Vermont Legislature SmartTranscripts:

[Rep. Amy Sheldon (Chair)]: Welcome back to the House Environment Committee. We are changing topics to s two twenty three, and actually relating to water quality in the waters of Vermont with a new draft from Michael O'Grady.

[Michael O'Grady (Legislative Counsel)]: So, it's a new draft, but you have actually seen it before very quickly, but, you did see it before. It's draft number 1.1 of your committee's proposed amendment with the April 3 date and August timestamp. The two changes in this relate to the membership of the group, the first on page two, lines one through four, in the two current house representatives, you wanna have been said not all be from the same political party. And similarly with the two current members of the senate, not all from the same political party. And then on page two, line eighteen and nineteen, an additional member was added, representing the Green Mountain Water Environment Association appointed by the speaker of the house. Those are the changes that I've been directed to make so far to the committee for both. I do wanna actually note one other thing. It's not a change. It's just familiarity. It's in the contingency funding on page five, section one a. I think you've seen contingency funding provision so far that there's no duty to go forward if the general assembly doesn't approve the funding for it. This is the opposite of that. This is they have to go forward even if the members aren't receiving per diem on expenses for their participation and And the senate did not. Did the senate include this in their budget? It's I I don't know. I was just I just saw the senate budget this morning, and I haven't made my way all the way through it. So I don't know if it's in there or not.

[Rep. Amy Sheldon (Chair)]: And this language passed out of the senate. Yeah. K. Do members have questions about these changes?

[Rep. Rob North (Member)]: Sorry, I walked in late. We incorporating the or have we not started discussing the incorporation of the changes from ANR?

[Rep. Amy Sheldon (Chair)]: We are about to talk about them. Okay. Alright.

[Rep. Rob North (Member)]: Just talking about Okay.

[Rep. Amy Sheldon (Chair)]: I'm not seeing any questions on these changes. So, that, here's the amendment. We've spent a lot of time talking about variations on the executive order. Michael, if you could just high level remind us the walk us through the amendments, We can discuss them. I know we've walked through them a lot. I'm not asking you to do a detail, but I know we have the like, the wetlands is the first one.

[Michael O'Grady (Legislative Counsel)]: Were that ANR proposed last week?

[Rep. Larry Satcowitz (Ranking Member)]: Yes. Well, yeah.

[Rep. Amy Sheldon (Chair)]: Proposed amendments on 02/20.

[Michael O'Grady (Legislative Counsel)]: I I can walk through that, but I I have to say that I don't understand why they are offering it. I think most of you know that when when an agency proposes a new to LCAR, Ledge Council is supposed to review it for consistency with LCAR's review factors. ANR proposed amendment to the draft wetlands rule. It has the same language that's in their requested statutory amendment. I would say 90% of the language is the same. So that's confusing to me because Elkhart's reviewing the wetlands rule on April 30. You're you're not going even if you put this on a fast track, this amendment to get it enacted, it's not going to be passed by the senate and signed by the governor, go into effect before April 30. And if it does go into effect after Elkhart approves the rule, Well, anything that conflicts I said they're 90% the same or 10% different. And so anything that conflicts, the statute, the session law is gonna control, and it's going to override what's in the rule. And I'll I'll give you a good example of that. The rule sets forth best management practices practices for for installation of linear utilities and access infrastructure servicing residential housing. And it's it's pretty it's pretty deep there. And it has very specific things to do when you're gonna be putting in winter utilities and infrastructure, etcetera. But the amendment just says that the department is going to adopt best management. It says, hold on a second, the rules adopted under the section, which is the section of session law, session law, it's not the statute, it's session law, but those rules would include best management practices for linear utility or access infrastructure to be adopted under this section, again, this session law section. If this was enacted, it would override what's in the rule. So I don't know what they're doing or why they're offering this. So that's my first issue because it seems like they're saying, we know we don't have statutory authority for the rule. We're gonna try to get statutory authority to kinda have it apply retroactively to the rule, But that's not how it's gonna work. Maybe if they had done this, like, early in the session and then proposed a rule, that that would've worked. But with the rule likely to be approved before this is enacted, this is going to override what's in the rule. Because statute, even session law, when it conflicts with rule, controls. And so that's my first question. I I don't understand. And to be all cards on the table, when ledge counsel review a rule and there are questions, we're required to consult with the chairs of the jurisdictional committees about what those questions are. And if those questions require interaction with the agency, we're supposed to interact with the agency. I I have done everything that I'm supposed to do. I went through the LTARR attorney. I went through my team lead. I went through Brin. I conferred with the chair and the chair of senate environment natural resources. We've sent a memo to ANR asking them for a response to, like, what what what is this and other questions. General counsel guessing email me maybe an hour or two ago saying that they will respond by the time Elkhart reviews the rule.

[Rep. Amy Sheldon (Chair)]: So, for us members, like, we are I would like to move S two twenty three this week. It's a pretty straightforward working group. This I'd like to look at these three amendments, discuss them, strap all of them, and move forward today. I I'm not saying you should stop, but do members have questions on what Michael has just said or the wetlands portion of this the wetlands changes that are proposed here, not the other two parts of this amendment right now. Representative Lauren?

[Rep. Rob North (Member)]: Yeah. Thank you, madam chair. Michael, could you point us to the the section of the amendment that you were talking about being potentially in conflict?

