Vermont Legislature SmartTranscripts:

[Representative Amy Sheldon (Chair)]: Welcome

[Representative Charlie Kimball]: the back

[Representative Amy Sheldon (Chair)]: house environment committee. We are about to begin our work through of s two twelve.

[Michael O'Grady (Legislative Counsel)]: This is Michael Grady, looking at gas passed by senate version of s two twelve. The first section is amending the purpose section of the global water supply and wastewater system chapter. And as the senate natural chair indicated, one of the things that this bill is doing is removing full delegation of of water supply and wastewater system permitting to municipalities. And that requires a change in the purpose to the chapter because right now, one of the purposes of the chapter is to allow delegation of permitting to municipalities. So that's being replaced with allow review of potable water supply and wastewater system connections pursuant to general permits adopted under this chapter. Because as the chair senator chair also noted, it's my opinion that they don't have the authority currently to issue general permits under this chapter. Moving on to section two, you're now in the definition section for total water supply and wastewater systems. You will see those two definitions. They're slightly changing. The first is on page two line four and five and the potable water supply and clarifying that that includes a service connection to a public water system of any size. Now, on, you're going to see why it's under potable water supply because you need a potable water supply permit for connections.

[Representative Ela Chapin]: Wow.

[Michael O'Grady (Legislative Counsel)]: Moving down on page two and line 12 in the definition of wastewater system. On page three, you'll see the tweak here. Line one and two, sewerage is an is an antiquated term. The proper term is sanitary sewer collection system. You could also have used wastewater collection system, but that was just an elimination of an antiquated term.

[Representative Amy Sheldon (Chair)]: So if you don't mind walking us through this definition because it's something that I think we should really

[Michael O'Grady (Legislative Counsel)]: Of wastewater system?

[Representative Sarah "Sarita" Austin (Clerk)]: Yes.

[Michael O'Grady (Legislative Counsel)]: So it's it's any piping, pumping treatment or disposal used for conveyance and treatment of sanitary waste, used water, carriage water, processed wastewater. It does not include any internal piping or plumbing, such as pump stations or storage tanks or toilets that are located inside a building or structure. The definition also does not include wastewater systems that are exclusively for treatment and disposal of animal manure. And it refers to a soil based disposal system of less than 6,500 gallons per day or that sewer collection connection. So anything over 6,500 has to get an indirect discharge permit, and that is basically regulated as a discharge permit, just like you would have a pipe into a water. You'd need a discharge permit for that. For a soil based system, that's 6,500 gallons or more, you need an indirect discharge permit, and that's under 10 GSA chapter 47 and not this chapter.

[Representative Amy Sheldon (Chair)]: So what is carriage wire?

[Michael O'Grady (Legislative Counsel)]: You know, the the I I believe it's your kitchen water, but I can I need to look that up to get that specifically?

[Representative Amy Sheldon (Chair)]: So do I understand correctly that this is, like, a town system and then a No. This is just your small on-site.

[Michael O'Grady (Legislative Counsel)]: It's a small on-site.

[Representative Amy Sheldon (Chair)]: No. Why is the definition in this bill?

[Michael O'Grady (Legislative Counsel)]: Because that's what the connections will be. You're connecting your structure to a wastewater system. Because remember

[Representative Amy Sheldon (Chair)]: So it wait. So it is the larger town system.

[Michael O'Grady (Legislative Counsel)]: It's it's the connection that is the larger town system. I know it's confusing because remember, a connection is basically the same as a septic system. You need the same permit, but there are different standards for that permit. So you have to kind of build into

[Representative Amy Sheldon (Chair)]: What's the definition of the town system? Like, the treatment plant treatment plant, I guess. Okay.

[Michael O'Grady (Legislative Counsel)]: Oh, that's that's a a public drinking water system that's regulated in a different chapter of law.

[Representative Amy Sheldon (Chair)]: I'm talking about sewer treatment plan.

[Michael O'Grady (Legislative Counsel)]: That has different names. That can be a pollution abatement treatment center, or sometimes it's referred to as a wastewater treatment center.

[Representative Amy Sheldon (Chair)]: Isn't that what we're connecting to?

[Michael O'Grady (Legislative Counsel)]: Yes. You are. But it's not regulated under those chapters. It's regulated here. And so you kind of have to create that universe that allows regulation of that connection here. Think of it think of it like this. If the connection fails, you have drinking water seeping into the ground. You have wastewater seeping into the ground. You might have wastewater backing up into a structure. It's kind of like when your septic system fails or when your well fails. And that's why it's here because of the public health and environmental issues and making sure that they're connected, that they are administered in an appropriate way to avoid those public health and environmental issues.

