Vermont Legislature SmartTranscripts:

[Rep. Amy Sheldon (Chair)]: All right, we're reconvening our morning meeting and hearing from welcoming Karina Daley from VNRC on H632.

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: Thank you. For the record, I'm Karina Daley. I am the Science Restoration Director at Vermont Natural Resources Council. Thank you for having me today, Chair Sheldon. Appreciate it. And members of the committee. I come with my background. I work I manage the derelict dam removal program for VNRC. I have a Master's in Conservation Biology. I was in the consulting world for over fifteen years as a consulting wetland scientist, wildlife biologist, and river ecologist. And I also work on state water quality policy. So that's the background I come to you with today. And I chair the Vermont Dam Task Force as well as the Lake Champlain Citizens Advisory Committee. So I wanted to testify both on different portions of this bill. The stream alteration portion first and then the restoration and dam order portions, which are new. So I think we'll start with and I don't have slides, so really just a conversation and share my thoughts on section 10, the threshold for the stream alteration permitting. I'll share that the environmental community, including the NRC, has concerns about removing jurisdiction of our small headwater streams. These streams hold the key to river health and stream function for our larger streams. So putting a number of 0.5 square mile watershed jurisdiction on our perennial headwater streams is not something that we support. Recognise that this is coming from a place of capacity within the Rivers program, and their work level has increased with the frequency of these storm events. Recognize that I don't think that is a reason to reduce jurisdiction and oversight of these streams. So that is incredibly concerning to me on the level of thinking of Vermont conservation design and connected systems, connected forest systems, intact river systems, to fracture the jurisdiction of our perennial streams in that way is completely fragmenting a really important system to our larger rivers. You know, I heard testimony from Mr. Kimon earlier regarding lowering the threshold to 0.25, again, as a way to come in the middle and help address that capacity issue. I think the Rivers program really need is more capacity and more staff, and it shouldn't come at the impact of taking away jurisdiction of our perennial streams. I think we're looking at something like right now, they're saying they have jurisdiction over 23,000 miles, plus or minus, and it would drop that to 10,500 if we were at the 0.5 threshold, or it would drop it by an additional 4,000 or there would be, I think, 6,000 more removed if they were going to the 0.25 threshold. They would have jurisdiction over 4,000. That's a lot of river miles. And those river miles and headwater streams include projects that I'm actively working on as well as others in the restoration community related to dam removal.

[Rep. Amy Sheldon (Chair)]: We have maybe some questions for you on this. Representative Chapin.

[Rep. Ela Chapin (Member)]: Can you give us some examples of projects that happened in those kinds of headwaters that you an example of a project that would right now need a permit, but under this change would not, and what kinds of impacts you think really need that oversight of a permit program. Yeah. We just need we need

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: some examples. Examples. So as I think we heard the Rivers program testify last week, over 80% of the projects that they're, that they're permitting are infrastructure projects. So culvert replacements, embankments, that type. What we the projects that we would have in our restoration projects, which is derelict dam removal, floodplain reconnection. Process based restoration doesn't necessarily require a stream alteration permit, but that work happens in those headwater streams.

[Rep. Amy Sheldon (Chair)]: So those are the projects that we see. But can you speak a little bit to the up and downstream ecological impacts and why those headwater streams are so important? For me, this feels like the ounce of prevention is worth a pound a cure kind of a thing, and I want to make sure that we understand that staph is under strain, but that we're kind of using the right tool for the jobs.

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: So our headwater streams provide groundwater. So it's often that connection with groundwater seeps up in those small order streams. So it's that cold groundwater connection to our surface waters. So that is the water that keeps our rivers cold. That provides dissolved oxygen to our rivers so that our aquatic life can breathe. It provides food habitat for fish, amphibians, and insects. So it is those headwater areas are important refuges for both habitat and for water quality. Not to mention flood resilience. I think we've had a lot of impact in our headwater streams. Not so much maybe the flood inundation impact, but the erosion impact from flooding in those smaller streams as well.

