Vermont Legislature SmartTranscripts:

[Rep. Amy Sheldon (Chair)]: Great. Welcome

[Rep. Amy Sheldon (Chair)]: the House Environment Committee. This afternoon we have our legislative council here with us to, I guess, it considered a walk through, Michael? We're going to walk through Act one twenty one.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Sure. A a review of Yeah. Prior action. I

[Rep. Amy Sheldon (Chair)]: And just so members are immediately oriented, this is what Lauren Oates was talking about. She was sort of setting the stage reminding us of the why, and then this will be the nuts and bolts of the how of the Flood Safety Act.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: The year was it? This last session.

[Rep. Amy Sheldon (Chair)]: Well, the chick just come up under Michael's name today. Okay.

[Rep. Amy Sheldon (Chair)]: At 01:21 of Weekly 21.

[Rep. Amy Sheldon (Chair)]: When we take new testimony on stuff, we'll repost it

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: or

[Rep. Amy Sheldon (Chair)]: at least the link.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Well, my iPad is not loading the committee pages. So

[Rep. Amy Sheldon (Chair)]: Yeah. I'm gonna

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: assume you have act one twenty one from twenty twenty four.

[Rep. Amy Sheldon (Chair)]: Two. It

[Rep. Amy Sheldon (Chair)]: is on the committee page.

[Rep. Amy Sheldon (Chair)]: It is on the committee page. Okay.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Alright. So I'm gonna work off of a hard copy bank because I can't get the committee page to load. So in 2024, there was, an effort, by advocates and the agency to propose language to regulate multiple aspects of what I would call water law. So there was regulation of development in river corridors. There was an effort to address how municipalities in the state implements requirements for national flood insurance under FEMA's requirements. There were amendments to the wetlands law to change the policy at how wetlands is permitted. There were provisions related to dams. There were provisions related to let me think of some more, Styrofoam and Waters. And that was about it. It was a fairly comprehensive act. It was 65 pages long. And it it did a lot, and it required ANR to do a lot. And and you will see from the first page of the bill that it it has a short title. It's called the Flood Safety Act. That's why everyone is calling into Flood Safety Act. In addition, it had a pretty significant finding section several pages long Mhmm. Where it referenced why you were doing this and and specifically the first 11 sections of the act related to flood provisions. And so it said the the Northeast has experienced 60% more rain, particularly in inland areas. The climate assessment highlights that Vermont has a 21% increase in average annual precipitation and two point four additional days of heavy rain since the nineteen sixties. According to Noah, there's been annual damages from flooding and frog flood related disasters between 1980 and 2023 of over $30,000,000. There has been, according to DEC, 70 to 80% of all flood related damage occurs in Vermont's river corridors that that according to DC, only 10% of Vermont municipalities have have flood river corridor protection programs or bylaws, and that promoting existing compact settlements will require improved flood resilience efforts as described in the Climate Action Plan, such as fluvial erosion hazard planning and, looking at climate adoption response. And the state has recommended any of this initial Vermont Climate Action Plan to adopt legislation that would authorize the agency of natural resources to to revise the Vermont Flood Hazard Area and RiverCourt Rule to provide the agency with delegable statewide jurisdiction and permitting authority for new develop. So it then goes right into river corridors. And what what are river corridors? Well, there is a definition of river corridor in statute in 10 BSA seven fifty two. It's the land area adjacent to a river that is required to accommodate the dimension slope, land form, and buffer of a naturally stable channel, and that is necessary to natural maintenance or restoration of equilibrium conditions.

[Rep. Amy Sheldon (Chair)]: It's not here. You're reading that from a different area?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: I'm reading that from 10 Buce A seven fifty two. It's not in the bill itself.

[Rep. Amy Sheldon (Chair)]: Sorry. Can you read it again?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Sure. A river corridor is the land area adjacent to a river that is a river is required to accommodate the dimensions, slope, plan form, and buffer of the naturally stable channel, and that is necessary to for natural maintenance or restoration of equal urban conditions.

[Rep. Amy Sheldon (Chair)]: Yeah. Representative Pritchard.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: How is that determined? Oh. They I used

[Rep. Amy Sheldon (Chair)]: to do that work.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Yeah.

[Rep. Amy Sheldon (Chair)]: You go out in the field and you measure it. I mean, first there's phase one geomorphic assessments that rely on a model, and they sort of give you that, and then you field verify it. You go out and you walk each segment of river, and you measure a cross section, and you measure the buffer and where the banks are. It's very detailed work that a number of folks did over fifteen years. Representative Tagliavia.

[Rep. Michael "Mike" Tagliavia (Member)]: Thank you. How to that your explanation and representative Richard's question, we heard testimony just this morning talking about how rivers move. How do we take into account river over, I don't know, ten thousand years moving?

[Rep. Amy Sheldon (Chair)]: Yeah. So a couple of things. One is we're having the river section in, and and they can answer our questions on this, and that's what the model does. And so there's different stream types just like maple syrup, water quality standards, a, b, and c types of streams, and, they have to do with the type of river they are in their reference or natural condition. And then we model them when they have impacts to them from human developments. And then there's a way of estimating what the river corridor is. And we look at soils. We look at slope. We look at historic alterations to the watershed. It's quite a long list. There's great data. We can show you the link to the web page where all the data is stored, and you can look at the river right behind your house and see how wide the corridor is there.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: And I would say generally a river corridor is not affected that much by slight changes in a river or even like changes over five to ten years because the river corridor is the map is usually much larger area than than you would expect. Now this the area of special flood hazard under FEMA's NFIP program, that that might change, but they have a directive to update their maps on a regular basis. So as that river moves, that their FEMA map will move as well. And plus, banks don't really rely on the FEMA maps anymore. There are services

[Rep. Michael "Mike" Tagliavia (Member)]: That doesn't really rely on Banks. Banks. Oh, okay.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Because the banks, when you buy a house, they will check to see if it's in an area of special flood hazard. And there are services that now use all the different technology that's available to locate your the potential purchase and to to identify whether or not it's within that area of special flood hazard or not because it affects their mortgage. It affects what happens if there is a flood and damage to a property that's under a mortgage at a bank. And so the banks have a very real interest in ensuring that those maps are accurate and that then they have services that double check them.

[Rep. Amy Sheldon (Chair)]: But to answer your question, the river corridor accommodates a certain amount of meander belt migration, but probably not to the like, what you're speaking to, like, the ancient glacial movement of that river. But it's a it's a an area that is defined by science and a little bit by sociology. Admitting that at some point we need to like, we give the river enough room to accommodate the water, sediment, and energy that it has today, in a reasonable river corridor area, but not necessarily its entire historic range.

[Rep. Michael "Mike" Tagliavia (Member)]: You call that the meander belt?

