could say, Oh, I don't have to do anything because there's this new state rule, but they have to go to the Army Corps of Engineers. There are towns and their bylaws that may have wetland restrictions. And then there's this really practical issue of the maps are being upgraded and changing, so you could plan a project, get funding for a project, and though well land is not on a map, so you have this A and R rule and you go, great, I'm good to go in terms of state well land permitting. But maybe you don't get around to building it for another year, Because there's often a lag of time between planning and hiring people and building the project. And then over that time, what happens? The maps get updated, and now there is a wetland. And so now you do have to deal with it. Mean, you've done all this planning, spent all this money, and now you're going to have to maybe redo things because of it. So there's some practical I'm not sure if the state has thought through all of the practical implications of implementing this executive order, is intended to provide some sort of facilitation of these projects, it could end up creating uncertainty and some problems for people. So that's the well end part of the Flood Safety Act and the executive order. In terms of the Flood Safety Act, also, we're supposed to be developing river corridor permitting and regulations, so we're not building in these river corridors, so we're not putting new development and infrastructure in harm's way. That rule is delayed. That deadline has been missed. I think it was the same Was it the same deadline? Was it the river corridor permitting? Was that July?

[Jared Carpenter (Lake Champlain Committee)]: There are several of them.

[John Groveman (Vermont Natural Resources Council)]: Yeah.

[Jared Carpenter (Lake Champlain Committee)]: But those have been missed as well.

[John Groveman (Vermont Natural Resources Council)]: And, and then Mike noted the dam, you know, there's a dam safety rule component to it that also that deadline has been missed, and we can send you the specific dates. And with regard to the river corridor permitting, I just want to note that we're not doing anyone any favors by letting people continue to build in these areas. It's going to create more harm to people's anything they build there potentially and infrastructure and more costs to try to remediate it. So it creates this more expense and liability and safety issues for people. And we understand that it takes time to go through these things, but delay, especially with regard to those issues, is really harming everybody. You know, if we slip, I think that there is a provision in the A and R miscellaneous bill to move some of the river deadlines back a year. And if it slips, that's disappointing. But if it slipped more than that, I think it's really putting everybody at a significant disadvantage. But that's another issue that I think your committee could ask those questions and to try to keep people on track. And the last keeping on track issue has to do with ACC 181. ACC 181 has many components to it. I mentioned the component of developing the growth area maps. Those are the tier 1B maps of where housing could occur and you'd be exempt from Act two fifty. Tier 1A are areas where there'd be mapped areas where you'd be exempt for Act two fifty from both commercial, industrial, and residential development. So those maps are being developed through the Land Review Board. The Land Use Review Board is also under Act 181 creating a rule to protect critical natural resources. And these are what's known as the Tier three areas. And there's been a stakeholder process, VNRC and many, many other stakeholders have been involved. Through that process, the Land Institute Board has identified three critical natural resources to be part of this role: Headwaters and habitat connectors and special natural areas. I'm going to focus on the headwaters part of it. There's a lot of benefit in terms of water that really could connect to the river quarters. The land use review board is developing these headwater maps that if it's done right, it could really connect. Like we could protect the river quarters, and then we could protect sort of the headwater areas that are sort of the more sensitive streams. And it could begin to kind of weave together a resilience picture for water resources in Vermont, where we're making sure we're not developing in a way that is putting infrastructure and development in harm's way and harming these critical natural resources. That's not off track yet. They haven't missed deadlines on that. Just flagging that is just another really important issue to stay on track with, and you should have the land use review board in and talk about it. But I mentioned it because I think all these things together, it's important to stay on track with getting the well end rules adopted, not the ANR proposed rule, but the one that was required by the Flood Safety Act. Get that back on track, try to get on track with the river corridor permitting, and then you have the headwaters component. And then we're beginning, I think, to achieve the vision of ACC 01/1981 and the Fund Safety Act of kind of having this broader protection. And the last thing I'll mention is the only bill proposal that VNRC and some of the other water groups in the state are pushing in addition to what Jared mentioned is what we're calling a restoration bill. And basically all the flooding that we've seen over the years combined with just the way we've developed, is how we got the Flood Safety Act. We've developed along all our river systems. That's where we put a lot of where our main roads are. That's where our villages are. It's put our communities in harm's way. It's harmed those natural resources. So basically, it's a bill to facilitate, it's defining an ecological restoration project and they're going to be things like dam safety projects. It's going to be things like shoreline restoration. It's going to be things like floodplain restoration, culvert replacement, and try to have a process at ANR where there's better coordination and facilitation of those projects. Because those projects, they don't harm the natural resources at the end of the day. They're actually improving natural resources protection and function. And so the state doesn't really have a lens to look at those projects that's different than other projects that they review. Other states do have categories of restoration projects where they have a more coordinated response to those. So we see this as just another way to go kind of hand in hand with protecting river quarters and wetlands and headwaters and fixing our dams, many that were harmed during the floods that we've had over the last number of years, as a way to facilitate those projects, which we think we need more and more of these days. So those are the high level. Happy to answer. Any questions?

