Vermont Legislature SmartTranscripts:

[Rep. Amy Sheldon (Chair)]: Good afternoon, and welcome back to the House Environment Committee. We are shifting to yet another bill from a sister committee, two sixty thousand seven hundred eighty seven, an act related to the regulation of forestry under Act two fifty. It's short, but I think, just to remind the committee where we're at and if anything has changed since the last time we spoke with you, that would be helpful.

[Ellen Chittenden, Office of Legislative Counsel]: Sure. Ellen Chittenden, Office of Legislative Counsel. So today, draft request 26 dash seven eighty seven is the House Agriculture Committee's committee bill on the regulation of forestry under Act two fifty. Today's draft is draft 3.2. The changes from the prior draft are highlighted in yellow, and they're very minor. And the changes that are in this draft are the result of conversations between the Land Use Review Board and the Agency of Natural Resources, including the main office of the agency as well as the Forest Parks and Rec, and they agreed to this language. So far, I believe the House Agriculture has also agreed to this language, although they haven't voted it out yet. So some further context to remind you. Since 1970, under Act two fifty, forestry and logging have below 2,500 feet have been exempt from Act two fifty regulation, and also farming below 2,500 feet. And those are long standing exemptions. There was a report required under Act 181 from the Land Use Review Board looking at what changes could possibly be made under Act two fifty to further support the industry because there have been a few amendments in the last few years related to not specifically the forestry industry, but wood products manufacturer has come up, as well as sawmills, and so they asked the board to look at the permits that have been issued, permit conditions, and if there were any recommendations from the board on how to improve the process to support the working lands industry. And so recommendations nine and ten out of that report are captured in this bill. And the recommendation 10 is very simple and you've seen in the prior draft, it's still in this draft, to restore log and pulp concentration yards, so they're exempt status. They previously were exempt because they're part of a logging operation. They were sort of incidentally, accidentally added to the definition of wood products manufacturer that made them not exempt. So that was one of their recommendations was to make them exempt again. That is in this bill. And then the other recommendation was, number nine was to make sure that it was clear that the forestry and logging industry had the same full aspects of exemption that farming has, which has been true, but the language that's in section one and section two goes further to just make it clear that the full extent of this exemption. The other recommendation that the House Agriculture Committee was interested in was recommendation number one, and that was that there be a guidancefact sheet produced by the Land Use Review Board explaining all of this simply for the forestry industry, for anyone who may need to get a permit or may be exempt and what their options are. And so the Land Distributed Board worked with ANR and they have already done that. And so that is no longer in this bill. They have produced this fact sheet is already available explaining some of these specific provisions that are specific to the forestry industry and wood product manufacturers. So not much has changed in the bill from the prior draft, but section one is amending 6,001, which is the definition section of Act two fifty. And the new language is at the top of page two. And so what has happened here that you can't see on this page is that the prior draft had definitions for forestry and logging.

[Rep. Amy Sheldon (Chair)]: The new definition?

[Ellen Chittenden, Office of Legislative Counsel]: Yes. And the committee discussed, and I think multiple of us had pointed out there had not ever been statutory definitions for those terms since Act two fifty was enacted in 1970. And so would adding those definitions add clarity or make it more confusing when it's been as as part of the practice and they have working definitions already? So those definitions were removed, but one of the pieces they thought were important was this sentence. Forestry as referenced in Subdivision D of the subdivision does not include conversion of land for nonexempt uses, such as for commercial or industrial purpose constituting development as defined in this chapter?

[Rep. Amy Sheldon (Chair)]: It's a double negative. Yeah. Help me out. Let's not include conversion of land for nonexempt develop forestry doesn't include k. I think I'm getting there.

[Ellen Chittenden, Office of Legislative Counsel]: Forestry is exempt under Act two fifty below 2,500 feet, and that involves logging, so the cutting of timber on land. If you're just cutting down trees so that you can build something that is going to be requiring an Act two fifty permit, that does not make you exempt. If you are if you have a

[Rep. Amy Sheldon (Chair)]: You mean the building isn't exempt? Is the cutting of the trees still exempt?

[Ellen Chittenden, Office of Legislative Counsel]: No, not necessarily. So if it's a forestry operation with a land management plan and different practices, so if you can't use the exemption of forestry or logging as a shield to get your project out of Act two fifty. If you're if you're also going to be doing construction of a development, that would be and you have to cut the trees first. That doesn't mean you are exempt from Act two fifty.

[Rep. Amy Sheldon (Chair)]: I thought they were?

[Ellen Chittenden, Office of Legislative Counsel]: It was a clarification the board thought was important.

[Rep. Amy Sheldon (Chair)]: So I have a question, though. The way this is drafted, just we have a C above, and then this refers to a D, but is that a but D isn't shown.

[Ellen Chittenden, Office of Legislative Counsel]: Yeah. So D is where the definition of what is not development is, and that is the first place where it is mentioned that forestry below 2,500 feet is exempt. So I guess it could be in here for clarity, but that is where D is where the exemption is.