[Rep. Amy Sheldon (Chair)]: Meander belt width is that curve, that sign curve that a c type channel will make out of the Valley.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: So so let's talk about what we're what we're talking about. Why are we talking about river corridors, and how are they different from flood hazard areas or areas of special flood hazard? So FEMA, if you want flood insurance in The United States, you basically have to get it through FEMA, or else you're paying rates that I don't even wanna characterize. In order to get FEMA flood insurance, your municipality has had to adopt a bylaw or ordinance that meets FEMA's requirements for the regulation of development within that flood hazard area. Well, the FEMA flood hazard area is not based on the type of flooding that is more common in Vermont. The FEMA flood hazard area map is based on inundation flooding. Like, it rains in Minnesota, so we know in Arkansas, in three days, the Mississippi River is gonna be at over the tops of the levees or that they have to they have to trigger the levee controls in order to prevent flooding of that's inundation flooding. Vermont does have inundation flooding. A few years ago, Lake Champlain, we knew that it was rising and rising and rising and rising. That was inundation flooding. But most of the time, the state has what's called fluvial erosion flooding. It's when there's discrete high volume rainstorms that don't do inundation damage. They do scouring damage. And that scouring damage can can can hop the bank and and move further than than the inundation flooding does because of the the nature and the volume and the the rate of the flooding. So that's what the river corridor maps. It's not that that inundation. It's the where that scouring can go. Most of the time, it's it's especially in lowland flat areas, it's a pretty significant distance from the actual channel of the river. Now, also depends on geomorphology. If you've got high banked rock banks, the river corridor is not going to be that much further from the flood hazard area because there's nowhere for that high volume flooding to go on that side. But it'll probably wind up going across the riverbank into whatever area is available. So that's the difference right now. Now the development in the flood hazard area is regulated because that's FEMA. If you want to build in that flood hazard area, you have to have compliance with FEMA's bylaws. Right now, there really isn't requirement for development or prior to act one twenty one. There wasn't a requirement for permitting in the river corridor. That's what this these first sections of act one twenty one does. You will see. On page two going on to page three that the first thing that's required is DEC, in consultation with the Agency of Commerce and Community Development, amends the River Carter map to identify areas suitable for development that are located within existing settlements in the River Corridor. So where can we develop in the River Corridor? Let's map that. And then beginning on 01/01/2025, DEC was gonna do this education and outreach program. I am going to note those dates that are changed or any proposed amendment that's in the DEC miscellaneous bill. On on page three of act one twenty one, first line of subsection b that the agency has proposed to move that 01/01/2027 date to 01/01/2028 for that education and outreach. Similarly, the report back to you about what they collected in that education and outreach, that's gonna be pushed back a year or two. And that's at the bottom of page three where it says on or before 01/15/2027, they shall submit to you a report. And that report is supposed to include public input. It's supposed to include recommendations for changes to the requirements for permitting and development in Macporters, and analysis of state permitting and development, and a summary of the department's progress in adopting rules for development and map for recorders. Now, where is the requirement for permitting development and map for recorders? Well, that's in Section four. And that's where you see what is required and what will will be what will be permitted. And what is gonna be permitted is development according to FEMA. And that's that's pretty much everything. That's you stacking your firewood. That's you farmer stacking hay bale. That's that's disturbance of the soil in a way that create could create an additional foot, six inches to a foot of of rise, which will affect flooding. Like, pretty much anything that you do in that special flood hazard area is development to FEMA.

[Rep. Michael "Mike" Tagliavia (Member)]: Representative Pritchard? Is it I'm looking at the text in here, and it

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: says the department shall submit to

[Rep. Michael "Mike" Tagliavia (Member)]: the Senate Committee on Natural Resources and Energy and the House Committee on Environment and Energy. Is that both?

[Rep. Amy Sheldon (Chair)]: No. That's just because we used to be that. When this was when we passed the bill, we had energy. Okay.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: And that and that's been reconciled in the statute because we go in and whenever the committee names change, our office changes those in statute.

[Rep. Amy Sheldon (Chair)]: That is an interesting question, because some of the builds would go to both of us. I know that you're using your smarts on that one.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: We we have to make decisions sometime.

[Rep. Amy Sheldon (Chair)]: Representative Tagliavia.

[Rep. Michael "Mike" Tagliavia (Member)]: Development, that definition. You said something about stacking firewalls. So just so I know, I understand correctly, Somebody's doing some logging on their land, and the best spot for them to have the the log landing for whatever, have their truck pick up this. This timber or firewood is stacked in one of these areas, that is considered development, even though it's only going to be there for anywhere from one day to one or two months. That's development. In the same respect, the wrapped bales of hay, if they're stored for a season. Do I understand that that's what you described as development?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Development means any man made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, raiding, paving, excavation, or drilling operations, or storage of equipment or materials.

[Rep. Amy Sheldon (Chair)]: That's in current FEMA. Federal regulations.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: That's current FEMA regulation.

[Rep. Amy Sheldon (Chair)]: Currently being supposedly being managed, although they don't people don't get a permit for that in the federal a federal permit for that.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: No. It's you get you get your municipal permit for that. Because remember, in order to have NFIP, the municipalities had to adopt ordinance or bylaws that regulate that development in a way consistent with FEMA. So that's how FEMA does it. They don't permit themselves. They they basically Delegate. Incent you to do it, municipality to do it. Now we ran into the state ran into a problem with FEMA a few years ago because municipalities are not, under state law, are allowed to regulate certain things. They're not allowed to regulate forestry operations. They're not allowed to regulate the siting of a state building. Until the Supreme Court decision last year, they weren't allowed to regulate farming. And FEMA said those activities involve development. And there were letters back and forth. What do you want us to do? You need to regulate those activities that are exempt from municipal authority. And the state general assembly chose to do that in a different way. They said the state is gonna adopt rules to regulate that development that's exempt from municipal authority. And there is currently a river corridor rule that regulates those activities that are exempt from municipal regulation. And FEMA said that's fine. You now have regulations and standards that regulate all development and the special flood hazard area. So that's why at the bottom of page four, you will see a definition of development exempt from municipal regulation. Well, it said well, I'll I'll just move on. So that that's how you dealt with development exempt from municipal regulation. And then moving on to section five in Act one twenty one. You're on page five going on to page six. It directed the agency of natural resources on or before 07/01/2027, which the agency is asking to be 2028 and your current bill to adopt rules that establish requirements for issuing and enforcing permits for all development, all developed within a map for recorder in the state and for development exempt from municipal regulation and flood hazard areas. Well, how how are you going to do that? Like, think about that. If the definition of development is like so broad that it includes grading and excavating and filling and storage. They're going to adopt general permits. They're gonna adopt general permits for those types of activities, like storing your fire water, storage and pay your bills, etcetera. But for development of structures, etcetera, they'll probably have both a general permit and an individual permit for certain scale or scope of development of buildings or structures. So it might sound onerous for because of the scope of development, but it's probably gonna be a general permit. And why do I think it's gonna be a general permit? Because that's how the state regulated those that development that was exempt from municipal regulation over the past ten years. And it and it hasn't been you don't hear about it because it just works.

[Rep. Michael "Mike" Tagliavia (Member)]: Okay.

[Rep. Amy Sheldon (Chair)]: Then representative Chapin.