[Representative Amy Sheldon (Chair)]: Moving

[Michael O'Grady (Legislative Counsel)]: on, you come to page three, section three. You are in the permits. There's a long list of statutory permits that are required, there's even more underneath the rules. On page three, line five, you'll see acceptance provided in this section and sections nineteen seventy four, which are the exemptions from permitting, and nineteen seventy eight, which are the total water supply and wastewater rules. A person shall obtain a permit for and you will see line eight and nine making a newer modified connection to a newer existing potable water supply or wastewater system. Moving down line three, line 18, and going on to page four, this is striking one of the alternatives you tried to the legislature tried to implement to address this issue in the past. This was when there was an connection in a designated downtown development district. The municipality could get authority to approve that connection, relying on the certification of a licensed designer. A licensed designer in this world, this universe, is either a licensed engineer or someone who's called a licensed site designer. That they just are allowed to design wastewater systems and put up a water supply. So this as the senator noted, no town requested this or or even, I I believe, applied for the ability to do this. So that is being struck. And in in instead on page four, line 12, the bill gives the secretary the authority to adopt a general permit for both potable water supply and wastewater system connections that require a permit, so connection to a new or existing structure. Under the permit, the secretary may give deference to applications for connections certified by a licensed designer. This chapter of law already provides for that, but the agency wanted to be specific in this general permit that they may give deference to the licensed designer. Secretary is gonna publish a manual providing guidance to licensed designers implementing the general permit. The manual shall include guidance for determining or defining the the capacity of a public water system or pollution abatement facility for purposes of approving a potable water supply or wastewater system connection. So that's the specific general permit, and it's they shall adopt that general permit, and they may require under that the general permit. Does everybody know what a general permit is? So generally, when there are types of activity that are numerous or common, instead of an agency having to issue an individual permit for each of those common activities, they issue one permit that addresses the common issue. And then the person that wants to take advantage of that applies for notice of coverage. They give the agency notice that they're gonna seek coverage under that general permit. And and a a example is what's called the stormwater general permit. When you're going to disturb it half an acre or more of earth for any reason except farming, you have to implement stormwater management controls. Do you need to get an individual permit for that? Or can the agency say, these are what stormwater management controls are when you are disturbing more than a And that's what they did. They said, This is what you are going to do when you're disturbing a half acre or more to manage the stormwater. After you're saying, That's basically what every state does. And the people that are subject to it just say, We're seeking coverage underneath that stormwater permit. And then it's an issue of them implementing what is required under that permit. The agency doesn't have to issue an individual permit each time. The applicant doesn't need to submit an administratively complete application. They generally don't have to hire a consultant for that. It reduces time, administrative time, and it reduces cost of compliance. The concern is implementation. And there's always some level of anxiety about a general permit and the the people operating under it meeting the standards that are set forth general permit. And then there's also anxiety about larger projects or non common activities and how they're gonna be regulated, because that will usually mean a longer administrative time frame and more cost. But it's probably more appropriate for those larger and more complex projects. So that's what a general permit is. And you will see on page five, line one through three, the bill gives ANR discretionary authority to adopt general permits for other activities, other permits under this chapter for low risk, low impact, and low complexity. So that's usually what general permits are for, that low risk, low complexity, common universe of activities. And I've been asked, well, what's what's a potential general permit that they could issue other than the connection? Underneath statute and rule, whenever you subdivide land, you're not even gonna build on it. You're just gonna subdivide it and create parcels. You have to identify a wastewater system area and a replacement area for that each parcel of subdivided land. And you have to get right now an individual permit for that. They could issue a general permit to figure out how you're gonna do your identification of your replacement area and your wastewater system area. It's it's it's ripe.

[Representative Amy Sheldon (Chair)]: This is this would allow for that.

[Michael O'Grady (Legislative Counsel)]: I would this would allow for that. Now when you build the system and you have the individual site design and site standards, that's probably not gonna be a general permit because most of these systems have these very site specific issues. And ANR's rule is very health based protection protecting the environment and public health. And so they probably won't go to a general permit for construction of the system, but just for subdividing the land? Sure. So move moving on from there on page five, line four, section four, this is that section that previously allowed delegation of the entire potable water supply and wastewater system permitting system to a municipality. The senate chair noted two towns did get delegated, Rochester and Charlotte, and it's just too much. It's too expensive. It was too administratively difficult, required too much staffing. So they surrendered their delegation, and they are back underneath ANR's jurisdiction. No other town is interested, and so full delegation has been removed. However, on page six, line 18 to 21 going on to page seven, there is authority for ANR to delegate connection authority, partial delegation to municipality group to connect potable water supply and municipal wastewater system connections that require a permit under the chapter. But they will have to meet, certain standards. They will have to actually own the collection line and wastewater system because some fire districts located in a municipality, they own their system, and the larger municipality in which they are located doesn't own that system. So fire districts is kind of a misnomer. They're really largely used as water districts, drinking water districts. So they a municipality can't apply for delegation for something that they don't own. They have to incorporate the requirements of the secretary's general permit into their municipal approval, including that deference to the licensed designer. And if they request delegation, they have to have a qualified technical review as determined by AONR or somebody that can do it. They have to get legislative author legislative body of the municipality needs to authorize it so your your public works director can't go out and get delegation on their own. They need to meet any other requirement of delegation. And then on page eight, they will only issue permits when there is adequate capacity in the system. And then they have to submit the required documentation to ANR so that there's always one uniform system showing who is permitted and and who is not. And that's important for real estate purposes. There's a case law out there that says failure to obtain a state permit is a blight on your title, and that can affect your ability to get real estate insurance and can create anxiety for real estate attorneys. And so they are basically, according to professional standards, are supposed to determine what permits you need and whether you have all of them, when you are engaged in the real estate transaction. And not all towns are great at or as great as keeping those records. So there's also a backup system at ANR for for wastewater and potable water supply permits. So if you can't find that permit, which is required to be filed in your town records, and it's real estate attorney says, I can't find that permit that you're supposed to have. Homeowner says, oh, I had it. I got it. They can go to A and R, and they can get that permit.

[Representative Amy Sheldon (Chair)]: So I have a question. Who owns these lines now? Generally, is there a general is there a can you make a generalization about who owns them now?

[Michael O'Grady (Legislative Counsel)]: Municipalities.

[Representative Amy Sheldon (Chair)]: They do. Oh. So this is not a news thing. They won't be like,

[Michael O'Grady (Legislative Counsel)]: okay. Right. So what's going to be interesting is some of the community based indirect discharge systems that are not discharging wastewater into a surface water. They're large mound systems with multiple connections. They most likely will need an indirect discharge permit from ANR, but then how are you gonna do connections to them? That's that's gonna be the interesting, how that's gonna be done because that's definitely a model that's being proposed and or used in some of the rural areas where there's wedge or other types of restrictions that prevent individual systems.

[Representative Amy Sheldon (Chair)]: My understanding of those is that they're built to a certain capacity.

[Michael O'Grady (Legislative Counsel)]: They are.

[Representative Amy Sheldon (Chair)]: And so and the municipalities already figured out

[Michael O'Grady (Legislative Counsel)]: They they they should have.

[Representative Amy Sheldon (Chair)]: How many can connect or how much Right. Band can be connected to it. But I I think

[Michael O'Grady (Legislative Counsel)]: I can't remember if it was Warren or Wightfield

[Representative Rob North]: Wightfield.

[Michael O'Grady (Legislative Counsel)]: That had to because of failing systems, closed lots, inability to meet the standards, had to put in a community based system because of of the need. And it also allowed for them to do development because they build enough capacity into that system for develop.

[Representative Ela Chapin]: Yeah. Yeah.

