Vermont Legislature SmartTranscripts:

[Unidentified Committee Member]: Good morning.

[Chair Amy Sheldon]: Welcome to the House Environment Committee. This morning, we are taking testimony on s two twelve, an act relating to potable water supply and wastewater connections with our legislative council.

[Michael O'Grady, Legislative Counsel]: Good morning. I don't have new language for you, but I do have what I know of an update, partly through the city of Burlington, Megan Moore, the public works director, and partly through ANR, the head of the pretreatment program. There, you may recall, I walked through some potential questions, delegation of pretreatment to Burlington because of the 1982 memorandum between EPA ANR. ANR has received approval from EPA to go forward with the delegation. I've from what I saw in the notes this morning, there may be some additional proposed revisions to the delegation language, including not calling a delegation, calling in an agreement. And But I don't have language for you. From what I was told, ANR water division attorney working on the issue needs to check with EPA about something language. And that's the last I heard before I went to the floor. So I don't know if you consider this good news or not. EPA thinks pretreatment delegation is authorized. Burlington is happy about that. But there may need to be some just tweaks to the language before it's fine.

[Chair Amy Sheldon]: And with what you've seen, are your concerns satisfied? You had concerns about, like, questions about the authority and the potential for potential permittee to be kinda get out of it.

[Michael O'Grady, Legislative Counsel]: I I mean, my my preference would be to see what EPA sent ANR and to have that on file

[Kevin Burke, Director, Watershed Management Division (DEC)]: for a record of approval.

[Michael O'Grady, Legislative Counsel]: And then for purposes of the delegation agreement with Burlington, I mean, mean, I made this point with a couple people this morning that this is not the first delegation or delegation authority that's out there. ANR has entered into agreements with municipalities for delegation, whether or not it's Newport for the harbor at Mount for Magog or or Greensboro for the Caspian Shorelands. Charlotte in Colchester previously for wastewater treatment. And so wastewater and portable water supply systems, I should say. And so they know how to write those agreements. They know how to write the authority into those agreements. They are effectively contracts. They have termination clauses in them, and they prohibit the delegated entity from violating law. And they and some of them also have what I call override authority. Like, if they're not permitting properly, the state can come in and permit where they believe it's necessary. So that that will be the terms of the agreement. As I said, ANR has done that for for both the different programs previously when offered. You were now authorized.

[Chair Amy Sheldon]: I'm depleting it.

[Michael O'Grady, Legislative Counsel]: Right. Oh, yes. Do

[Chair Amy Sheldon]: members have questions for Michael?

[Michael O'Grady, Legislative Counsel]: I have one further bit of information with regard to the general permitting authority for connections and limiting that. You asked me to contact Brian Redman at ANR and to try to put some, you know, structure, additional details around that broad general permit authority, not the general permit authority for inspections, but the other general permit authority. He conferred with his staff, and they they identified three to four kind of categories of activity that they thought that was appropriate for a general permit, including things like boundary adjustments. You know, when you adjust your boundary for your parcel, it it technically it can trigger the need for a wastewater or a potable water supply permit. It also might be exempt under the wastewater rules. They could see a general permit being very useful in those situations so that a staffer doesn't have to go out and get a boundary adjustment, especially a small one with limits on. Small systems, you know, soil based systems that are serving multiple parties, multiple connections, less than a thousand gallons per day, they could see that as appropriate for a general permit. Types of connections that are not already covered by the general permit could potentially be so they're looking at three or four categories, and you I can draft language to to authorize that, but in very limited ways if you wanted me to.

[Chair Amy Sheldon]: Yeah. I think we would like to look at that.

[Michael O'Grady, Legislative Counsel]: And that's what I have as an update for 02/12. I think both of those issues are moving, and I think they're moving where the committee wants them to go. So I think they're both viable.

[Chair Amy Sheldon]: And okay. So that'd be great. And I guess we'll ask ANR specific questions to ANR. Do members have other questions for Michael right now? Thank you. Deputy Commissioner.

[Neil Kamman, Deputy Commissioner, VT DEC]: Good morning, everybody. For the record, Neil Kamen, Deputy Commissioner, DEC. Ledge Council, thank you for the keeping incredible track of the amazing throughput of email on that matter that happened in the last twenty four hours. Appreciate that. Way better than I could have done. So. Good morning. Would you like a statement on 02/12 and the proposed amendments? Sure, great. So this is the idea of delegating pretreatment authority to the city of Burlington has actually been kicking around for a couple of years now. I believe under a prior Commissioner and even a prior General Counsel, some language had been developed in coordination with the city. It never got traction. I don't know why I wasn't part of that. This came to my attention, the department's attention about December or so, which was a little late for us, DEC, to make it a DEC priority to bring to you all, but we certainly are a willing party. Long story short, we absolutely support the proposed amendment. It obviously needs to be tidied up and whatever the final language looks like. But if it. Carries the same sets of presumptions that we've been talking about, the Department is fine with the language and would be happy to sign And

[Chair Amy Sheldon]: how would we learn more about other like Michael just said, there's other places the delegation to towns or cities has happened. Who oversees those, and how do those arrangements get finalized?

[Neil Kamman, Deputy Commissioner, VT DEC]: Sure. So let me introduce the gentleman to my left. Mr. Bruce Douglas is the manager for the wastewater potable water supply, all of the kinds of permits that Mr. O'Grady was just talking about. And from a general sense, know, we would negotiate an agreement legally with the entity that we're looking to negotiate the agreement with, come to, you know, come to terms, make sure it hews with statutory authority and and, you know, go forward and do it. Bruce has experience doing this as delegation has previously been, you know, a thing for wastewater in municipalities. Am I correct on that? Sure. Do you want to offer any thoughts?

[Bruce Douglas, Drinking Water and Groundwater Protection Division (DEC)]: Just briefly. Bruce Douglas in the drinking water and groundwater protection division. And I think the big point is that in the agreements for milestones, like annual reporting required, you know, that there there could be a kind of a conversation going on with the the two entities, Charlotte and Colchester, that that had delegation. I think that that's very important to not just hand it off and walk away from it, but to to keep the the exchange of information so so that the the the program that's delegated it can keep tabs on on what people are doing and and make sure it's it's in alignment with the requirements.

[Chair Amy Sheldon]: And so you would imagine, like, for this pretreatment allegation authority, it would be the same? Like if Arlington wanted to do it or if Middlebury wanted to do it or somebody else wanted to do it, it would be the same agreement? Or are they unique?

[Neil Kamman, Deputy Commissioner, VT DEC]: So I might jump in because this is more in the area of Mr. Burke's and mine, but pretreatment specifically, you know, the pretreatment program is one where we are looking at those entities that are sending wastewater to the wastewater treatment facility. So it's not like we are regulating the wastewater treatment facility. We're regulating stonecutter. I can't remember the name of the big distillery down here, businesses like that, right? And so that's a very retail level activity. And when a municipality is interested, and not many would be, but those that are interested in doing so, they have better knowledge of their collection system connections, what's coming into their facility, and they have the relationships with those businesses. So that's why, you know, with with Burlington's proposal, you know, we're very much for it. They've been doing a lot of work. Some of it funded under American Rescue Plan Act dollars to totally understand the landscape of the the dischargers that are sending wastewater to their facility.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: Yeah. I guess what I'm asking,

[Chair Amy Sheldon]: though, is, like, what's the ANR oversight? Like like the example of the previous delegation that we just heard from mister Douglas, what would it look like in this pretreatment new new scenario?

