Vermont Legislature SmartTranscripts:

[Rep. Amy Sheldon (Chair)]: Hello? Good morning, and welcome to the House Environment Committee. This morning, we are picking up s two two three, but really, hearing the amendment from the administration on their wetlands executive order with their attorney. Welcome.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Thank you. I'm Catherine Gessing. I am general counsel for the Agency of Natural Resource. Thank you for having me today and for accommodating my schedule. Happy spring. The purpose one of the purposes of the proposal is to engage the legislature and other stakeholders in a discuss regarding the proposed wetland rules and the amendments relating to housing, which have been, filed with LCAR. And I believe you all know that there's a LCAR meeting on thirtieth of this month. So, they'll be taking it up with LCAR then. Hopefully, we can have a discussion and garner some support for the wetland rule amendments related to allowed uses for housing. And so I guess what I'd like to do is to just sort of walk you through the proposal, and I'm happy to take questions at any time. The first part of the proposal, the session level, sets forth the details regarding the allowed uses for wetlands and wetlands related to housing. And that starts on page two. It starts with definitions, and those definitions are four definitions that relate to housing projects. The first one is access infrastructure, which really relates to driveways and roads, that are related to accessing a residential housing development. Linear utility servicing, which are things like sewer, septic, electric lines, gas, communication lines, and water lines. Mixed use project projects, which are that's a definition that came from statute. It's in Act two fifty. It provides that there should be no industrial uses in a mixed use project, but that at least 40% of the gross floor space would be devoted to housing. And then there's a definition of a residential housing project, which refers to a bunch of terms that are defined in statute as well, both in act two fifty and some in, title 24 related to municipal zoning. Page three really sets forth the substance of the, allowed uses related to housing, and it starts off with a directive to the secretary to promulgate rules for the construction of residential housing and related utilities and, access driveways, roads, that kind of thing, to the housing construction. And it also contains provisions that in implement and advance the the net gain requirement under title 10 BSA section nine eighteen. And that the detail regarding that is not in this proposal. It is in the rule.

[Rep. Amy Sheldon (Chair)]: I'll just pause for a second. Sure.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: What's title three, chapter 25? Title three, chapter 25 is the rulemaking.

[Rep. Larry Labor (Vice Chair)]: Okay. Thanks.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Provisions, that's the the APA provisions, procedures app. And the details regarding, so as I was saying, the details regarding the net gain requirements that are in title 10 under the wetland statute, Those are not contained in this proposal. They are actually in the rule and they would be in the rule in the Vermont wetlands rules under section 9.5 c. So that's something that is there's there's detail that are in the rules that are not necessarily in the session. Just wanna make that clear, and I'll flag those for you as I walk through this.

[Rep. Amy Sheldon (Chair)]: And those that net gain is already required in statute. And Yes. It is. Behind.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Yeah. And, there was some language in the in the current the the existing rule, but there's new language that, just provides more detail about how to get there. It doesn't apply to all of the allowed uses that I'm gonna walk you through, just to be that clear.

[Rep. Amy Sheldon (Chair)]: In the existing rule for net gain?

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: There was there was a section that had a very general, you know, provision that there had to be net gain. Was in the existing rule. Now there's more detail about how you get there and what you have to do to get there. So the substance of the allowed uses really starts on page three on at line 10, and it essentially is only applicable to a narrow set of locations. So these are areas that are designated by the agency of commerce and community development as growth centers, downtown development districts, village centers, new town centers, growth centers, or neighborhood development areas. And that's a process where, you know, a municipality applies. They go through a process, they're approved, and it's designated and mapped by ACCD. In addition, it applies to areas that are just outside the designated areas that are served by public sewer and water supply that is available for connection. And then it also applies to tier one a and one b that are designated by the Land Use Review Board, and that's sort of related to act 81. On page four, there's a provision that any housing project that is eligible for this allowed use must have viable public and sewer and on-site wastewater or on-site wastewater systems. So in other words, there has to be a viable wastewater system available for that project. In addition to residential housing, including so residential housing, including access and linear utilities are allowed without a wetland permit in, and this is part of the allowed use, provisions that would be in the rule, unmapped wetlands that are not shown on the Vermont significant wetlands inventory maps within 26 to 50 feet of a mapped wetland buffer. So in other words, usually a class two wetland has a 50 foot buffer unless a different buffer is designated by the secretary based on the functions and values of that wetland. This would allow housing projects, including linear utilities and driveways, etcetera, within twenty five twenty five feet outside the initial buffer. So within that 50 foot buffer, if you're 26 to 50 feet away from that wetland delineated wetland, you could put housing, yeah, and housing infrastructure in that area.

