Vermont Legislature SmartTranscripts:

[Rep. Amy Sheldon (Chair)]: Morning, we are going to continue going through amendments, I guess, for the representative Breyer, and then we'll keep going through the ultimate amendments. Welcome, representative Breyer.

[Representative Brewer (first name unknown) — amendment sponsor]: Thank you, Karen. Do you just want me to give a brief summary as to

[Rep. Amy Sheldon (Chair)]: What's the problem you're trying to solve, and then we can walk through that with what you need.

[Representative Brewer (first name unknown) — amendment sponsor]: So I earlier in the year, I've been dealing with three separate property owners in Bennington that I know of, and I'm aware of the in our area that are dealing with neighboring properties where someone's trying to set in or build a septic system. To the technicalities of what kind of septic system, I'm actually not too familiar right now off the top of my head with, but building it near the property line where there's an overshadowing onto their property. So their neighbor's building a septic system, and their property is being affected by it. So, essentially, trying to set up some kind of compensation study to see if property owners that are affected by overshadowing, whose land is devalued, whose land can't be used, to make sure that they're reasonably compensated for damages and losses. So that's pretty much the the whole.

[Rep. Amy Sheldon (Chair)]: Do the members have questions? Representative Austin?

[Rep. Sarah "Sarita" Austin (Clerk)]: Does it look at the other neighbor's property that is being encumbered by the septic system and see if that property would be able to set up a septic and water, you know, would they be able to build somewhere on their property so it wouldn't be impacted by the neighboring property, their ability to build?

[Representative Brewer (first name unknown) — amendment sponsor]: I believe I believe sorry. I'm turning to Michael to make sure I believe so. So,

[Michael O’Grady (Office of Legislative Counsel)]: generally, the state follows a first in time permitting process. So the first permittee will have that isolation distance that goes on to the neighbor's property. If that neighbor subsequently wants to build, there hasn't been an analysis of whether or not that neighbor has alternatives. The the first permit doesn't look at what the what the alternatives are on the second property. What is required is that there needs to be notification to the neighbor who is going to be overshadowed. And then the concept is that they negotiate or they try to figure out an alternative that will work for both, but that doesn't always happen and it leads to tension.

[Rep. Amy Sheldon (Chair)]: And are in the examples that you've run into, has there been communication between the neighbors and Ela's ability to come to agreement?

[Representative Brewer (first name unknown) — amendment sponsor]: Yep. In all three cases, there's been notification, communication, but no resolution. And on the resolution's gonna be that they're gonna spend about 30,000 to build a spike well to stop them from putting in a septic tank. Mhmm. So yeah. It's bad. And how big are the parcels? Parcels? I'm going to off my memory, I'd say one bad example where the Spitewell may take place about two acres for each. One's a the one out on the West End is much larger. So I don't know. Maybe a 100 acres for one and then maybe 10 acres for the other one that's going on. So larger tracks.

[Rep. Amy Sheldon (Chair)]: Do you remember representative Pritchard?

[Rep. Christopher "Chris" Pritchard (Member)]: Probably, this is questions for Michael. So once that shadow encroaches on somebody's property, there's no reciprocity for the landowner to do the same. They've given up that.

[Michael O’Grady (Office of Legislative Counsel)]: I I under the rules, are restrictions on the use of that land within the isolation distance. So that overshadowed property has restrictions. I mean, I I don't know what you mean by reciprocity. Is it if the overshadowed neighbor tries to overshadow back?

[Rep. Christopher "Chris" Pritchard (Member)]: Yes, that's what I mean.

[Michael O’Grady (Office of Legislative Counsel)]: This issue came up in the mid-2000s, 2008, 2010, and that's what people were trying to do. And it was a problem. And the spike wells were really I wouldn't say they were popular, but they were occurring pretty frequently. And then notification was intended to try to resolve that. It hasn't fully resolved.

[Rep. Amy Sheldon (Chair)]: Hey. Representative Tagliavia.

[Rep. Michael "Mike" Tagliavia (Member)]: The notification is is required by law currently by statute?

[Rep. Kristi Morris (Member)]: Yeah.

[Rep. Michael "Mike" Tagliavia (Member)]: How much notification prior to the construction of

[Michael O’Grady (Office of Legislative Counsel)]: I I think it's thirty days. I would have to double check that. And, also, if you're building and you have to read this on your system in order to because site conditions can change. You don't know that there's a huge hole or whatever you thought you were able put. So you have to move it, and the isolation distance can then extend onto the neighbor's property. Then you have to give notice then as well. I don't remember the exact number of days, but I can double check that.

[Rep. Kristi Morris (Member)]: Thank you.