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

[Ellen Chittenden, Office of Legislative Counsel]: So then f is this new provision, and so, yes, what is also not shown in the asterisk is what is e. E is language that is very close to f, and I will read to you, but specific to farming. And so this is one of the clarifications they wanted to make sure were clear that there is language in e specific to farming, but it is also true for forestry and logging and forestry. So I'll read that to you now. And this was in the prior draft. The only change is a small change at the end of this paragraph. When development is proposed to occur in a parcel or tract of land that is devoted to logging and forestry, only those portions of the parcel or the tract that support the development shall be subject to regulation on this chapter. Meaning, if most of the parcel has logging and forestry on it, but there is going to be construction of a development that would need an Act two fifty permit, only those portions of the parcel related to the development are subject to that permit, not the rest of the parcel. Permits issued under this chapter shall not impose conditions on other portions of the parcel or tract of land that do not support the development or necessary mitigation areas and that conflict restrict or conflict with the accepted acceptable management practices for maintaining the water quality on logging jobs in Vermont, which is the official title of the the AMPs for forestry. So language like this already exists for CAPMEI, and what it is saying is that unlike other Act two fifty permits for other types of development, generally an Act two fifty permit attaches to the whole parcel, and the Act two fifty jurisdiction has a whole parcel. But if there's an exempt use happening, the logging and forestry, and someone is going to also now put a development on that, the permit and the jurisdiction only attaches to that area. And permit conditions cannot attach to the forestry portion of the parcel. Then there is some question of if there is mitigation areas or things that would conflict. So permit conditions cannot conflict with if there's mitigation as part of the development, or they can also conflict with the AMPs as part of the forestry part of the parcel. This has largely been the practice, but again, making it clear because in statute, there's already a similar provision for farming.

[Rep. Amy Sheldon (Chair)]: Any negatives? Shall not impose conditions on is there a way of saying this in the affirmative?

[Ellen Chittenden, Office of Legislative Counsel]: I'm gonna say no.

[Rep. Amy Sheldon (Chair)]: Negative of you.

[Ellen Chittenden, Office of Legislative Counsel]: So and part of the reason is because this section is the inverse of section two. And so these two provisions work together for two different types of the same situation. So in this situation, in F, the starting point is that you have a partial that has been exempt from Act two fifty because forestry is happening on it. And now they're going to add some development.

[Rep. Amy Sheldon (Chair)]: Well, the activity is exempt, not the parcel.

[Ellen Chittenden, Office of Legislative Counsel]: The activity has led so far to the parcel being exempt and that land use likely will continue. And so there is this sort of special status of only a portion of the parcel dedicated to development that would trigger the need for a permit is going to be part of that permit instead of the whole parcel, which is typical Act two fifty jurisdiction. The opposite is true in section two, where there's already Act two fifty jurisdiction as part of a permit, but then if exempt use of logging or forestry is going to be done, Act two fifty jurisdiction for a permanent amendment will not be needed because that is exempt use. So in some ways, it is a little bit redundant because this is already the current practice, but it's trying to be very clear what those situations are so that it doesn't dissuade anyone from trying to undertake this activity.

[Rep. Amy Sheldon (Chair)]: I'm just trying to understand the addition of so I get I get both of these things except for the that restrict or conflict. So permits issued under this chapter shall not impose conditions that restrict or conflict with AMPs Anywhere on the property or only where the logging is happening? Like, me, what is the problem this is trying to address?

[Ellen Chittenden, Office of Legislative Counsel]: Yes. I think I think it would be anywhere on the property because it's trying to acknowledge that they may be constructing something, But if they have an active forestry management plan that is in compliance with the with the AMPs permit conditions on a small part of the parcel can't prevent them from doing what they're required to do by the agency.

[Rep. Amy Sheldon (Chair)]: There was the affirmative. Okay. Yeah, that helps. Thank you. I just needed to really I'm not great with double negatives. Representative Austin?

[Rep. Michael Hoyt (Member)]: Oh, I thought

[Rep. Amy Sheldon (Chair)]: you raised your hand. Everybody clear? No. That mud would be managed under the This one is pretty straightforward. Of the three bills we're looking at, I think I'm totally fine with this the way that it is. I just want to make sure everyone understands it before we move on.

[Ellen Chittenden, Office of Legislative Counsel]: Yeah. And the only change there is that we put in the official title of the AMPs as opposed to just saying AMPs. It's the full title of that document.

[Rep. Amy Sheldon (Chair)]: They don't change the title. No. K. You get that on.

[Ellen Chittenden, Office of Legislative Counsel]: We we make amendments all the time. Happy to amend it. Okay.

[Rep. Amy Sheldon (Chair)]: Thank you. I are we ready for Ellen to run away? Here. Need to be somewhere else?

[Ellen Chittenden, Office of Legislative Counsel]: Not until two.

[Rep. Amy Sheldon (Chair)]: We may. I want to just check-in with members and my own brain on where we left off earlier, the ag discussion. Does anyone have further thoughts?

[Rep. Michael Hoyt (Member)]: That one. Representatives on the one earlier on the agricultural zoning. Right? Yeah. Yeah. Before we left, representative Chapin made a number of points that I agreed with. Like, I don't a couple of I don't love the tiers, so I would like to see the bill restore the original understanding. I was heartened by the agency and BLCT, but they seem to wanna work together. I think it's good. So, I mean, I think, you know, restoring the original understanding, having a well designed sort of stakeholder group and report make a lot of sense. So, I mean, that's sort of where I left off. I'd like to see a section that admonishes the Supreme Court, making us confuse this. But I know that's probably not how I get

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: it from there.