[Michael O'Grady (Legislative Counsel)]: Moving on from there, page eight, section five. This is ANR's fee authority. The first thing that it does on page nine, the municipalities that are conducting the technical review or approval, they'll still be able to charge a fee for that cost. Even though this will technically be a delegated state permit, they'll still be able to charge their fees. But they're going to have to pay $100 processing fee to ANR when they submit their documentation. Remember, ANR is gonna keep the record to maintain that uniform system of recording. That means that some staff person's gonna have to accept these and record them, and they're gonna charge a $100 fee for that. And then going on to page 10, this is really I wanna point out what the fees are right now for your potable water supply and wastewater system permits. You will see that they're based on design flow, and you will see that they go up to about $13,500. So that's what the existing permit fees are. So it's then on page 11, because these are going to be not for those really difficult, really large systems. They're going to have a kind of consolidated fee structure. So design flows below 2,000 gallons per day. It's going to be $250 Design flows between 2,000 and 6,500, it's 2,500. And then design flows greater than 6,500, it's 5,000. So those fees are all less than what the corresponding fee would be for an individual permit. And and it will help with cost and processing.

[Representative Amy Sheldon (Chair)]: Alright. These are fees that currently the current statute that you have here cited, those are going to the state for connection to a town system? Yes. And then the town would

[Michael O'Grady (Legislative Counsel)]: The might also have its own fee.

[Representative Amy Sheldon (Chair)]: Just under I'm not understanding how the fee to the state is based on flows, because it seems like the flow based fee would go to the entity providing the service because other members other service users have paid for it, and you're paying your share when you attach. How did that do you know how this ended up going to the state based on gallons per day?

[Michael O'Grady (Legislative Counsel)]: I mean, it's it's because I've been here, it's always been on the books. And It seems

[Representative Amy Sheldon (Chair)]: like the cost to the state isn't isn't gallons per day. It's staffed to oversee the program.

[Michael O'Grady (Legislative Counsel)]: Right. And to determine whether or not a a larger system is meeting standards.

[Representative Amy Sheldon (Chair)]: But then the town also charges based presumably on gallons per day. That's

[Michael O'Grady (Legislative Counsel)]: And and sometimes you should talk to the towns about what they charge for their connections because it's it's very variable.

[Representative Rob North]: Yeah. I bet.

[Michael O'Grady (Legislative Counsel)]: Because this is a land use tool as well as

[Representative Rob North]: as an environmental health tool.

[Representative Amy Sheldon (Chair)]: Also, just kind of the fairness thing fits into the, like, last one in kind of kind of concept of who's paying and when the service provided. Anyway.

[Michael O'Grady (Legislative Counsel)]: So moving on to page 11, this is really just an implementation section. It directs ANR to adopt that general permit by 12/01/2027. And then the manual oh, and then beginning 01/01/2028, they'll begin to accept certifications of connections under the general permit. And then page 12, going on to page 13, there are provisions in ANR's rules that deal with full delegation, that deal with with types of connection exceptions that are no longer gonna be relevant. All of those rules that are no longer relevant are repealed, and then the effective date of the whole bill is July 2026.

[Representative Sarah "Sarita" Austin (Clerk)]: Representative Austin? Just kind of a selfish question for Colchester. If if Colchester is putting in a municipal system now, would these fees be retroactive if it's not gonna be completed till 2027? No.

[Representative Rob North]: No. We're talk thank you, madam chair. And, Michael, since we're talking about a delegated partial delegation, not not not a fully delegated, but partially delegated. Are these fees the same as if it were fully delegated?

[Michael O'Grady (Legislative Counsel)]: So there these fees don't exist. The general permit fees don't exist now.

[Representative Rob North]: She said that they're that's the way it's always been ever since you

[Michael O'Grady (Legislative Counsel)]: Well, there's for the individual permits, those those fees

[Representative Rob North]: These fees the same that goes individual per entities.

[Michael O'Grady (Legislative Counsel)]: For for partial for delegation?

[Representative Rob North]: Or fully delegated.

[Michael O'Grady (Legislative Counsel)]: I don't know in the fully delegated municipalities that they were charging different fees. I don't I don't know that.

[Representative Rob North]: If it's not if it's not delegated, and these are the fees that are charged, that if we're partially delegating something, we should charge, like, half the fee.

[Michael O'Grady (Legislative Counsel)]: Right. And the the municipality will be charging that fee, but then they're gonna have to pay a $100 permit and processing fee to ANR for the recording of the the fee that recording of the permit.

[Representative Rob North]: Yeah. There's something for that.

[Michael O'Grady (Legislative Counsel)]: You you should

[Representative Rob North]: So we got we got regular permitting where there's no delegation, and ANR is gonna charge fees.

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

[Representative Rob North]: Now they're delegating part of it. Partial delegation.

[Michael O'Grady (Legislative Counsel)]: I mean

[Representative Rob North]: The person applying, the applicant, has to pay these fees.

[Michael O'Grady (Legislative Counsel)]: Fees both

[Representative Rob North]: to ANR and to the municipality.

[Michael O'Grady (Legislative Counsel)]: When part when there's partial delegation, you're paying the municipality. They fees. I I don't know. It's probably gonna be different. It's probably gonna be the municipality that comes up with their own fee

[Representative Rob North]: Understand that. That's the that's the fees you're paying, but we're still charging fees to But only a $100. So what are what is this all this on page 10?

[Michael O'Grady (Legislative Counsel)]: That's for general permits that ANR is issuing, the coverage under. All right.

[Representative Amy Sheldon (Chair)]: Page 10 or 11. So the 11 is the new language. That's the general permit, I think.

[Michael O'Grady (Legislative Counsel)]: So the general permit isn't just for those partially delegated. The general permit is for any connection across the state, and you're gonna pay those permits to ANR. But if you, the town, get partially delegated, you run your program. The pro the fee is paid to you, and you pay a a recording fee to ANR to record your permit in their permitting system.

[Representative Rob North]: No per gallon fee.

[Michael O'Grady (Legislative Counsel)]: No no fee to a and r.

[Representative Rob North]: Per gallon fee to a and r. Okay. So these fees are only for the general permit fee, not for the

[Michael O'Grady (Legislative Counsel)]: The partially delegated town.

[Representative Rob North]: I'm sorry. I'm just I think it's confusing. Well,

[Michael O'Grady (Legislative Counsel)]: take away partial delegations. Pretend that partial delegation doesn't exist. This is a general permit for an ANR permit, and you pay to ANR a fee for an ANR permit.

[Representative Rob North]: That fee is based on a per gallon

[Michael O'Grady (Legislative Counsel)]: And that is, right now, a per gallon gallons per day fee.