[Rep. Amy Sheldon (Chair)]: Alright. Thank you. Let's walk through this with Michael, and

[Rep. Larry Satcowitz (Ranking Member)]: then we'll have have

[Michael O’Grady (Office of Legislative Counsel)]: more questions. So so there is some additional information you should be aware of. In the mid two thousands, 2010, you, the general assembly, required the technical advisory committee to do a report on overshadowing. And they they addressed a a lot of the issues. It's a good report. The PAC usually does good reports. And basically said to keep the isolation distances as they were, the health based first in time system. They discussed whether or not legal access onto your neighbor's property should be required, But they didn't recommend that because they effectively the they've said that that's gonna lead to the need for compensation and or neighbor disputes. And so they they didn't recommend that. However, the the current tech has an overshadowing committee in in their annual report last year. They said that they're gonna look at let me find it. There are concerns about the restrictions that can be imposed on neighboring properties, and the issue has been reviewed several times. And the options for minimizing or eliminating the impact on neighboring property considered. The TAC issued the report in 2010. The report recommended retention of first in time approach. The legislature added requirement. The TAC created a subcommittee in 2024 and continued discussions in 2025. The primary issue reviewed was the isolation distances required between water sources and wastewater disposal systems. These distances are larger than many other states, but the TAC has agreed that they should be evaluated using available reach research. So they're looking at, right? They haven't reached any conclusion. But they have an overshadowing subcommittee. They're looking at the issue. You know, maybe you pivot this into as part of their annual report next year. They address whatever you want them to address about O'Shell.

[Rep. Amy Sheldon (Chair)]: Brian, are you on the TAC?

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: I am not. For the record, Brian Redmond, director of Greenwater Power Protection Division. I actually do not sit on the TAC. Bruce Douglas, appeared before this committee, is our agency lead on the TAC. But the issues that Michael mentioned from 2024, we've been engaging the TAC to try to take a deeper look at overshadowing requirements. It's an area that our staff spend a tremendous amount of time explaining the requirements and the laws to providers. And in addition, it's an area that's very heavily litigated within our program. So it's a constant source of focus for us. And so I've been engaged with getting them engaged but not sitting on them.

[Rep. Amy Sheldon (Chair)]: Is there a way to characterize I mean, if this has been looked at for fifteen years, what are we stuck on?

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: I think there's a real tension between the protection of potable water supplies and the health and science based standards and the application of those and the effects that that has on neighboring properties and potential encumbrances on their land. And so that tension right now is resolved through the notification process. This proposal looks at other means of resolving that. So that, I think, is probably the best answer. Okay,

[Rep. Amy Sheldon (Chair)]: let's walk through this.

[Michael O’Grady (Office of Legislative Counsel)]: Okay, so there will be a new section that will be added to s two twelve, section four a. It directs the TAC to the secretary to reconvene the TAC. You might not need that language. They already meet pretty regularly. As I said before, you could put it as part of their annual report. To review authority under state statute and rule that allows the isolation distances for potable water supplies and wastewater systems to extend on a neighboring property. The TAC will summarize the purpose of allowing, I'm just going call it overshadowing now, to extend and how isolation distances can limit the use of or encumber neighboring property. They will evaluate whether state law should continue to allow overshadowing. And then on page two, if they conclude the state should continue to allow overshadowing, provide the basis for the conclusion and explanation of why alternatives that do not encumber property of others would not be feasible. The recommendation on whether owners of potable water supplies or wastewater systems that encumbered neighboring property should be required to compensate the owners of the encumbered property for lost value for the use of the encumbered property. And then last, if the TAC includes that state law should not continue to allow overshadowing, recommend how state statute or rules should be amended to eliminate that authority, and whether and how existing permits that allow for overshadowing can be amended to remove the authority for isolation distances to extend the neighbor's property. And then they would give you their report on or before 01/01/2027. Again, you can make it part of the annual report, which they tend to send in January 15.

[Rep. Amy Sheldon (Chair)]: Can you tell us who's on the tech? Yes.

[Michael O’Grady (Office of Legislative Counsel)]: Mark Bannon, he's a professional engineer. Julia Bowden, she's a DEC drinking water hydrogeologist. Chris Campany, Wyndham Regional Planning Commission. Ernie Christiansen, former head of drinking water and groundwater protection division. Scott Davis, licensed designer and excavating contractor. Tom DeVell, environmental health engineer Bruce Douglas, who you've met. Brad Fisher, a service provider. Jennifer Fleckenstein, water quality specialist. Craig Hoyt, hydrogeologist. Seth Jensen, Lemoyt County Planning Commission, Craig Jewett, professional engineer, Sarah Larson, program manager at DEC for drinking water, groundwater protection, Gunnar McCain, licensed designer, Steven Rebel, licensed designer and hydrogeologist David Swift, technical service engineer Roger Thompson, designer, also former head of the division Ken White, licensed well designer, well driller Jeff Williams, licensed well driller. Jared Wiley, service provider. Sherry Young, licensed designer and certified professional soil scientist.

[Rep. Amy Sheldon (Chair)]: I think I counted 20 people. That's quite a committee.

[Michael O’Grady (Office of Legislative Counsel)]: And, yeah, and if you know the people on it, it's a quite a

[Rep. Kristi Morris (Member)]: committee. And

[Rep. Amy Sheldon (Chair)]: they how often do they meet?

[Michael O’Grady (Office of Legislative Counsel)]: I don't know exactly how many. Let me look.