[Rep. Ela Chapin (Member)]: Can you just articulate for us again exactly how a general permit works and how people engage the permit?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Most people, when they think of a permit, they think of the individual that goes to the regulating agency, makes one application, and the regulating agency reviews all of the things for that individual and and issues the permit. And the the next person could come up and have the same exact facts and and apply, and they'd have to do an individual permit again. Where it became clear that there were certain types of activities where there were so many people with so many similar circumstances or conditions that you didn't have to issue an individual permit each time. You issued one permit that was an umbrella, and it said, if you're doing this and you qualify for this and this is the type of activity, then you have to do this. And all you need to do is notify us that you are going to operate underneath that general permit. And that's how general permits work. It's not it's not you apply individually according to your specific facts, and the agency reviews your specific facts. They said, these are the general facts, the general conditions. If you fit under it, you're fine. You just let us know that you're operating. You can still be enforced against if you violate the terms of that general permit. So we enforced against. But that's how a general permit works. And you will hear some people refer to a nonreporting general permit, And that's usually a federal thing. But you you don't have to have a federal you don't even need to have a report in some general permits. So moving on from there, when they adopt the rules for permitting of development in a river corridor, they have to address certain things like what are the requirements for permitting? The regulatory exemptions for minor development activities in a metro recorder, the the way to delegate this authority to municipalities. Some municipalities already have river corridor bylaws, are already regulating development in the river corridor. If they wanna continue to do that, delegate it to them. Let them be the ones to do it. But you have to have some standards for that delegation. And then set a a process for amending the river corridor map so that if the river moves or if there are certain changes that you have a map that's amended to reflect that. Now, the requirements for the rule are specifically supposed to be more They're supposed to exceed the requirements of the NFIP program. And by by the whole nature of having it in the river corridor versus in the special flood hazard area, it will exceed that NFIP program. But there were concerns that just regulating to the minimum would be would not be enough to address the flood threats that the state was facing is facing. So just as I referenced earlier on page seven in subsection C, this will be a general perimeter of the agency to authorize to issue a general permit for this development. It doesn't need to go through rulemaking, which will be easier for the agency. And then on page eight, this is where you get the actual requirement for a permit for development in a river corridor. Act 121 said beginning 01/01/2028, a person shall not commence or conduct development exempt from municipal regulation or commence or conduct any development in a mapped river corridor without a permit issued by the secretary. So they are proposing to move that by a year from 01/01/2028 to 01/01/2029. Then I think the next major change for act one twenty one is on page 10, section six. This is about we're moving out of permitting development in the river corridor. We're we're now gonna focus on NFIP. When the floods occurred two, three years ago, Irene, there was obvious need for a response underneath the FEMA bylaws that each municipality had adopted. But many towns didn't have the resources to respond. Many towns lacked expertise. They had done what was required to get flood insurance for their communities, which was smart, but they didn't have the resources or the staff, the expertise to respond when there was that flooding damage, when to assess how to implement the FEMA response, how to get those homeowners, those property owners into the FEMA system for relief. They didn't have those resources. And some of those towns came to the general assembly and said, either need to give us money for those resources. You need to figure out a way to coordinate this at a state level. And so what this does is it requires that that on or before January on 01/01/2026, ANR shall adopt rules that establish a set of flood hazard area standards for enrollment in an FIP. And so wait a minute. I already said in order to have flood insurance, you need to comply with FEMA's bylaws. Right? You need to do that. But you probably have all served on municipal boards. You know? You don't always do what you're supposed to do. And you you always have somebody that's fly specking the language and says, like, I don't like that language, or I want that to be different. And so what happens is that the municipal bylaws that are for NFIP aren't always what they're supposed to be. Now towns are supposed to give their proposed bylaws to ANR for review so that ANR can say, hey, yes, you do meet the standards, and this is consistent with what we, as the as the program administer for NFIP in the state, want you to do. But not all towns do that. So you have some and and you should talk to ANR about, like, what the variation is in NFIP bylaws for each municipality across the state. And so what this does is requires a uniform NFIP standard that all municipalities will implement. And so those rules shall contain the flood hazard area standards that meet or exceed the minimum standards for NFIP by reducing flood risk to new development and ensuring new development does not create adverse impacts. Any municipality with a municipal flood hazard area bylaw shall update their bylaw or ordinance to incorporate these state flood hazard area standard. Now everybody has to be the same. Everybody has to be the same. Nothing shall prohibit a municipality from adopting a more protected flood hazard area standard with language and standards approved by agency. Alright? If you wanna be different, you still gotta get approved by AM. And on or after 01/01/2028, which has not changed. So they are still looking for 2028 for this. The state flood hazard area standards will be adopted and shall be the state minimum flood hazard area standards. But what does that mean? In order to get FEMA compensation, you need to be complying with the state minimum flood hazard area standards. So if a municipality doesn't adopt them, they are putting at risk their their property owners, their residents of whether or not they're going to continue to be in the FEMA program. Now FEMA isn't like black or white, you're in, you're out, you're gone. FEMA gives you a probationary period to comply. But during that probationary period, your insurance rates go up for the property owners. So municipalities are very aware of that. Municipalities will need to meet these standards so that their residents' flood insurance rates are not affected. So I think you can move on page 11. So to ensure that it's it's easy for municipalities to incorporate these flood hazard area standards into their municipal bylaws, Sub C on page 11. ANR has to come up with the model bylaw or really they already have a requirement issue in model bylaw. They need to revise their model bylaw to include these new state flood hazard barrier standard. Municipality should be able to just just log in their information from their municipality to make that bylaw work. Now you get a lot of a lot of technical changes because right now, municipalities have discretionary authority to regulate in a river corridor. Remember, I told you some municipalities already have river corridor bylaws that regulate development within within their river corridor. What you've proposed already is to if once the state adopts those rules for regulation of development of river corridor, that the those municipalities can seek delegation of the permitting authority. Well, you gotta take away their discretionary authority that it's no longer a discretion for them to regulate the development in the river corridor. And so that's what these technical changes do. Section six a, you're amending 24 VSA twenty two ninety one municipalities discretionary ordinance authority to say that they no longer have the ability to regulate development in the river corridor protection area. Section seven twenty four VSA forty three zero two, you're now in zoning bylaws. This is one of the the principles of the zoning chapter about regulating new development and flood hazard areas and river corridor protect. You're now taking that out if they that they have to meet or exceed the statewide minimum flood hazard areas standards established by ANR. Section eight, again, you're in a municipal zoning authority. Municipal zoning authorities have flood resilience plan requirements. Those strategies need to adopt and implement the state flood hazard area standards.

[Rep. Amy Sheldon (Chair)]: Hi, Michael. Did is there a date associated with these changes? Or where?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: These are in the effective date section. Oh, no. They're they're in a transition section, Larry. I'm sorry. They are, in section 11, it's basically 2027. It's the the the act one twenty one requirement that the permitting began in 2027 and 2028.

[Rep. Amy Sheldon (Chair)]: Yes. I'm just wondering if these changes were requested also.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: In the transition section They need to be they have not requested changes to those dates in the transition section. So there will be there's conflict. Yeah. And so they they will need to request a revision to that.