[Michael O'Grady (Legislative Counsel)]: Well, there there are several, but the one I I'm pointing to is on page five, and it's lines three through seven. And you have to realize that you're you have to read that with the lead in language that begins on page three, line five, where it says the rules adopted under this sec section shall include. And then it says requirements for and then notwithstanding Subdivision B 2 E, a linear utility or access infrastructure servicing residential housing may cross the mapped area of the class c wetland. And then on page five, you'll see that the rules are going to include best management practices for installation in those those areas for the those uses. And that that is exactly what this is. There's there's, like, six pages of of of rules, best management practices. Setting out the best management literally, it's best management practices for the installation of linear utilities and access infrastructure servicing residential housing.

[Rep. Rob North (Member)]: So so what's the problem with the the requirement for there to be developed best management practices? If they already exist, then those are the best management practices.

[Michael O'Grady (Legislative Counsel)]: The problem is it says under this k. It says under this section. So these were not adopted under that section. These were adopted under the authority that the a and are asserted for adoption or amendment of these rules, which is 10 b s a nine zero five a 18, I think.

[Rep. Rob North (Member)]: So it's a timing it's a timing issue that they're Right.

[Michael O'Grady (Legislative Counsel)]: But timing timing matters because statute controls overrule, and what comes fast is great.

[Rep. Rob North (Member)]: So so if there were a if if item triple I line three on page five were just reworded to say, like, notwithstanding or, you know, use one of those phrases that gets them out of the the the timing issue and just points to those existing best management practices, then it would be okay.

[Michael O'Grady (Legislative Counsel)]: I I I think there's a way that you could draft this. It would be a little a little unusual, a little unique, but I think you could do that. You would but one of the things that you're also wrestling with is that has to go they're they have to review this rule on the thirtieth and determine whether or not it's consistent with statutory authority.

[Rep. Rob North (Member)]: Existing, regardless of this.

[Michael O'Grady (Legislative Counsel)]: Right. Regardless of this, but this cast out. If you're though gonna say, hey, notwithstanding the agency's existing rulemaking authority, we're gonna say this is gonna apply to this rule. Doesn't that tell, hey. They didn't have statutory authority? Or it just says, recognize the existing best practices that are in place.

[Rep. Rob North (Member)]: I mean, we we do that all the time with CAFO stuff. It's like, oh, there's already best practices. Don't have to, like, redevelop all new best practices. Recognize the best practices that are in place.

[Michael O'Grady (Legislative Counsel)]: And It's not just the best management practice.

[Rep. Amy Sheldon (Chair)]: Yeah. So actually, Michael, if you wouldn't mind the issue around mapping, for example, Vermont's significant wetlands. Sure. And so Currently, how we use the maps and then this under this proposal, where the maps become the delineation, and then they're actually not been they're they're not used for that.

[Michael O'Grady (Legislative Counsel)]: Alright. So on page four of the agency's proposed amendment, which is almost exactly the same as the wetlands rule. It says, no. You you can basically build a residential housing project except within or within 25 feet of a mapped area of a class two wetlands shown on the Vermont Significant Wetlands Inventory map. And then it goes on to say, notwithstanding that, you can put linear utility or access infrastructure servicing residential housing across the mapped area of the class two wetland within 25 feet of the mass. So you you need to realize that the rules themselves say that the map should not be relied upon. It says rule, 3.2 b, The Vermont significant wetland inventory maps denote the approximate location and configure configuration of significant wetlands. The actual boundaries of wetlands shown on the map shall be determined in the field accordance with methodology provided in section 3.2 a of the rule

[Rep. Rob North (Member)]: where and

[Michael O'Grady (Legislative Counsel)]: then it goes on to say, hold on a second. All wetlands shown on the Vermont significant wetland inventory maps are contiguous to wetlands shown on the maps are class two wetlands, unless identified as class one or three. The map should not be relied upon to provide precise information regarding the location or configuration of wetlands. They are intended to denote the approximate location and configuration of wetlands. It's critical to note that the wetland characteristics and boundaries are not static. Wetland boundaries may change as a result of landscape and climate changes. So you have one section of this rule saying don't rely on the maps. You have another section, which is very, very similar to what I read from the proposed amendment that says you have been

[Rep. Rob North (Member)]: So you're saying there's conflict conflicts within the rules?

[Michael O'Grady (Legislative Counsel)]: There's conflict within the rule, and then there's conflicts between this and rule.

[Rep. Amy Sheldon (Chair)]: Underlying all this is a conflict with our existing long standing legislative intent and statute, and I feel like I'm not interested in adding this amendment to this bill. Our other representative Yeah.

[Rep. Chittenden (name unconfirmed)]: So I wasn't sure if we were only questioning our alleged counsel or doing some discussion, I will say I couldn't support this. I think we should let the process play out.

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

[Rep. Michael Hoyt (Member)]: Thanks. Yeah. I wouldn't support it either. I mean, the way I look at it, it's basically asking us to bless these rules, which look like they have some infirmities within them. And even if

[Rep. Rob North (Member)]: this did pass, not only

[Rep. Michael Hoyt (Member)]: would it do that, which I don't really think is the proper thing to do, sounds like it would make a hash of the rule itself. Timing

[Michael O'Grady (Legislative Counsel)]: wise, conflicts in that. I don't know how it would be implemented, and I think it would inspire a significant amount of litigation. Because what are you implementing? Are you implementing the session law amendment? Are you implementing the rule? And then I would argue that that the rule can't be implemented because it's arbitrary because it's relying on maps when the rule itself said don't rely on the maps. And so I these are quest these are the questions I posed to A and R. These are my questions. I don't have definitive answers. We don't care.