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: I'm just or quarter way down. They were more engaged, and we we kind of reduced the pace to around at this point. Next meeting in June.

[Rep. Amy Sheldon (Chair)]: And do you have a sense of, like, the universe of this problem? You do you have can you either of you speak to that? How often does this come up in a year?

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: I can get data that probably provides the amount of notifications that are associated with the permits that we issue. I don't have that with me today, but happy to report back on just the number of overshadowing cases. And we can pull that. And if we can't pull the actual data, we can probably give a pretty good estimate. It's an issue that there's significant engagement throughout the agency regarding, given the nature of the issue. So it feels pretty significant statewide, I would say. But as far as the hard numbers, I don't have that today. Do you have a sense of how other states address this? Think we're fairly unique, but I would like to consult with the team back at the office.

[Rep. Amy Sheldon (Chair)]: And so does ANR have a position on this?

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: I think if the committee has an interest in queuing this up for a dialogue, policy dialogue, which is worthwhile, we could support the amendment. I think we would look to have some minor adjustments for clarity in the language, as well as one more substantive adjustment that directs the TACT just so that the record is fully rounded out, directs the TACT to provide the technical, legal, and scientific basis for what exists today. So really kind of rounding out why we're where we are, and then looking at these other issues that are currently in the amendment, just so it gets the full picture of the dialogue.

[Rep. Amy Sheldon (Chair)]: Do members have questions?

[Rep. Kristi Morris (Member)]: Everybody does.

[Rep. Amy Sheldon (Chair)]: Not like a big tie. I'm going around the table. Representative Pritchard.

[Rep. Christopher "Chris" Pritchard (Member)]: So it sounds like it's not as simple as if and we're actually I'm involved in one of these. Well, what was we didn't take any action. But we we if the if the landowner that's being uncovered doesn't want this to happen, it's not that simple. So they they have to defend somebody else using their own property. Is that how I'm understanding this? Because that's sure what it sounds like.

[Michael O’Grady (Office of Legislative Counsel)]: I mean, it it can turn into that s.

[Rep. Christopher "Chris" Pritchard (Member)]: Yeah. I I mean, in our case, it's it's our camp family's camp down the lake, and the the folks next door had to put in this fancy dancy bazillion dollar septic system that they're gonna use in the Cornfield. But the circle came in to our property, our our well and our you know, we got our septic in our well, and we don't ever I mean, camp's a 100 years old. We don't plan on doing anything with it other than keeping it the way it is. So my sister and brother and I said, you know, let's just not be jerks about this thing, and it is what it is. But in the event that we would sell that property and somebody wanted to well, I'm sure that the state wouldn't allow the existing well and septic, so they'd have to have some looky dopey design. And if it encroaches into that thing, they're not allowed to do it. Is is that what I'm understanding without spending who knows how much in litigation and

[Michael O’Grady (Office of Legislative Counsel)]: mean, so specific conditions are hard to respond to.

[Rep. Christopher "Chris" Pritchard (Member)]: There's no variance then. The state has no variance to say, okay. You can you know, as long as it's good with the landowner, we can cut this cut this distance down a little bit. There's just no no provisions at all for that.

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: The well shield will exist. There there are options for variances under the rules, especially in a in a best fixed scenario to remedy an existing system or supply issue. So that does exist within the regulations now. But the fact that that overshadow is there, that will exist as And of I think what was envisioned is what you and your family did. That that was kind of what was envisioned initially, but it doesn't always work for that place.

[Michael O’Grady (Office of Legislative Counsel)]: And you and you won't need new systems unless they fail and or the new owner wants to change the capacity Yeah. Design flows.

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

[Rep. Larry Satcowitz (Ranking Member)]: thank you.

[Rep. Michael "Mike" Tagliavia (Member)]: I've got a number of questions from the last topic. Isolation zones with respect to wastewater. Are two wastewater systems oh, permitted currently to have overlapping isolation zones? Wastewater to wastewater. I

[Michael O’Grady (Office of Legislative Counsel)]: don't think they can overlap, but they're the distances are not as large as between wastewater and drinking water.

[Rep. Michael "Mike" Tagliavia (Member)]: On page two, lines 11 through 13, if tech concludes that the state law should not continue to allow isolation distances for portable water

[Rep. Kristi Morris (Member)]: supplies. If that

[Rep. Michael "Mike" Tagliavia (Member)]: becomes law, what does that do for a backlog for new well and septic permits potentially?

[Michael O’Grady (Office of Legislative Counsel)]: Well, right now, this is just a report. Right? Right. And so if there was a recommendation to do it, there's gonna need to be some some additional language that's gonna be drawn. For example, Vermont follows the minority position in what's called the vested rights doctrine for land use. So in in most jurisdictions, if the law changes between when you apply for an activity on your land and when you get your permit, you have to follow the law as it has changed. Right? In Vermont, that's not the case. You get the benefit of the law as it applied when you applied. And so we liked the when you have done similar changes in law, you usually include a vested rights provision to recognize that minority position so that people don't have to litigate that in court. So that's probably what would happen, and we have several examples of how you've done that in the past.