[Rep. Michael "Mike" Tagliavia (Member)]: Into dates. Yeah. Right.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: And I have to talk to you about something called vested rights, which is I'll get to it in minute. So section eight a is about River Corridor Development Authority, and now it's just gonna be about regulating buffers. Section nine, again, is about regulating river farter. And it's now just not gonna gonna be about regulating development of flood hazard areas or other areas. I think you can skip to section 10, which is on page 18. NFIP flood insurance is currently implemented by municipalities. The state's gonna have a state flood hazard area standard that all municipalities need to conform But that doesn't address the technical staffing response issue that occurred with flooding two to three years ago. And what is being looked at is in section 10 is whether or not the state should take over administration of NFIP for all towns. And there's a study committee to review and recommend how to reduce vulnerability to inundation flooding, including and to what scale to shift responsibility for administration and enforcement of NFIP from individual municipalities to the State Department of Environmental Conservation. So this is just a study right now, but they are going to come back to you with a recommendation on how to do this or whether to do this, how much it's gonna cost, what staffing needs it would need if they if they were to do it. Remember, the town say they don't have they don't have the resources to I remember someone from Wyndham saying, I was and he was the local planner. And he's like, I was the only one that knew anything. And he's like, I didn't know that much, and I didn't have the resources to do what I needed to do. And so that's why this is in here to look at how and whether the state can coordinate NFIP from the state level instead of from the municipal level. And some states do this. Some states have hybrids. So it's it's not you wouldn't be unique or first in time.

[Rep. Amy Sheldon (Chair)]: I hope they consider the benefit. Mean, the cost to municipalities have not savings to municipalities have not seems kind of not to have every single town do this seems very inefficient.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: How do the RPCs expensive. Well, that that's a good question. Maybe the RPCs become something of a contracted entity for the state in implementing an FIP. Right? It's like because some of the RPCs are really pretty good. Like, your RPC Yeah. Really pretty good. But some of the RPCs are You know? And so maybe that's part of the recommendation of the study committee.

[Rep. Amy Sheldon (Chair)]: Well, I was wondering if you knew of states with county level government. Like, does this really happen town by town all across the country, or is it because we don't have county level government?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: It doesn't happen town by town all across the country. It's often done through counties. Like, I have always said that if you you had Maine's county government, my job would be so easy. Would just tell the county to adopt everything that you wanted them to adopt. Right? And then I'd be like, it's not my issue. What county's gotta do? And and, you know, that that is that is how a lot of places work. And they then have those governments, you know, in some places, some states, it's not just the county. It's entities within the county that are not just municipalities. There are groups of municipalities, like townships, like in Pennsylvania or or regional districts in miss Minnesota. You know? It's like you coordinate your staffing and your technical expertise around more than one municipality.

[Rep. Michael "Mike" Tagliavia (Member)]: But not the whole state.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: But not necessarily the whole state because of the size of states and the geographic differences, etcetera.

[Rep. Amy Sheldon (Chair)]: Representative Austin? Typically, raised my hand. Well, did

[Rep. Amy Sheldon (Chair)]: raise your hand.

[Rep. Amy Sheldon (Chair)]: You want

[Rep. Sarah "Sarita" Austin (Clerk)]: I give your stomach probably was just reading something.

[Rep. Michael "Mike" Tagliavia (Member)]: I think you were distracted.

[Rep. Sarah "Sarita" Austin (Clerk)]: And maybe it's very obvious, but what is the difference between the Nash the NFIP and the hazard standards?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: So the flood hazard area standards are what the state is directed to adopt so that all municipalities will have the same bylaw in order to qualify for NFIP. So it's what the state will set as a standard for municipal participation in an. Remember I told you how some municipalities do it different, some ignore certain things, some rate it differently. This is to ensure that they all have the same thing. So when there's a response needed, you go out to one municipality and they lack the authority in their bylaw because they never submitted it to ANR for approval, you will have consistency, you will have uniformity. And then the question is, should the municipality administer it or should the state administer it? You haven't made that decision yet. It's just whether this what the study committee is supposed to recommend. Now this committee is looking for a date change in the miscellaneous bill. It was supposed to provide its report on 08/15/2025. That didn't happen. I think they're looking for a two year extension. But it might be one year. So there's that. And then on page 21, there's a transition section. ANR supposed to initiate the rulemaking pre rulemaking for development in River Corridors by 07/01/2027. And prior to the effective date, they shall continue to implement the flood hazard area and river corridor rule for development that's exempt from municipal regulation. And then we gotta talk about vested rights. So in most jurisdictions in the country, when you are applying for a permit and the law changes between when you apply, when the agency issues your permit, you have to comply with the changed law. So even though you don't didn't even know what the change law was at the time of application, most jurisdictions, most states require you to comply with that change before they issue the permit. In Vermont, we don't do that. In Vermont, when you apply for the law, you get the benefit apply for a permit, you get the benefit of the law at the time you applied for the permit, and you are not subject to those changes. Now people will tell you that that minority interpretation only applies to land use, land use and water resources. Well, this is kind of both. And so the General Assembly said in 2024 that the vested rights where you get the benefit of the law when you applied for it is going to apply to these permits. So if the mapped river corridor development rules change and you've already had your permit application in before those rules become effective, they don't apply to you. You get the benefit of what the law was before, provided that you don't do anything that would trigger a new permit underneath the new rules. So you go forward with what you proposed. You get the benefit of the old law. If you start deviating from that and building new things, putting in new excavation, etcetera, you don't get the benefit of that anymore, and you may be required to get a permit under the new rules. That's what page 22 subsection c says in a lot of legal means.

[Rep. Amy Sheldon (Chair)]: I mean, you call it a benefit. Putting yourself in harm's way may not be a benefit. This is intended to keep people out of harm's way.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Right. And I'm going to go off the chain a little bit. Why are you doing this? Right? And bad water finds you. Right? Bad water is gonna find you sometime in your life. You're gonna get flooded. Your septic system's gonna fail. Your connections are gonna fail. Bad water's gonna find

[Rep. Amy Sheldon (Chair)]: No idea you're such a pessimist, Michael. It's

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: just yeah. I don't I'd like to. But bad water often finds the poor more than it finds others. And so part of what this does is that it it will help standardize development in areas where bad water may be more frequent or common. Remember, at the beginning of this bill, you direct ANR and ACCD to find the places in the river corridor that are suitable for development. Where should you go? Where should it be? Not just where you can do it and get away with it. It's like, where is it more suitable to be so the bad water doesn't?