[Rep. Larry Labor (Vice Chair)]: Clarification Is that in more sir. Housing or housing infrastructure?

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Both. Both. This is this applies to both.

[Rep. Amy Sheldon (Chair)]: 40%.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: There is a section that applies to only linear, and I'll talk about that next. There is there's no there are no allowed uses for, you know, class one wetlands and its buffer, and there are no allowed uses for related to housing, and there are no allowed uses for a a mapped class two wetland, and it's 25 foot buffer. Is that clear? Just a little confusing. So And then also there's a separate provision. So just to be clear, that means that if you are developing a housing project and you want to place housing within a class two wetland that is mapped and on the Vermont significant wetlands inventory maps, you still need a permit for that. If it's unmapped, you don't need a permit for that.

[Unidentified Committee Member ('Representative Jacob' per transcript)]: How many are unmapped?

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: We do not know. We would have to map them to actually figure that out. There is some information that had been sort of gathered, I think previous to the mapping project that the wetlands program is underway, you know, sort of implementing now that indicates that about 39% of wetlands have not been mapped. I don't know if that figure has changed. As of March 2026, a 150 towns have have there's been mapping for a 150 towns. And so, you know, and there's a process that of public notice and input that the program was going through as a part of that.

[Rep. Amy Sheldon (Chair)]: I guess what you mean by that is sort of to the latest and best mapping protocol.

[Rep. Larry Labor (Vice Chair)]: Yeah. Yeah. Yeah.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: So that those projects are ongoing and will be continuing as, you know, as as we move forward through this year and into the next year up to 2020 2030, I think, is the deadline. So the next sort of the next allowed use is that linear utilities and as access infrastructure. So here we're talking about, you know, power lines, communication lines, sewer, etcetera, roads, are allowed uses within a class two mapped wetland and its buffer if crossing the wetland is practically unavoidable. And that means that there's not much of a viable option otherwise. Like, you kinda that's your site is so constricted that you have to go through the wetland. Having said that, you're also going to have to you if the if the impact is more than 5,000 square feet in of impact, you're going to have to mitigate or purchase offset credits in accordance to the Army Corps of Engineers New England procedures. That's a document that I can provide to the committee if if they're interested. And you also have to follow best management practices. Here is another area where the best management practices are not articulated in this document, but they are articulated in the draft final proposed rules that LCAR will be considering. They're incorporated as an appendix B and there's language in the rules that makes them enforceable. So they involve things like erosion control and avoidance and mitigation. They also involve this language around certain kinds of permitting, storm water and and stream modes, all of which are going to be applicable regardless of the language of the allowed uses in as proposed in Representative Satcowitz. Excuse me? Representative Satcowitz has a question.

[Rep. Larry Satcowitz (Ranking Member)]: On line 18, what what Page. Oh, I'm sorry. On page four. What do we mean by permanent impact cumulatively?

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: So permanent impacts can mean things like dredging, draining, soil disturbance that is so impactful that the wetland hydrology is changed, or it could also be a permanent infrastructure. In other words, if you're placing something like a building on a wetland, that's potentially a permanent impact. On the other hand, if you're simply, if you put in a boardwalk, for example, for educational purposes or viewing, and it's a fairly small input and you're not impacting the soil, you're not impacting the hydrology, you're not dredging or draining or that may not be a permanent impact. I can have the wetland staff provide kind of a more explanation for you because I am not a wetlands ecologist, but those are just examples of what could be a permanent impact.