[Rep. Michael Hoyt (Member)]: But, yeah, I mean, I'd like to, you know, I'd like to see it go back to the understanding of what was and then have stakeholders work to see what further regulations might be necessary. And I I do think, like, using the tiers just seems weird. Not that they still really are in the creation phase, but it's, like, using sort of the act one eighty one designations to allow municipal zoning. It just doesn't make sense to me. I think if there specific issues you're trying to solve at the municipal level, you can all draft something that takes it away from, like, the tier system and just addresses those issues head on.

[Rep. Rob North (Member)]: So that's sort of where I left off.

[Rep. Amy Sheldon (Chair)]: Thank you for that. That's a good summary of where I left off as well. Representative Chapin?

[Rep. Ela Chapin (Member)]: I think I'm I was still struggling to understand how this affects sort of homesteading, but I think my understanding is it really doesn't affect how zoning can affect homesteading. Is that correct? From what was a year ago.

[Ellen Chittenden, Office of Legislative Counsel]: I would need you to be a little more clear about homesteading. There is a provision here about the cultivation of food and chickens. That's it.

[Rep. Ela Chapin (Member)]: So I think what I understand is that currently what's in that section can currently be regulated by towns through zoning.

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

[Rep. Ela Chapin (Member)]: I think we're narrowing things around other livestock other than poultry. Yes. Okay. Thank you. So I just wanted to clarify for record, because I feel like I made maybe a misstatement about how much this bill impacts people's ability to grow their own food. I think there is a small window in there where we might be changing folks' abilities to raise a number of livestock on small parcels. So just to clarify that for the record, I'm a little nervous about rearrange I mean, we don't even have the bill recommending to rearrange this so much that we just go with the report instead of actually making these zoning The ability for towns to zone 1A, 1B, but I'm concerned about 1B. I don't know that I want to hold this up over the 1B, but I guess, is there ability to just are certain portions of towns basically eligible for 1b? And we could put that eligibility in here as opposed to actually being declared by the LERB

[Rep. Amy Sheldon (Chair)]: as one bit. That would be an even broader expansion of municipal regulation of farming. True. I'm sorry. That your motive?

[Rep. Ela Chapin (Member)]: No, that's not my motive. You're right. Would probably I do want to restrict it to the tier 1B areas. That's what I'm saying. Yeah.

[Rep. Amy Sheldon (Chair)]: Then let it I don't know.

[Rep. Ela Chapin (Member)]: I guess if there could be an easy other way to identify certain really dense areas, then maybe it's density. Don't know.

[Rep. Amy Sheldon (Chair)]: But

[Rep. Ela Chapin (Member)]: I also don't. I just want to clarify.

[Rep. Amy Sheldon (Chair)]: Well, that's what the league is saying. What is the league saying? Yeah. That it is that. Yeah. But there could be other parts of town that have density. Ours my town has other parts of town that won't be one a or b that have dense developments in them.

[Rep. Ela Chapin (Member)]: There's only a lot of 1B that's not

[Rep. Amy Sheldon (Chair)]: dense. Right? No. It depends on how you measure density, but there are people pushing for it to be not dense, I hope we don't go there. But right now, is 50 units on 10 acres, which is not what we're talking about in one a, but it's also not what some people are advocating for. Somewhere in between. Okay. We just have to decide what we're going to recommend on this. And I don't think we need for that. Thank you. I did send a draft letter to you and Michael on you're just citing that I was hoping. Haven't I don't think I've gotten back heard back from either of you.

[Ellen Chittenden, Office of Legislative Counsel]: I think I think Mike responded. I was elsewhere since I was last here.

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

[Ellen Chittenden, Office of Legislative Counsel]: I can look at it now. Yeah.

[Rep. Sarah "Sarita" Austin (Clerk)]: Maybe I'll skip over here.

[Rep. Amy Sheldon (Chair)]: So folks, I can share I didn't share yet because I wanted to make sure I wasn't making any misstatements the draft letter I sent, which was trying to capture the conversation we had about the data centers. Then in reviewing it, Michael says because we were talking about maybe recommending that a water threshold be established or and I said, would they already trigger by way of a water threshold, or what would they trigger without any changes? He says, as to your question, groundwater withdrawal of more than 340,000 gallons a day is already development. That requires an Act two fifty permit. If an existing data center or one less than 20 megawatts was withdrawing that much water, it would require an Active 50 permit. An existing facility was if they were not withdrawing 340,000 gallons a day but was withdrawing 57,600 or more gallons per day, it would need a groundwater withdrawal permit. If the existing facility uses surface water, it would likely need a discharge permit, and it may require surface water withdrawal permit once that permit is in. So, there are some existing triggers to developments that require a lot of water already in place. It's a summary of that.

[Rep. Christopher "Chris" Pritchard (Member)]: Representative Pritchard. How is that usage verified?

[Rep. Amy Sheldon (Chair)]: Yeah. Great question. Did I ask that yesterday? Did we talk about we did it with a cistern. That's kinda what I was doing. Like, how is that verified? There's nothing in asking how they would

[Rep. Sarah "Sarita" Austin (Clerk)]: They have one system that they need a discharge from it.