[Rep. Sarah "Sarita" Austin (Clerk)]: Just one more quick question about If vested a builder, let's say, comes upon something that they didn't anticipate and they need to do something different than their land use and their undivested rights. Do they then have to do everything?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Now remember, they get the benefit of the law from before. And part of the benefit of the law before is when you apply, there are provisions in that law that allow for conditions. Or you will still get death. It's when you start going too far outside of the scope of that law that existed before that you will need to get that permit. And that's what you did for Lakeshore Land Protection. That's what you've done for some storm water. That's what you've done for some wetlands. You you you've given the benefit of vested rights to the permit applicant. And now you move into wetlands, which is, I'm sure, what everybody wants to talk about. And I think it's very interesting to look at what you did in 2024 because you, the General Assembly, made specific policy statements that don't seem to be aligned with the executive order and the draft rules that are gonna be coming from that executive order. And you'll see that first on page 23 in section 12. It's declared to be the policy of the state that the wetlands of the state shall be protected, regulated, and restored so that Vermont achieves a net gain of wetland acreage. That regulation and management of the water resources of the state, including wetlands, should be guided by science, and authorized activity of water resources and wetlands should have a net environmental benefit to the state. But that is existing state policy for the management of wetlands. Existing

[Rep. Amy Sheldon (Chair)]: before this act passed or now it is because this passed?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: This is passed.

[Rep. Amy Sheldon (Chair)]: Yeah. I know. But, anyway, representative Tagliavia.

[Rep. Michael "Mike" Tagliavia (Member)]: Net gain. How do we determine net gain at the end of the year, whether we got a doubling based on the development or each individual site?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Well, can I defer that answer? Because we're gonna get there and walk through how you do that case. Section 14 requires the update of the Vermont Significant Wetlands Map in order to include what I I don't know enough about. The georeferenced shape files or similar files were all verified delineations performed within the state. The experts will tell you that that is a much more detailed mapping and accurate system. I don't know. I just wrote what they told me to wrote in right in 2024. But that's the intent. What I will say is that the date by the that which that is supposed to happen, 01/01/2026, was not changed by the miscellaneous DEC bill. And, obviously, that date has passed. And so there's a question about whether and how those maps are being updated right now and when they will be updated. And then on or before page 21, sub b, on or before 01/01/2030, ANR shall complete a higher quality wetlands inventory plus level mapping for all the tactical basins in the state. This will include ground truthing. Again, that date has not changed. So you have these new maps that are coming. Those will be higher quality, more accurate. But they the date, they're not requesting changes to those dates. And then on the bottom page 24, section 15, the neck gain of weapons. On or before 07/01/2025, This is not changed by ANR in the DEC miscellaneous bill, but this section is in your bill. On or before 07/01/2025, ANR shall amend the wetland rules to clarify that the goal of wetlands regulation and management in the state is net gain of wetlands to be achieved through protection of existing wetlands and restoration of wetlands that were previously adversely affected. Now how do you do that? On page 25, the rules shall prioritize protection of existing intact wetlands from adverse effects where permanent activity in a wetland will cause more than 5,000 square feet of adverse effects that cannot be avoided, the secretary shall mandate that the permit applicant restore, enhance, or create wetlands or buffers to compensate for the adverse effects on the web. The amount of wetlands to be restored, and this is where you get the net gain, shall be calculated at a minimum by determining the acreage or square footage of wetlands permanently drained or filled as a result of the permanent activity and multiplying the acreage or square footage by two to result in a two to one restoration to wetland loss. And there is your net gain. And it's for each permitted activity over 5,000 square feet of adverse effects. Couple of key aspects of that calculation, establishment of a buffer zone contiguous to the wetland shall not substitute for restoration enhancement or creation, and adverse impacts to wetland buffers shall be compensated based on the effects of the impact on wetland function. That is something that I am not sure the EO does. So if you're going to have an adverse impact on a wetland, which remember the PowerPoint showed on ANR's own website that

[Rep. Amy Sheldon (Chair)]: Cattails in the living room.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: The cattails. That would be an adverse impact on a on a class two wetland. What's the compensation? Is it over 5,000 square feet? Does it need that gain? I don't think the draft rules address that, and maybe the draft rules are saying. We won't need to do this because we're an allowed use. And allowed uses are not a permitted adverse effect. And, therefore, don't need to do net gain, don't need to do compensation because it's allowed. And I think that's probably what they're going to say, but I can't speak

[Rep. Michael "Mike" Tagliavia (Member)]: for them. Can you

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: repeat that just to make sure I understand that? So you need if you're gonna conduct an activity in a wetland that has an adverse effect on that well, you need a mapped or a mapped either? Right now, it's class two. Class two means a mapped or one that the secretary determines based on the functions and values of the wetland is significant enough to require regulation. Alright. So that's a class two. Right now, if you're gonna do any adverse effect in that class two, you need a permit unless you are in allowed use. And you don't need a permit. You just need to notify the secretary of your activity so that they can determine you're not trying to game the system. Allowed use is housing. And the allowed use in the draft EO the draft rule by ANR, which I put up on the PowerPoint, is is housing in those designated areas not requiring a permit in class two in those designated areas. Not requiring not requiring a permit in the class two in those designated areas on a map. Not requiring a permit for any unmapped and reducing the buffer from 50 to twenty five fifty statutory requirement to the 25 foot requirement for a class two. And that that's in in the draft rule. But how does that I mean, how does it it conform with the policy? Because you amended the policy for wetlands to say that the policy for regulation of wetlands is down that gain, And you amended that policy to say that decisions need to be science based, but you're taking away that science based determination that a wetland meets the function and values that require regulation as significant. Referencing this because if they come forward with a rule that does just an allowed use, I'm going to be the one that's going to be required to review it for And one of the things that I have to do is, I say, is it consistent with statutory authority? Is it consistent with legislative intent? I don't opine on legislative intent because I'm not a legislator, and you all have different intents about what you do each day. But I will say that there's potentially an issue with conflict with statutory authority. So that that is I have to put this on the table now. I wanna put it on the table now so that whenever they bring forward that rule, you don't get mad at me if I say it doesn't. There's an issue with it. Yeah. I'm I'm still a little and I apologize. It's it's it's kinda confusing for me. It's still a little confused about when the class is coming. Is the EO specified it sounds like it reduces for class two wetlands. It reduces the buffer from 50 to 25. But in the section where you're just allowed to build in a wetland, is that class two wetlands, or is that something other than class two wetlands? Well, it's it would it you alright. Right now, you don't need a permit to reg to develop in a class three. Like, class three is it has some wetlands properties, but it's not significant enough to regulate. Class one, they say in in the draft rule, we're not dealing with class one. And those are the ones that are so significant that you have to identify them by rule. And it's hard to do. You will be surprised how hard it is to get one of those rules through to designate a class one. So what you are left with is the class two. And they are saying in those designated areas, your designated downtowns, your opportunity zones, and there are a lot of opportunity zones. Some municipalities are entirely an opportunity zone. And in those areas, you can develop in an an unmatched class too well.

[Rep. Amy Sheldon (Chair)]: Senator Talibia?