[Representative Amy Sheldon (Chair)]: Even though Did the senate explore that question of why is it scaled to per gallons when it's going to the state who doesn't presumably pay for the system? They

[Michael O'Grady (Legislative Counsel)]: I don't recollect them going to that level. So there's your A and R general permit fee to A and R. Now the town can come along and get partially delegated to do connections. They're now the one issuing the permit. They're the one charging the fee. They're the one that sets the fee. I can't say what the fee is going to be, but they had to give ANR documentation of any of their approved connections with a $100 recording fee. Okay.

[Representative Rob North]: So in in that case, the applicant is operating under two permits, the general ANR permit and the municipal delegated permit. They gotta have both of those, and they're paying fees to both.

[Michael O'Grady (Legislative Counsel)]: Under partial delegation? Yes. They are paying a permit fee to the partially delegated town.

[Representative Rob North]: They couldn't general couldn't have gotten to that point without the general permit from a and r start.

[Michael O'Grady (Legislative Counsel)]: The general permit is incorporated into the partial delegation. See that on page seven, lines three through five, municipalities delegated authority shall be required to incorporate the requirements of the secretary's general permit into a municipal connection approval. So you you consolidated into the municipal approval. ANR is not approving anything, but the general permit requirements have to be part of that municipal approval. But you're

[Representative Rob North]: not getting The applicant is not getting a separate ANR general.

[Michael O'Grady (Legislative Counsel)]: I'm not getting a separate ANR permit.

[Representative Rob North]: Okay. That's what I was

[Michael O'Grady (Legislative Counsel)]: In in a nondelegated town in a nondelegated town, they might need to get both approvals because in a nondelegated town, this might be part of your zoning permit to get your connection approved.

[Representative Rob North]: And then you have to do both, an AR general permit and a municipal permit to connect if you're not

[Representative Ela Chapin]: down here.

[Representative Amy Sheldon (Chair)]: And if

[Michael O'Grady (Legislative Counsel)]: not, you might have to get both because it's probably part of your zoning permit.

[Representative Amy Sheldon (Chair)]: How involved were the towns in this conversation? Do you know?

[Michael O'Grady (Legislative Counsel)]: I mean, they they they talked to towns. They talked to Stowe. They talked to I can't remember.

[Representative Amy Sheldon (Chair)]: I mean, considering we've tried this a few times and the towns haven't bit on any kind of any of the ways we've tried this, What assurances might we have that they will be interested in this deal?

[Michael O'Grady (Legislative Counsel)]: In delegation, partial delegation? Well, the only town I know that expressed interest in that was Burlington.

[Representative Amy Sheldon (Chair)]: We have

[Michael O'Grady (Legislative Counsel)]: a have a public works system and a public works director that is pretty good. And she knows what she's doing. She thinks she can probably run this program.

[Representative Rob North]: So we're constructing legislation from Burlington Burlington can use and nobody else can.

[Michael O'Grady (Legislative Counsel)]: No. Others I mean, remember, Colchester and Charlotte

[Representative Sarah "Sarita" Austin (Clerk)]: And South Burlington.

[Michael O'Grady (Legislative Counsel)]: Ran the whole program. Right? But the problem is not the connections. The problem is, like, when do I need a mound system and and near the Lake, and does the town really wanna be arguing with the Canadian property owner about that? And, you know, and, like, that that just got too much for those towns. But connections, you might get a licensed designer on your staff that's gonna go out and do that, and maybe that's easier for your development.

[Representative Rob North]: I ask this particular case. I got selfishly.

[Representative Sarah "Sarita" Austin (Clerk)]: Well, South mean, Colchester is going to South Burlington. So South Burlington says it it has to do with the number of bedrooms, you know, people's houses, and that determines what capacity they can apply for a sewer. And the people who are getting charged are the people who are hooking up. I mean, otherwise, it was through federal and state grants.

[Representative Rob North]: Is Virgins a delegated town? They're looking at maybe being the first user of the CHIP program, putting in a 74 unit development on town property, and in doing so, extending the town sewer and town water to this? Are they going to to are they going to be delegated, or are they going to operate there for two permits?

[Michael O'Grady (Legislative Counsel)]: It's up to the town to apply for the partial delegation.

[Representative Amy Sheldon (Chair)]: Many don't can apply for it, but it'll be towns that have staff to

[Representative Christopher "Chris" Pritchard]: Yeah. Administer.

[Representative Sarah "Sarita" Austin (Clerk)]: You have a treatment. Does Yep. Yep. You do open. Where

[Representative Rob North]: is it going? It's a new place station. Brother can be broken. Okay.

[Michael O'Grady (Legislative Counsel)]: Well, it's just like an open field right now,

[Representative Rob North]: isn't it? No. It's a kind of a constrained area. 22 a goes through there. Railroad tracks go across police station, and then there's wetlands and stuff. And so it's a little piece of property in there that just about fits. Like, 10 acres.

[Representative Ela Chapin]: Ish.

[Representative Sarah "Sarita" Austin (Clerk)]: Representative Oz? Yeah. Was there any discussion in the senate about maintenance? Like, I know my system has to I have to have someone inspected every year and turn up the inspection form into the town. Is there any regulation that everybody has to do that, or is that up to the municipality?

[Michael O'Grady (Legislative Counsel)]: That that's not required right now for septic systems under state rule. You you do need to ensure that your connections are working properly, and you normally know when they're not because you experience things like low water pressure or or wastewater systems that back up or aren't working.

[Representative Amy Sheldon (Chair)]: Shift topics one more time.

[Representative Charlie Kimball]: Pardon?

[Representative Amy Sheldon (Chair)]: We'll shift topics one more time.

[Michael O'Grady (Legislative Counsel)]: Okay.

[Representative Amy Sheldon (Chair)]: You booked up. Alright.

[Michael O'Grady (Legislative Counsel)]: I need a hearing aid.

[Representative Rob North]: Hearing aid. No. It's a time. Degradation, Mike.

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

[Representative Rob North]: Okay. Which year?