[Rep. Larry Satcowitz (Ranking Member)]: Would a permanent impact be something that affects where the direct effect is limited to the area of disturbance or would a permanent impact could it be more generally affecting a larger area of a wetland given that water flow, you know, through wetlands? And if you impact one section, you know, in a very physical way, you might also be impacting other areas, but in a less direct way. Would would would the impact would this permanent impact be more spread out, or would it just be confined to the actual area of, where the machines are digging?

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: That's a great question. And I don't know that I can answer that. I think my answer would be maybe, but I can certainly consult with the wetlands program and have them send a more full explanation of what a permanent impact is. I don't want to get outside my area of expertise.

[Rep. Amy Sheldon (Chair)]: And they lost Yeah.

[Rep. Sarah "Sarita" Austin (Clerk)]: I'm just wondering, when was the last time the best management practices were updated to include climate the impact of climate?

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: So the best management PMPs that I just mentioned, those are brand new. So they were just formulated, but they are based in part on past best management practices that the Wetlands Program has used. I will say that they're a little more detailed and so I think the intent was to be as thorough as possible and to consider all of those, you know, sort of external forces that are relevant, you know, to regulation in Vermont now because of climate change and other issues. So

[Rep. Amy Sheldon (Chair)]: Were they developed with this in mind?

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Yes. Yes.

[Rep. Larry Satcowitz (Ranking Member)]: She has been looking at this section. It says that you could do this permanent impact if it's less than 5,000 square feet, and I'm just wondering if that number of 5,000 square feet, how that was determined.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: I believe that's in the statute. I could be wrong, but I think it's in the

[Rep. Larry Labor (Vice Chair)]: statute. Representative White. I

[Rep. White (guest member)]: just wanna get back to the the buffer distance again. So currently, two wetland buffers have a 50 foot buffer, and that's in statute? Yes. So I don't know if it's in here. Wouldn't we also need wouldn't it make sense to amend the statute to even make these rules feasible?

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Well, the statute has a section in it. It's I believe it's section nine thirteen, which allows the secretary to promulgate allowed uses that, essentially waive other sections of the statute as long as we proceed with rulemaking. I think you all know that there's a lot of questions about whether the rulemaking under the executive order is warranted or it's, you know, consistent with the intent of the statute. You know, we think that we've fashioned a narrow allowed use that is temporary in in nature and expires on a date certain. And so we think we're within the statutory provisions. But What's

[Rep. Larry Satcowitz (Ranking Member)]: what we're

[Rep. Larry Labor (Vice Chair)]: seeing is

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: lots of discussion about that one before LCAR. And you'll hear from, mister Grogan.

[Rep. White (guest member)]: You're so you're interpreting an allowed use to mean that you can change the actual physical distance

[Rep. Larry Labor (Vice Chair)]: of the buffer. That's what the idea.

[Rep. White (guest member)]: Do you know what the statutory side is? Just come interested in

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: It's help. It's 10BS A913. 913. And I will check that just to make sure and let you know if I have Yeah. I got I'm pretty sure it's nine one three. Maybe. Yeah. And, you know, that allowed use section is pretty long. It's got a lot of things in it. It's got you can grow food. You can recreate. You can put in you you can maintain utilities, and all of those do not require a permit. Right. And In the buffer. In that in the buffer or in the wetland itself.

[Rep. White (guest member)]: I guess I'm just having trouble making the leap from a use of something to a physical distance, you know, which sets out, you know, within this distance, can do these things.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Yep.

[Rep. White (guest member)]: And I'm just having a tough time getting from a use being, like, you know, sort of I don't know. The use being interpreted to change the actual, like, jurisdictional distance. So I think that's just where I'm sort of Yeah.

[Rep. Larry Labor (Vice Chair)]: Stuck on this

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: one. I understand.