[Rep. Michael "Mike" Tagliavia (Member)]: He keeps bringing up the executive. Is there wording I don't recall wording in the executive order that seeks to circumvent any of the restoration requirements, just a change of the size or the dimension of the buffer.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Remember, when the when the EO was passed, this secretary issued guidance on how they the agency was gonna comply with it. And she said that they had to go to rulemaking. And the way that they have proposed the rule would have would put all the allowed development under the EO into an allowed use that doesn't require a permit underneath the current wellness rules. And if it doesn't require a permit, it doesn't need to do compensation, restoration, etcetera. So the EO, you're right, doesn't say circumvent or you don't need to do compensation or restoration or neck pain. Doesn't say to reduce the buffer.

[Rep. Amy Sheldon (Chair)]: No. If it's unmapped, you can develop it. It's not regulated. If it's not on the map, that's a big, big change. It's against Yeah. Existing rule and statute.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: And so by saying it's an allowed use, it it has corresponding consequences, like not needing to do mitigation, not needing to do compensation. So

[Rep. Amy Sheldon (Chair)]: Representative Logan. Yeah. So I guess the way I would restate that would be that they didn't need to say that they were circumventing statute in the EO to circumvent statute by just making it an allowed use. It's circumvents. It appears that it may circumvent statute based upon the way that the rules are being promulgated.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: I'm just saying that the draft rule as currently drafted will raise issues about conflict with statute and conflict with what is required under the statute. And I think if they call it an allowed use, they will have arguments to say, no. It's something that the secretary has discretion to authorize under statute, and, therefore, it doesn't conflict with statute. But that takes you back to the purpose of regulation of wetlands, which is statutory and which is not being changed. And then that brings in the legislative intent argument, which I'm not opining on.

[Rep. Amy Sheldon (Chair)]: It's exempt from it. Randolph is entirely in it. Don't know. Opportunities now. Wow. Sorry. We

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: can go ruin all of these weapons.

[Rep. Amy Sheldon (Chair)]: Build it

[Rep. Sarah "Sarita" Austin (Clerk)]: all over.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: If they're on that.

[Rep. Amy Sheldon (Chair)]: If they're on that.

[Rep. Amy Sheldon (Chair)]: So there's another royalty entirely. 25 opportunity zones in Vermont.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: 25?

[Rep. Amy Sheldon (Chair)]: Based on census tracts, so if your town is entirely one census tract, I guess maybe your whole town cut it.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: So what what also is part of the conversation is act form 21 required the wetlands rules to be amended. And as you know, they're being proposed for amendment, but they're not including anything that you've required them to include in the amended rules. Yeah. For example, on page 26, first line, the rules are supposed to incorporate the net gain rule to requirements for permits. That that's I don't know if they're going to do that. It's supposed to require the two to one ratio into the rules for permitting. It's supposed to require permitees to conduct five years of post restoration monitoring for the restored wetlands. Those rules are I have not seen a draft bill.

[Rep. Amy Sheldon (Chair)]: Exist.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: And the the deadline for those rules has not changed in the DEC miscellaneous.

[Rep. Amy Sheldon (Chair)]: Didn't change it to didn't change it?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: They are not proposing to change the date, and they're I have not seen. On page 27, section nine nineteen, One of the things that act one twenty one required is the agency to start reporting to you, the general assembly, on annual losses and gains of significant weapons in the state. That was supposed to begin 04/30/2025. That date has not changed. It's supposed to include the location and acreage of class two wetland and buffer losses permitted by the agency.

[Rep. Amy Sheldon (Chair)]: They did ask for originally asked for six months on the two to one mitigation miles to 12/01/2025.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: It's supposed to include the acreage of class two wetlands and buffers gained through permit related enhancement. Number of site visits and technical assistance. And then on or before April 30, I'm on page 28 on or before 04/30/2027, which has not changed in the DEC. Bill, they're supposed to give you a report on the status of the wetlands in the state, trends of wetlands, the results of the the mapping projects, relevant updates related to class one and class two wetlands to include additional identified. And then part of the conversation in 2024 was was to allow certain uses as allowed right away. And that included relocation of utility lines and poles adjacent to roadsides and temporary access to wetlands, river, and flood restoration projects that are currently out. There was concerns that that some of these things were not getting done quickly enough, not getting permitted enough. And you just said your agency, you're going to allow as an allowed use relocation of utility lines and poles and temporary access to wetlands, rivers, and flood restoration projects. And then you're moving out of wetlands. You're moving into section 15 D right now. When you have a direct discharge into Lake Champlain or Lake Mount for Magog, that direct discharge has to meet the point eight milligrams per liter standard for phosphorus. There are a couple of exceptions. We added a new exception in 2024 where discharges of less than 35,000 gallons per day from a municipally owned secondary sewage treatment plant using recirculating sand filters in the Lake Champlain drainage basin permitted on or before 07/01/2001, unless the plant is modified to use the technology other than recirculating sand filters. That's pretty specific.

[Rep. Amy Sheldon (Chair)]: Mhmm.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: And it was because it's specific to one plant that had done everything that it could do at the upgrade to take it out of the recirculating sand filters would have cost millions and millions of dollars for a a user base that was very small.

[Rep. Amy Sheldon (Chair)]: Sure.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: And so you decided not to put that financial burden on them to require them to still be permitted and still meet the standards that they're meeting, and a and r was okay with that. So so this is this is also related to the the proposed changes to the wetlands rules on the EO. But in section sixteen ten VSA twelve seventy four, there's enforcement authority for, any damage to the ecological functions of wetlands in violation of chapter 47, the water quality law, or chapter 37, the wetlands law, or that any person has failed to comply with any provisions of any order or permit issued in accordance with this chapter or chapter 37. The secretary may bring suit in the superior court in any county where the discharge damage to wetlands or non compliance has occurred to enjoin in compliance and mandate restoration of damaged wetlands. So, I think if the proposed changes to the draft rules are allowed uses, you wouldn't trigger this. But it's just another thing to reconcile when the rules go forward, how this reconciles with the draft rule.

[Rep. Amy Sheldon (Chair)]: Representative Chapin? Yeah. Can you describe why you think why you think it wouldn't trigger this? It seems like it would to me, so I'd love to hear your thoughts.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Well so the first one is any person has dischargers dis charging any waste or damaging the ecological function in violation of chapter 37. So if you have an allowed use authority, you wouldn't be in violation of chapter 37.

[Rep. Amy Sheldon (Chair)]: But what if your allowed use authority is in violation of chapter 37?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Chapter I'm sorry?

[Rep. Amy Sheldon (Chair)]: What if your allowed use is in violation of that? Could the developer be liable for breaking the state law under the EO?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: I I I don't think so. I think the way that they're gonna draft it is they're gonna avoid that, or at least they're gonna

[Rep. Michael "Mike" Tagliavia (Member)]: draft law.

[Rep. Amy Sheldon (Chair)]: The law is clear.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: But remember, you if you're gonna do an adverse activity in a wetland, you need a permit or you need it to be allowed to use. If you're one of those two things, you're complying with chapter 37.

[Rep. Amy Sheldon (Chair)]: So. Also says this chapter or Chapter 37. What's what's this chapter?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: That's the that's the water quality chapter. That's the one that prohibits discharges to waters or wetlands. Storm water. That's the entire that's what I call the diva chapter. That's, like, got everything in it. It's, like, three acre and reporting pollution to mine sewer overflows. And that's that's like the high profile stuff. It's in chapter 47. Water quality standards, TMDLs, all chapter 47.