[Neil Kamman, Deputy Commissioner, VT DEC]: So under this scenario and and so Kevin Burke, director of Washington Management Division, so, like, I'll I'll pass it to you in a sec. Under this scenario, we are keeping tight track of what is coming out of that wastewater treatment plant, and the monitoring data is coming into the state on a regular basis. We're reviewing it, and we can see when there are hiccups in that, And the operators of wastewater facilities are required to report to the state when there are sort of operational level hiccups that happened in there that may not necessarily translate into an end of pipe exceedance of a water standard. So we have these relationships, and we are working with the operators all the time. So if there are upsets associated with the capability of the plant to meet its permit, we get in there. If it's associated with an upstream user and we don't have a direct authority over that, we're gonna be looking to Burlington to make sure they exercise their authority over it. Kevin, is there anything else you wanna add on that?

[Michael O'Grady, Legislative Counsel]: I don't think so.

[Kevin Burke, Director, Watershed Management Division (DEC)]: I think Kevin Burke, of the Watershed Management Division, I think it's important just to have the city of Burlington be able to identify a user that's contributing to their wastewater treatment plant might be discharging very high strength waste that will impact how efficient and effective the wastewater treatment plant is. I think it's a great thing to have, so as long as they have the staffing and the program developed, to do that at the local level. I would expect too any type of formal agreement would include some type of reporting that Bruce kind of referenced so that we were aware of how many facilities they are permitting for pretreatment, what types of facilities, you know, there's industrial facilities, there might be food or beverage facilities. The various types of industries that could be regulated under a pretreatment permit. But in the end, really, just having it at the local level with somebody like Burlington that would have an awareness of the businesses that operate within their boundaries, I think, would really be beneficial. It also takes on a large workload of our current wastewater program, which we have staff, but probably could use more if we were to have to do this work ourselves. So there's a real benefit there in sharing on that work.

[Chair Amy Sheldon]: Yeah. I guess I'm gonna I'm I'm not getting quite to where I need to get to here. I just I'm wondering, what's your next step? If we give you if this if we we codify this, what are you gonna do to work this out with the folks that you already permit in the in the communities that wanna take it over? Right now,

[Neil Kamman, Deputy Commissioner, VT DEC]: it's only Burlington, and we will essentially create the either MOU or agreement that you're authorizing us to enter into. Put all the parameters around what you are asking about right now into that agreement. Ultimately, the state has the responsibility to make sure that the wastewater treatment plant is discharging in accordance with this permit, right? And the municipality this becomes the municipalities regulating their incoming their influence from their businesses is all part and parcel of them, you know, achieving the permit requirement. So ultimately, if there are problems at the facility, we get involved. The agreement that we craft with Burlington will dictate sort of the terms of how we oversee the city's work, largely delegating that work to the city. And again, they are the permittee. There may be I'm not sure if you all had discussed this with Ledge Council. There may be opportunities to recognize that MOU within the NIPTIS permit for the discharging facility too, right? So that if we've entered into agreement with Burlington, our next permit may say something to the degree of, and you shall adhere to the terms of this agreement about pretreatment, which gives it the force of law of that permit.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: That's pretty good to me.

[Chair Amy Sheldon]: Thank you. Some questions about the term delegation?

[Neil Kamman, Deputy Commissioner, VT DEC]: No? I have no questions about that.

[Michael O'Grady, Legislative Counsel]: It was the difference between MOU and a column.

[Unidentified Committee Member]: Oh, I see.

[Chair Amy Sheldon]: Any other?

[Michael O'Grady, Legislative Counsel]: And you need a verb too.

[Kevin Burke, Director, Watershed Management Division (DEC)]: Yeah.

[Rep. Michael Hoyt (Member)]: That's can look at words, but they have it referred to.

[Chair Amy Sheldon]: All right. So in process. Representative Austin.

[Rep. Sarah "Sarita" Austin (Clerk)]: Yeah. I'm just wondering if Colchester we send our treatment to South Burlington, and I'm wondering how you would discern, you know, if there was a hiccup, as you put it, whether it was Colchester, I mean, would you discern the business? I know it's not specifically about this scale, but I'm curious.

[Neil Kamman, Deputy Commissioner, VT DEC]: Yeah, no. Well, that is part and parcel of pretreatment is that you do what's called an industrial user survey to identify the sending businesses and the general characteristics of the waste that they send down. So if you got a brewery, you know you're dealing with brewery wash water, you're dealing with some residual, like what hops and starter and things like that, probably a lot of sugars. If you're dealing with a creamery, you're going to be dealing with a lot of milk waste, high strength biological oxygen demand stuff. So that's part of

[Kevin Burke, Director, Watershed Management Division (DEC)]: if we're going

[Neil Kamman, Deputy Commissioner, VT DEC]: to delegate this, the city or the town that would be delegated to needs to have a really good understanding of what the businesses are doing. And as I said, Burlington has this because of the agreements that we've had with them previously, to really tune that up.

[Rep. Sarah "Sarita" Austin (Clerk)]: So South Burlington would coordinate or work with Colchester, to know what businesses Colchester is?

[Neil Kamman, Deputy Commissioner, VT DEC]: Yeah, if South Burlington were in fact seeking to independently get delegation to do this, here it's just Burlington for now, but it would be the same thing. They would need to know, and Bob Fisher's your chief operator and Tom DiPietro is your PW director. They know their thing, right? So

[Rep. Sarah "Sarita" Austin (Clerk)]: Okay. Great. Thank you.

[Chair Amy Sheldon]: Percent of friction,

[Rep. Christopher "Chris" Pritchard (Member)]: it sounds like they would identify it at Colchester anyways, right, before they close to Burlington?

[Alex Farrell, Commissioner, Department of Housing and Community Development]: It depends on the you know,

[Neil Kamman, Deputy Commissioner, VT DEC]: if it's all domestic waste. Then essentially everything coming into and I doubt it is, but let's just pretend it is. It's all domestic waste. There's a number of people. There's a number of connections. There's an assumed amount of water and assumed strength of the waste. That's kind of well known. If there are businesses in Colchester that are sending to South Burlington, right now, businesses are regulated by Kevin's program under the pretreatment part of the wastewater program.

[Kevin Burke, Director, Watershed Management Division (DEC)]: Oh, so they're sending it directly to South?

[Unidentified Committee Member]: Yeah. Oh, okay. Yeah. Yeah.

[Neil Kamman, Deputy Commissioner, VT DEC]: Yeah. Exactly. It's kind of like South Burlington serves as the wastewater treatment facility for a couple of neighborhoods in Manchester.

[Chair Amy Sheldon]: Are there questions on s two twelve? May I

[Neil Kamman, Deputy Commissioner, VT DEC]: make a statement on the rest of the bill? Yes. I think mister mister Redmond's on on record on this, but we very much support the remainder of the bill as it's now drafted. So

[Unidentified Committee Member]: Yeah. Thank you.