[Rep. Amy Sheldon (Chair)]: I don't know the answer to that. I would assume, to Ela's point earlier, that yes, at some point they're going to have to discharge. If they put it through their own on-site wastewater treatment or the town's wastewater treatment, we know. But if they discharge it back into the body of water they take it from, yes. I think

[Rep. Ela Chapin (Member)]: Are we switching bills? We're talking about data?

[Rep. Amy Sheldon (Chair)]: So, I'm going give Ellen a second. She's still on the yeah. Let Ellen read the letter I sent when we can switch bills if you're ready to.

[Rep. Ela Chapin (Member)]: What about ANR's request on the data centers?

[Rep. Amy Sheldon (Chair)]: Oh, that's what Jared's in the room

[Rep. Sarah "Sarita" Austin (Clerk)]: for. Hi.

[Rep. Amy Sheldon (Chair)]: Jared Carpenter, would you like to join us? Sure.

[Jared Carpenter]: Don, I think, can join us as well via Zoom, if not now in a a little bit. He's much more knowledgeable about the PFAS issues, obviously, than I am. I'm more more of a water guy. And even on data centers, this is a learning curve. So specific questions I probably can't answer about, for example, metering of water about how much is being withdrawn. I'm assuming that you have some sort of meter system or something along those lines just like you do in your home, especially if you're hooked up to a municipal system. But, anyway so for the record, Jared Carpenter, I'd like to make I'm.

[Rep. Amy Sheldon (Chair)]: So Kat sent us Billy Coster, we I think as he sent us language ANR would like to see in the data center bill, which we all got from Kat before lunch, I invited Jared in to comment on that. And John, if he's able did you is he joining via Zoom? He can if you And the

[Rep. Sarah "Sarita" Austin (Clerk)]: link posters, those changes are also on the website now.

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

[Jared Carpenter]: Is if it'll join in a few minutes. Well,

[Rep. Amy Sheldon (Chair)]: have you had a chance to?

[Jared Carpenter]: Just a few minutes ago.

[Rep. Amy Sheldon (Chair)]: Talk amongst yourselves.

[Jared Carpenter]: Yeah. I mean, I can I can talk to the to the water to the water red language? So I'll just go with by section by section. I think, obviously, it's the the the need for a groundwater withdrawal permit. Although sea has been struck, it's been included it been included further down as the in the effective water quality and water resource protection permits. The purpose a if you look up at c that was crossed out, the reason that was in in included specifically, it says for any groundwater withdrawal groundwater by the data center, notwithstanding the permitting threshold of withdrawal of more than 57,600 gallons of groundwater a day. The point being that if it was withdrawing 56,000 gallons, it would still have to get a water withdrawal permit or something along those lines. Even if it was below the permit threshold, the data center would have to get a withdrawal permit. I think Mike has once said that's 40 gallons a minute. Yeah. Recently. I think the preference is that any level of groundwater withdrawal, would be the preference. I think we can we can live with the threshold level if need be. Indeed, the surface water had to had several issues with it. I'll go last sentence first. The rules adopted by the secretary to implement 10 VSA ten forty three shall require the data centers cease withdrawals under drought conditions. That should be included in the rule, and it's not and I as as of right now, I don't think it's I don't think we ever included anything like that in the statutory language three years ago because we didn't envision data centers withdrawing surface water. That would be important. I mean, if we get a river or the lake or something in ground in in drought conditions, I would think that that would be a very important provision that drinking water, you know, especially also the groundwater section, that drinking water, aquatic biota, other other uses, designated uses of the river, John's zooming in, would be would be the priority over a data center. I think that language is important. Maybe we can include it anyways, but this directs here, the legislators directing ANR to include that in the rule. And also, it's gonna be I think I think pre rulemaking is supposed to start in July, formal rulemaking this fall, so the permit won't be available for probably a year. So they'd have to wait until to withdraw surface water when the permit is available. Otherwise, they wouldn't be able to. It's under ANR's language that's both of those are questionable whether or not they would have to cease withdrawals under drought conditions or could just start withdrawing massive amounts of water before the permit went into effect. It's a little withdrawal of surface water is a little wild west right now. Thus, thus the discussion on permitting conditions. And, you know, and two, regarding the water quality certificate, we have maintained that, you know, that all the applicable permits don't have the don't have the ability to look at the cumulative effect in the same way that water quality certificate does, I mean. A and R will argue and Mike has said it too that this is, you know, a unique situation because it's usually for something that requires a federal permit like a dam. Dropping a data center in Vermont is a little bit of a unique situation too. So we're sort of in uncharted territories, and I still maintain that someone who would have to get a water quality certificate and necessarily study erosion impacts, impacts on endangered species, impacts on, you know, flow levels, impacts on recreation would have to really look at the entire picture. Permitting just looks at what are you discharging into the river, for example, and are you in within within certain threshold levels. It doesn't look at the whole water system the way same way a water quality certificate does. So that's the input. I mean, are my thoughts at least. Yes, John. Hi, John. Those are my thoughts at least on the on the water quality certificates that we would like to see the surface water language Stay the same because of the drought language and that they would need a permit once the permits are available, but prior to that would not be able to withdraw surface water. But I think I mean, John, correct me if I'm wrong. We're we're okay with the with with the fifty seven six threshold on groundwater.