[Rep. Amy Sheldon (Chair)]: It's a single family house, and it has a septic system. Maybe that septic system would be discharged.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: You can never know until you have the actual facts, but that's a scenario that could happen.

[Rep. Amy Sheldon (Chair)]: In that case, it would be a violation here.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: You would potentially have that. But then the question would be, would that wetland I don't know. I'm just speculating. But you need to ANR needs to figure out how they're going to reconcile. Bad barns want to happen.

[Rep. Sarah "Sarita" Austin (Clerk)]: Representative Austin? Yeah, just wondering who's liable if the state doesn't require that development doesn't follow best practices based on science. Like just this morning we heard the river, you know, Florida issue and how much it's going to cost for mantras to deal with this. Is this leading the CEO, is it, I mean, EO, is it now leading to another possibility that it's going to cost for monitors money to, if a house gets flooded or a septic system gets destroyed because of changing rules?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: I I can't say absolutely no, and I can't say absolutely yes. You know, it all depends on the facts of each situation. You know, if if you're gonna build in a class two wetland, even though it's not mapped, it's residential housing, you should expect at some point that your house is probably going to be flooded.

[Rep. Michael "Mike" Tagliavia (Member)]: And

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: then if you're in a flood hazard area with FEMA National Flood Insurance, will that ultimately affect the rates of your neighbors and other people? It might. It might. So, but if you're not in the NFIP, if you're not in the flood hazard zone, will it still affect your insurance? Yeah. Probably because Vermont is such a small pool that, like, when there's a fire at one ski area, then all the other ski areas have to, like, take out their wood stoves because, you know, that's in order to avoid the increase in the flood in those in their property insurance. It's such a small pool. You can't spread that risk, that that liability across enough people to keep the rates down. So I mean, it's really I can't say absolutely yes, absolutely no. Are there things that could happen here?

[Rep. Amy Sheldon (Chair)]: Great. We're hoping to get through this. Do we have you till three? And do you need

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: to Yeah. I don't have to go anywhere else after this.

[Rep. Amy Sheldon (Chair)]: Folks need a break right now, or can we keep going till the floor?

[Rep. Amy Sheldon (Chair)]: Right before the floor?

[Rep. Michael "Mike" Tagliavia (Member)]: Yeah.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: You can now go to page 32. This is dams. For purposes of of just efficiency and time, the big change in this is moving authority over a certain category of dams that are energy producing but not FERC regulated from the PUC's jurisdiction to DEC's jurisdiction. Right now, DEC or prior to act one twenty one, DEC only regulated dams that did not generate electricity. Now FERC regulates many of the the dams in Vermont that produce electricity, but there were dams created before FERC that were generating electricity and that are not regulated by FERC that the PUC was regulated. So you had two different dam safety standards, two different entities regulating two different inspection standards, etcetera, etcetera. You decided in Act one twenty one to for purposes of safety, design, change, etcetera, to move those PUC dams, which were like 23 dams, I believe, into DEC's jurisdiction. If there's a revenue, if there's an electric generation issue, PUC see still has authority because PUC has authority over electric generation. But now you have one standard, one entity reviewing dam safety changes, etcetera. You're not duplicating that across two different agencies with different standards, etcetera. So that's largely what you'll see here, and you will see multiple changes where it says the state agency having jurisdiction is changed to the department. So that's I think you can pretty much honestly, if if you wanna skip ahead, you can just

[Rep. Amy Sheldon (Chair)]: I wanna skip too lightly over this just because it's a topic of interest to the committee this session. And, also, we added a definition of dam removal here that I'm noticing.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Right. And and that was because later on in the section, you amend the revolving loan fund that was available for funding dam removal. And it used to be only essentially for just, like, emergency situations for a dam removal or fit or fix. You change that fund so that it's available for non emergency and emergency purposes. And what constituted a dam removal needed to be defined. And so that's really the first change in this chapter.

[Rep. Amy Sheldon (Chair)]: Change of jurisdiction, we understand that. Maybe that's everything.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: So dam removals, all actions needed to eliminate the risk of dam failure related inundation below the dam and include partial or complete structural removal to the extent that the dam is no longer capable of impounding water or liquid for sediment. That's an important thing to remember. A dam is not just water. It's potentially manure. It's slurry. It's sediment. It's other things that are held back by, and you can look at the definition of a dam, any artificial barrier that is capable of impounding water, other liquids, or accumulated sediment. So there are dams out there that you don't even know are dams. Page 34 going on to 35. This is the e section switching jurisdiction of the PUC dams to DEC except for those that are subject to regulation under the Federal Power Act. That means FERC. All of the records that PUC have for those dams regarding safety, construction, planning, emergency planning, they all get transferred to DEC. Page 36, whenever you're going to construct a large raise, lower remodel, reconstruct, or otherwise alter a dam that's capable of impounding more than 500,000 cubic feet of water, you have to get authorization to do that, DEC. Provided and you'll see page 36 in the middle of the page, provided that an app application for activities that require authorization under 30 VSA two forty eight, that's electric generation, shall also be approved by the Public Utility Commission. PUC still has authority over generation. And then the next few changes are basically just regarding the transfer. And why why don't we look stop at page 39, section twenty eighty six. In order to get that authorization I told you about, the agency needs to determine that the construction of the dam, the alteration, etcetera, serves the public good. And there's a list of what quantify qualifies as the public good on page 39 going on to page 40. So you might hear somebody say that Dan had to get a CPG. It's not technically a CPG. It just needs to be in the public good. Page 41. Before act one twenty one, there was a requirement that DEC employed a engineer to investigate property review plans and specifications and make additional investigation. You said the engineer needs to be under the control of DEC, so it include include an independent consultant hired by either the department or the project proponent. So DEC doesn't have enough engineers to, like, do review of all plans and specifications so they can just hire people to do it. The next major change is on page 44. The bottom of the page, all inspection reports available on the department website for public review. So every time there's an inspection of a dam, that inspection report is supposed to be publicly posted on DEC's website. And for dams owned by the state, the department shall provide the inspection report to a designated point of contact for a dam at the state entity owning the dam. So you're gonna know how and what shape dams in your towns are in because the inspection reports have to be publicly posted and publicly circulated. And then if the department determines that a state dam is unsafe and in need of repair or removal, the department shall immediately notify the designated point of contact of the state entity that owns the dam and make this information available on the public on the department website. And then you get to the changes to the dam safety revolving loan fund. So this used to only be available for reconstruction, repair, remove, breaching, draining or other action necessary to reduce the threat of a dam failure. Well. The argument is you're waiting for it to get to a condition where it's gonna fail before you put resources into to repairing it, altering it, etcetera. Shouldn't there be some opportunity to repair a dam before it gets to that point? And so that's what this change does. Page 45 sub B. The funds shall be available for both emergency and non emergency projects to be eligible for or alone. It shall meet the conditions associated with the funding type. For emergency funding, it has to provide emergency for critical time sensitive temporary safety or risk reduction measures such as reservoir drawdown, partial breach, stabilization of buttressing. And to be eligible for emergency funding, the dam must meet the following criteria must be under the regulatory jurisdiction of DEC, must be in need of critical time sensitive safety or risk reduction measures. For non emergency funding, for permanent safety or risk reduction projects such as repair, rehabilitation, or removal, To be eligible, you must meet that criteria. That's being DEC's jurisdiction must be classified as significant or high hazard potential dam. So high hazard means if it fails, it will cause the loss of life. Significant means if it fails, it's gonna cause potentially cause the loss of life and will cause the damage to property. So that's high hazard significant. And then there's high hazard with population at risk. So high hazard, if it fails, it's gonna create a loss of life. And, generally, it's like if it's a thousand or more or a 100 or more. So just be aware of that. For funding for non emergency repair or rehab, the dam owner shall provide an operation and maintenance plan, safety compliance schedule, well as financial information to show sufficient resources are available to maintain the dam and comply with dam safety rules. And for non emergency that will for non emergency construction, it shall prove provide proof of the applicable legal and state federal permits. For non emergency funding and alternative analysis must be done to look at what else could be, implemented to address the non emergency needs. And then it's it's gonna be more clearly a a revolving loan fund where it's gonna be low interest, no interest loans. Some grants, but rarely. And then they will report to you, page 48, regarding operation administration of the dam safety program, details on loans, description of each project funded for emergency loans, justification for the emergency and the explanation of why it was needed, and then a projection of loan repayment that that the the revolving loans that that GEC administers right now, they do pretty well. They do pretty well. They don't have many defaults. They're they're they're healthy. Page 49, section 11 o seven, match to state Frankfort with fiction. Same page 51, section 19. And then page 52 line, section 20 subdivision to the dam safety design standards. They were supposed to be adopted by July 2024. Then you gave them to July 2025. They didn't ask for an extension because I think they're close, but they still haven't issued them.