[Rep. Amy Sheldon (Chair)]: Yeah. I mean, I think what I was hoping you might speak to is the impact of, like, putting a culvert in incorrectly and the up and downstream effects of triggering a head cut.

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: Yeah. Certainly. So if we don't have jurisdiction over those small areas and we're putting infrastructure in those places or burning those areas or dredging those areas, that's going to change the river connection piece for wildlife habitat, for natural stream process, flood resilience, and water quality. And it would potentially exacerbate further impacts downstream.

[Rep. Amy Sheldon (Chair)]: Representative Essex. Yeah. Given that the impetus for this change is is lack of capacity, and we would like to make folks in that program's lives a little easier. We did hear that one of their real time consuming projects is actually going out to sites where there are these small streams to determine whether they're in the program or not. And so I'm I'm wondering if, you know, maybe half a square mile is not

[Rep. Amy Sheldon (Chair)]: the right number, maybe a quarter of

[Rep. Michael "Mike" Tagliavia (Member)]: a square mile is not the right number, but is there a number which we an area number which we could reasonably use as a proxy and so that we aren't sending folks out to do site visits at least to relieve some of that burden and knowing that, you know, we might capture, you know, streams that we wouldn't otherwise capture with the current process, and we might do some on

[Rep. Amy Sheldon (Chair)]: the other end, but maybe on balance, we are we're we're

[Rep. Michael "Mike" Tagliavia (Member)]: doing a reasonably good job of getting what we want in terms of the health of our environment.

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: Again, I don't threshold approach of identifying whether it's 0.25 or 0.5 or some other number. I think it's that scaled approach that's sort of introduced in Section 11 of this bill is just having more research to be done. I support that fully, and I think that that is the right approach because different river sizes transport sediment differently and that substrate changes. I think that's the first step before we start to roll back regulation and protection of our rivers to some I think originally the statute was 10 square miles, and obviously they're not proposing that, but it's concerning that we would default to that when it's capacity issue.

[Rep. Michael "Mike" Tagliavia (Member)]: I guess I'm wondering if there's a way that if the number was small enough that we wouldn't actually be rolling things back in a significant way, is the question. Like, if we had a small enough area number where they could just look on a map and say, Oh, you're in or you're out. And the difference between doing that and actually doing site visits would be really mean.

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: Well, I think that what I'm saying is that all perennial streams need to be looked at. So it's the mapping. So they can not do a site visit if it's not a perennial stream. But if it's mapped as a perennial stream, then that requires attention. Otherwise, we're going to put infrastructure and dredge those areas.

[Rep. Michael "Mike" Tagliavia (Member)]: So then could we have the best of both worlds, where we're including all the mapped perennial streams? And for the ones that aren't mapped, we use an area model to eliminate the requirement for a site visit. It's areas on the

[Rep. Amy Sheldon (Chair)]: map. I

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: think we are using a map now. And what I will say is that the LiDAR mapping that's currently being done is going to expose There's a lot of rivers that aren't accurately mapped. So there's actually going to be more perennial streams probably coming forward with the new accuracy of the mapping. And I think we need to recognize those resources and continue to work to protect them. I fully understand the burden of the lack of capacity is an issue, but I don't think it should fall on the environmental impact of changing. But related to Section 11, I think that we really support the idea of a scaled approach And whether that falls on ANR or a study, more of an academic research study, I think both of those are important and would support taking that burden off ANR and moving that to academia if that was the best fit, because there's work to be done there. With that, I'm going to transition to the section 18, which is the restoration language. And I've testified on this before, so I'm going to summarize more. But the problem here is that we have these aging dams and we have increased storm events. And the goal is trying to make our communities safer and relying or restoring natural processes, natural river systems, for flood resilience and public safety and water quality. Right now, we are not able to implement those projects with the scale that is needed. So we are encumbered by timelines, funding timelines. So we hold grants to do this work. Those grants fall under certain timelines. And we are really trying to do this work at the pace needed based on all of the storm events that have happened and folks coming to us and wanting to reconnect their river and remove their dam, their hazardous dam. And it's not just dams, it's also projects related to floodplain restoration. So sometimes it doesn't include a dam, it just includes reconnecting the river to its historic floodplain without a dam in context. So that's another example that's different. But certainly, I think the majority of this work is related to dams. I think it also could include culverts. I know culverts were brought up in previous testimony. And those would only be culverts that are providing aquatic organism passage. So it's really specifically restoration culverts versus infrastructure replacement culverts. And that would need to be identified. Maybe I'll just open it up for questions related to the restoration piece.