[Chair Amy Sheldon]: Okay. Alright. S two two three, an act relating to water quality of the waters of Vermont. Okay.

[Neil Kamman, Deputy Commissioner, VT DEC]: You are asking for my input on the bill itself, s two twenty three? Yes, and I think

[Chair Amy Sheldon]: administration has an amendment.

[Neil Kamman, Deputy Commissioner, VT DEC]: Yes. Okay. So the bill itself, I think I'm on record on it already. Other partners and stakeholders come in, we fully support the intent of the study committee to go forward and to review that anti degradation work and to bring you back firm language as a result of that study committee. Amendment that is on the website right now is an amendment related to the governor's executive order on housing. The executive order on housing directs the department to implement certain changes to the wetlands program in the designated areas in Vermont. We've gone forward and done that by an amendment to the Vermont wetlands rule. That was the best way we were able to determine to do that, and we've gone forth and done that. The rule was released for public comment late last year. Public comment closed in January. We received about 1,500 comments, prepared a responsiveness summary, and have filed just a few days ago. So we're scheduled for LCAR for that rule on April 30. At issue here is it's been raised to us there are concerns about the congruence of the wetland rule amendments and the current statutory construct around wetlands. And so this amendment here essentially seeks to align those concerns that have been raised to us with what's in the current rule now. So the rule, as revised and put forward to Elcar, allows for a relaxation of the 50 foot buffer around mapped wetlands to 25 feet, allows for development in unmapped wetlands and allows for a general for a BMP authorization of access and utilities when they're less than 5,000 square feet into the development areas.

[Unidentified Committee Member]: The

[Neil Kamman, Deputy Commissioner, VT DEC]: amendment that you see here does three things. First, it provides recognition of those three things that I just said. So the 25 foot relaxation of buffer, the best management practice codified in rule for access and utilities, and the allowance of development in unmapped wetlands exclusively in that 3% of the designated spaces. The amendment does two other things that we also like. The amendment creates a general permit authority for wetlands permitting for housing projects. That general permit authority retains the 25 foot buffer in the designated areas exclusively, but does not include the unmapped wetland component of it. The second piece of Section two is a wetlands scientist certification program. So I think you've heard previously concerns expressed that wetlands permitting does take some time, and it does. And sometimes it's a matter of a professional delineator making a statement. The state of Vermont, the state of Vermont's wetland scientists going and reviewing that, going back and forth, going out in the field and seeing those things. Sometimes those things span across seasons because we have a limited construction season and a limited snow free season when you can really observe the wetlands. So what this last piece of the amendment does is it creates a certification program so that we can essentially certify delineators to go out there and submit to us their certified delineations, which would be considered dispositive by the agency unless there was a reason to rebut that. And there's language in there that allows for the secretary, I. E. The program, to rebut a delineation if we really feel that there is a problem with it, and then there's a time bound trigger around the agency rebutting that. But it's intended to provide deference to trained scientists that work in conjunction with our program, and to essentially allow a little bit more transparency and predictability into the process. So that is my description of the amendment.

[Kevin Burke, Director, Watershed Management Division (DEC)]: This is o six two five executive order? Yes.

[Rep. Michael Hoyt (Member)]: Yes. That's

[Chair Amy Sheldon]: And it's

[Rep. Ela Chapin (Member)]: what? It's under Neil's.

[Chair Amy Sheldon]: Yeah.

[Unidentified Committee Member]: Representative

[Chair Amy Sheldon]: Chapin.

[Rep. Ela Chapin (Member)]: Have lots of questions. But just on that last piece, can you just articulate the problem you're trying to solve with the certification?

[Neil Kamman, Deputy Commissioner, VT DEC]: Yeah. Let's say you own a lot and you want to build your home on it, and you want to build in, you want to cut ground in April. Alright, so you've gone through the steps, you've gotten a delineation, and you submitted that delineation for a wetlands permit in October. So it goes into the queue. There's an amount of time. I thought you guys were done. There's, you know, there's there the clock starts ticking on the review of the permit. The wetland scientist looks at the delineation and has concerns or a desire to go out in the field and meet with the delineator to review it. So that let's say that request happens the November, and then it snows. This happens, and it did, right, in the last year. And so now what you're now doing is you're waiting until the snow is off the ground, and you're in the queue for one of our wetland scientists to come visit with you on your land with your delineator to review the delineation, talk through it, come to agreement if there's a disagreement. The certification would essentially hold that you would have asked for that delineation, you would have submitted it in October. We would give it deference. We would not ask for a field visit. You would not have to wait until April for the field visit. Once the field visit happens, you may or may not need to redesign your project. So, you already have a professional delineator telling you this is good. If you're waiting until April to have your delineation sort of codified, you're waiting to bid your project kind of at a bad time of year. If you don't get your wetlands permit, for example, until mid May or late May, and then you're looking for a builder, you've lost essentially a year and you have incurred escalation associated with the time.

[Rep. Ela Chapin (Member)]: I think what I'm hearing is it's well, you haven't said this part, but it's typical or a single family home construction project to have somebody outside the agency come and do the delineation in advance of submitting your permit application to the agency. And then it is also common for then an agency staff to go out and confirm that delineation with the person who did the delineation.

[Neil Kamman, Deputy Commissioner, VT DEC]: Okay. I've got that right. Right? Yep. Yes. Correct.

[Rep. Ela Chapin (Member)]: And so that's really typical practice. And so this really just reduces that process significantly unless there's a particular reason that the state feels they need to go out and check that delineation.

[Chair Amy Sheldon]: Right. Great.

[Rep. Ela Chapin (Member)]: Thank you. And do you have any data on how frequently the state delineation conflicts with the delineation that was submitted?

[Neil Kamman, Deputy Commissioner, VT DEC]: I can't give you hard numbers, but I can tell you that it happens. Kevin, do you want to speak to

[Michael O'Grady, Legislative Counsel]: it at all?

[Kevin Burke, Director, Watershed Management Division (DEC)]: I think it's complicated. Wetlands delineation, you know, has you know, different ecologists might see it differently. I don't have any specific numbers, but, you know, it could be challenged. I think, you know, even consultants could be out doing that initial delineation. It's not always just because the wetlands program is inserting itself into the process, but a consultant might simply have questions, might not fully understand where that boundary is, and engage with the state wetlands program to come out and confirm the delineation. And that still might happen, but in cases where we have a certified consultant who would allow for that not to be necessary if it's, for example, straightforward. Delineations can be, I think, as I understand, complicated, depending on the nature of the site or their past activities. Is it its historical build? There could be a lot of different characteristics of the

[Unidentified Committee Member]: site that would make it look even.