[Rep. Amy Sheldon (Chair)]: Dam safety what?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Dam safety standards, like, for how to construct, how to install, how to do all of that. And then there's a study committee on dam emergency operation planning. So when there's a dam, there are things called emergency operation plans that generally municipalities utilize to respond to a threat of failure of the dam. Many municipalities lack the resources to adequately implement the emergency operations plan, equipment, technology, etcetera. So there was a a study committee on that and how to improve that. Were hazards caused to shift responsibility from emergency planning from individual municipality to regional authorities, how to improve regional implementation, how to fund dam emergency action planning. There was a report on this. It wasn't earth shattering. They you know, the the agency isn't really making recommendations anymore. They're just like, here are your alternatives. You pick. So that's kind of what they did, and I can provide you with that report if you would like it.

[Rep. Amy Sheldon (Chair)]: It's enough. And there's

[Rep. Amy Sheldon (Chair)]: a bill coming that follows up on those recommendations. Did you take us one of the altruisms in your bill? Yes. Yes. Yes. We did. So that'd forthcoming.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Section 23. Remember, I told you that there were these class of dams that PUC had regulated because they were were generating electricity before the FERC was created for the Federal Power Act. Well, it's possible that FERC could regulate that. And so before transferring them, there was this concept that, hey, let's figure out if FERC's gonna regulate that. And so by 07/31/2025, the EC in coordination with PUC shall file petitions for to to determine whether projects currently under PUC's authority fall under FERC's hydroelectrolytes. And that's gonna take years just FYI. And they might not even respond.

[Rep. Amy Sheldon (Chair)]: But did they do it?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: I do not know. Section 24 is is just the trans language regarding transition from PC to DEC and then the rulemaking for the dams. Page 57, section 25. This is moving out of dams, moving into basin planning. Do you know what that basin planning is?

[Rep. Amy Sheldon (Chair)]: Some of us might not.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Yeah. There there is a requirement under the federal clean water act that states engage in the continued planning process for the use of their surface waters. And not implements that planning requirement by requiring that every one of the major basins, river basins in the state have a plan for how it's gonna be used, designating the water classifications in the water, identifying issues in the water, identifying where certain development might cause issues in the water, identifying projects that could be done in the water to improve water quality. So that's the basin planning process. For years, the basin plans were behind schedule considerably. But Neil took over, and Neil really kicked that division into, like, into compliance. He did a really good job with that. And now all the basin plans are up to date. They are doing it. They are identifying all the things that they're supposed to identify. One of the things that they this language would require them to do is part of what they have to go out and do. They shall identify opportunities to mitigate impacts of severe precipitation events on communities through implementation of mace nature based restoration project or practices that increase natural floodwater attenuation sort. They're going out and looking for flood control projects that are nature based as part of the basin planning process. And then you get to foam. So expanded polystyrene foam, Styrofoam, historically was used to float docks, buoys, barges, etcetera. But it breaks down over time, and it breaks down into to significantly small particles that are very difficult to control or clean up. And many jurisdictions have been moving to the requirement, not to ban the use of it, but to encapsulate it. That it can still serve that purpose of floating the dock or the buoy or the barge, but it has to be encapsulated to prevent the breakdown and release of the Styrofoam into the water. But if you go to your dock store these days, you're you're gonna find no encapsulated Styrofoam. It's all encapsulated. It was largely when this was passed, the doc I'm sure you've all seen the doc doctors car or trucks. And the doc doctors came in and say, we don't have a problem with this. This is what we use anyway. And so what will be interesting is the legacy use, which you did not really prohibit. You just said that it's a nuisance. So moving through this chapter, page 60, for when you're installing, repairing, removing, and selling buoys, docks, or floating structures, the the polystyrene foam needs to be encapsulated. That's the bottom of page 60. You prohibit the unencapsulated polystyrene and open cell use or open cell installation or methods of encapsulation. There's methods on how you encapsulate, including some abilities for small gaps and other connections. And then for sale or distribution, you ban the sale distribution of unencapsulated. But you don't require the removal of the legacy. And that was a big issue, and it was decided not to do it. But you then included this provision that the use of unencapsible polystyrene as a flotation device in waters is declared a nuisance and public health hazard and may be prosecuted as provided in the Vermont revised statutes. And I don't know who is ever gonna do that. I don't see an attorney general prosecuting that as a nuisance, but it's there. State's attorney local for I just don't see that happening, but it's it's there. And then there was a required report on whether and how to waive ANR or Natural Resources Board permit fees for low income or others. Not surprisingly, the report was no. Don't waive them.

[Rep. Amy Sheldon (Chair)]: It's what?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: It was no. Don't waive them. They didn't wanna create an equity be between the permanent activities.

[Rep. Amy Sheldon (Chair)]: Thank you, Michael. Thank you, Michael.

[Rep. Amy Sheldon (Chair)]: Very helpful. If folks

[Rep. Amy Sheldon (Chair)]: have questions, they can go to Michael directly and get them answered. And we're to the floor now. So we're adjourned for the afternoon.