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Yeah. Like I said yesterday, I can't imagine a data center wouldn't trigger that threshold. I think that makes sense.

[Rep. Amy Sheldon (Chair)]: Sorry, but they're striking it.

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Well, they're striking that the way it was written is that you'd have to get a groundwater withdrawal permit even if you didn't meet that threshold, no matter how much. But they also say that you have to get all applicable A and R permits. If there's a groundwater withdrawal, then

[Rep. Amy Sheldon (Chair)]: I see. So you guys are okay with where they drafted it?

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: I think so.

[Jared Carpenter]: Yeah. I guess we're we're okay with what is now one. You're right. But not okay with the removal of two. We would like to see that stay in. And then I'm gonna defer to John on D on PFAS. Let's stick with these two first.

[Rep. Amy Sheldon (Chair)]: Okay, so you're Okay, but then you want to see the drought language remain. I think.

[Jared Carpenter]: Yeah, I mean, as I was saying. I'm fairly certain that we didn't include any any language in the initial bill. So it wouldn't be required to be in the rule about ceasing ceasing withdrawals during drought conditions. So I think that would be important to have.

[Rep. Amy Sheldon (Chair)]: So we have this withdrawal. It's so it's silent for anyone withdrawing from our surface waters during a drought.

[Jared Carpenter]: Correct. But nobody's trying to withdraw potentially 300,000 gallons either. Mean, that might be don't know yet.

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Don't know yet.

[Rep. Amy Sheldon (Chair)]: I mean, there's reporting happening right now, supposedly, right?

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Correct. I think the rules will have some provisions about availability of water. Have to go refresh my memory, but it's not as explicit as a prohibition. We

[Jared Carpenter]: can certainly push for it regardless of what's in the seven twenty seven. Whether or not there's prioritized uses, should you have that anyways or certain priorities?

[Rep. Amy Sheldon (Chair)]: Did we write in a minimum of flow, maintaining minimum flow for aquatic biota?

[Jared Carpenter]: Don't recall. I For can try to dig it

[Rep. Amy Sheldon (Chair)]: what's in front of us, you would be okay with sort of consolidated language except for and I'll ask the committee, are you okay with the removal of the notwithstanding of the fifty seven thousand six hundred? That's a threshold.

[Rep. Rob North (Member)]: Why would the proposed change just as it's written?

[Rep. Michael Hoyt (Member)]: The drought. I think he's just trying

[Rep. Rob North (Member)]: to consolidate it into let's just proceed with our normal permitting. They're going build a data center, the usual permits are required and all the details on how to achieve those permits are, you know, specified elsewhere. The drought thing, don't know, I agree that could be a problem. I don't know that I would want to include that here. Think I should just do that in general. How to deal with jobs across the board.

[Rep. Amy Sheldon (Chair)]: Like something else we should just change? Exactly.

[Rep. Ela Chapin (Member)]: Chapin. I worry about getting rid of C with that gallons per groundwater of groundwater a day because not so much because I think these should be treated different than other development, but because we don't have a threshold around what we think is appropriate water. I guess that somebody decided, use science hopefully to decide that that was a good threshold. I think what we're saying about data centers as a committee is we like missing any kind of water impact threshold. So I mean, I'm interested in having a extra check here on data centers to need a groundwater withdrawal permit. But I'm not sure it's actually getting at what we really want. It's just really careful overall permitting and consideration around a data center. So anyway, obviously, it's a mixed feeling. I'm noticing it's like one place where we're saying in this case, we won't have a more conservative estimate about water impacts. Anyway, so I could go either way on this, but I'm just observing we're missing that water threshold and information about it.

[Rep. Amy Sheldon (Chair)]: You have thoughts on the land use part of this bill? Because we are talking about the bill that was in that letter right now. And do you have somewhere to be at two? Okay. Did you have

[Rep. Ela Chapin (Member)]: I sent you a short response, just one other type

[Rep. Amy Sheldon (Chair)]: of It's okay. Okay, great. Thank

[Rep. Sarah "Sarita" Austin (Clerk)]: you. And an activity has a concept of pre existing development, so if something existed before the time of the regulation, there is a trigger that says if there's a substantial change to a pre existing site after the regulation comes in. So for preexisting data centers, if you're concerned, there may be some protection that if they expand in the future or change in the future that they would come under active duty jurisdiction at that point.

[Rep. Amy Sheldon (Chair)]: How did this bill called them out and said it wasn't applying to preexisting? Or somehow

[Rep. Sarah "Sarita" Austin (Clerk)]: Oh, I don't

[Rep. Amy Sheldon (Chair)]: That's what made me think of it when we started talking about it. No?

[Rep. Sarah "Sarita" Austin (Clerk)]: I'm not sure. I haven't I haven't seen the way it's tracked. I'm not sure.

[Rep. Amy Sheldon (Chair)]: Oh, it wouldn't I don't think it would have changed. It it wouldn't be new. Okay. Thank you. Think we're then headed towards the right track here, but for evaluating the language that's before us so we can continue there.