[Rep. Michael Hoyt (Member)]: But I'm just in here and asking.

[Michael O'Grady (Legislative Counsel)]: Posing those questions and asking for a response. So to inform LCAR, I know you might not enjoy that I ask those questions, but it's part of my job. And I do it all the time in the agency. That's unlikely for it, but it's part of my job.

[Rep. Larry Satcowitz (Ranking Member)]: Exactly. You know, it sounds like a lot of these technical issues are probably using it alone to not support the amendment. But but in addition, I I couldn't support it simply because we've we've spent a lot of time over the years in Vermont as a as a state, you know, strengthening our weapons rules and protections, because they're so very important to all of us and to be rolling them back, even temporarily, seems like that puts us going backwards rather than forwards.

[Rep. Amy Sheldon (Chair)]: Others have comments? Representative Tagliavia?

[Rep. Mike Tagliavia (Member)]: A couple of comments, I think, with respect to Representative Hoyt's comment about how some of what we're talking about could make a hash of the rules. Is there a way for us to not make a hash of it, but to actually be able to clarify so that this stops being a hurdle in the future? The other thing that I just want to make an observation about, wonder if everybody remembers a few years back, there was a software glitch and I think it was Microsoft where there were airports and everything else. There was a lot of stuff that was shut down because there was a some in the loading of new software because somebody didn't test it, that there was basically a loop where the software would get just so far and then go back and restart because there was one little piece of the language that was missing. And I can't help but feel like anybody who wants to build and is looking for this relief, this 25 foot relief, is gonna continue to come against this stuff, and there are gonna be other things. And all we as a legislature are going to be seen as is, as giving basically a bait and switch. Oh, we really want housing, but oh, we found another problem. We found another problem. And how are we gonna try to fix this problem if we really do want to make an exception here or there? Because there are just a couple from the information that I'm getting, it's not like we're gonna go willy nilly and just break out the bulldozers and the dump trucks and fill up wetlands. We're looking at a couple of isolated areas. And is there possibly a way that we can find common ground so that some of these places can see the development like the prospect heights can actually, if the project goes forward even in partiality or in full, so that we can say, yeah, we actually are committed to improving the housing situation.

[Michael O'Grady (Legislative Counsel)]: I can't speak for LCAR, but if LCAR has reasons to object to a rule, it will switch the burden in any challenge to the rule. And that means that the agency will have to defend the rule and prove that it is not arbitrary, that it is consistent with statutory authority, that it is consistent with legislative intent, and that it's it's operable.

[Rep. Amy Sheldon (Chair)]: Also, if I may, in reading your memo, there are other like, to change state policy for three projects or whatever the number is, I find to be just like it's just, like, the wrong way to do what what we do here. In at least one instance, there are other ways that that the secretary has flexibility to address project specific issues. The the one that you're talking about, it goes beyond the 25 foot buffer, so it's not accurate to keep portraying it that way. There are unmapped wetlands on that property that they would like to ignore or fill, and that that's another big piece of this. Anyway, I'd like to hear from all members about whether or not they wanna actually keep debating this, whether we put this amendment into the bill or not.

[Michael O'Grady (Legislative Counsel)]: Could could I answer the question? I I do think there's a way to to make I would just get rid of their proposed session law amendment regarding the residential housing and just go with the rule and just go with the argument that, we have statutory authority to adopt this rule. Now that doesn't mean that there aren't still questions about the rule, but you no longer have this being, like, the shadow, like, on on it. And then you can do the rest of it or if you want to. I still have questions about, like, how you wanna do, like, the consultant or the general permit. You don't really need the general permit because the agency already had general permit authority. This might not fit under that authority. That might be why they're offering it. But if I were advising the legislature about how to go forward with this rule, I would not go forward with the first part of this amendment.

[Rep. Mike Tagliavia (Member)]: Can I just get some clarification? Yeah. I I took the description of session law as having, like, a only for a set amount of

[Michael O'Grady (Legislative Counsel)]: time. Correct? Right. And and I I wasn't here when general counsel guessing was testifying. Someone asked her question, what's the difference between session law? And she said talk to your legislative counsel. And, generally, session law is for something that is temporary in nature or or effectively, something you know will expire just because of the terms and conditions of the language. So, for example, a a special study committee. Right? You write into study committees that they're they expire usually within a year to eighteen months of when you create them. You don't need to put that in in statute. But what they do and what you require for them to do, that's still law. You do session law that has binding effects every year. The appropriations bill, the beginning of the appropriations bill every year, it says not unless otherwise noted provisions in this bill will only apply for fiscal year twenty twenty six, twenty twenty seven. But every year, there's provisions in that bill that apply for more than fiscal year 2728, etcetera. It goes into the future, and that has binding effect as long as it's still applicable. There is session law that is fifteen years old that I know of. That's still good law. It still applies. It's supposed it's supposed to be temporary, but it doesn't

[Rep. Michael Hoyt (Member)]: have to be temporary.

[Rep. Mike Tagliavia (Member)]: Would there be a correction so that it is actually temporary with respect to this event?

[Michael O'Grady (Legislative Counsel)]: This this amendment says it's only gonna be good until '20 how how you read it, 2029 to 2031. Because they have a vested rates pausing here, which is a good idea, which allows it to go past that 2030 deadline. If you've gotten all your permits and you started construction, your right rights invested. Just because it is 2030 doesn't mean that your rights are terminated. You get to finish out what you started.