[Rep. White (guest member)]: Thanks.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: So as I sort of started to say, you have to follow best management practices. That's, we're on page five now. And those best management practices are incorporated into the rules as enforceable standards. They require general practices, erosion control, strategies to prevent soil impaction, invasive prevention, you know, sort of taking steps to prevent the, know, spread of invasives and avoidance and minimization. In on line eight on page five, the project must be registered with the secretary on or before 01/01/2030. And that date is important because that's when the the allowed use under the rulemaking as as it's been drafted expires. And this date aligns with dates, in some of the in what was the latest draft of s three twenty five, which provides for housing exemptions in act two fifty. So the idea was to try to align with that, as a temporary sort of exemption, if you will, under the allowed use section. The developer must notify ANR of the commencement of construction within thirty days. And the reason why we've put that clause in there is so that ANR knows both when somebody is taking advantage of the allowed use provisions and also when they have commenced construction so that we can monitor compliance. Here, what I'd like to do, because this session law or whatever its proposal kind of jumps around a little bit is to jump to page six, line 14, because there's a section that's really related to the allowed uses, and then there's other sections that relate to the directives to the secretary to take certain steps. Under page six, line 14, there's a transition period. That's the section which explicitly provides that the allowed uses in the Vermont wetlands rules would expire on 01/01/2020. I'm sorry. 2030. Thank you for catching that. However, anybody who has registered before that date may continue with their project if substantial or sufficient construction has commenced, And that's defined as you've got to have all your student and federal permits and authorizations, and you must have commenced instruction. You must be proceeding in good faith. You have to have, you know, sort of a a building foundation. You have to put in utilities, for example, or access roads. So you have to have made some kind of substantial progress in commencing your construction. In addition, all construction on these projects must be completed no later than 12/01/2031. So that's sort of the an outline or an overview of the allowed use section. The second part Question for representative. Go ahead.

[Unidentified Committee Member ('Representative Jacob' per transcript)]: So that section on the transition period and the, and the expiration, how easy is it to change that down the road if it if the legislature or the governor wants to extend that?

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: I think the legislature could send could extend it. I don't know that the governor could, especially if it's in statute.

[Unidentified Committee Member ('Representative Jacob' per transcript)]: I'm sorry, should know this, but can you just explain why is the session law allowed in statute and just the difference in how they That's

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: a good question. I think probably your alleged counsel would give you a better explanation, but I'll try, and and then maybe you can follow-up with him or her. Some of these are just directives to the secretary to do certain things. And so in the past, when I've seen session law, there have been similar provisions like directives to the secretary to engage in rulemaking on a certain issue, by a certain date. Sometimes that is actually ends up in a statute, but because there's an expiration date to the rule, it, the cession law is still law. It's not, it's it's it has the same legal impact as as the statute. It just doesn't end up in the statutory provisions that are online. And sometimes I guess it probably makes sense to have something that has a, you know, an end date at, you know, or an expiration date, you know, that's not in the statute because after, you know, ten years, it's no longer really applicable, that kind of thing. But I don't know if that's a very good explanation, but I think your life's counsel will probably give you a better one for sure. Any other questions? Should I? Okay. So back to page pages six and seven. Should be five and six. On page five, line 12, there is a provision entitled section three, wetland general permit for residential housing projects. And that's a provision that directed the secretary to promulgate a draft general permit related to housing and utilities and access roads within you know, on or before 07/01/2029. And to finalize that and issue a general permit on or before January. I will say that there is already a designated process in statute under title 10, I think it's chapter 170, that requires the agency to go through a step by step public process notice and outreach to stakeholders for general permits. So we would follow that. But I think that given sort of the complications around wetlands permitting and housing that we would want to have a really robust process that allowed us to engage stakeholders before we actually issued a draft permit. The idea is It's two public meetings,

[Rep. Amy Sheldon (Chair)]: excuse me, would be robust.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: I think we would have more than two public meetings. I don't know that it says

[Rep. Amy Sheldon (Chair)]: It says two on licensing.