[Rep. Amy Sheldon (Chair)]: Sarah Sarita Austin?

[Rep. Sarah "Sarita" Austin (override for this time range)]: Yeah, I guess it's more of a comment than a question. I appreciate where this amendment is coming from, and I understand the problem that it's trying to solve them, But I'm a little And I'm also really appreciative of the agency being willing to support this by devoting time to making this happen. But it does seem like this is something that you guys are working on more or less continuous basis. It's something that's not an unknown issue, and it's something that you're constantly trying to make progress on to do the right thing. And it feels like a lot of what's being asked for in here is already really well understood by the parties that are of interest. And so I guess what I'm wondering is how helpful this will really be for future legislation or how helpful it will be for the agency. And although I really, again, appreciate your willingness to take this on, one of the things that we've heard again and again in this committee is that the Agency of Natural Resources has a lot to do and there's not enough people to do it. And even though this is probably not a huge task, it's another thing to check off the list. I really hesitate to ask you all to do yet another report. I just feel like I would need a more compelling reason to say, we really want me to do this. This is really important. So that's why I'm struggling a bit with this idea. I feel like a lot of the stuff in here is is stuff that is is being worked on. I'm not sure that this is gonna speed up that process or or make it happen any any differently than it's gonna happen anyway.

[Rep. Amy Sheldon (Chair)]: Often when we get to a place like this and it's become an issue that the legislature is interested in, we can just get an affirmation from the agency that they will work on this and bring us something back and work with the TAC to do that. Is that something that could happen here? Or is it like you're already working on it? I mean, I guess I think I feel like maybe I haven't looked at the 2010 report. I think that would be a place to start. Are there recommendations in there that the legislature has never never picked up? So, again, we don't know a lot here.

[Michael O’Grady (Office of Legislative Counsel)]: I mean, the 2010 report was pretty comprehensive, but it effectively recommended the status quo.

[Rep. Amy Sheldon (Chair)]: Yeah. But I think it'd be worth reading then and understanding why. There's a reason that these 20 professionals looked at this and then came back with a recommendation of the way it is, which I haven't read. Has anyone read it?

[Rep. Kristi Morris (Member)]: What's up?

[Michael O’Grady (Office of Legislative Counsel)]: So in the 2010 report, they didn't really focus on financial compensation. They did talk somewhat about whether or not legal access is necessary, and legal access is they they said this legal access is gonna lead to tension and or the need for compensation.

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

[Michael O’Grady (Office of Legislative Counsel)]: That I think was the only time that they referenced compensation.

[Rep. Amy Sheldon (Chair)]: Did you have a question?

[Rep. Larry Satcowitz (Ranking Member)]: I did.

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

[Rep. Rob North (Member)]: Thank you, madam chair. Couple just related questions. So the 2010 report is is the latest one we have. Right?

[Michael O’Grady (Office of Legislative Counsel)]: No. They they they put out a report every year.

[Rep. Rob North (Member)]: Oh, okay. Okay. Okay.

[Michael O’Grady (Office of Legislative Counsel)]: The the 2010 report was a specific one on overshadowing.

[Rep. Rob North (Member)]: Okay. But on this so on the overshadowing topic is the 2010 latest, or do we have something

[Michael O’Grady (Office of Legislative Counsel)]: The 2024 and 2025 reports have components that are related to overshadowing. Given

[Rep. Rob North (Member)]: what's asked for in this amendment, how how does this differ? How does what's asked for in the amendment differ from what is either in the 2010 report or in updated reports that we've gotten from the tax?

[Michael O’Grady (Office of Legislative Counsel)]: Well, it's it's It's pretty similar to what their charge was in 2010. It's not it goes beyond what's in the 2024 and 2025. They were focusing on the isolation distances. This basically wants to know what other alternatives there are and whether compensation should be required, you know, when you're going to encumber a neighbor's property for purposes of a a water spire wastewater system.

[Rep. Rob North (Member)]: Does it do any of the reports? And I don't see it in the current amendment, but do any of the reports, including the 2010 report, include an analysis of alternative technology solutions that might reduce those isolation distances?

[Michael O’Grady (Office of Legislative Counsel)]: That's partly what they're thinking about looking at in in this the the most recent subcommittee. They're looking at those isolation distances to see if there are ways or alternatives so you reduce the impact of the overshadow.

[Rep. Kristi Morris (Member)]: So so that's already kind of on the on the of a plate of attack?

[Rep. Amy Sheldon (Chair)]: That you mean the subcommittee of ATAC? The overshadowing subcommittee.

[Michael O’Grady (Office of Legislative Counsel)]: There's an overshadowing subcommittee.