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

[Rep. Chris Pritchard (Member)]: Yeah. Thank you. So what did the ANR say when you pointed what when you pointed this out to them, what was their response? They said that they were gonna get back to me and provide answers. And they only they only I only sent the memo yesterday, and they only responded a couple hours ago.

[Rep. Rob North (Member)]: Guess I'd like to know what their answers are before we vote on something. Yeah. I think we should I mean, you explained it to them fully.

[Rep. Michael Hoyt (Member)]: Yeah. I mean, I I think they should answer to it. I think that answer should be part of our decision. Did they indicate when they might? No.

[Michael O'Grady (Legislative Counsel)]: But, Elcar, April 30. So they they would have to get back to Elcar by that time. And, usually, Elcar eats everything three days in advance.

[Rep. Michael Hoyt (Member)]: I can Thank

[Rep. Rob North (Member)]: you, madam chair. I I guess to to your question, I I I kind of agree with you, Michael, that we don't need both. We need one or the other. One or the other would suffice. Chairs would argue if I want either, but I would argue with one or the other would suffice. And we've already got one submitted by rule making, and that's kind of going through the process. And if they truly are in conflict, which it would really be interesting to hear why AR submitted something that's going to be in conflict. That doesn't make any sense. I mean, to hear what their position is. But, yeah, if one of the other suffices. But if if that's likely not gonna go through for the reasons that you've indicated, then then it sounds like it's going by this.

[Michael O'Grady (Legislative Counsel)]: I I mean, again, those questions to ANR, Don't know what their responses are. One of the questions I posed is a question that rep Hoyt posed to general counsel guessing. It's like, how and what authority did you use to cut the 50 foot buffer for a fast two at 11 and a half? And she said the authority to adopt an allowed use by rule. And and she's right that they have the authority to adopt an allowed rule use by rule in a 50 foot buffer. If they're gonna change the buffer width, that's another section in law. She said that the agency can adjust the buffer width under nine thirteen, but it's actually under nine fourteen that the agency can adjust the buffer. And under nine fourteen, they have to adjust the buffer during a wetlands determination, not as a categorical conclusion. And the AG even said that in the AG's advisory opinion to a and r to the governor when the governor issued the executive order that cut the buffer with. The AG said you can't categorically half the buffer. You have to do the wetlands determination under nine fourteen. So if you had an allowed use that was in 50 feet, that'd be fine. But you have now an allowed use within 25 feet with a different buffer, and you didn't go through the process to to set that buffer rule.

[Rep. Rob North (Member)]: So I think you're making my argument for me that the the LCAR rules the the the rules that are going to LCAR likely won't go through because there's enough issues with it. You can

[Michael O'Grady (Legislative Counsel)]: fix a rule. You can you can fix a rule. Produce new rules that better. But LCAR can ask an agency to fix a rule. Whether this can be fixed to the satisfaction of everyone, I I I don't I don't know. But we do, LCARF, and the legislature fix rules all the time. They come in. There's something wrong with them. Hey, can you do this? And we work with the our office, and I say we at the Legis Council, work with them all the time on on their rules. Rules are great. You're gonna see a hazardous waste rule that's coming through. It's, like, five times the size of this, and it's great. And it just sometimes things fall apart. Thanks.

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

[Rep. Chris Pritchard (Member)]: When was the last time the governor's executive order was challenged?

[Michael O'Grady (Legislative Counsel)]: Well, most of the time, orders don't have a binding effect. The last time that I can remember the debate about an executive order is that there's actually a statutory provision that says at the beginning of each biennium, the governor can issue a executive order for the reorganization of government. But it only it can be it can be denied by one body, like not passed by one body. And that raises a separation of powers and present an enactment clause issue. That's the last time I remember an executive order of an enact of hippie. When was that? Oliver Olson is still representative for 2015, maybe. And and you will you will see an a memo that I wrote about the separation of powers cited by the administration, the current administration. And I I say them back. Like, it's we're we both have the same separation of powers analysis, but we have different conclusions. But we do it's it's the same analysis. It's just different.

[Rep. Michael Hoyt (Member)]: And the

[Michael O'Grady (Legislative Counsel)]: the the governor doesn't have specific constitutional executive order authority. Many governors do. So how govern governors, including the Vermont governor, that don't have ex explicit executive order authority, they have to imply it from their constitution and their take care clause, and that's not always clear. And the boundaries of that are not black and white. In fact, the Supreme Court said that the boundaries between the branches are gray. So what authority that that the governor has, it's implied, and it's not lack of

[Rep. Chittenden (name unconfirmed)]: Yeah. I'm just trying

[Rep. Chris Pritchard (Member)]: to it just seems strange to me. I know it's a short amount of time. I what what what do you think the governor's rationale is for this executive order?

[Michael O'Grady (Legislative Counsel)]: I know. The ex he I think that his rationale for the executive order is in the executive order. And it's it's also in the the summary of this rule that they're they have declared a housing emergency. There needs to be a certain number of housing units built within a certain number of time. There's a assertion that the regulatory restrictions on development, whether it be wetlands or otherwise, is going to prevent needing those development of those housing units in that designated time.

[Rep. Chris Pritchard (Member)]: Is that is that assertion accurate?