[Speaker 0]: Members have questions?

[Rep. Sarah "Sarita" Austin (Clerk)]: Representative Austin? I'm just concerned about the oversight and meeting deadlines. I feel like it's people who need to meet deadlines or there needs to be a reason, a rationale why they're not, and that needs to be addressed, but you just can't have people or agencies not being responsible for meeting the deadlines of default. I'm just concerned about that.

[John Groveman (Vermont Natural Resources Council)]: Yeah, no, I appreciate that. I have no other answer than the one that Jared gave. That's why I think the good news is that So Michael mentioned the anti degradation rule deadline. That was from 2016. I think we're mentioning this now so we want to end up ten years from now. And I don't think we will. But I think it's important. And these two years ago that these bills passed. We're really fresh in it. And we're still dealing with climate change, and we will for the rest of our lives. So these things are not going to get better. We're going to get more floods. We're going to get more droughts. We're going to get more of all these situations. So I think this is a good time for the legislature, having just passed these initiatives, and really understand them to ask those questions and try to get the agencies on track and see what they need to basically meet these deadlines. That's one of the reasons we're calling it out before it slips too far.

[Speaker 0]: Representative Satcowitz. John, can you talk a

[Rep. Larry Satcowitz (Ranking Member)]: little bit about how we actually regulate development in like, I guess

[Rep. Larry Satcowitz (Ranking Member)]: what I'm wondering is, if you're somebody who wants to do some sort of project, how does it how does it actually work? Like, how how are your how is it flagged that you need to figure out, you know, whether you're in a wetland or not and how how what's what's the process you need to go through? How I I guess I'm really I really just don't understand how that works at all.

[John Groveman (Vermont Natural Resources Council)]: Well, I mean, I think so. The first thing is, you know, you certainly I mean, if you hire someone to build your project, I mean, if you build it yourself, which you can do, which I know you've done. Either way, you want to make sure that you deal with all the permitting issues that you have. So with regard to wetlands, I think the first thing you do is go to the wetland maps and you look at the maps. But you also walk your property, right? And if you go to the wetland maps and, like, there's a wetland over here that's mapped, There's a wetland over here that's mapped, but nothing there. But you walk the property and it's wet, it feels like it's wet or you know that it's wet for certain times of the year. You might see some vegetation. You would call them a well and you really, it's incumbent on you. It's your responsibility to call the well end's office and say, or have your contractor or someone who's an expert come out and advise you to make sure that you're staying out of the well end areas. Then if you know you have a well end issue, you call the well end office, and it's wise to have them come out and to say, they could do it through a desktop review as well. It looks like this part of your property is clearly out of the wetland. This is in it. If you have any questions and you might be in a wetland or a wetland buffer, you really kind of have to interact with the well end office. Unless it could be very clear from the map and just from actually being on the property that it's an uplanded area, it's not a wetland area, it's dry, and it's it's it's very clear that you're not in you're not gonna have a wetland issue. So, I mean

[Rep. Larry Satcowitz (Ranking Member)]: Yeah. That's interesting. So, like, you point out, I I built the house. It was a long time ago. I had no idea there were wetland rules when I built my house. I wouldn't have known.

[John Groveman (Vermont Natural Resources Council)]: Right.

[Rep. Larry Satcowitz (Ranking Member)]: And it's easy to imagine it was not a problem, but it's easy to imagine that I could have put my structure within the limits of where a wetland says, you know, where a law says we can't put buildings. It seems like there's But there'd be nothing to prevent it from happening. I don't need to get a permit that says, Oh, you're definitely out of a wetland. I only need a permit if I think I'm going to right?

[John Groveman (Vermont Natural Resources Council)]: Mean, it's an enforcement issue if somebody calls it out. That's only if you're obviously in a wetland. People won't know. You're on the edge of If you're two feet within a 50 foot buffer and it's a fairly dry area. Or you have a problem because there's something with your foundation or you're seeing some water accumulate. But it's really an enforcement issue. The state doesn't have an army of people out there going out and inspecting every property. But the prudent thing to do and that's why it's really when if you're on the map and that's a good indication that you might have some wetland issues. Think Vermonters are smart. They don't want to build in wet areas for all the reasons that it's not smart to build in wet areas. That's why the maps are so important. But it's just that there are things that are not on the map, as Michael explained. And most people do hire someone to help them build. Contractors are pretty good. Everyone's going to need, unless you're connecting to sewer, you're going need a septic system. You're doing perk tests. People who do that are pretty good. You don't want to put a septic system in a wetland. It will fail. So they avoid that. So there's lots of, I think, parts of the process of building something where flags would occur, where if you're smart and responsible, you'll reach out.