[Neil Kamman, Deputy Commissioner, VT DEC]: If I could just add a little bit to this. There's an actual cost factor on this. I was involved in a project where we were looking to build a clean water practice, and there were some wetlands associated with it. So we went and had a delineation done by a professional. And then just following the process, we had to get the you know, our wetland scientists came out, and then we had to invite the delineator back. We had to amend our contract with the delineator to add money into it so that the delineator's time would be covered. Just fine for the state building a clean water project, you know, using state funds, though it's an expense. The expenses add up if you're a couple and you're trying to build your first home and you've got $200,000 I've used this example with you all before, right? And then each incremental cost adds up. So if we can shave some of that cost on those folks we're not giving up very much from a risk perspective. And I think that the language in here contemplates some specific guidance that we had developed that a certified delineator would have to have a certain level of knowledge and implementation of it's the Army Corps' manual for delineation. That's the sort of bible for this. So it wouldn't be the Wild West, similar to the licensed designer program under Mr. Douglas' program. You have licensed designers that are licensed to develop designs and then give that deference.

[Rep. Ela Chapin (Member)]: Yeah, think the concept of trying to trim down any of these permit processes, especially for small scale development, is we need to be looking at these opportunities. No question. And I appreciate that. I guess I would expect a little bit more to be done in the risk analysis side of this equation to really bring us some data that shows that the risk is really low for incorrect delineations to be happening. I know the landscape changes over time too, but not from fall to spring. Yeah, I guess I'm-

[Neil Kamman, Deputy Commissioner, VT DEC]: What kind of data would satisfy that?

[Rep. Ela Chapin (Member)]: Like showing that 90% of the time the delineation's done the same by the state agency as the understand right now you're proposing to have more training so that we

[Neil Kamman, Deputy Commissioner, VT DEC]: can I use don't know whether that data like that exists? I'm not sure. I mean, can you're right, things can change over time, and even folks' memories can change over time. You know, we've had instances where a project was approved at a point in time and then re questioned a time certain later so that the developer of the project thought they were good to go was held back for another iteration of time for another cycle of delineation. We've seen that happen, too. Held back by your stuff. Yes.

[Chair Amy Sheldon]: Thanks. Go

[Kevin Burke, Director, Watershed Management Division (DEC)]: ahead, Kevin. I think there's one other piece of this just to be aware of is, you know, in case sometimes, you know, there could be a map to what wetland that delineator might not agree with delineate in that smaller area. Mhmm. So the way it's drafted now would allow for the weapons program to engage. I think that would be a situation where they might want to engage, particularly if the the map that area was significantly greater than what was coming in from a certified delineator. So I think it goes both ways.

[Neil Kamman, Deputy Commissioner, VT DEC]: And I'll just offer. There is you know, the language is that it creates a rebuttable presumption of accuracy. So I use the term dispositive, but it's qualified.

[Chair Amy Sheldon]: Representative Hoyt.

[Neil Kamman, Deputy Commissioner, VT DEC]: Thanks. Just so I get this straight because some of this is gonna be

[Rep. Michael Hoyt (Member)]: is would this amendment codify in statute rules that are

[Neil Kamman, Deputy Commissioner, VT DEC]: presently being promulgated by your agency? That is correct.

[Rep. Michael Hoyt (Member)]: Okay. And those rules are sort of working off that executive order of the governors?

[Neil Kamman, Deputy Commissioner, VT DEC]: That is correct. And that executive order changes the buffer from 50 to 25 feet in wetlands? Is that the idea? In Map wetlands, yes.

[Rep. Michael Hoyt (Member)]: In the statute, does it list the buffer as 50 feet? Is there an existing statute that says there's a 50 foot buffer? Yes. That just gives me some questions about whether, like, this do you think there could be a problem with the rules or the executive order if they contradict statute? And this kinda just takes that concern away by just codifying it to the new buffer

[Neil Kamman, Deputy Commissioner, VT DEC]: So as I testified for you all previously, yeah, this is a live question, and we've received concerns that the rule as promulgated deviates from the way statute is structured. Okay. And yet, you know, the Department is implementing the executive order the best we can by creating the allowed use in the rules, and what and it's in the new rule structure, it's a time bound allowed use. Okay. This amendment also codifies that time boundness and codifies the parameters of the executive order.

[Rep. Michael Hoyt (Member)]: Okay. But in the absence so on the one hand, you've got a statute of 50 feet, and you got the rules, executive order of 25. So I see, like, tension there. And this seems like if we just enacted this, that would take care of

[Unidentified Committee Member]: the whole problem. So we're just changing

[Rep. Michael Hoyt (Member)]: or we're essentially just changing the statute to reflect '25.

[Neil Kamman, Deputy Commissioner, VT DEC]: Well, I think the opportunity here is for the general assembly to, you know, to weigh in on that because the the administration has brought this question forward both last year and this year. And so this is our proposal to align everything together. Thank you.

[Chair Amy Sheldon]: I haven't walked through this. Who drafted

[Neil Kamman, Deputy Commissioner, VT DEC]: this? Agency General Counsel, Katherine Jessing.

[Chair Amy Sheldon]: You said time bound, but this wouldn't be time bound. What's the time boundness of the proposed So

[Neil Kamman, Deputy Commissioner, VT DEC]: in Section four of this amendment and also in the draft rule, there's the statement, any rule provision adopting an allowed use pursuant to Section two of this Act, so this amendment, shall expire on 01/01/2030. And the same triggers are in the rule, and that time block is chosen to be congruent with the proposed amendments to Act 181 that are on deck now, which lengthens the amount of time that the Tier 1A and Tier 1B areas are going to be identified, right? So it gives more time around all of that. Meanwhile, the executive order and wetland rule modifications, pertain to that 3% of the state that is the designated areas, is really chasing that Tier 1A, Tier 1B transition. So once Tier 1A, Tier 1B are complete, this allowed use language goes away in the rules. It's basically superseded or eliminated through this statute and is replaced by the proposed general permit language that's in here, where we instead would promulgate a general permit for housing projects instead.

[Chair Amy Sheldon]: To be clear, the 25 the 50 to 25 is in the the proposed to be in those exempt areas and or the 1A areas?

[Neil Kamman, Deputy Commissioner, VT DEC]: I would have to dive into this very deeply if I said yes, that I was absolutely right. The Registration under Subdivision B 2 G.

[Chair Amy Sheldon]: B 2 G. I guess if you're getting legal advice, I'd rather walk through it with your counsel. Fine. That's fine.

[Neil Kamman, Deputy Commissioner, VT DEC]: Yeah, I'm sure she'd be happy to do that.

[Chair Amy Sheldon]: Yeah. I guess I continue to have concerns with the idea that we are going to be windowing down the amount of functioning wetlands regardless of where they're located. And, you know, need to get, I guess, a better handle on this ask, but, we know we have flooding in these areas all the time. We know we need functioning wetlands in these areas. And in fact, I would say that, you know, for areas to be both livable and enjoyable for the folks who are living in them, we need natural function and and things to be happening. And, also, we need to be mitigating the effects of flood and and drought regardless of our human imposed desires for a certain area. Do members have further questions on this? Representative Austin.

[Rep. Sarah "Sarita" Austin (Clerk)]: Yeah. I'm curious about home insurers. Like, I'm I'm wondering if we would need to include in the house insurance some stipulation that if a homeowner builds in a wetland, that the insurance company will cover all costs in terms of repair or replacement of roads and buildings, and also that the state would not put any money into repairing or replacing the domicile or the roads that might be damaged by flooding or wet you know, a weather event due to the location of the house.