[Michael O'Grady (Legislative Counsel)]: So I was asked to talk about the difference between what what is an affirmative defense underneath s two eighteen, the chloride contamination And there should be on your committee web page this document comparing an affirmative defense to what was initially in S 29 from last year. Remember? There was a salt bill, chloride contamination bill last year. And when that was introduced, it had an immunity provision in it. It said that the the municipal salt applicator or the commercial salt applicator shall not be liable. And but now there was discussion last year in the judiciary committees about what that meant. There were concerns from advocates about prohibiting people from from going to court or or seeking a remedy if they were hurt. And so the judiciary committees last year, senate judiciary, house judiciary, instead of it being an immunity, shall not be liable on page two says that that commercial applicator and later on the municipal applicator shall have an affirmative defense against the claim for damages resulting from a hazard caused by snow or ice. Now what is the difference? So the difference is largely on page three, and I'm sorry I didn't put page numbers on this.

[Representative Amy Sheldon (Chair)]: Because I don't even ask a question.

[Representative Ela Chapin]: Sorry to interrupt you, Michael. The the bill we looked at, you're comparing this to the first senate bill?

[Representative Rob North]: Yes.

[Representative Ela Chapin]: To remind the committee, the bill we looked at did not have absolute immunity. It had limited liability. I I think it'd be more helpful to compare what's in this bill to what we passed last year versus what the Senate maybe started with.

[Michael O'Grady (Legislative Counsel)]: I don't really recall what came out of this committee. It really doesn't matter because it's really the distinction between an affirmative defense and and immunity or qualified immunity.

[Representative Ela Chapin]: So just just I just wanted to then just remind the committee that we discussed and heard

[Representative Amy Sheldon (Chair)]: this about in the past was

[Representative Ela Chapin]: about limited liability, but there was concerns on the house side with that. Although we did think we were moving it forward, and then the Senate, guess, started with something

[Michael O'Grady (Legislative Counsel)]: So think of it like this, limited immunity, qualified immunity, absolute immunity, whatever you want, however you wanna characterize it, it it prohibits the claim. It it doesn't allow the claim to be brought. So say somebody is injured, they bring a claim against the commercial applicator. At that stage, the commercial applicator moves to dismiss the claim because there is no claim. And so there's there then the judge looks at the statute and says, yes. There's either absolute immunity or qualified immunity. Or if you wanna call qualified immunity limited liability, it's it's effectively the same. What is what's an example of absolute immunity? You have absolute immunity. You all have absolute immunity for for those actions you take within your legislative sphere. So you can go out there on the house floor, and you can say a lot of things, and no one has the ability to bring suit against you for what you say or what you do within your legislative sphere. So if somebody did sue you at that pleading, at that at that first hearing on the complaint, your attorney would move to dismiss the claim per absolute immunity. Now qualified immunity is you have to show some things in order to get that that immunity. And for example, last year, in one of the versions, you had to show that, hey, you were trained, that you were applying according to BMPs. The injury was caused solely by snow or ice, and that hazard was caused by you following the PMPs. And if you showed that in your motion, then the court dismisses the claim. No more claim. Nothing. Right? And that is basically the plaintiff's burden to show that that that absolute immunity or qualified immunity does not apply. It's on the plaintiff to show that they have a claim. Affirmative defense whips that dynamic. Affirmative defense is a pleading. So there's a an a a claim brought by an injured person. After pleading, the defendant, the commercial applicator says, I have an affirmative defense to this claim. I admit that I was applying salt or salt alternatives. But because I was certified, because I was following the BMPs, and because the injury was caused solely by the snow or ice that wasn't removed because I was following the BMPs, I am not liable. It happened. The act happened. The claim can't be brought, but now it's on the defendant to show that they qualify for the affirmative defense. The plaintiff gets to bring their claim. Gets to say, I was injured, gets to say it was because of the negligence, because of their failures. And the defendant says, yes, I did that. I did apply SALT there. Yes. There may have been an injury, but I am not liable because I did all of these things that I was required to do in order to get the affirmative defense. Now certain advocates like this model because it allows that person that's harmed to get into a court action, to to bring have that opportunity to make their arguments like, no, they weren't following the BMPs. No, they weren't recording properly their applications, etcetera. So instead of the court saying, no, they're immune. You can't bring a claim against them. The court says, you can bring a claim, but there's an affirmative defense that the defendant has to prove. And that is the difference. That's largely the difference. In the end, if you prove your affirmative defense, you're immunized. But you have to go not immunized. You are free of liability. But you have to go through that process of proving your eligibility for the affirmative defense instead of the plaintiff proving that you are not immune.

[Representative Amy Sheldon (Chair)]: Do we know what standard New Hampshire's using?

[Michael O'Grady (Legislative Counsel)]: They have shall not be liable. So they have And that was part of what the advocates were arguing. The advocates were arguing that New Hampshire plaintiffs and they talked to New Hampshire they talked to the trial bar in New Hampshire, that that was a problem for them. That was a problem for those plaintiffs that were injured and that were not allowed to seek redress because of that shall not be lie. And that's why the judiciary committees well, not just New Hampshire. It was the advocates here arguing for that opportunity for the injured party to go to court and make make an argument.

[Representative Amy Sheldon (Chair)]: Okay. Thank you. Members have any further questions? Representative Chapin?

[Representative Ela Chapin]: Because I was preparing to, a year ago, talk about the limited liability. So just an affirmative defense. There's still in both limited liability and affirmative defense. There's still a sort of list of parameters that you meet. You're not liable. In affirmative defense, it's the defense that has to prove that to the to the judge

[Michael O'Grady (Legislative Counsel)]: Right.

[Representative Ela Chapin]: Or whoever. And in limited liability, it's on the claim to the

[Michael O'Grady (Legislative Counsel)]: Right. It's kind of a procedural for limited liability, and and we're qualified immunity because the the the action is filed. Right? And your attorney responds the the defendant's attorney responds with a motion to dismiss and says, I've met all of these. And then your plaintiff says, well, no, you haven't. And so the court then holds a a basically it's not really a trial. It's kind of like a factual determination hearing and determines whether or not those facts had been met and then says they've been met, you're immunized, you're gone. The other way, it's the defendant responds with their pleading and says, I have an affirmative defense. And then that's gonna go to a fact finder. And that that fact finder is basically a trial or or a a judge bench trial, and then you're gonna have the back and forth. And so it really is the level of kind of credence that a judge gives in that immune immunity factual determination, they might have a hearing. They might go to a summary judgment proceeding effectively where they determine if there's any factual issues at at issue. And that that that's the type of thing that happened. But that plaintiff gets into the court with the affirmative defense, and they may not get into the court with

[Representative Rob North]: the ingenuity.