[Rep. Larry Labor (Vice Chair)]: Oh, does it? 17.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Oh, regarding the general draft permit. But I think we would do stakeholder outreach before we even promulgated the draft permit. It's something that we normally do. We probably, you know, when we do new sort of new projects like this. So I expect that we would follow what we usually do. And then after the final permit is issued, that, you know, there is a an opportunity for appeal under that section. So there's provisions in this section that starting on line 20 require that general permit to include certain things like best management practices. So those would be sort of updated and, you know, more detail would be provided for the general practice, the general, the best management practices for the, for these kinds of projects. And then there are some provisions that would potentially authorize broader impact allowances for managed or highly degraded wetlands, mitigation ratios for impacts to those wetlands as well as authorizing wetland impacts for linear utilities and access crossings.

[Rep. Amy Sheldon (Chair)]: So can you just walk us through this? Are these mapped wetlands that are are you are they delineated by a professional delineator? I'm confused about what this general I mean, those are it seems beyond general to have someone determining whether it's highly degraded. So, anyway, is it how

[Rep. Larry Labor (Vice Chair)]: is how is what's the

[Rep. Amy Sheldon (Chair)]: process someone would use this general permit under?

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: I don't know that we have all the details of the general permit yet. That's something that the wetland program would need to work on. I do think that the certification process that I I will discuss next would be, would feed into this and that it would be a way to provide some, sort of streamlining or, you know, efficiency to a process. So I think the preference of the wetlands program is that, there would be delineations, but the certification process would probably feed into that.

[Rep. Amy Sheldon (Chair)]: And then it would kind of codify maybe everywhere for housing projects under number five on page six, line 10, that it's a 25 foot buffer for the last two months.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Page six line. Yep.

[Rep. Larry Labor (Vice Chair)]: Everywhere

[Rep. Amy Sheldon (Chair)]: in the whole state.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Well, this doesn't actually say where the general would be applicable. So far, it's the allowed uses are only in the rule are only applicable to to the to the designated areas. So I think the intent was that it would be statewide, but not necessarily I can ask.

[Rep. Amy Sheldon (Chair)]: Deputy Secretary Martin,

[Rep. Larry Labor (Vice Chair)]: you want to comment on that?

[Trey Martin, Deputy Secretary, VT Agency of Natural Resources]: I'll be conferred to get back to you on it, I'm sure.

[Rep. Amy Sheldon (Chair)]: Go ahead, Representative Jacob.

[Unidentified Committee Member ('Representative Jacob' per transcript)]: This is stepping way back, but the more we talk about this, I'm struggling having not heard details about projects that are running into trouble. And I'm finding that the assumptions behind this must be that the reason we have a 50 foot buffer is only for wetlands protection and not for protection of housing and infrastructure. Otherwise, I would presume this would look really different about protecting, like helping projects make sure if they're going to build within that 25 foot over 50 foot buffer, that the housing and infrastructure are protected in a certain way. General, EO and a lot of this language and particularly the general permit might be applicable broadly, if not statewide. It's just suggesting to me that the administration's perspective is that there's no risk to the housing or the tenants of that housing or the infrastructure for that housing. I guess I'm just curious to ask if that is accurate.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Well, I think that every site is going to be different. Right? And there are still a lot of regulatory requirements in place. In other words, you have to comply with flood zones. You have to comply with storm water. You have to comply with stream. You have to comply with wastewater. So I believe that the answer to that would be that the risk is low.

[Unidentified Committee Member ('Representative Jacob' per transcript)]: If you can get all those other permits, then the risk is low? Yes. Okay. And okay. Thank you for clarifying that. I guess then my question is, how can we do this then when we know that our flood permitting processes are not adequate, which is why we're doing a floodplain rulemaking, which has been delayed and is now we have no end and we don't know when that will be done. So I can't imagine doing this without doing that, given what you just said. I would want to know that all the protections are in place and we've already acknowledged that there's a humongous risk factor that we're not adequately supporting development in floodplains. So until we get that right, I can't imagine doing this. So I'm trying to get it, but stop there.