[Neil Kamman, Deputy Commissioner, VT DEC]: That's an interesting concept. I mean, right now the Vermont wetland rules don't contemplate that, and if everybody got it wrong and somebody builds in a wet spot, I'm not sure that insurance recognizes that now.

[Rep. Sarah "Sarita" Austin (Clerk)]: I just think, you know, with climate change, we don't know what's going on, so that's why it's uncertain.

[Neil Kamman, Deputy Commissioner, VT DEC]: Yeah, I mean, I'll offer not as a counter to, but as a compliment to that, that with climate change, we are trying to keep our headwaters, trying to keep our large wetland complexes, and trying to keep our development located in the areas that we've identified for development, which is Tier 1A, which is the current set of designations now. And so, there is fundamentally a balance there. And I recognize 100% that it is in this body's jurisdiction to decide what that is. I'm bringing this forward on behalf of the agency and the administration, implementing the governor's direction.

[Chair Amy Sheldon]: You just said we're trying to keep our headwaters protected. How how are we how is that happening? We've had a request to reduce jurisdictional threshold area in our headwater streams this session. I guess I'm curious where you're seeing those protections happening. Oh, in

[Neil Kamman, Deputy Commissioner, VT DEC]: the fact that, for example, we're not proposing any wetlands modifications to areas outside the designated areas, are nominally not headwaters, at least as we have a vision around them. High elevation woodsy areas, order one, order two streams, things like that. The regulated river corridors that are coming forward under Act 121. The two to one wetlands mitigation that is now incorporated in the submitted rule as a result of comments that we had not done that as directed by Act 121. That's done now. General floodplain protections, you know, 1.2 times bankfull width things you know about about like where we regulate streams.

[Chair Amy Sheldon]: Yeah. But those are not specifically headwaters. I was just curious about that statement. Representative Tagliavia? Do you have an estimate of

[Rep. Michael "Mike" Tagliavia (Member)]: the number of acres this bin looks like actually affected?

[Neil Kamman, Deputy Commissioner, VT DEC]: Would you give me a moment to take a look at something? Sure. I know the percentages. So the total percent of the state of Vermont that is subject to this proposed wetlands executive order and this proposed amendment is three percent of the total acreage of the state of Vermont. The total percent of mapped wetlands inside that 3% is 6% of the 3%. So the total percent of Vermont's acreage that is presently mapped as wetland is 0.18% of the landmass of the state of Vermont. I can give you those percentages off the top of my head. I'd have to look for the actual numbers.

[Chair Amy Sheldon]: That's your question. Okay.

[Rep. Sarah "Sarita" Austin (Clerk)]: I'm just my concern, and I'm sure it is yours as well, is the billions of dollars that the markets have spent to repair and replace historical structures. And I'm not talking about those that were built, after kind of climate change started happening. I am concerned about building now because climate change is uncertain. And even just the thought of building close to a wetland makes me very concerned. And I just wanna assure that Vermont just will not have to pay for any of these properties or any of the roads or anything if unforeseen circumstances due to climate change, due to being built where they're being built built. I I just want to make sure Vermonters are not paying for that cleanup.

[Neil Kamman, Deputy Commissioner, VT DEC]: Recognized.

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

[Neil Kamman, Deputy Commissioner, VT DEC]: Yeah. The I I just wanna point out, I just spouted out some numbers 360.8118%. This is not considering protected floodplains. This is not considering municipal zoning protections around river corridors. This is not considering stream alteration requirements for crossings, for armoring, for hardening, for protection of existing property. All of that still applies, and this doesn't. This is also not accounting for the effect of stormwater treatment. So you're going to build a four quad unit. You're still required to do all your stormwater, which includes all the calculations around that for managing the volumes. But I don't want a yeah, but you representative like I understand your I understand the

[Rep. Michael Hoyt (Member)]: concern.

[Rep. Sarah "Sarita" Austin (Clerk)]: It's just shifting climate right now. Mean, the thought of wet lands means to me wet land. And so that doesn't seem to make sense to me that that would be where someone would want to build a house. So that's all.

[Kevin Burke, Director, Watershed Management Division (DEC)]: Further

[Chair Amy Sheldon]: comments on the underlying bill? Nope. You said you supported. Further questions?

[Unidentified Committee Member]: Thank

[Chair Amy Sheldon]: you. Thank

[Neil Kamman, Deputy Commissioner, VT DEC]: you, representatives. You have a great weekend. Yeah. You

[Chair Amy Sheldon]: I see if it's here. One more witness on not person who lives in my community, Alex Farrell, who I think may be available. He said he only needed fifteen minutes. So if he's right outside, we can hear from him today.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: Hello. Welcome. We are shifting gears back

[Chair Amy Sheldon]: to S three twenty five with the commissioner of the Department of Housing and Community Development. Thank you, madam chair.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: Nice to see everybody. So I know you're short on time, and I know you've heard a lot about 03:25 over the last week and a half, so I'll be fairly concise. I'll talk about a couple sections of the bill that have some important items. But, you know, on the whole, what I wanna do is just make it very clear where the department stands and, more importantly, where the administration stands on some really high priority items. So and a lot of this won't be a surprise to you because it's gonna mimic what's been in our last couple of omnibus housing bills and land use bills, and it's gonna mimic what was in h six zero two, our our housing bill this year. So I'll just start off with the biggest things. The administration is remains officially in favor of repealing both the road rule and repealing tier three. That remains the administration position. In 03/25, there are a number of changes to the future land use mapping process, some changes to the regional plans and the designations, mostly, I think, clarifying intent, much of which is very important. So you've already heard from the regional planning commissions and we're supportive of those provisions. We do think it adds some important clarity. And from the perspective of our department and from the Community Investment Board, it really helps us focus on our programs and the designations without also being conflicted with what the future land use mapping looks like. So that's, you know, really sections 11 through 17. Focus on those cleanups. And then section 18, again, I think this is already pointed out to you by the regional planning commissions, but section 18 is where it clarifies that the tax credits moving forward would only be eligible in centers, particularly centers with a historic district. So it is important to us to maintain all those provisions that are in 03/25 as passed by the Senate. And I'd say that the extension of the interim exemption timelines and some of the expansions to apply them to additional areas, also very important to us, changing the tier one a permit delegation, very important. But I do want to just leave this committee with a very clear understanding that the department and the administration is still firmly in the camp of repealing the road rule and repealing tier three. So that's all I have to share with you. I'm I'm happy to answer some questions.