[Rep. Kristi Morris (Member)]: Dan Morris. Thank you, volunteer. Michael, I I think it's really difficult and maybe I I don't know what other adjective to describe it, not unethical or whatever. But if if a system is permitted, there is no impact to the neighbors. It's it's permitted by law, and regulation has setback distances. There is no contamination that's going on to the neighbors. Perhaps, in theory, it could, it could not. I'm familiar in Springfield with three examples of one's a broken waterline, and two were broken septic systems that our town owned. The town installed wastewater system and the water system waterline. And there was damage to neighbor's property. That's a civil action. If if the one that's being affected wants to sue the entity that owns it, they have that right. Now I just think it's difficult to legislate compensation and what that fair compensation is if there isn't any contamination that's being transferred from one property to another.

[Michael O’Grady (Office of Legislative Counsel)]: Well, the compensation contemplated here is not about contamination or even the potential for contamination. It's about the limitation on the use of your property and and whether or not that limitation should be compensated. Or and and I I know that there there have been takings claims that based on the overshadowing and and the the last one I think there was a recent one, but I haven't reviewed that recent decision. The last one I looked at, the court said it wasn't a taking because there were still additional uses that could be made of the property, just not the specific use that the overshadowed neighbor wanted to make. And that's that's an important thing to remember. People all the time say, oh, that's taking. That's taking. That's taking. That's taking. Takings are so very rare.

[Rep. Amy Sheldon (Chair)]: Also a giving because your property needs the same protection, and you get that. So in the case of a camp or anywhere, like and when I think of these, I think of Watesfield or any of our villages. Like, the reason we have this protection is actually so that people could continue to live in health with health and safety in our villages. Like, that's why we have this. And so I think it's super important to always step back and say, well, what was the what is the problem this is solving? And it is actually, as our understanding of the need to isolate, to have these safe distances between wells and septics, and also maintain the value of real estate in our villages that grew up without either of those regulations in place, this was the answer that grew out of that. Seeing nods from Brian Redmond, super important to remember what what we get for this also, which is habitability in those places that were that folks have already invested in and live in successfully with their neighbors today. And it does go both ways. When I asked the question about what size parcel we were talking about, it it matters. Some of this happens on half acre parcels, quarter acre parcels in our villages when it really starts to get tight. And yet people realize they wanna live there and their neighbors wanna live there. How can we work this out? Representative Pritchard.

[Rep. Christopher "Chris" Pritchard (Member)]: Well, in our case, our lot is 50 feet wide and 150 feet deep. That's what our lot is. So I would say that that's not the case for us and many others on lakefront properties. I would say that they've certainly, if they made the decision to sell the property, it is considerably devalued. Considerably devalued. For us, that's you know, it's been in the family a hundred years. We want it to stay in the family for as long as we can. But as as you know, lakefront properties that are premium. So if if this was somebody if we would decide to sell this, this would be a huge impediment for us. And I find that to allow the state to encumber somebody else's property, I just somehow through a law. I I don't find that I don't find that certainly beneficial to the the the person on the receiving end.

[Michael O’Grady (Office of Legislative Counsel)]: Yeah. It happens all the time. Highway rights of way, you know, electric transmission rights of way utility access. The law gives that kind of encumbrance a lot.

[Rep. Christopher "Chris" Pritchard (Member)]: But this is giving encumbrance from a neighbor. Not not this is this is not this is this is a step further from that eminent domain as far as I'm concerned. Now you're allowing

[Michael O’Grady (Office of Legislative Counsel)]: Don't do this to eminent domain. It's just like the right of acts of abuse.

[Representative Brewer (first name unknown) — amendment sponsor]: And all those other examples were public good and public shouldn't. This is for private gain for people to use.

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

[Rep. Sarah "Sarita" Austin (Clerk)]: And it just seems unfair to me that if someone puts in a septic and well on a property, I know their neighbor gets a notice, but what what happens after they get the notice? Because that really takes away the value of their land. And I'm just wondering what the notice is. Can they stop it or try to work out a a compromise? Or is there any way that, like, property lines can be set up so that the distance from a property line on either side of the property could contain a septic and well?

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: I think that's the intent of the notice is for people to come together to try to work out an alternative solution.

[Rep. Amy Sheldon (Chair)]: Alright, further thoughts on this amendment? Anyone like Hoyt or Ela? Move on, go back to the other and then

[Rep. Kristi Morris (Member)]: Ela. Ela, go ahead.

[Rep. Ela Chapin (Member)]: I don't I mean, it's a fascinating conversation and it feels like the state's really already doing a lot of this work, but it is, seems very difficultly slow to get answers for Vermantras who are struggling with this.

[Rep. Christopher "Chris" Pritchard (Member)]: I agree with Ela. I wouldn't support the amendment at this

[Rep. Kristi Morris (Member)]: time, though.

[Rep. Rob North (Member)]: Would or wouldn't?

[Rep. Amy Sheldon (Chair)]: Wouldn't, he said.

[Rep. Kristi Morris (Member)]: That's not something else.

[Rep. Larry Satcowitz (Ranking Member)]: Yeah. I'm not

[Rep. Amy Sheldon (Chair)]: sure what Ela said. I don't know that Ela supported or didn't support.

[Rep. Ela Chapin (Member)]: Yeah. I guess I'd lean towards not supporting the amendment as it is, but if there's something, but I'd to see the conversation move forward. So maybe making sure we get a really clear report that will spur some conversation at the beginning of next session. Sounds like we already get a report, but seems like we need to really focus on this.