[Michael O'Grady (Legislative Counsel)]: I I don't I don't. I can't comment. And then that that that there have been attempts to to address the issue in the legislature. General legislature chose different alternatives, and, therefore, the governor felt the need to go forward with the executive order. But then the secretary of matter of resources herself said that she believed rulemaking was necessary to to implement the weapons provisions of these. And the attorney general, because of pro tem and the Speaker of the House, that's the attorney advisory opinion on the constitutionality of the executive order, AG's opinion said secretary has rulemaking authority that needs to be exercised through rulemaking and not through the executive order. And that's what this is.

[Rep. Chittenden (name unconfirmed)]: I just find it hard to believe we can't hear how to send quotas without filling in the web.

[Rep. Amy Sheldon (Chair)]: Right, so the question before us, want to include this on this bill, guys, we have to get through this question. Sorry,

[Rep. Chittenden (name unconfirmed)]: I don't want

[Rep. Amy Sheldon (Chair)]: to And move on, we are wasting time right Okay,

[Rep. Rob North (Member)]: well, I'm just trying to

[Rep. Amy Sheldon (Chair)]: I need folks to voice their opinions. Nope. You. Representative Morris. Or Representative Logan, like folks who haven't spoken. Labor.

[Rep. Michael Hoyt (Member)]: I think the issue is the mapping. Boots on the ground, mapping, but it's truly a wetland. What's the definition 50 for one person may not be the definition 50 for another. Therein, mind you're twenty five foot.

[Michael O'Grady (Legislative Counsel)]: Thank you, Madam Chair. I'm still, this is like a public man, still trying to process to pieces. You have an opportunity to get to these places, it sounds like a one, play it with from another legislator that is it indeed a wetland or not a wetland? And so the answer I got is it isn't entirely a wetland. Talking about the Prospect Heights.

[Rep. Amy Sheldon (Chair)]: Right. But you're talking about changing statute for the whole state.

[Rep. Larry Satcowitz (Ranking Member)]: Oh, one

[Michael O'Grady (Legislative Counsel)]: That well, that's that's one of the things that is the puzzle that that perplexes me a little bit. But it does have a it does have a expiration date. We need housing. We we don't wanna bury all our it's just it's not it's not a class two wetland, or is it a class two wetland? Yes.

[Rep. Larry Satcowitz (Ranking Member)]: Is it? Representative

[Rep. Amy Sheldon (Chair)]: Logan, are you with us?

[Michael O'Grady (Legislative Counsel)]: That's why you spoke

[Rep. Michael Hoyt (Member)]: to me.

[Rep. Rob North (Member)]: Yes, can you hear me okay? Good. I would just echo what Representative Satcowitz said. Thanks.

[Rep. Amy Sheldon (Chair)]: Alright. I guess we'll just do a straw poll. All those in favor of including this on two two three.

[Rep. Rob North (Member)]: May I ask you a question? We're just talking about section two right now. We're not talking about section three yet. Right?

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

[Rep. Michael Hoyt (Member)]: section three.

[Rep. Chittenden (name unconfirmed)]: Of the Section three is Three of the five sections, so they go to right. Yeah. You want the general appointment, and it's not going up. Right.

[Rep. Amy Sheldon (Chair)]: Sections one and two. Like, one and two.

[Rep. Chittenden (name unconfirmed)]: And there's sections two more sections.

[Rep. Amy Sheldon (Chair)]: Which is just the data. Alright. Who wants to include the wetlands and allowed uses? Section two and section three. Two. Or section sorry. Section two. On s 223. Raise your hand. 2345. All right. So, those who don't want to include it, raise your hand. Representative Logan.

[Rep. Rob North (Member)]: I'm raising my hand.

[Rep. Amy Sheldon (Chair)]: Alright, so five-six vote. We are not including it on this tick tock three. Moving on to section three. Michael, did you get enhanced language from the agency on this general permit?

[Michael O'Grady (Legislative Counsel)]: I did not. Are they supposed to provide enhanced language?

[Rep. Amy Sheldon (Chair)]: No, but I think maybe I guess we need to walk through it.

[Michael O'Grady (Legislative Counsel)]: First, the agency does have general permit authority. There's specific provision in rule for general permit authority, and there is authority that statutory authority for that in at least say 09/13, arguably. And so what they're posing is that on or before 07/01/2029, the secretary shall publish a draft letter in this general permit pursuant to that authority for the secretary to issue permits for residential housing projects and related utilities. Prior to issuing the draft weapons general permit, the ANR shall provide an opportunity for stakeholder engagement public notice, and comment, and shall convene at least two public meetings regarding the draft general permit. No later than 01/01/2030, they shall issue a final general permit for residential housing projects and related utilities. At a minimum, the general permit shall include best match and practices for wetland protection during and after construction applicable to all projects authorized on the permit, Authorized broader impact allowances for managed or highly degraded wetlands where ecological function is demonstrably diminished. This is managed wetlands. Mitigation ratios for impacts to manage

[Rep. Amy Sheldon (Chair)]: Please look. Don't I know what that means. Authorize broader impact allowances for managed or highly degraded wetlands.

[Rep. Rob North (Member)]: I had the same question.

[Rep. Amy Sheldon (Chair)]: Where ecological function is demonstrably diminished?

[Michael O'Grady (Legislative Counsel)]: Sure. So, in the wetlands general permit authority, the agency can issue general permits.

[Rep. Amy Sheldon (Chair)]: I mean, would that still be a significant wetland? That sounds like more plus two or three wetland that they're talking.

[Michael O'Grady (Legislative Counsel)]: Yes, it is. But basically, what I read that to mean is that, when you have a general permit under the rule, the allowable activity shall have no undue adverse effect on protected functions and values. So this will allow for, it will allow broader impact allowances. It will allow more than it will allow potentially undue effects on detected functions and values.