[Chair Amy Sheldon]: Thank you for your testimony. I'm curious about, the budget for

[Alex Farrell, Commissioner, Department of Housing and Community Development]: the sort of the historic preservation investment aspect of your work. Mhmm. And you're specifically talking about the tax credits? Yes. Yes. So for a couple of years, had we had two onetime increases, the downtown and village center tax credit, to increase it to 5,000,000. During that time, the demand we saw was just in the 5 to 6,000,000 range. So it got us closer to being able to meet demand based on the applications that we received, but it was just short of it. With the addition of new centers, there will likely be more applications, more demand. So at 3,000,000, we won't be able to fund every application, but we do prioritize the smaller projects so we can have a broader impact. I'll give you an example. If we have one large project come in, and for some historic context here, several years ago, the sales tax reallocation, which is sort of the new construction component of this, got moved into the same pot as the downtown and village center tax credits. And those can be and typically are larger awards. If those end up in the funded bucket, that ends up bumping out a lot of the smaller projects. And so we do, as a board, try to prioritize those smaller projects to make sure that the smaller towns and more projects are impacted. So it's likely that regardless of what happens with three twenty five, we we won't fund everything that comes to us, and it demand remains in the 5 to 6,000,000 range.

[Chair Amy Sheldon]: How would this sort of historic focus of the tax credit program work in a new town center?

[Alex Farrell, Commissioner, Department of Housing and Community Development]: It's a good question. So a building would still need to be eligible. So it's still the building itself would still need to meet the requirements of historic. The I'm glad you touched on that, madam chair, because that is the logic behind section 18 of really clarifying and focusing those tax credits in centers with with a historic district. And and so that would be all step two and three centers, and then only step one centers with a historic district.

[Chair Amy Sheldon]: Well, step two and three centers, which presumably have already had a historic building in them. And then sorry. Only the new ones would have have a historic building. That's that's right. So only step one centers with a historic district.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: And then in any event, the building has to meet through the, the requirements for historic.

[Chair Amy Sheldon]: And then I guess I'm curious about how much your department is able to there were municipal planning grants and municipal assistance with zoning bylaw updates and stuff like, what's the latest on that? What do you all I mean, one of the things, you know, we're hearing is that smaller communities are feeling left out, but I think there are there are smaller programs that go uncelebrated or noticed in the in the bigger conversation. So how much have you how many towns have you been able to help in the last year or so?

[Alex Farrell, Commissioner, Department of Housing and Community Development]: I'm glad you asked that question, madam chair, and I apologize. I don't have that in front of me, but I would like to share that afterward with the committee because dozens, dozens of communities have benefited from the municipal planning grants. So the municipal planning grant, it's a maximum of $30,000 for these, but it's incredibly impactful for especially the smallest communities to whether it's a bylaw rewrite, which we're able to achieve with the bylaw modernization grants or just master planning. We also try to remind folks that our federal sources are really accessible as well. So planning grants through the Community Development Block Grant source, those can go up to 60,000. And again, a little bit more flexible because it could be used for master planning, you could match it with a municipal planning grant, or it could be to to to plan for a site that you you may or may not have plans to develop. So those are really flexible source we try to point to, and I can get stats on exactly how many communities we've impacted with municipal planning grant. It's a lot.

[Chair Amy Sheldon]: And is your federal dollar are your federal dollars still flowing to your program?

[Alex Farrell, Commissioner, Department of Housing and Community Development]: They are flowing. You know, I like to remind folks that the community development block grant has been about 7 and a half million dollars for Vermont since about 1992. So what was once really impactful source of affordable housing dollars, economic development dollars, has really diminished to, I'd say, maximize those dollars and understanding that now there's Build America, Buy America requirements on all federal dollars, which means that large projects need to invest. The products have to be sourced through American unless you can get a waiver, which is very hard to get. We we've tried to seek other strategies with those dollars such as doing more what we'll call scattered sites work. So this is direct to low income homeowners who need improvements in order to safely stay in their home. That doesn't trigger Build America, Buy America so those dollars can go further, and we can affect more low income households that way. So we've been very strategic that way. Tell us what your I guess I'm not I I need you

[Chair Amy Sheldon]: to connect the dots on how it is you could kind of avoid Build America, Buy America. What kind

[Alex Farrell, Commissioner, Department of Housing and Community Development]: of work are you doing that isn't? It's a good question. So the definition of, infrastructure, in Build America Buy America was expanded to include multifamily housing. So anything under four units does not have to comply with Build America Buy America. It's completely vetted by HUD. That's 100% okay. It's a use that that has been it is well known. So it's just another way for us to help more income low income households.

[Chair Amy Sheldon]: I need to understand what you're spending the money on. That's avoiding American made products. Like, I don't Rehabilitation of a home,

[Alex Farrell, Commissioner, Department of Housing and Community Development]: and and they may still use American made products in those rehabilitations or the the the safety improvements. It's just that it doesn't have to meet all the those new requirements of BABA.

[Chair Amy Sheldon]: Representative Chapin. I'll just chime in because I have a little bit

[Rep. Ela Chapin (Member)]: of experience with BABA. It's it's not just the place you purchase the item from is an American company. You that company has to track and have a system to track every component and every material of every component. So when you're looking at home construction, you're talking about like every bolt and every material on the surface of a piece of metal to like, it's it's it's basically not really possible for most entities to comply with.

[Kevin Burke, Director, Watershed Management Division (DEC)]: Yeah. Yep.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: That's right.

[Rep. Ela Chapin (Member)]: Me at my problem.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: That's that's absolutely right. Thank you. You're saying

[Chair Amy Sheldon]: PDBG is 7,500,000.0 since 1992? That's not very much money.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: It's not. It's not. And and to be honest with you, even pre pandemic, it was still a substantial enough amount of money that it could have an impact in filling gaps where maybe VHCb or VHFA couldn't close the gap, we could. We're really only able to affect a couple of large projects a year now. So but that's general awareness. If if the committee has an interest in hearing more about that program, the staff would be eager to come and and talk about it.

[Chair Amy Sheldon]: Representative Austin?

[Rep. Sarah "Sarita" Austin (Clerk)]: Yes. Help me understand this because I'm looking at and I've had this, I've been wondering this for a while. In section five and then it says section tier three rulemaking. It looks like that Land Use Review Board in consultation with the Secretary of Natural Resources shall adopt rules to implement the requirements for the administration. And even the last sentence says, determine which and under what circumstances criteria should be part of tier three hierarchy and determine how to define the boundaries. So when you say tier three, it sounds like, what are you referring to? Because it sounds like it's not decided yet, kind of, it's like a movie target. So I'm wondering if you say that, when the administration says that word, what are they referring to?

[Chair Amy Sheldon]: That's a really good question.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: Thank you. So that that new language in there really is to give discretion to the land use review board to choose which criteria to apply based on what the trigger was. What the administration is advocating for is more of a zoom out. It's high level. It's repeal any reference to and rulemaking of a tier three. So do not establish a tier three.

[Rep. Sarah "Sarita" Austin (Clerk)]: Even before seeing what they're recommending?

[Alex Farrell, Commissioner, Department of Housing and Community Development]: That's correct.

[Chair Amy Sheldon]: Further questions for the commissioner, representative Chapin?

[Rep. Ela Chapin (Member)]: I've heard from a number of Vermonters that they believe it's the administration's intent to appeal all of act one eighty one, and I guess I'll just welcome you to.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: I do appreciate that. Thank you. It is not. That is that is not the administration's position. I do appreciate you giving me the opportunity to clarify that. It is really the only items that we have requested repeal of are the road rule and tier three.

[Rep. Ela Chapin (Member)]: You say why?