[Rep. Larry Satcowitz (Ranking Member)]: Do we have a sense that that sort of ad hoc system seems to work fairly well?

[John Groveman (Vermont Natural Resources Council)]: I mean, it could always work better. I mean, I think we are never going to have enough people to police the entire state. I think as the maps get better really is the answer, and that's part of the Flood Safety Act. You want to get to a point where the maps will never be perfect, but that's the way to really reach the most people.

[Rep. Larry Satcowitz (Ranking Member)]: You have to know to check the map. Yeah,

[John Groveman (Vermont Natural Resources Council)]: but that's the easier thing to do. That is, I would hope that people, anyone building anything at this point, you go on Natural Resources Atlas and Vermont Conservation. I have so much information on there now. It's pretty easy. I've been on my local planning commission for years. We have people who are just subdividing land and they'll come in and most of them will say, Hey, should go on the atlas. We'll do it for them. We'll sit there and just look up the atlas and show them. But a lot of people, I think, do have that wherewithal and more and more people are going to have it. But it's never going to be perfect. But improving the maps is, I think, we all agree there's universal agreement on that. Again, that was part of the Flood Safety Act. But because they're not perfect, just basically saying that we're just going to ignore if it's an obvious wetland that's not on the map, where most people would know not to build there, that you shouldn't build there. But I think Vermont's system, most states that have wetland regulations don't have any maps that create permitting jurisdiction. A lot of states actually use and when I was when the Water Resources Board exists, we actually went through a whole process with that, with this. It's one of the functions of not having strong county government in Vermont. So in a lot of states, like Massachusetts, for example, they rely on their county government to do a lot of this work in terms of assisting people with development. Regional planning commissions could provide that function a little bit in Vermont, but it's just the function of Vermont being small. I think we use maps for jurisdiction. Think we're the only state that does that at all. In other states that have their own wetland programs, they're basically relying on building professionals, county government, to basically work with landowners to identify and avoid wetland impacts.

[Speaker 0]: How long has Vermont been regulating wetlands this way?

[John Groveman (Vermont Natural Resources Council)]: How long? Well, rules went into effect in 1990. The wetlands law was passed in 1989 and it was based on, I was asked by a reporter this recent, I do remember having worked at the water resources board, I do know this history, but you know, basically it was a lot of scientists, including academics and people from the agency saying we should regulate wetlands based on functions and values. 50 foot buffer was a minimum. That was like the science was, the literature is really clear that if you're not protecting the area around a wetland that you could really impair the functions and values. But they wanted to leave the flexibility to have a wide, it was mostly like a wider or smaller buffer, but they wanted the functional analysis because it was really a science based statute. And then in 1990, the Water Resources Board adopted the wetland rules that included the process for classifying and reclassifying wetlands and altering buffers and classifying class one wetlands, as Michael noted. So the system has been in place for now thirty five years. It's been tweaked a bit as we went because we got rid of the water resources board and we actually tried to streamline the reclassification process, I don't know, ten or fifteen years ago and that's where we, the intent, the, goal was to make it easier to either take wetlands and Michael mentioned that shouldn't be on the map that are farm ponds or swimming pools off the map but also to put wetlands that we knew on the ground were wetlands that didn't get caught by the mapping and the initial mapping I should mention was aerial mapping for the federal government. So, missed a lot, right? They were like flew over the state and that's the national wetland inventory maps. So, all the forested wetlands, they missed, right? They couldn't see them. Even in anywhere that there was just too many, many trees and then depending on the time of year they went, Also affected that. But since then we've had it's really been you have conservation commissions out there getting cramps to do like wetlands mapping. We've we've really added to the to the wetlands maps. The Flood Safety Act was just the latest attempt to basically infuse more resources to do that. But it's a pretty unique approach that we have in Vermont. You know, I think it could, anything could be improved. We could talk about how to improve it, but I think we realize we need to protect these wetland areas, especially in these times of flooding. It's just not something we want to make weaker or harder to protect. Again, if there's a problem, we've asked, we've said, Well, what's happening on the ground that has spurred this effort that people are running into roadblocks a systemic way. Like, we've heard one or two stories and I'm not diminishing the impact of those stories on the people who experience those stories, but I'm really looking for what's systemically not working, sort of what Representative Satcowitz is asking systemically how this works. But I would encourage you to have the wetland ecologists in. You know, not the A and R, you know, commissioners and deputy commissioners, but have the people who are implementing the program and they can answer your question best of all.

[Speaker 0]: Are there questions? Thanks so much for your time.

[John Groveman (Vermont Natural Resources Council)]: Yeah, thank you. Thanks for the

[Rep. Larry Satcowitz (Ranking Member)]: opportunity.