[Rep. Amy Sheldon (Chair)]: This strikes me as beyond a general permit because someone's gonna have to show ecological function is demonstrably diminished.

[Michael O'Grady (Legislative Counsel)]: Well, I it depends on how the general what the general permit applies to. I mean, the US Corps of Engineers has a general permit that allows for construction in a wetland as as long as it doesn't exceed a certain number of square feet. And you don't even need to to inform the court because it's such a small number of square feet.

[Rep. Amy Sheldon (Chair)]: I'm sorry. Did you say a thousand square feet?

[Michael O'Grady (Legislative Counsel)]: It's it's like a thousand. And and it has to be for residential develop from my recollection. I haven't looked at that. But so so you could you could, depending on the scope of the activity, you could allow for a general permit like that. But I think, really, what page six lines one and two is, it's it's effectively saying that you that they can have an undue adverse effect on the functions and values of some wetlands where ecological function is demonstrably diminished.

[Rep. Amy Sheldon (Chair)]: I think maybe I need a refresher on this the idea of this how this general permit would work. Not a general permit was sort of someone certifying that they weren't gonna have an impact, that they would abide by, let's say, a 50 foot buffer. They've done their delineation. They submit their thing. They go, look. We're gonna avoid impacts to the wetland. We're moving on. Isn't that the way a general permit should work?

[Michael O'Grady (Legislative Counsel)]: It it depends. You know?

[Rep. Amy Sheldon (Chair)]: But this seems like it would involve agency personnel having to decide if ecological function is demonstrably diminished or if the wetland is degraded or isn't degraded. Say

[Michael O'Grady (Legislative Counsel)]: it they they give a couple at least one. Say it's an agricultural wetland dominated by wheat canary grass fields. Right? And they're invasive, and but it's a wetland, and they are they are vegetation that's indicative of a wet generally, you are supposed to not have undue adverse effects on that type of a wetland. But they're saying, oh, this is the type of wetland, even though it might be significant, where the ecological functioning of that is not as important as other wetlands, and therefore, you're going to develop in that. These this is what you can do. You can have an undue adverse effect on it, provided you do x, y, and z. I mean, I I can't I'm talking very theoretically about my concepts of general permits. They can be very limiting. They can be very, very low they can be very comprehensive and and apply to pretty much every activity. The stormwater construction general permit. If you're gonna disturb more than a half an acre of land and you're not farming, you need to put in stormwater management measures. And you would think, well, those should be all unique to the ground, the site you're on. But it's not. They'd say use this type of fencing, use this type of barrier, use this type of itching. And that's comprehensive. That applies pretty much nationally some form or

[Rep. Michael Hoyt (Member)]: Thanks. Should

[Michael O'Grady (Legislative Counsel)]: I move on?

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

[Rep. Larry Satcowitz (Ranking Member)]: So would this general permit make it easier to build in certain kinds of weapons?

[Michael O'Grady (Legislative Counsel)]: I think that's the intent. Yes.

[Rep. Amy Sheldon (Chair)]: And number five, codifies the 25 feet.

[Michael O'Grady (Legislative Counsel)]: It's not just the construction, it's what you would have to do to mitigate. For example, on page nine, six, and seven, the mitigation ratios for impacts may be reduced. So if the default mitigation ratio right now is two to one, if you impact one, you have to mitigate restore two. So this would say that they can they can change those mitigation ratios in the under this general permit.

[Rep. Amy Sheldon (Chair)]: Representative Hoyt?

[Rep. Michael Hoyt (Member)]: Yeah. Mike, I have a question. So it looks like number five here, section five, is an attempt to get around 50 foot buffer again. Right? One thing I don't see anywhere in this amendment is something either amending the 50 foot in the buffer definition or saying not standing any other provision. So if we put this in, it passed, how is that gonna work with the definition of 50 feet in the wildlife buffer?

[Michael O'Grady (Legislative Counsel)]: This goes back to my original statement that I don't understand what this is doing. Okay. Because could because this goes into effect in 2029, 2030, depending on how you read it. And you could say, notwithstanding whatever, to MBSA nine zero two, the buffer zone definition, in 2029, the secretary may adopt a general permit that establishes a buffer zone that's less than 50 feet. But that's not what this says. So you you representative Boyd, you you're you will have something on statute that will conflict with session law. This would have come last. Right? It last in order, arguably, it would control because this is one of my favorite statutory cabinets, like construction status, statutory closing. You know what you're doing. The legislature is presumed to know what it is doing. It's because I don't know what I'm doing half the time. And you are but you're presumed to know what you're doing, and that's the court. They look at you. They they presume that you knew this was gonna come last, and this would arguably control. And so and the courts really get kinda snotty. I can't pull that one. But anyway, I I I think representative Hoyt raises a good point. I don't know how that they would be interpreted to interface with each other. It could be argued that that the amendment controls. It could be argued that the statute controls. Because the amendment is still temporary. Remember, even though it starts in in 2030, I think it I think it only has a five year timeline. Right? Maybe that's what's under the rule. That's what's under the rule.

[Rep. Michael Hoyt (Member)]: Senator Blake. One other thing, Mike, just it sounded like you said that they already have the authority to do this in Europe, that they have the authority to come up with a general permit. Right?

[Michael O'Grady (Legislative Counsel)]: They do. Yeah. It's in it's in their rule. So this would this would sort of muddy the waters.