[Rep. Ela Chapin (Member)]: Ela? I just really want to say I think the water quality certificate is super important, and it is the only sort of comprehensive look that I wish we did that I think we're trying to actually get at to some degree. Anyway, I think that in terms of particularly water issues that this is this is the one thing we could hold on to is saying this is a pretty comprehensive Mhmm. Look at water impact. Yeah. And then I love this additional PFAS language. I don't pieces. Plan also I mean, I would keep a plan and prohibition on intentionally adding to us.

[Rep. Amy Sheldon (Chair)]: Remember when we talked about intentionally added under the products bill? That was tricky.

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Yeah. I I could speak to it a little bit. And I talked to Lauren Hurl before. I wanted to talk to her because she's worked on the intentionally added language a lot, so I could share her thoughts and our discussion. But first of I do wanna thank the, I think the agency language is a step in the right direction and I appreciate it. I think as we talked about yesterday or maybe the day before, that really monitoring is good and important, but it's better to deal with it upfront, right? And we talked about the applicant should maybe indicate what PFAS is being used. And then the agency and Act two fifty, the agency through mostly the water quality certificate, if it's required, an Act two fifty could address the impacts of it. So I think what the agency did is they tried to say, well, if you're intentionally adding EFAS, it's a prohibition, you can't do it. What Lawrence reminded me of is that the issue is that even if they're not intentionally adding it, based on the definition, the definition they cite is in the consumer protection laws and put in there to deal with some of the PFAS product bans that we have, which is where your committee has reviewed this issue is that you could, like I a little reading, after the committee discussion. So for sure the cooling systems all use PFAS. So maybe there's a component of the cooling system that the data center buys from a manufacturer and then they just install it into the data center. So then they wouldn't be intentionally adding potentially PFAS, right? Because it's in, they didn't, they just bought a product that has PFAS in it. They didn't add PFAS to their processes. So therefore they could say, well, we didn't intentionally add it. It might be in some of the component parts. We don't know. It might've been intentionally added into some of those parts. So that's where some of the intentionally added with Lauren was reminding me that that's where it gets tricky. And you get into sort of enforcement issues and debates about who added it, where along the sort of assembly line did it get added. So that's one of the challenges with potentially adding. We can study the definition intentionally added to see if it mitigates that. But I think a better approach might be to indicate the applicant needs to disclose all the PFAS that is going to be used in the data center operation, whether they are adding it or it was added by an entity that manufactured some of the component parts. I think the monitoring is still important regardless of whether you went with intentionally added or some other approach because it'll provide ground truth what's actually happening, right? And then we'll see if what the applicant said was accurate and true or not. And then we can respond to it. Like I said, if through the monitoring you're seeing levels of PFAS, you can have a condition that says that if PFAS is revealed in the monitoring that ANR can reopen the permit and require that the issue be addressed. So I don't think taking out the monitoring makes sense. But I do appreciate the agency. I think it is a step in the right direction to try to deal with it upfront. But those are some of the thoughts that Lauren had and I just wanted to convey to the committee.

[Rep. Amy Sheldon (Chair)]: So do you have a suggestion? Could we use both?

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Yeah, mean, could. I think monitoring needs to stay either way. I don't see what the harm would be to say an applicant must disclose all PFAS that are being used in this operation and identify which PFAS. Right now the PFAS is defined as the EPA definition of 40 or 50. And then the agency could decide how to regulate and to address it. Really in the, like I said, in the water quality certificate because we still don't have a discharge standard for the permit, but they could deal with it in the water quality certificate if that remains in. So I don't know, something like that. I can provide some language ideas.

[Rep. Amy Sheldon (Chair)]: Would be very good. Thank you. That would help.

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: I'll do that after the committee discussion on it is completed.

[Rep. Amy Sheldon (Chair)]: All right. Do members have thoughts or questions? Representative Austin at Last

[Rep. Sarah "Sarita" Austin (Clerk)]: year when we were talking about PFAS, we were asking about alternatives. Are there any alternatives? I mean, seems strange to me that we would allow to be happy to our water. It just seems very strange to me that Vermont would permit that. And I just wonder, are there any alternatives to PFAS that could complete the same function that PVOS is?

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Yeah, depends on the use. I mean, certainly are alternatives in most uses. I guess what I've read, it's definitely in the cooling system. I'm not an expert in designing cooling systems for data centers. So if they say that there is no alternative then they're just gonna have to deal with being treatment. They're gonna have to deal with paying for treatment to protect the waters. But there are some good articles if you want to like, The Guardian did a really, a couple of good articles about PFAS use in the cooling of the facilities and data centers and the concerns as number of environmental groups including Clean Water Action, which is a national water protection group has done some analysis on it. So I would hope that there are alternatives for cooling, this is such a new technology and such an emerging technology. You'd have to have experts in data centers to really kind of talk about how much PFAS they use, where they use it in addition to cooling centers and in cooling centers and what the alternatives may or may not be.

[Rep. Sarah "Sarita" Austin (Clerk)]: Do you know how they treat it?

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Usually the treatment is this process called reverse osmosis treatment, isn't very effective, but it can be expensive. That's been sort of the debate on public water supplies is more sensitivity because obviously rate payers pay for public water supply, but it is, we do have a drinking water standard. And so there is PFAS in drinking water, it needs to be treated. And it's mostly with reverse osmosis. I think I would argue that data centers make enough money to afford the reverse osmosis technology and should be able to afford the state of the art treatment if there's no alternative, like you're saying representative.