[Representative Ela Chapin]: So I'm hearing the limited liability versus the affirmative defense. The affirmative defense not only places the burden on the defense, but it also gives the plaintiff more of a chance in front of the judge to be able to rebut.

[Michael O'Grady (Legislative Counsel)]: Yes.

[Representative Sarah "Sarita" Austin (Clerk)]: Okay. So who pays for the defense of the defendant if they do go to court?

[Michael O'Grady (Legislative Counsel)]: The defendant.

[Representative Sarah "Sarita" Austin (Clerk)]: The defendant pays, not the municipality or

[Representative Amy Sheldon (Chair)]: their Well,

[Michael O'Grady (Legislative Counsel)]: I mean, if the defendant is a commercial applicator, the commercial applicator is gonna pay. If the defendant is the municipality, the the municipality is gonna pay. Municipal employee has there's a statute that you probably heard the league talk to you about that says the town is immune, but the employee is not. But the town has to represent the employee and potentially assume the employee's liability, which the league doesn't like that at all. And so the league, municipality, I'm fully

[Representative Amy Sheldon (Chair)]: Yeah.

[Representative Christopher "Chris" Pritchard]: Thank you, Michael. Great. Thanks.

[Representative Amy Sheldon (Chair)]: Are you are you set, ready to join us, representative Kim? Ready.

[Representative Rob North]: Great. Please do.

[Representative Charlie Kimball]: Oh,

[Representative Rob North]: yeah. I'm welcome.

[Representative Christopher "Chris" Pritchard]: Thank you.

[Representative Amy Sheldon (Chair)]: Yeah. Your amendment? Yeah. It's

[Representative Michael "Mike" Tagliavia]: Oh, good.

[Representative Rob North]: Good

[Representative Charlie Kimball]: morning. My name is Charlie Kimball, representative from Woodstock, Reading, and Plymouth. I'm here to talk about the house of means amendment to h nine twenty eight. And I don't want to jinx it by saying this is a very simple amendment, but just to tell you where we're coming from with it. You will see something in the miscellaneous tax bill, which is H nine thirty three, which addresses the fees being charged by the Department of Fish and Wildlife. That mostly started in reaction to when the Department of Fish and Wildlife wanted to charge a $20 conservation license to access wildlife management areas. And we felt that in that process, we had unfairly delegated the authority of the legislature to the Department of Fish and Wildlife and said we want to regain that authority. As you know, most fees are set by the legislature. We're typically in a before the Scott administration had a fee bill every year and would be looking at those fees that are charged to consumers, and those are set by the legislature. So in that time, there was one particular set of fees. I think it was the Green Mountain Conservation Camps and also for use and tuition for those that we've delegated to the Agency of Natural Resources Department of Fish and Wildlife, and we feel comfortable with that. But the other fees, we were not comfortable necessarily delegating that authority. So when this bill came to us, we looked at what the fee was for the extension of what we understand to be an additional license for taking a big game. Mostly we heard about in relation to does with the idea of managing the doe herd, but also in relation to turkeys. So my committee is not the expert in this area. We were kind of surprised, some of us, that turkeys were considered big game, but nonetheless.

[Representative Christopher "Chris" Pritchard]: New York considers them small.

[Representative Amy Sheldon (Chair)]: Confirmation of big game at the Right. When we voted this, and I don't remember Turkey's being on that confirmation from the department. Yeah. Us too. So

[Representative Charlie Kimball]: our amendment is fairly simple. It's only one instance of amendment, and that is in section three and license fees, And that we're adding language

[Representative Rob North]: that says

[Representative Charlie Kimball]: basically the department may issue such tags and permits and may assess a provisional fee for such tags and permits of not more than lowest fee for a big game tag is provided in subsection A of the section. And then to come back to the legislature, seek legislative approval of the fees pursuant to 32 VSA six zero three within one year following the department's assessment of the fee. So trying to again come back and say, let us approve the fees that you're charging. We understand this is a fluid situation, but we want to have our eyes on it when the fees are charged. That's basically it.

[Representative Amy Sheldon (Chair)]: Thank you. Do members have questions? Representative Pritchard.

[Representative Christopher "Chris" Pritchard]: Yeah. So here's my question, and I'm gonna ask this before I ask. That'll depend on the answer. It'll depend on whoever asked Charlie a question. If

[Representative Rob North]: this

[Representative Christopher "Chris" Pritchard]: was to go come back and there'll be disagreement on this amendment. What what does that do to this bill? I mean, does this will this stop this bill from moving to the senate? Is there a timeline on I know I'm supposed to present it tomorrow.

[Representative Sarah "Sarita" Austin (Clerk)]: Mhmm.

[Representative Charlie Kimball]: That's not for me. Right?

[Representative Amy Sheldon (Chair)]: Yeah. That so is there a timeline on when we need to respond to this amendment?

[Representative Christopher "Chris" Pritchard]: Yes. If we if we delay this from going to the floor tomorrow, does that change this bill being able to continue going forward?

[Representative Amy Sheldon (Chair)]: We can always postpone action if we find we need to, but it if we want the bill to go forward, it can only postpone so long and have the bill go forward.

[Representative Charlie Kimball]: Something was pointed out to me, madam chair, on my way here that the specific language we used, which says to charge the lowest fee for big game, On here, there is a bear tag fee for $5. It was not our intent to say $5.

[Representative Amy Sheldon (Chair)]: Cut my eyes.

[Representative Christopher "Chris" Pritchard]: That's what my concern is. So And that's why I had gone to representative Canfield, talked to him, and I actually gone to chair Kornheiser, spoke to her, and showed her the language, which she seemed to be fine with. Yeah. Because she was she was she was confusing this with the WMA stamp So two entirely different issues. So I thought, you know, we had talked about was we weren't gonna be raising costs. We had the way our language said the prevailing rate of the big game fee. We had all talked about a $23 fee, which is what the normal fees are for the archery license, all the tags with the exception of the additional bear tag. And why it landed there is is is disappointing.

[Representative Amy Sheldon (Chair)]: Well, we, you know, we can we're working through that now. So but the the sort of if I may, the kind of anyway, the the the gist of what you all are getting at is that they come back Yes. For the approval, not which which number we're we're lining this up with. That's right. We can fix that problem.