[Rep. Michael Hoyt (Member)]: It could seem like if they're allowed to do this, adding this amendment might raise some questions. Well,

[Michael O'Grady (Legislative Counsel)]: think what they're saying is that in exercising their general permanent authority, they're gonna deviate from some of what the standards are in their general

[Rep. Larry Satcowitz (Ranking Member)]: What some of what the the law is.

[Rep. Michael Hoyt (Member)]: Right. Correct. So,

[Michael O'Grady (Legislative Counsel)]: For example, two to one mitigation. They were saying that they're gonna have a different ratio for that. They're gonna have a different buffer. It's gonna be categorical. It's not gonna be according to a wetland, but to. So, again, that that would be different from what's in statute. And then just that standard and authorized broader impact allowances, to me, that means that they're gonna have undue adverse effect on the wetland, which the current wetland general permit says you can't have. So

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

[Rep. Larry Satcowitz (Ranking Member)]: Yeah. Would just say that, basically, for the same reasons I was unable to support the previous section of this amendment, I couldn't support this section, and that it's making us go backwards in terms of how we place our importance on wetlands and having them be functional as parts of our landscape and making them making those places better rather than degrading them further. So I feel like we need to be thinking about how we take all the wetlands in the state and protect them and make them better, to improve them, not to simply say that because wetland is degraded, that it's fair game to the house there.

[Rep. Rob North (Member)]: Yeah. Thanks, Mike Cherry. I was

[Michael O'Grady (Legislative Counsel)]: kind

[Rep. Rob North (Member)]: of excited about section three when when I through through the bottom of page five, but then once I got to page six, it seemed like we were going beyond the bounds of what a general permit should should be doing.

[Rep. Chittenden (name unconfirmed)]: Mhmm.

[Rep. Rob North (Member)]: It's too many questions that I mean, even in number five where it just says adjacent to wetlands, it doesn't even say what kind of wetlands. Class one, two, three, mapped, unmapped, doesn't say. But, I mean, it's just yeah. Yeah.

[Rep. Michael Hoyt (Member)]: I don't know. I

[Rep. Rob North (Member)]: was excited that we were going do a general permit kind of similar to what two twelve was doing with the general permit on water. I thought that's what it was going to be like, but when I turned the page, it was like, it's not the point.

[Rep. Amy Sheldon (Chair)]: And they already have the authority to do it. They're asking for us to suspend their talk. Others comments? Representative Chittenden?

[Rep. Chittenden (name unconfirmed)]: Like I said, we continue to feel like they generally have certain authorities, and this gets comp this, like, complicates things. But I'm I'm curious about a general permit, and I want to see the state engage that tool where it's in two twelve where it talks about being simpler, but forget the language. I appreciate the language in two twelve. I'm not sure what it means exactly, but I'm very curious in this arena of how we can improve our permitting processes to everyone's benefit. But if they have the authority, I don't want to muddy the waters and I don't want to roll back our wetlands protections in some of these ways without really period. So I just would continue to feel like they have some tools and let the process play out. I would prefer not to post these.

[Rep. Amy Sheldon (Chair)]: Others? Does anyone think we should include this? S223. Not seeing any. Great. We'll not include this. Next one.

[Michael O'Grady (Legislative Counsel)]: So I think you're on page seven, section five, the professional wetland consultant certification. I think you have options to do this. You have done things like this in the past, and you have done it in in different ways. I think the best example is the current licensed designer for portable water supply and wastewater systems. When you first did that, you directed ANR to come up with a program to to approve them slash, certify them. And ANR did that by rule, but then and that was in that was in, like, 2000, 2001. And then in 2015, ANR asked that OPR take over that program and issue

[Rep. Amy Sheldon (Chair)]: So how long did the ANR oversee it?

[Michael O'Grady (Legislative Counsel)]: A ANR had the they had the program for and they still kinda have the program. So in 2002, you the general assembly directed ANR to establish and implement a process to license and periodically renew the licenses of designers of portable water supplies and wastewater system. So that was when the program started. In 2016, the general assembly transferred that authority from ANR to OPR, which is the Office of Professional Regulation, and and build all those structure that's usually around an OPR program, like a board and standards and what happens if you are accused of something that's unlawful underneath your board certification or your engineering license or license, how the board is a brought is appointed, etcetera. So all the OPR programs have that structure that's built around them. But the question is, do you need to go to a license to do what you want to do? Because the agency has approved consultants in different programs where they just say, we've approved this consultant to do this type of work. We generally believe, through our experience with them, that they are professional and meet the standards. Is that all you need?

[Rep. Amy Sheldon (Chair)]: The agency thinks we need more because they brought this to us. Though I am also left with a bunch of questions on this one. I think that's an interesting place to start. What is the problem we're trying to solve? What do we need? We heard that there's 25 people on the list right now of approved wetlands consultants. I don't know who's approving them, but they're on the list available. Maybe they're not approved wetlands consultants. That doesn't sound like a lot to me. And if one of the bottlenecks is getting delineations done, I don't know if we're solving the problem that people think we have by doing this.

[Michael O'Grady (Legislative Counsel)]: Yeah. Well, this this will take some time if you're gonna go through certification or licensure.

[Rep. Amy Sheldon (Chair)]: It would take some time. And I guess I'm interested on page eight, line four, c, the rebuttable presumption piece of this, is that the way that, say, the on-site program also works? They have a rebuttable presumption of accuracy? Or

[Michael O'Grady (Legislative Counsel)]: It's similar. The the the license, the certified designer, the licensed engineer, licensed designer, they are given deference. Their their certification that a project meets the standards is given deference.