[Rep. Amy Sheldon (Chair)]: So, you able to hear Deputy Commissioner Kitamani? Yes. So, you said, think it's too complicated for general permit. And I think helping us, I'm sure you've said this before, but reiterating, the barriers now, I mean, I think we understand the current permitting requirements are mostly development based, not restoration focused. Right. And that's the problem you're trying to solve. But, certainly, there are times when going through that permit well, that permitting process can be helpful because different departments within the agency of natural resource sometimes have different goals, you have to work those things out, and that's what happens in the permitting process. So, I guess speaking just a little bit more to why you think it is, or if you still think the general permit is the right tool for this, and how you would respond to the thought that it's perhaps too complicated for the general permit.

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: Yes. So I agree that it's not going to be an you know, there's going to be work involved in drafting this permit, and it does include a lot of different programs within DEC that are at the table here, wetlands, river engineers or stream alt, floodplain, stream flow division, and dam safety, I think would be the major ones. But we do I think it makes perfect sense to have one permit where all of those players are looking are reviewing this project in the same lens. Because right now, the the the inefficiencies of having to to get all of these people to the table in multiple Zoom meetings or field visits, and one person misses a meeting, we get from preliminary design to 60% design. And that and they've provided comments, we've given them all these different platforms to weigh in on these projects that we're trying to move within, you know, an efficient enough time to actually meet the goals of the project and the financial obligations we have and the urgency of the situation. And then we're having to redesign. I was in probably, I believe I was in seven different DAM meetings yesterday for different projects. And two to three of those projects, we're now at final design hoping to implement them in 2026 construction season. And we're having to go back to change our design based on input from regulators of the agency, even though they have been involved, like, from the get go. So I think it's like this issue of we're really trying to involve all the stakeholders very early on in the process and get them along so that they have opportunity to weigh in and review projects. But there's lack of capacity there, and they haven't come together to provide consistent framework for how to move these projects forward. So that's what we really need is that, like, consistent framework to move them forward and it for that framework to be predictable and efficient. And I think in building that general permit, a team will come together within ANR from each of those programs and and help draft that language.

[Rep. Amy Sheldon (Chair)]: I guess my understanding of most general permits is that they're they're self certifying. And I Yeah. Is that is that how you're imagining this? No. Okay.

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: No. I'm not imagining that.

[Rep. Amy Sheldon (Chair)]: Think imagining a single permit.

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: Yes. A single permit. A single permit that, you know, the complexity of these projects, I appreciate that it requires the review of multiple different sections of DEC because I think I think that's important to make the project stronger. But I'm not looking for self certification. Just one. One permit or one place to go where we have consistency.

[Rep. Amy Sheldon (Chair)]: Okay. That's an important distinction between what we have on paper right now and yeah. Okay. Anything else you want us to know about your perspective on this need Yeah. For

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: guess it would be so like I've heard the language reporting versus non reporting. This would be a reporting permit versus a non reporting permit. One way to think about it,

[Rep. Amy Sheldon (Chair)]: a general permit. Not my experience.

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: Okay.

[Rep. Amy Sheldon (Chair)]: I've done a couple of these. Not nearly probably as many as you have. I did a few. Anyway, Okay. Any other comments on the bill? Questions?