[Rep. Amy Sheldon (Chair)]: I think I like the just the prohibitedness language that ANR has provided us. Representative Pritchard?

[Rep. Christopher "Chris" Pritchard (Member)]: Yeah, thanks. Yeah, you answered my question. I'm still hung up on why the PFAS has to be used in this equipment. I guess we don't really know that answer. It just seems that's, if it's not in the equipment, then it's not a worry. Mean, how impossible is it for this equipment to function without utilizing PFAS? I mean, I guess I'd really like to know that question, especially if it's in the cooling. I mean, I guess I don't understand how that becomes such a critical part of making this equipment work.

[Rep. Amy Sheldon (Chair)]: May not be, maybe it won't be an issue for them.

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Yeah, I mean, if you're prohibited, right now it's intentionally added, like I said, I mean, I could give a couple of options including just prohibited without intentionally added, prohibiting the use of PFAS. And then that means it's prohibited, right? Whether it was intentionally added or it was introduced into the system because of some of the component parts that were purchased from another manufacturer.

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

[Rep. Rob North (Member)]: Yeah. My first reading of this was I thought this was attempting to get at the point that representative Christopher Pritchard raised yesterday about what if the water coming in has PFAS in it already? Our water already has PFAS in it and then and then they just turn around and put it right back out. The same PFAS are really viable for the PFAS that's coming out even though it was the same as coming out. That's what I thought this was true.

[Rep. Amy Sheldon (Chair)]: I think it is. I think it is.

[Rep. Michael Hoyt (Member)]: Yeah. Okay.

[Rep. Amy Sheldon (Chair)]: But also unintentional. Like, we took a lot of testimony when we did this consumer products bill about they don't control their whole supply chain, and that was what these guys are, you know, bringing up is or Michael Hoyt did. But yeah, we have to work in an imperfect world here. So we're going to just figure out what the best we can do is and put something there. Because right now, we don't have anything.

[Rep. Sarah "Sarita" Austin (Clerk)]: Could we require them to, you know, that everybody has to have PFAS that have this treatment center?

[Rep. Amy Sheldon (Chair)]: Well, I guess that's a question. Is that implied here? So if they did have PFAS in their system, but they were willing to reverse osmosis and take it out, and then I don't know, it get to commentary. I don't know where it goes. That's the joke. Larry up. I don't know where he is.

[Rep. Michael Hoyt (Member)]: That's a really good question.

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Like, is discharge? Right. Does a discharge mean if you treat it before it gets discharged, then you didn't discharge it. Right? Yeah. That is interesting.

[Rep. Amy Sheldon (Chair)]: Let's go with this. Okay. Thank you. So, folks, I wanna put a wrap on our recommendations to other committees before the floor. And so I'd like to it's not us. That's the Senate.

[Rep. Michael Hoyt (Member)]: It'll

[Rep. Amy Sheldon (Chair)]: start ringing right when I say that. So I just want to wrap up any policy discussions that we're going have on this and then probably break into a couple of small groups to finish drafting the letters, then I'll review them. Any other thoughts on this? Anyone willing to take a summary?

[Rep. Ela Chapin (Member)]: Think we're letting go of C and D, or we'll move to the top, going with C1 in its lengthy form, I guess. Reinstating the water quality certificate. And I'm not sure where we just landed on PFAS. I was hoping we'd leave the old language and add the new language. But couldn't But they don't

[Rep. Amy Sheldon (Chair)]: go the problem is right now, they don't go together. Because if it says it's banned, if you're gonna discharge Yeah. And the other says you need to monitor the discharge.

[Rep. Ela Chapin (Member)]: Yeah. And then you're monitoring for unintentionally added PFAS. And you can monitor in and out to identify that. But it

[Rep. Amy Sheldon (Chair)]: does say intend, who intends to discharge wastewater or intends to discharge wastewater. Okay. Yeah. Okay. They do go together.

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: I think the monitoring is important, like I said, for the reasons that representative Chapin to tell you what's happening, right? Yep. It could be what representative North is saying that it's just then it's like then it's raises the question. Like where is this? Is it just the cycle or is this coming from some other part of your operation that you didn't intentionally add it, but it's in there. If it's in really high levels, then that would tell you something too.

[Rep. Michael Hoyt (Member)]: So I

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: think it's good to know.

[Rep. Amy Sheldon (Chair)]: They become two separate sections then.

[Rep. Ela Chapin (Member)]: Yes. Yeah, that's what I meant actually.

[Rep. Amy Sheldon (Chair)]: Yeah. Okay. Keep them both, but, yes,

[Rep. Ela Chapin (Member)]: I want them to be the same section.

[Rep. Amy Sheldon (Chair)]: Does anyone disagree with what Ela just summarized? Okay. Great. Thank you for joining us.

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Yeah. No. Thanks for taking this up.

[Rep. Amy Sheldon (Chair)]: Our wait. I think we need to go back to bag one.

[Jared Carpenter]: Back to forests? Finish with forests. Finish with forests.

[Rep. Amy Sheldon (Chair)]: Rent it. Municipal regulation of agriculture and

[Jared Carpenter]: Allow them. Okay.