[Representative Brewer (first name unknown) — amendment sponsor]: Representative Brewer? Yeah, just one comment I would make is that this report where it was really highlighted from 2010, you know, again, didn't include the financial compensation. And if this is something that's been significant, I'm I'm very surprised that there hasn't been movement in sixteen years. And not to offend anyone that works with DEC and ANR that would oversee this report, but, you know, I think that there is a little bit of urgency with it. So I would I would urge the committee to support it for that reason. If they are working on it, then it sounds like they'll meet the objective and get the report for 2017.

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: Thank you.

[Rep. Amy Sheldon (Chair)]: Let's finish walking through the previous amendment.

[Michael O’Grady (Office of Legislative Counsel)]: Okay. So I believe you're on the fourth instance of amendment, which starts on page 10. Really just a little bit of page 10. And it adds sections four d through four h. And so this is outside the potable water supply and wastewater system chapter that the your bill and the rest of the amendment addresses.

[Rep. Amy Sheldon (Chair)]: And I checked with the clerk, and it's not she will recommend to the speaker that it's not germane.

[Michael O’Grady (Office of Legislative Counsel)]: You still want me to walk through it?

[Rep. Larry Labor (Vice Chair)]: Folks still want to walk through it?

[Rep. Larry Satcowitz (Ranking Member)]: It's not Germaine. Actually, we've already spelled it before. It works

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: for Germaine.

[Rep. Larry Satcowitz (Ranking Member)]: That seemed like it could be some.

[Rep. Amy Sheldon (Chair)]: So let us And it seems as though the agency has been clear that they they don't support the remainder the majority of the remainder of the first So I have gone in slides.

[Representative Brewer (first name unknown) — amendment sponsor]: She thinks that this is

[Rep. Amy Sheldon (Chair)]: a good time for us to add this to the mix in a bill that otherwise has unanimous support from our committee and is pretty clear and supported by the administration, which will alleviate. Anyway, it will expedite permitting with the general permits or hookups, and I just think this is muddying the waters. Otherwise, straightforward bill. We were just talking about the fourth instance of amendment potentially not being germane.

[Rep. Kristi Morris (Member)]: Yeah. I I appreciate that.

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: We're choosing not to walk through it.

[Rep. Amy Sheldon (Chair)]: What's that? We are choosing not to walk through it with our

[Rep. Kristi Morris (Member)]: I appreciate that, and and I respect that.

[Rep. Amy Sheldon (Chair)]: And then now we're talking about the remainder of the amendment and the reality that ANR doesn't support it and that the underlying bill is moving important things forward with a lot of agreement. Do others have thoughts? Okay, it's not clear.

[Rep. Larry Satcowitz (Ranking Member)]: Yeah, I would just add that what we heard from the bill yesterday, the amendment yesterday,

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: is that there is a lot of

[Rep. Larry Satcowitz (Ranking Member)]: pretty technical ideas in here that are pretty significant changes in rule or policy. These might be ideas which are worth pursuing. They might be ideas which we decide eventually to put into action. But it's, again, one of these amendments where we've heard no real testimony about what the pros and cons are, what the unintended consequences are, and I have a really hard time finding this

[Representative Brewer (first name unknown) — amendment sponsor]: right now, maybe sometime in

[Rep. Larry Satcowitz (Ranking Member)]: the future, this would be great, but this doesn't seem to be the time to be adding this language to statute.

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

[Rep. Larry Labor (Vice Chair)]: Thank you, sir. I have a neighbor that's suffering from the shadow, and it's a large piece of land, but slope and grade and soil types are preventing any form of variance. There's been no testing. And I would advocate sixteen years is a plenty long time, plenty of time to get engaged in a more positive venue and think about doing some testing of shadow areas to see if they are compromised. And if they're not compromised, then look at a variance and issue a carbon. It's time to move forward, both for personal reasons, legal, certainly financial reasons.

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: I'm not sure what section you're talking about.

[Rep. Larry Labor (Vice Chair)]: I'm talking about voting bills. I'm talking about sixteen years. I'm talking about the past.

[Michael O’Grady (Office of Legislative Counsel)]: I think Robert for labor is talking about reporters amendment.

[Rep. Amy Sheldon (Chair)]: There's thoughts on this, senator Pritchard?

[Rep. Christopher "Chris" Pritchard (Member)]: Yeah. I I think I share representative Satcowitz's thoughts. It's like this thing. Be a lot of good ideas, but it's needs more time, I think.

[Rep. Rob North (Member)]: If we could take all these good ideas and add them to Ela's list of no problems to take up next year. A lot of good ideas on that,

[Rep. Kristi Morris (Member)]: we should take up. We still have time.

[Rep. Rob North (Member)]: It's request. It's going to require some serious study and the EC involvement. Mean, you've got to give that a shot look at. Like I said, there's a

[Rep. Kristi Morris (Member)]: lot of technical changes being asked.