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: The next section, the dam order review. I think what we heard from the Commissioner was that this, you know, we need to get the Act 161 Phase two rulemaking forward, and the Flood Safety Act. Both of those things are really critical. We do not have the capacity to move this as well. All we're asking for here is an examination of the environmental review process for a dam order to see if the baseline of whether the So this is, again, our As a result of all of these floods, a lot of dams were impacted. The dams are being repaired without consideration of whether the dam should even be there in the first place. So the public good criteria of water quality, fish and wildlife impacts, recreation, aesthetics, all of those things start from a baseline of the dam being there versus what we're saying is, should that baseline change, could we examine that and look at whether the baseline should change of should the dam even exist in the first place? Because the long term benefit of the free flowing river might provide better public safety, water quality, and wildlife impact than repairing the dam in the short term. So it's just a review of that. And I you know, if that needs to be pushed till after phase two rulemaking, I support that. And I heard that loud and clear from from the commissioner's testimony.

[Rep. Amy Sheldon (Chair)]: But you'd like to see it still in there.

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: But I would like to see it see it still in there. If that if that deadline needs to be pushed back for, you know, first to have require the phase four remaking, that's fine. But, again, this is back to public safety and thinking about what is the public good in the long term. Otherwise, there will just continue to be this process of dams getting repaired to meet the immediate concern of public safety versus the opportunity for removal.

[Rep. Amy Sheldon (Chair)]: I guess what I heard the deputy commissioner say was sort of well, first of all, the dam safety was their focus. The dam safety division's focus was safety of the dam. And there was some reluctance to make get involved making recommendations that a removal would actually be in the public's best interest. But what I'm hearing you say is that, in fact, sometimes the removal is in the public's best interest. And when the benefit cost analysis is done, the removal should be on the table. And right now, it isn't. Correct.

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: Correct. But what I also heard was that with the phase two rule making, there will be more stringent requirements on dam owners for inspections and maintenance. And so how that fits into how dam orders will be administered moving forward is, I think, important. So the sequencing of having that phase two rulemaking first makes makes sense and should happen. And we've been working trying to that's been since 2018, that legislation, and it's 2026. So it's a long time. It's a long time. It's a long time.

[Rep. Amy Sheldon (Chair)]: And remind us where the rulemaking is now, and are you engaged in it?

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: We have heard that the phase two rulemaking will start up soon in 2026. Soon. That we're hopeful for

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

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: that's why we have to start

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

[Rep. Michael "Mike" Tagliavia (Member)]: Can you give me a couple of examples of after looking at a dam where it wasn't recommended to remove the dam in the interest of the public good?

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: Yes. And again, I want to clarify that these are the non powered, non federal federal dams that Dam Safety has jurisdiction over. And when there is a repair to a dam, so I gave the example in testimony last time, there was a dam called the Marble Mill Dam on the Battenkill River in, I believe, Dorset. And that dam was a privately owned part, you know, his landowner's home was right adjacent to the dam. And there was impacts to the dam from the storm events, I believe, of 2023. So the plan was to repair the dam. And that dam is also below the Dorset Marsh, which is a Class I wetland. And the Battenkill is an outstanding resource water. And that dam was repaired without so we provided comments both VNRC, Trout Unlimited. I believe there were some other folks, local watershed organizations that provided comments to really look at the benefits of what that dam was providing versus what the benefits would be with that dam not being there. And the the dam order was issued for the repair of the dam without looking at the alternative of removal as a And it was a I can't remember the hazard rating, but I believe it was a significant or high hazard dam.

[Rep. Amy Sheldon (Chair)]: Representative Austin, what was the cost? Do you remember what the cost was for repair?

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: No, I don't. It was

[Rep. Amy Sheldon (Chair)]: a private dam.

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: It was a private dam, and I'm not even sure that yep. It was a private dam.

[Rep. Amy Sheldon (Chair)]: So does that mean that the private property owner repaired it at their expense?

[Karina Daley, Science & Restoration Director, Vermont Natural Resources Council (VNRC)]: That's my I know they received the dam order for to do that work. I don't know if the work has been done. Thank you.

[Rep. Amy Sheldon (Chair)]: Members, Kat reminded or has forwarded the to all of us. The DMV with the on the admissions program. So it's at the top of your email. I'm not seeing it. I'm not checking mine right now. And are there other public service announcements for witnesses? Did we hear back from Bill Smith? Yeah. Sort of. We will try to get the fire extinguisher people in right now, but we will we will take a break. Please don't go too far because of that. I'd like to hear from them.