[Rep. Amy Sheldon (Chair)]: Representative Hoyt gave us a good summary from one perspective. The question is, do we leave it the way it is drafted now, understanding that it's and make a statement about the use of the tiers, Or do we recommend removing one b, leaving one a? Other options folks can think of.

[Jared Carpenter]: Thank you, madam chair.

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Thank you. Yeah. Thank you.

[Rep. Christopher "Chris" Pritchard (Member)]: Hey, Jerry.

[Rep. Ela Chapin (Member)]: You just include one option being Section one, but then just a

[Rep. Amy Sheldon (Chair)]: Definitely Section one.

[Rep. Ela Chapin (Member)]: Study, then a committee that works on what would happen in 1A and all along Section

[Rep. Amy Sheldon (Chair)]: one or 1A? The first part that corrects the definition Nope, we're not changing that. We leave that. Okay, everyone agrees with that. Then the sort of tiered approach we should make a decision on.

[Rep. Ela Chapin (Member)]: And your options were to just do 1A, leave it 1A and 1B as it is?

[Rep. Amy Sheldon (Chair)]: Or take them out.

[Rep. Ela Chapin (Member)]: Or take them out and leave some kind of a working I

[Rep. Amy Sheldon (Chair)]: think the working study, I appreciate the positive aspect of their study, but I also think want we should look at that and make sure it includes something about how like, what are the issues that municipalities will need to regulate or want to regulate?

[Rep. Ela Chapin (Member)]: It's zoning the best to perform. Yeah.

[Rep. Amy Sheldon (Chair)]: I feel like I'm not convinced the limited nature of what they're asking for to regulate, the one As and one Bs are going to get to the heart of the conflicts that we're having where we are having them. Thoughts? I don't need it's a time out. I might put Mike on the spot to draft a letter and then finish the letter that I've drafted, and we come back together and look at them. Everyone's having a loose lunch lull on here.

[Rep. Sarah "Sarita" Austin (Clerk)]: Can you talk a little bit more about the study group? Could we put that in there? Is that what the study group would be asked to study? The Here's one.

[Rep. Amy Sheldon (Chair)]: Study group in there now. We could do that.

[Rep. Sarah "Sarita" Austin (Clerk)]: I just feel like when we're leaping the tiered system, and the more we can incorporate other regulations into the less confusing it would be, if possible. Sorry, what? The more we can The more we can kind of consolidate regulations in tier, you know, on land use in tier 1A or tier 1B, think the less confusing. Or have different sections in those tiers.

[Ellen Chittenden, Office of Legislative Counsel]: Does

[Rep. Sarah "Sarita" Austin (Clerk)]: that make sense in terms of the mapping?

[Rep. Amy Sheldon (Chair)]: Not yet. Representative

[Rep. Ela Chapin (Member)]: Chapin. Well, I guess I'm not exactly sure what you're trying to get at, Sarita, but just a reminder that farms are already regulated under the ramps. So to put them regulated also under zoning doesn't do what you just said, which is to consolidate. It actually makes more regulatory entities overseeing that activity.

[Rep. Sarah "Sarita" Austin (Clerk)]: But it seemed like here on the, there was an issue. It seemed like they were talking about the issue where this comes to a head, where this urban and rural development close to each other and there's no reason the planning board can have a really difficult time resolving the issue.

[Rep. Ela Chapin (Member)]: The one in Essex might be one A. I don't know. But the two problems we heard about, one of which was in physics. Right. And he said I don't know if that was Randy or was Oh, it

[Rep. Sarah "Sarita" Austin (Clerk)]: Bradford is another one. Or she's

[Rep. Ela Chapin (Member)]: not I think the other issue.

[Rep. Sarah "Sarita" Austin (Clerk)]: It seemed like that's what is

[Rep. Ela Chapin (Member)]: the legal citizen panel was referring to. That's the issue. It sounds to me like that was the concern they had been trying to Their biggest concern right now is that if we change this and just go to section one, that lawsuit no longer has That lawsuit falls apart. That's why they don't want us to just go back to the section one without doing section two, just because of one conflict that's in the lawsuit right now. That is also that business is regulated under the ramps, and they still haven't been able to deal with that issue.

[Rep. Amy Sheldon (Chair)]: I would Support taking the tears out.

[Rep. Ela Chapin (Member)]: Just concerned about making choices in this room that are related to one lawsuit.

[Rep. Amy Sheldon (Chair)]: Pardon, is a tier 1B eligible? Eligible, I think you said. They have not yet. Nobody has that yet. Okay. Oh, whether they will apply. Yeah.

[Rep. Michael Hoyt (Member)]: I know. That's why I'm thinking about it. I mean, I would

[Rep. Rob North (Member)]: prefer almost just to push it off and let this study.

[Jon (John) Groveman (environmental policy advocate, via Zoom)]: Figure it out. Is that better?

[Rep. Amy Sheldon (Chair)]: That better? Also, let's take a recommendation. I'm gonna suggest we draft a letter with the recommendation to take it out and then look at it. See how try it on. Let's take a recess.

[Rep. Rob North (Member)]: And So you take it out. You could take out the whole one eighty one b. Mhmm. And

[Rep. Amy Sheldon (Chair)]: take a recess and look at that.