[Rep. Amy Sheldon (Chair)]: Which is less than rebuttable presumption.

[Michael O'Grady (Legislative Counsel)]: Well, I don't really know what they mean here with the rebuttable presumption. Rebuttable presumption of what? That isn't set forward. I like the simplicity of the licensed designers for portable. They certify that they meet the rules. And the agency can go out to check to see if you met the rules. Now, it might be easier to certify that program because it is a pretty technical, pretty project focused certification. You know, I built a septic system, and that septic system meets the standards. I delineated a wetland. It depending on the time of year, it might be harder to say I definitely met all this the standards. If you're trying to do that in the wintertime, it's gonna be tough.

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

[Rep. Chittenden (name unconfirmed)]: So this too, I'm really interested in and intrigued by, but we've also raised a lot of questions about it that haven't been answered related to a number of factors. And I guess, again, in the interest of time, because I think our committee really needs to focus our time on S-three 25 in particular, I'm wondering if maybe what the next step here is to just have a one paragraph, something that we attach to this or a different bill that just says the agency will bring back recommendations for a program and the pros and cons of how a certification program would work by January, and then we can support it then and have more testimony on it. Receiving these amendments in April is like, it's just not very functional in the end of a biennium. I appreciate that the agency that there's a political environment around this topic and the EO, but it's just not a very functional way for us to review these and make good, like, a a so that's why I'm hesitant to put it all the way in, like, a program in statute right now.

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

[Rep. Michael Hoyt (Member)]: Yeah. I agree with representative Chittenden on that. It's interesting. You know, I think we could probably put something in there just asking to get looked at, and that's what

[Rep. Rob North (Member)]: I would support. Also, I've got a

[Rep. Michael Hoyt (Member)]: work meeting. We're not voting on the actual bill today, are we?

[Rep. Amy Sheldon (Chair)]: Two two No. But we're gonna probably put it on notice.

[Rep. Michael Hoyt (Member)]: Okay. That's we'll be back.

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

[Rep. Rob North (Member)]: Yeah. I I I also like this idea, but I would be willing to to go with as long as we put something in that says he give us something back because this isn't enough that that we could then incorporate next year. So in other words, something back by December this year because we'll get it

[Rep. Michael Hoyt (Member)]: for real for next year. I'd be I'd

[Rep. Rob North (Member)]: I'd be interested next. I am getting I am getting from the engineering community that has been contact with that that wetlands is becoming, like, the long pole of the tent in terms of overhead with with permits and whatnot, and

[Michael O'Grady (Legislative Counsel)]: so we need to do something there. Well, what would you want them to come back with? Because what this language require would would require them to do is is adopt rules. Do you want them to propose draft rules? No? Just a recommended program?

[Rep. Amy Sheldon (Chair)]: I mean, I guess I'm also sort of just thinking back to maybe even, like maybe maybe it was even last session. Just if the if the agency wants this, they can bring it to us in January and should, if that's what they want. Like and and it would come with those things of, like, what's the problem we're gonna solve? How long was it how long does this take? What do other states do? Does this add cost? Does it I mean, it seems like there's just a lot of questions. And I I too am interested and curious, but also thinking, like, this may not even really be the tool we need for the job. It might be. So I think you could put a paragraph in there, but the hard part about that is what are the questions we want them to answer. Representative Saccharides.

[Rep. Larry Satcowitz (Ranking Member)]: I also think this is an interesting idea. It seems clear that we don't really have enough time to do it justice at this point. And if the agency is really interested in moving forward on this, I don't see why they wouldn't just come to work on it some more between now and next session and bring something to the legislature when we start up. It seem like an actual thing for them to spend a little bit of time flushing out a bit more for us to start that conversation at that point.

[Rep. Rob North (Member)]: Well, I guess what is the difference between that and what's in here? That's what we're asking you to do. Just thinking through the process here.

[Rep. Chittenden (name unconfirmed)]: So my understanding of the issue that we're trying to solve, and the testimony we did get on this, is that right now, although we got mixed messages about this also, a project delineator gets hired by the project team and goes out and delineates, and then it goes to the agency. And then the agency typically sends out their own staff to do the same thing. And that two step process, if there could be I'm not sure certification is required, but if the agency needs either certification process or some, maybe there's a different tool, maybe they're fine with some other kind of approval of that out of that 25 wetlands delineators. And there's a different way for the agency to say, if we've approved them through some tool, then we give deference to there and we will only check it if we flag something in the permit process that makes us want to go out. Because my understanding is they actually do sometimes do that. That's what I heard in testimony, but it's not clear when and that that's a very minor portion of the time that they don't go out and double check the private sector delineator. So if I was going to ask a question in one paragraph, something that we decided we did want to put in statute, I don't think it's necessary here if the agency really wants to improve this process. I do think they could just bring something to us at an earlier time in a session. The question I would ask is, what is the right tool that will help enable the agency to defer, what's the word? Deferance. Provide deference and not double check-in all cases, the work of the private sector don't either. It could be a certification program. It could be they approve

[Rep. Amy Sheldon (Chair)]: The general permit. I think they need to clear it. I think that's a good question. The right to That's the for them and Vermonters to trust that high quality delineations are happening, but the agency doesn't have to go check every single one.

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

[Rep. Amy Sheldon (Chair)]: Can you draft that? Great. Yeah, thank you. Let's take a seven minute break.