[Rep. Amy Sheldon (Chair)]: Well, since we're here, I mean, I was gonna hold off a little on this, but I, will say that I'm actually grateful for the agency acknowledging that the executive order needs statutory changes. And I'll say that I

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: have not conceded that. But

[Rep. Amy Sheldon (Chair)]: But bringing us this repeatedly, I'm not saying you've conceded it, but it's come to us a number of times. And I would also just say I haven't been convinced of the problem. What is this what are what's the problem we're trying to solve? I've heard about specific projects that this is directed to, which is concerning to me. I've heard from people who live downstream of one of them who are very concerned about it. And I would just say, we need to understand what's the problem we're trying to solve here. What's the scope and scale of what's going on?

[Rep. Larry Labor (Vice Chair)]: Deputy Secretary.

[Trey Martin, Deputy Secretary, VT Agency of Natural Resources]: Just say that this proposal is a response to people, including people in the majority that have spoken to me, that indicated support for the intent of the governor's EO but felt that they'd rather it pass through a legislative process. So this is that opportunity that we're providing to contemplate this through a legislative process, separate considerations of the EO and the rulemaking process.

[Rep. Larry Labor (Vice Chair)]: You have a question? We

[Rep. Amy Sheldon (Chair)]: can keep going. Representative Austin.

[Rep. Sarah "Sarita" Austin (Clerk)]: No. Again, and I've said this before in this committee, Vermont has spent a billion dollars now on responding to flooded out houses that were built on a river a hundred years ago or whatever before kind of the effects of climate change came. I'm I'm not upset about that. You know? But I am upset about the thought of building housing in a in what what we call a wetland. And I guess I'm hoping or I would like to see some kind of document from at first, I would like everybody that is building in the wetland to be notified that they're building in a wetland. I would like their insurance companies to know that they're building in a wetland. I would not want one center Vermonters hard earned tax pay payer dollars paying for any rebuilding or recovering or anything of these projects if they are flooded out, federal or state dollars. I want everybody to know that I think you're taking a risk because, again, we don't know climate science, but we know the weather events are going to get more intense. And so for me to build in a wetland right now without somehow having an understanding of what the future looks like is just ill conceived to me. And so I would want something legally that builders and homeowners know they're building in a wetland. And I want insurers, some kind of sign off on their insurance that they will cover any damage that is done that occurs due to flooding from, you know, an event that I you know, what I have trouble now is connecting, is this related to climate change? Is this rainstorm a result of climate? So that I think is some science that's being developed, but I just don't wanna I don't wanna pay for it. I want I don't want Vermonters to pay for it. And I want people to be very informed when they buy a house there or build a house there where they're building. So it's just my concerns.

[Rep. Amy Sheldon (Chair)]: We still have a section to get through.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: The next section is on page seven. It's section five, and it's a professional wetland consultant certifications. It directs the Secretary to come up with a certification program through rulemaking on or before 07/01/2026. And the secretary is directed to adopt a rule that establishes qualifications and experience requirements for certification for wetlands professionals that perform delineations and advise clients around wetlands and development on their lands where there may be wetlands. It would provide application certification and renewal procedures, as well as professional standards for delineations and, you know, how to determine categorical classifications, what functions and values wetlands may have, and assessments that are prepared by that certified individual. Excuse me, it runs on to page eight. It also provides that there would be procedures for review of delineations and that there would be a as long as someone is certified, there would be a rebuttable presumption of of accuracy, but the secretary may rebut that with information regarding delineation and that the assessment is inconsistent with scientific standards as well as inconsistent with sort of an assessment of the functions and values. There's a deadline for the secretary to sort of follow-up on inspecting these kinds of delineations, except if there's a delineation that was performed outside of field season, for example, which wouldn't be realistic to sort of impose that deadline because wetlands assessments need to be done during a certain time of year. And it also provides that the secretary can suspend, deny, revoke a certification for failure to comply.