[Rep. Sarah "Sarita" Austin (Clerk)]: I would just like to recommend that the agency prioritize new technology that's coming online that would meet the requirements for infrastructure, but take up less space? You know, that that kind of be a priority to look at.

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

[Rep. Ela Chapin (Member)]: Thanks. Yeah, I would generally concur that I don't think we should move forward with the amendment, but I do wanna note that some sections are not sort of necessary for the agency to take action. Some of these pieces, the agency acknowledged they're already working on in other ways, like the technology, innovation and technology, the first amendment, I don't think actually has a clear impact one way or another. It's sort of a statement of purpose. And then other sections ANR felt concerned about. So I guess I just would say, I think given each section, either there's concerns from the agency or could already be taken up by the agency, like the long list on page six, all things that ANR can already choose to include in performance standards. So, I guess I just would say I appreciate having looked at this briefly just to bring it to our attention, but I don't think it's something that can move forward at this time.

[Rep. Amy Sheldon (Chair)]: All right. Any other comments on this? Did we have anything else we were gonna finish with you this morning? We we finished up the bottle, redemption arrow, yesterday, which we

[Representative Brewer (first name unknown) — amendment sponsor]: contemplated on The US?

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

[Rep. Kristi Morris (Member)]: I thought we had a couple of pages left. That's why it was on the blog.

[Michael O’Grady (Office of Legislative Counsel)]: But You kinda got to the household hazardous products sections and kinda just moved quickly through them.

[Rep. Amy Sheldon (Chair)]: You were gonna look at those with you. Thank you. That's what I remember, but it's not didn't make the agenda. So sorry. We have a lot of media assistance crossover. We the isolation distances are

[Rep. Kristi Morris (Member)]: Sorry.

[Rep. Amy Sheldon (Chair)]: Alright. So, I guess what I'm wondering is, anyone in favor of the Olson amendment?

[Rep. Kristi Morris (Member)]: Please raise your hand.

[Rep. Amy Sheldon (Chair)]: Not seeing any favor. All those opposed, raise your hand.

[Rep. Christopher "Chris" Pritchard (Member)]: I'm opposed.

[Rep. Amy Sheldon (Chair)]: Okay. That looks like everyone is opposed. We appreciate your thoughts and effort and contemplation of this.

[Rep. Kristi Morris (Member)]: Yeah. And and I really appreciate all you folks' consideration that and I too don't understand this. It just not some issues may be to put me by for, you know, future consideration. So I I very much appreciate the time.

[Rep. Amy Sheldon (Chair)]: Yes. I think I think people heard that. Thank you. Thank you. And then we now still have the career amendment. Folks have further discussion on that?

[Rep. Larry Satcowitz (Ranking Member)]: Representative North.

[Rep. Rob North (Member)]: Thank you, Madam Chair. I think I'll just note that the answers to the questions I asked though, is this significantly different? It's not enormously different from what's been asked for in the past, except for the primary difference being specific about compensation and how to deal with some of that. It's a bit different. They're already working it, if they're already working it, maybe we ought to just require or ask for a formal report in regard to be hoped to the beginning of next

[Michael O’Grady (Office of Legislative Counsel)]: year or sometime later late. January 15. Okay.

[Rep. Rob North (Member)]: Since they're kinda already working at it, that that date shouldn't

[Rep. Kristi Morris (Member)]: be too hard to beat.

[Rep. Rob North (Member)]: I'm kinda I guess I'm feeling I've come in favor of

[Rep. Kristi Morris (Member)]: sort of asking for some kind of DEC. We're gonna think

[Rep. Rob North (Member)]: Redmond indicated that they could support it.

[Rep. Kristi Morris (Member)]: We'll go over that.

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: Yes, I think we could support the initiative to just put it in focus and direct it to the TAC, something we are doing. As I indicated, there was one more substantive piece that we would like to have included if this is scoping to the extent of the working work. And that would be just really establishing the scientific, technical, legal basis of what exists today. So it's holistic, which a lot of that work has already been done in 2010.

[Rep. Amy Sheldon (Chair)]: Okay. You have a question?

[Rep. Larry Satcowitz (Ranking Member)]: I have a question about the the tech and the expertise on that within that group to tackle compensation issues because that that seems like it wouldn't be sort of a natural fit and it seems like just a gigantic can of worms like I can imagine like so many different possible scenarios in which once you start going down that road that you unleash a lot of difficulty, let's just say. So, yeah, I I really I really hesitate to to want this committee to to potentially weigh in on that. It doesn't I'm not sure it's the right venue.

[Rep. Amy Sheldon (Chair)]: It's really interesting. I mean, when you think about compensation, are you talking about retroactive on all those village properties that I'm talking about that do have overshadowing on them? Or are you talking about, an affordability issue then? Like, you wanna develop our villages affordably? You're gonna have to now pay $30,000 to your neighbor, put your septic in?

[Michael O’Grady (Office of Legislative Counsel)]: That, I think, is part of the report. Going forward, the legislature would have the legislature.