[Representative Rob North]: Yeah.

[Representative Amy Sheldon (Chair)]: Do you have thoughts on that?

[Representative Charlie Kimball]: We could do a further instance of amendment. I have not talked to the chair about that. As I said, it was on my way here that I learned of it. But we voted it out by a vote. I I can't quote the actual vote. I'm not sorry. I think it was a I think it was a a ten zero one, but I'm not positive. I apologize for not being able to quote that right now.

[Representative Amy Sheldon (Chair)]: And I I know you all do have lots of lots of bill reviews.

[Representative Michael "Mike" Tagliavia]: Rep and I'm Tagliavia. Couple questions. Thank you. It just seems to me the way this is written, it it sounds like Ways and Means is willing to forego revenue, and why would that be? This looks like

[Representative Charlie Kimball]: I see, like going to the lowest amount of speed.

[Representative Michael "Mike" Tagliavia]: Yeah, something based on market value. So why would you be willing to leave money on the table, especially for a division that is always so they're running on The new other question is, I thought some of these fees, the Commissioner was looking for the leeway because of when we are in session versus when the time comes to actually assess these fees and we would be missing out on years when some of these tags or permits would be issued?

[Representative Charlie Kimball]: Yeah, I think the intent of the committee was more to have review of the fees than and to have that authority and not to delegate that authority in perpetuity. And that there obviously are times when they do have to make decisions. That was, I think, the case with the dossiers, the way it was run. Again, an expert on that, jurisdictional experts. So it's more about our concern is more about the approval of the fees and not delegating that authority. As to the level of the fees, I'm sure we'll be able to talk together on that.

[Representative Rob North]: Just to

[Unidentified committee member]: push back a little if

[Representative Michael "Mike" Tagliavia]: I could, these fees would not be in perpetuity. We're here once a year. So if there was something that Ways and Means didn't like, we could always revisit next year.

[Representative Charlie Kimball]: Well, right. But we don't wanna permanently delegate any authority. Yep.

[Representative Amy Sheldon (Chair)]: And don't in other areas. That's important for people to know. Representative North.

[Representative Rob North]: Thank you, chair. Just, Charlie, I wanted to understand how you see the timeline of this work event based on the sentence that says the department shall seek legislative approval

[Representative Ela Chapin]: of

[Representative Rob North]: provisional fee pursuant that's within one year of the department's assessment fee. So it's kind of time sensitive. So they, you they do the assessment of the herd. This is all out, past the legislative session. They've got to come up with a new fee for this new additional tag. Oh, we're going to allow two tags this year. So, they kind of have to do it right then and there. So they assess $23 fee or whatever, and people pay it. Then one year later, we come around and go, nah, you weren't supposed to charge that fee. Now do you see everybody having to pay back all the fees that were collected after the one year, after the legislature said, no, you

[Representative Charlie Kimball]: shouldn't have charged 100

[Representative Rob North]: and dollars for that. Should have only charged $5 for that. Thank you for that. Everybody, I understand the time.

[Representative Charlie Kimball]: That's certainly not the intent. Mean, next sentence, the department's failure to obtain approval of the provisional fee shall void the provisional fee, and the department shall not assess a new provisional fee for the same big game. So it's really looking forward after that. So it's not going to say you get a refund on all those things. So within that a year gives the department a new legislative session to come to and get approval for that.

[Representative Rob North]: Okay. Because and then in the next year, the department reanalyzes and says, oh, now we get three tests, and we're gonna charge $40 for that third one. And then you go around another year. Then how does the discussion from the first year apply to this now second year that we're just trying to understand the timeline and we're going get all bollocks stuck with one another with provisional fees and then the approved fee and then which fee applies.

[Representative Amy Sheldon (Chair)]: Yeah, don't

[Representative Charlie Kimball]: think it doesn't happen that often, first, and it actually speaks to why we don't want to always delegate that authority. So we want to review the fees on a regular basis that the department is charging. Unless we want the department to have that authority and kind of always be

[Representative Rob North]: But the authority the the delegated what we're considering, I think, what this language does is give delegated authority to the department for, basically, for one year. Yes. And whatever that whatever they did during that one year is good. We're not gonna go back and try to change it. That's right. And then the next year, we're gonna look at and say That's still gonna be in place. Apply going forward. Right. Right. That's not clear for me in this language.

[Representative Charlie Kimball]: Michael O'Grady, I think, drafted it? Or

[Representative Amy Sheldon (Chair)]: Bradley. Bradley.

[Representative Rob North]: Yeah. I guess, especially the use of the word provisional, For provisional fee, that means, like, it's still in question. We're gonna charge it to you, but

[Representative Charlie Kimball]: And so it hasn't been passed in statute.

[Representative Rob North]: Yeah. Exactly. So, are refunds gonna be due? And to me, that's not super clear. If it actually stands for the year and then don't look back, I guess. Some cleanup around that would be helpful if that's the way it's intended to operate.

[Representative Charlie Kimball]: Not sure what the wording would be.

[Representative Ela Chapin]: But

[Representative Rob North]: You think it's clear the way it is?

[Representative Amy Sheldon (Chair)]: I do. I think that part is clear, and I just am curious if the Ways and Means Committee can reconsider the lowest amount language.

[Representative Charlie Kimball]: Yeah, I think that if we're looking at it, we didn't want to necessarily hamstring the Department. So if there was a fee for $5 I'm not sure why that their tag fee is only $5

[Representative Christopher "Chris" Pritchard]: That's an additional tag. Okay. When you purchase a license, you get a late season tag. They have a early season, and you would have to purchase that if you wanna participate in the early season. So that's what that tag is for.

[Representative Amy Sheldon (Chair)]: That's a valid question of why is a bear tag $5 when every other tag is more. But but it is, and so just curious about the chance to go on the lower end, particularly given that the two that we've heard about are a deer tag, excuse me, and a turkey tag, both of which are

[Representative Charlie Kimball]: $23.

[Representative Amy Sheldon (Chair)]: 23.

[Representative Sarah "Sarita" Austin (Clerk)]: So

[Representative Christopher "Chris" Pritchard]: and archery and a muzzleloader for all 23. All all the additional tags are $23.