[Unidentified Committee Member ('Representative Jacob' per transcript)]: I am very curious about this. It could make a lot of sense. I'm curious if you know if this is done in other states, if you have a model to look to.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: I don't know that, but I do know that we have a lot of regulatory programs within the agency where we rely on the expertise of engineers, certified designers, and the like, and that in general, have been very successful. Once in a while, we have somebody who's not doing the right thing and, you know, we take steps to either, you know, work with the licensing folks or, you know, sort of revoke operators certifications if it's something that we provide to an operator or a license. So

[Unidentified Committee Member ('Representative Jacob' per transcript)]: it has been a very successful regulatory tool for us in general. The presumption is here that this will support projects getting their permits at a more appropriate time to look in a more reasonable time frame. And it's it's both when in particular, it supports the project, but ideally isn't really changing the outcome in terms of Correct.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: The idea is that it would also sort of free up some time for the wetlands program to do some of the the many things that they have on their on their plates, like, you know, proceed with, you know, do the mapping, do the rulemaking that they need to do, those kinds of things. So it provide it would provide some efficiencies for the program.

[Rep. Amy Sheldon (Chair)]: Do others have questions? Representative North.

[Rep. Larry Labor (Vice Chair)]: Jared, thank you for your testimony. I I don't know if you could answer this or or potentially deputy secretary, but did what data do we have on how long it takes to get a current wetlands permit through, and and what estimates do we have? Or, like, the delineation. So from the delineation working. And what did what data we have to suggest how much improvement we could get by going to a delegated or certified program like this.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: I think the program does have some information about how long it takes to get a wetlands permit. I don't know it off the top of my head, but I will, ask them to send, that information to committee. Specific what? Yeah. Yeah. We have them at the program

[Rep. Amy Sheldon (Chair)]: was in to explain. Okay. But I think it's in there. But Okay.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: But I'll check to make sure. So yeah. And we can provide that to you. I just don't I don't wanna give you numbers. Yeah. Primarily, I have to, you

[Rep. Rob North (Member)]: know, follow-up, which is what what's the estimated improvement that we that we might attain. But Yeah. Yeah.

[Rep. Amy Sheldon (Chair)]: So that leads to my question, which is, can you just remind the committee what happens now? So I'm a wetland delineator. I decided I was one. I read the rules. I delineate a wetland for someone. Then what? I I apply for a permit and say, here's the wetland and the A and R comes out and looks at every one of those right now.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Yes. Well, yeah, I think so. And mean, I'm

[Rep. Amy Sheldon (Chair)]: not questioning you, but I'm going from some experience. If they know the delineator or if they correct. And I guess I'm curious how many times there's been a problem with the the delineations.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: That's a great question, and I don't I don't know the answer to that, but I know that there have been some issues. And I also know that sometimes delineators reach out to the wetlands program and ask for input and will do a site visit. So I think it's variable.

[Rep. Larry Labor (Vice Chair)]: Yes. Representative Tagliavia? Could you just clarify for me

[Rep. Michael "Mike" Tagliavia (Member)]: what you mean by a problem with the delineation?

[Rep. Amy Sheldon (Chair)]: Well, like, disagreement correct? Well, a disagreement between the person who did it and the agency's staff.

[Rep. Larry Labor (Vice Chair)]: Okay. Yeah.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: I mean, we have a set number of folks. I mean, we have a lot of folks that, our staff know

[Rep. Larry Labor (Vice Chair)]: Yeah.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: And, have worked with consistently for decades and, you know

[Rep. Amy Sheldon (Chair)]: And have you heard from them? Are they looking forward to this sort of a change?

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: I think there's been there have been some discussions between them and and the staff, but we certainly would go through a public process related to that.

[Unidentified Committee Member ('Representative Jacob' per transcript)]: You probably can't answer this question either, but just to raise it for the agency in hopes that we might get some more data, I'd be also curious on the flip side of the efficiencies is when you create a profession you professionalize a group of people who are doing something without that certification, usually costs go up because they have costs to get certified. And so I'm curious if, just on the flip side, what that does in any case to raise the cost of projects. Hoping it's not substantial, but I guess if you've had this experience with other programs where you've created this sort of certification in order to allow folks outside the agency to do it, if that has any kind of marginal or substantive. Yeah.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: I mean, have certification programs for water supply, for example, water supply operators, wastewater operators. Those are nominal fees. They really are. They're, like certified. Yeah.