[Alex Farrell, Commissioner, Department of Housing and Community Development]: Sure. I I'd say

[Rep. Ela Chapin (Member)]: Why why you're not acting? Why you don't want us to repeal all that?

[Alex Farrell, Commissioner, Department of Housing and Community Development]: That's that's thank you very much. Candidly, there were a lot of items within act one eighty one that we were supportive of, and we tried to make that very clear in our outreach efforts and in our coordination with the legislature that the establishment of, say, tier one a and one b areas, the establishment of interim exemptions, some of the clarifications of the Home Act, things that really did help advance some of our the things that we had proposed in our bill that year, 2024, did end up incorporated in act one eighty one. It was that the the road rule and the establishment of a tier three were truly just not in line with the administration's position and and what we were trying to advance. And so those are the two elements of act one eighty one that were really most concerning. I'll flag also that there was and and just to reference the governor's veto letter from that year, there was also an increase to the property transfer tax that the administration wasn't supportive of. And there was there was the establishment of tax a stabilization program that essentially that left out a couple of counties that we felt should have been included in that. So that was another concern. Again, those weren't necessarily the highest priority. It was really tier three and the road rule that were the highest priority. So thank you for that opportunity.

[Unidentified Committee Member]: Madam chair, and thank you for coming and testify for us. So the the

[Chair Amy Sheldon]: Can you say

[Unidentified Committee Member]: it sounds like, of your agency is to repeal tier three rather than just delay. Can you give us a little more reason why you're wanting to repeal rather than just delay those things?

[Alex Farrell, Commissioner, Department of Housing and Community Development]: I appreciate that. We I would say our our our agency and the administration never accepted the underlying premise that in exchange for alleviating regulation or or in some cases delegating regulation of act two fifty in some areas, necessitated a trade off in other areas, which would have the effect of restricting property rights of others. We didn't ever accept that underlying premise that that was an appropriate trade off. They keep viewing it as a trade off. It is just not something that we agreed with.

[Unidentified Committee Member]: Is it okay. So given that, is it true that the essentially, what these road rule and tier three are doing are imposing at two fifty permitting requirements in areas where they wouldn't have otherwise

[Alex Farrell, Commissioner, Department of Housing and Community Development]: necessarily Likely more stringent and and lower thresholds for triggering I two fifty, certainly.

[Michael O'Grady, Legislative Counsel]: And

[Rep. Michael Hoyt (Member)]: is it do do you

[Unidentified Committee Member]: have any data that shows the increase in cost as a result of imposing active fee or have or have to Sure. Active 50 whereas otherwise wouldn't have active?

[Alex Farrell, Commissioner, Department of Housing and Community Development]: Sure. There have been studies of this, and there are a few different ways that you can approach this. Right? There you've heard from some very articulate folks who talked about sort of the the additional costs of act two fifty beyond simply the the permit fee. That can take a lot of shapes. And in some cases, it's just reduced unit count. So let me let me step back even to the reality that I think you've already heard plenty of, so I won't dive into that projects tend to avoid active 50, so they remain below the the jurisdictional trigger. So an example is in Virgins where there's a project that we are aware of that was going to build 24 units based on a prior exemption. And as soon as the, new interim exemptions were in place, they were able to increase that project up to 74 units to remain under the new interim exemption trigger. The reason I bring that up in the context of cost is with it was the same parcel in in not a substantially different ground disturbance, candidly. And so the the fixed costs of that development were now spread across far more units, and it brought the per unit cost down dramatically. I I I don't have the numbers in front of me, but I believe it was somewhere between 50 and $100,000 because of the substantial infrastructure cost. So that's one way that it can impact it. You've you've heard about many other ways that it introduce uncertainty and the potential for another avenue for appeal, so I'm not gonna dive into that right now. But I there are many ways in which either of trying to avoid active 50 or having to go through active 50 will increase your soft costs. And in some in some cases, your hard cost as well because of redesign of the project.

[Unidentified Committee Member]: And we we've also heard that Active 50 approval rates are are pretty hot, so very few actually get rejected. So it's not that the imposition of these reduce reducing the jurisdictional thresholds that would impose act two fifty now where it wouldn't have otherwise been is going to prevent development. It just makes it more expensive.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: It's a true statement. It'll it will make it more expensive. That is true. And it will, as as is, I think, commonly accepted, it will just reduce the number of folks that will try to develop. And and that's really where we see the impact is folks just choosing not to move forward.

[Unidentified Committee Member]: Certainly lower income or less able people would just avoid it whereas folks that can afford to pay that.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: Is what we see now and I am confident that under increased or rather lower threshold for jurisdiction, what you would see is higher income folks moving forward with residential development and very few, if any, low income folks moving forward with development there.

[Kevin Burke, Director, Watershed Management Division (DEC)]: One of

[Chair Amy Sheldon]: the things that we've heard recently is, about back kinda back to the housing, which is more your realm, the smaller towns feeling put upon by having to fulfill housing targets in their planning processes. What are you doing to address that?

[Alex Farrell, Commissioner, Department of Housing and Community Development]: Yeah. It's such a good question. There's been a lot of engagement with our municipalities so that they can understand the utility of of having a target. And when we started this dialogue with the legislature and and when, you all, passed the the the HOME Act, which established sort of the the the first pass, which was create targets. And then in act one eighty one, you all essentially said, now track those and and measure progress. It it largely came out of a call from municipalities, municipal leadership, municipal staff, in some cases, saying, we we know we have a housing shortage. We know we're not meeting the needs of our folks, but we don't have any metrics to tether this to. So we'd like to make changes, but we we simply need a starting point. Some communities had the resources to pay for a housing study of their own, their own housing needs assessment. Most didn't. And so the the the legislature's wisdom in establishing a statewide sort of target flowing from our five year housing needs assessment was asking us to disaggregate it regionally and then have the regional planning commissions who know their areas, know their town, disaggregate that by municipality. And of course, we we wanted to provide a range so that the regions could determine somewhere in that mid range as long as it was between the the what we established, they could choose what what's right for your region. And so, yes, some municipalities, I think, had this this maybe fear that there would be some consequence imposed by the state if they didn't meet their housing targets. And so we've been able to clarify that that's certainly not the case at all. It's really a it's it's a tool for them to plan and and understand at what scale, should they be, refining their their zoning and bylaws.

[Chair Amy Sheldon]: Yes. Although in the current iteration of s three twenty five, it does, require towns with no municipal bylaws to, enable kind of the till 2030, the exemptions on kind of the housing one b in one b areas. And I feel like a lot of towns could be blindsided by that. Mhmm.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: Mhmm. It it does, apply the interim exemptions to, as I understand it, towns that do not have, zoning bylaws, but do have a village center. And in those cases, it would be a priority housing project that would be eligible. So that that that is true. I think it would be surprising to many small towns to be confronted with a development of that scale. I think what is clear is that it's unlikely that, say, in, I don't know, Heartland or or somewhere with a a village center, not a tremendous amount of development, the market wouldn't sustain a large project right now. So I think it's very unlikely that a small community that was on your bylaws I grew up in Albert, for example. So in one of Albert's villages, I think it's unlikely you'd see a trim a large development come in, and it it wouldn't make sense for a developer to do that.