[Representative Amy Sheldon (Chair)]: I think part of the In

[Representative Christopher "Chris" Pritchard]: the middle. Too is not only that we're not in session, but when they the Fish and Wildlife also has to print the rule book. And they're on a timeline to do that, and that's really what happened this year. They couldn't get it in the rules that about this additional tag and how much it was gonna cost. Yeah. Yeah. So they were left to get to to give it for nothing.

[Representative Amy Sheldon (Chair)]: Well, I think this does kinda splits the difference. I think what we're hearing is our Ways and Means Committee feels very strongly about the keeping the ability to levy fees in the legislature's purview. And this is them trying to meet the department and provide that flexibility. Yeah. Another way to look at this, representative Tagliavia.

[Representative Michael "Mike" Tagliavia]: I just wanted to point out that this this tag, this fee is part of a management tool, one of the many management tools for managing the herd. It's not only about the money, and when you have changes to the management of the herd, that needs to be taken into consideration, and I'm not sure if Wayne's means is concerned about herd management when they're thinking about these numbers.

[Representative Charlie Kimball]: Well, know, it goes back to what do you charge a fee for. You know, you're either trying to recover costs, you're trying to change behavior, you're trying to generate income. And so when you're ever charging a fee, if you if the Department of Fish and Wildlife said, we want to charge $5 only because we really have a big problem here, then they could have a $5 fee because it meets up with their needs. So we question every fee that we review as to why that's being charged and why that. We're looking at the mileage based user fee right now for electric vehicles with the same type of thing in mind. You know, why are we charging this fee? How much? What is it going to do to consumer behavior? So we would ask the same questions with that. So I don't know that $5 is the right amount for a bear tag, or the department may consider we're gonna charge $300 for a particular fee, which seems outrageous, but because it meets some kind of departmental goal at that time. So that's why, you know, really thinking about it, that's why it was the $5 the lowest fee for that because they might have a reason to charge a low fee that we don't know.

[Representative Christopher "Chris" Pritchard]: The prevailing would allow them to do that and not exceed it, though. I'm not sure

[Representative Charlie Kimball]: what prevailing means in that sense.

[Representative Christopher "Chris" Pritchard]: What what the what the present rate is, the prevailing rate. But right now, it's $23. If it was two years from now, if it was $30, then they wouldn't be able to charge any more than what people are paying for it now. They're really not raising any fees.

[Representative Charlie Kimball]: And the prevailing, it goes a $100 for a moose license, $5 for a bear tag, $23 for the others. Would you be more comfortable with $23 instead of prevailing rate? That's what the prevailing rate is for deer tags. Okay. But it doesn't say deer tags. Right. It was not limited to deer tags.

[Representative Amy Sheldon (Chair)]: Is it qualified to that type of game?

[Representative Rob North]: Yeah. No. Okay.

[Representative Amy Sheldon (Chair)]: Well, we could qualify to big game, I think.

[Representative Christopher "Chris" Pritchard]: Well, it was it was big I think it was qualified to big game.

[Representative Charlie Kimball]: Big game. Right. Which includes have 200. Turkey's gears, dear bear.

[Representative Amy Sheldon (Chair)]: Percent of sacrifice.

[Unidentified committee member]: Yeah. I I is for one year. Well, deep well, before it comes back to us. Yeah. And so I I do think $5 is probably too low. And I think I would trust the commissioner to just be able to set the fee for that one year, knowing that the commissioner is unlikely to set it extremely low or extremely high, and is probably going to try and find an analogous or existing fee to to base it on. And if the commissioner did really in some world, really messed that up, it's just gonna be for one year, and then we'll we'll fix it when it comes back.

[Representative Ela Chapin]: That seems like a good solution.

[Representative Amy Sheldon (Chair)]: Do you think that you would be able to take that request back to your committee?

[Representative Charlie Kimball]: I'll certainly discuss it with our committee as to whether or not we should change it. We passed it. It's on notice as to whether or not we would amend, or would you want to amend our report. That's a good question.

[Representative Christopher "Chris" Pritchard]: An option for for us. Yeah.

[Representative Charlie Kimball]: If if I understand what you are saying is that it's not to make it the lowest fee, but to make it so that it is at least, as you said, the prevailing fee. But

[Representative Amy Sheldon (Chair)]: I don't I guess for us, it meant lined up with the animal being taken. Right. The prevailing fee for the animal being licensed.

[Representative Charlie Kimball]: Okay. You paid as much for a third

[Representative Amy Sheldon (Chair)]: fee. Lesson. I understand that. If we had the same conversation, actually, and we were like, well, we're gonna trust that that's gonna be if it's a deer, it's gonna be no more than 23

[Representative Charlie Kimball]: Okay. Alright.

[Representative Amy Sheldon (Chair)]: For a turkey.

[Representative Charlie Kimball]: Discuss with them as to whether it's you or us doing it. Good question. Representative Chittenden.

[Representative Ela Chapin]: Sorry. You're just not confirming what I just heard, which is a suggestion to just take that out at all, what the fee should be and just enable them to make a fee, then we'll review it or it'll go away. So maybe the best solution is for whoever's going to make the amendment, to make the amendment just to take that part of that out.

[Representative Charlie Kimball]: As to what that fee is.

[Representative Chittenden]: You've made it just temporary. It's a really different conversation, I guess, for our committee as to how much we want to control what fee they initially set it at. Now that's sort of moot.

[Representative Amy Sheldon (Chair)]: So

[Representative Chittenden]: our concern was, aren't we supposed to be setting fees? We're enabling them to set a fee.

[Representative Amy Sheldon (Chair)]: So we were putting a boundary on it because of that, but then you, because you'd see this larger picture, yeah, brought in a different idea.

[Representative Chittenden]: I propose that that be whatever we come to That we strike

[Representative Amy Sheldon (Chair)]: the limit because we're having a check back.

[Michael O'Grady (Legislative Counsel)]: Yeah. Yeah. Right.

[Representative Amy Sheldon (Chair)]: Yeah. Alright. We will talk amongst ourselves and forward.

[Representative Christopher "Chris" Pritchard]: Amongst ourselves. Thank you. Thank you, Charlie.

[Representative Amy Sheldon (Chair)]: Well, think we agree that that's our preferred choice, and so find a path forward with the ways of the case committee on how to do that. Yeah. We'll we'll work it out. I mean, I'll work with representative Pritchard. With that, I think we're adjourned