[Rep. Amy Sheldon (Chair)]: And a lot of those folks are volunteers in in the case of water. I mean, like like fire districts running a water system. And

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: a lot of them are paid. Yeah. I wonder what the The larger municipal

[Unidentified Committee Member ('Representative Jacob' per transcript)]: So I'm not asking about the fee to to get certified as much as what it will cost the project developers to get the delineation done. Because, for example, if you start a new certification program and only certain people get certified and now you need a certified person, now the demand for that goes up and that supply goes down, and so it can cost time. So I guess I'm just I just want to be careful by creating a certification program we're looking at. So there's pros and cons.

[Rep. Amy Sheldon (Chair)]: Deputy Secretary.

[Trey Martin, Deputy Secretary, VT Agency of Natural Resources]: And I just offer that it's been very clearly expressed to me that the delays of having delineations validated are adding a lot of project costs to development all over the state. Currently, there are a handful of people on earth who can tell you legally and with certainty what a wetland is in the state of Vermont, and those people have the same professional background as the people in the private sector that we're trying to enhance with this. We'd have oversight, so in theory, you'd have a pretty clean program, but it would expedite development, which would lower costs.

[Rep. Sarah "Sarita" Austin (Clerk)]: The questions? Just real quickly. So just let's say worst case scenario, the project is built, flooding happens, it's wiped out. Who's responsible for rebuilding that or taking care of the damage or refixing the roads? That's a very complicated question.

[Rep. Amy Sheldon (Chair)]: Deputy secretary wants to try and answer it. I

[Trey Martin, Deputy Secretary, VT Agency of Natural Resources]: was just gonna make suggestion a if our general counsel is going. Is it possible to talk about some of the other permitting requirements, Catherine, what those protect against? Because I don't

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: think I mean, I know.

[Rep. Larry Labor (Vice Chair)]: We want

[Trey Martin, Deputy Secretary, VT Agency of Natural Resources]: people to put homes in in the middle of rivers or adjacent to a river that floods annually. Yes. That is quite the opposite. There's also sort of a reasonable nest that developers will apply. Phil costs money, insurance goes up when you put people in a risky location. We are not talking about throwing caution to the lender. But Catherine might have some details on the other permits that you have to draw.

[Rep. Sarah "Sarita" Austin (Clerk)]: May I just ask you, has there been

[Unidentified Committee Member ('Representative Jacob' per transcript)]: a risk assessment on this?

[Trey Martin, Deputy Secretary, VT Agency of Natural Resources]: Define risk assessment?

[Rep. Sarah "Sarita" Austin (Clerk)]: We're looking ten, twenty years ahead and the projections of you know, different climate activity have they looked at?

[Rep. Larry Labor (Vice Chair)]: I don't think we've done

[Trey Martin, Deputy Secretary, VT Agency of Natural Resources]: a decadal look out at this and one that might look at. I think we're pretty focused on the housing crisis and trying to do things that are meaningful now.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Thank you. Yeah, I mean, I did mention stormwater, flood, stream, all of those kinds of things, as well as wastewater.

[Rep. Amy Sheldon (Chair)]: So thank you for bringing it back to housing. Would this housing that you're I mean, I guess one of my struggles with the housing exemptions right now is that they're not tagged to year round, affordable housing. And would this include housing that was for workforce and people who wanna live in Vermont year round? Would it be limited to that?

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: It's not limited to that, but it would include it. I mean, the definition is broad.

[Rep. Amy Sheldon (Chair)]: Thank you for joining us and for walking us through this.

[Catherine Gessing, General Counsel, VT Agency of Natural Resources]: Thank you.

[Rep. Amy Sheldon (Chair)]: We'll take a seven minute break and come back five past the hour.