[Chair Amy Sheldon]: Further questions? Thanks for your flexibility and for your testimony.

[Alex Farrell, Commissioner, Department of Housing and Community Development]: Thank you very much. I appreciate you having me in.

[Kevin Burke, Director, Watershed Management Division (DEC)]: Thank you.

[Chair Amy Sheldon]: Members, I know there were I think I know Mike Hoyt maybe had a couple questions for Michael Hoyt on the wetlands thing. I appreciate that you hung out. I think it'd be helpful for members to understand, you would mind joining just for a couple minutes, the interaction of moving targets and the ramifications thereof. Like, if there's a rulemaking under in process and it's been questioned. It's legality has kind of been questioned by outside groups, and and then we're being asked to make a statutory change that would preempt presumably the rules as as I understand it. Is that accurate?

[Michael O'Grady, Legislative Counsel]: I I I don't know. I there there are a lot of moving parts. I haven't read the proposed rule yet because it's 540 pages long. It's largely because of the public comment. I mean, I do read the public comment because you often find Yeah. Little kernels of interest in there.

[Unidentified Committee Member]: Yeah.

[Michael O'Grady, Legislative Counsel]: But as Neil, deputy commissioner, came and said that that's not scheduled until April 30, that rule. So and this doesn't have an effective date on it. What the the language that was proposed doesn't have an effective date on it. And you can you can estimate for yourself how long you think this session is gonna go. And I expect it's gonna be after April 30. So any change to statute, and and I have a caveat on that, isn't going to get to LCAR by the time LCAR has to review for the LCAR factors. And one of the LCAR factors is consistent with statute. I don't think it will be. I don't I don't think you will have that. So there's likely going to be at least one criteria for objection. And I won't even go into legislative intent because that's another criteria I don't opine a legislative intent. You all have your own legislative intents, and they all vary. But then there's whether it's arbitrary and how you're offering something that is directly in conflict with statute. And so what ways that you determine if something is arbitrary underneath the APA is is it if it would be if it would be acceptable to a reasonable person. Well, you're basically proposing something that's conflict and that that hasn't that has been objected to before as arbitrary by Alcar. So. All of that can be fixed, but it it requires a lot of political will to fix that. Right? And so that's your your that's a question for you. The second thing is this doesn't amend statute, and it's not effective until 2030. What what happens to the stat this is session law. What they proposed was session. Oh. It wasn't statute. So you they're not actually amending the conflicts in statute. So there will still be statute that conflicts.

[Chair Amy Sheldon]: I think their intent is that it would be effective till 2030.

[Michael O'Grady, Legislative Counsel]: I'm sorry. Would what?

[Chair Amy Sheldon]: It would be effective until 2030.

[Michael O'Grady, Legislative Counsel]: But you could read it that way.

[Chair Amy Sheldon]: Written that way.

[Michael O'Grady, Legislative Counsel]: Not necessarily written that. So it needs some clarity. It I would I if if you want if they want it to be an interim, we can do that, and we've done it, and it's I can do it a lot cleaner than this, and I can do it in statute.

[Chair Amy Sheldon]: I think looking at the public comment on the rule would be very informative for this group of people to do before we make changes to existing statutes that have been in effect for a very long time. And so that rule is posted now?

[Michael O'Grady, Legislative Counsel]: Yes. And and and, again, I had to get a paper copy because I I couldn't scroll through that much.

[Chair Amy Sheldon]: Yeah. I I mean, just a lot of them came through my email, so I'm very aware of the public comment. To all of them.

[Michael O'Grady, Legislative Counsel]: And I wanna I wanna be clear. And I, again, I haven't read the rule yet, so I don't know if this is consistent with the rule. It's wetlands for housing, but housing is defined only as 40% of the floor area. So you can have every other use except industrial use as long as 40% of the proposed development is housed. Plus all your linear utilities. That's on top of the 40. So

[Chair Amy Sheldon]: Thank you. Further questions for Michael? Right.

[Unidentified Committee Member]: We've got a on there are kind of two sections, the one we were just talking about, but there's also that professional level certification thing. I don't want to just sweep that under the in with the other aspect of the 25 versus 50 feet thing, because I would say I know if that professional wetland consultant certification concept is in the outside world of North Water.

[Michael O'Grady, Legislative Counsel]: I I don't know. But Say that. So so Bruce, who was here from from little drinking water and groundwater division, he basically helped set up the licensed engineer program, licensed designer program, so you don't have to be an engineer to actually put in systems. But and they run that through that division. That's a little unusual these days at A and R. They used to have a bunch of programs that would certify like your wastewater treatment operator, your drinking water system operator and have professional requirements for them. They moved all of that out to OPR. So the question I have, it's not that this is not a smart idea. It's smart idea because really nobody certifies wetland scientists in Vermont. But who does it? It it because OPR has like the whole professional board that oversees and they have disciplinary action and etcetera, etcetera. And and in drinking water and groundwater division, they just revoke their they potentially just revoke their license if they're violating. And, like, I I can see benefits of both. And I I think that's a question you probably wanna talk to somebody at OPR about.

[Unidentified Committee Member]: They're doing it that way or the the way that's being

[Michael O'Grady, Legislative Counsel]: No. There nobody's doing it that way.

[Unidentified Committee Member]: Within within water and wastewater.

[Michael O'Grady, Legislative Counsel]: Within water and wastewater, they do it in their program.

[Unidentified Committee Member]: Yeah. I think that's what's being proposed here. Well Right. The same thing.

[Michael O'Grady, Legislative Counsel]: But then if for a wastewater treatment plant, that's at OPR.

[Unidentified Committee Member]: Yeah. That's not what's been taught.

[Michael O'Grady, Legislative Counsel]: Right. Right.

[Chair Amy Sheldon]: And currently, there's no wetland certification required to delineate wetlands.

[Michael O'Grady, Legislative Counsel]: You can be a hydrogeologist and a licensed engineer who's a hydrogeologist. You know? And you may not know him, but Craig Heindell, like, long time, like, when you where you gotta go to get your good difficult stuff dealt with, you go to Craig. He's an engineer, and so his engineering license is in front of the engineering board at OPR, not in front of the wetlands board. There is no wetlands board.

[Unidentified Committee Member]: This would, yeah, this would not be an engineering thing. Just a certification for just, like, wastewater water wastewater.

[Michael O'Grady, Legislative Counsel]: Right.

[Unidentified Committee Member]: Certification from the agency. Yeah. It's a different concept than what LDR is.

[Michael O'Grady, Legislative Counsel]: It it is, but it isn't as well. Right? Because you could lose your your license. Right? And and Yeah.

[Unidentified Committee Member]: You're definitely get overseen. Right?

[Bruce Douglas, Drinking Water and Groundwater Protection Division (DEC)]: Right.

[Michael O'Grady, Legislative Counsel]: Yeah.

[Chair Amy Sheldon]: So Thank you. Yeah.

[Neil Kamman, Deputy Commissioner, VT DEC]: Thanks, Michael.

[Chair Amy Sheldon]: That completes our work for the week. Have a good weekend. We're adjourned.