[Rep. Amy Sheldon (Chair)]: And what is the right group of people to look at that issue? Is it the group of engineers and DEC employees that's on the 20 person TAC or their subcommittee? Is that a tax department issue? Who does that? Technical advisory committee is not a compensation finance committee.

[Michael O’Grady (Office of Legislative Counsel)]: Real property is the expertise for it is one of those things that's usually privately And it's one of forecomings in our office because there isn't a lot that is legislated around that type of issue. Overshadowing is one of them, and it took a while to get to notification because we tried to do comp you tried to do compensation, and it it was just if too many people had an interest that it it couldn't really go forward.

[Rep. Amy Sheldon (Chair)]: When when did we try to do that? Twelve, maybe. Oh, after the report.

[Rep. Larry Satcowitz (Ranking Member)]: In 2009.

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: After acts one, four, and five. There's more to

[Michael O’Grady (Office of Legislative Counsel)]: this story. 2009. 2009. Sorry.

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

[Rep. Ela Chapin (Member)]: Thanks, yeah, I guess I just really wanna be careful here. It feels like this is, it feels like, and maybe I'm wrong, but it feels like what we're moving towards trying to discuss or get to is whether we leave these being sort of negotiated on a one off basis between property owners, and maybe that process needs more support, or whether we try and put something in statute or rule or whatnot that dictates how these situations where wastewater sort of that shadow affects two different properties, trying to dictate how that happens. And I guess I just want to say that there seems like there'd be big pros and cons on either side of that, treating them individually or trying to treat them all the same. And the intersection right now with our push to really build housing in villages feels like there just must be a rub here that both, again, both pros and cons. So I guess I just really want to be careful with anything that we try and do. If we're trying to get information, I would be curious about understanding the sort of breadth of things that get negotiated and what ends up sort of working when people do come to agreement, because my guess is it's all over the map. And if somebody where that overshadow is happening has no plans to ever do anything on that small little edge of their property, it might look like one thing. Whereas if it's on, I just can imagine a humongous range of scenarios and agreements between property owners. And I just want to really be careful that my guess is there's good reason that for 18 or whatnot, or sixteen years, the recommendations and the continuation has been to let these be treated as one off scenarios. And maybe what we should be contemplating is how we support landowners in that negotiation process, and rather than trying to treat them all the same. And so I just wanna be careful in anything that we do ask for, that we're just really asking for good, helpful information. And like the chair was saying, really making sure we're also asking the right group of people. Just feels like there's a lot to dig into here, and this is always the challenge with amendments is like, we would need more time to really thoroughly understand. Thanks.

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

[Rep. Larry Satcowitz (Ranking Member)]: Yeah. I guess this has been a really interesting discussion. And as we're thinking about this more and I'm looking at the amendment more, it seems like the way this is structured, there's initial questions about looking at the isolation distances. But the way I'm understanding this is that these distances are really grounded in science and our concerns around public health. The idea that we would have a report that would do anything other than simply confirm that our current practice and the way we do things is that that's going to be basically the report's going to say, Yeah, we should just continue doing things the way we've been doing them. And I think Rev Chapin's point that this has been going on since that report from 2010, that we haven't changed things, even though there has been yearly looks into this and ongoing concerns about it that we haven't changed the way because maybe the way we're doing it really is just the most sensible. So it seems like if that's really true, maybe it's not, but if that is true, then it seems like this amendment is really about pushing us towards how do we provide compensation. That seems to be really the crux of what is being asked here. And I think we just heard that compensation is going to be a difficult and very complicated idea to unwind and to make recommendations around. And again, we have it the way it is, maybe for a reason. Maybe the way things work are not wonderful for every party involved all the time, but maybe it's really just the best that that we can do given the inherent conflicts amongst adjacent property owners. And and so if if this amendment really is about getting to a point of how do we compensate people for for, you know, for for perceived damages, you know, by overshadowing from neighbors' properties, then I really have a hard time supporting the sentiment.

[Representative Brewer (first name unknown) — amendment sponsor]: Representative Freer. I'm just there's a few things that I've heard in this. The most recent one is perceived damage. With all due respect, there is damage happening because they're not able to use their property because someone else is building a septic system that they can't use their land. I find that deeply unfair. And just to make this an example with you, representative Pritchard, because you're right here, if Chris and I have an abutting neighboring property and you were to put a septic system that encroached onto my land, I would sue you. I would sue you. I if you were to do that, I would sue you because you're you're going onto my land. So I and, also, I heard the term giving land. I mean, sorry. That's not giving land. You're taking someone's land because you're establishing a stake first by putting a septic leach field. So I'm sorry. I was there.

[Rep. Christopher "Chris" Pritchard (Member)]: Yeah. I agree with Will. Mean, you know, four years ago, if if this came up, my father would go to this landowner, who've been friends with years. They talk about it. They shake your hands, and that'd be the end of it, and it'd be done. But now we go through all this rigmarole and and and and stuff, and it just drives me nuts. And and it drives me nuts that there's not once this happens, there's not a simple, easy solution to correct that. Litigation, and it sounds like it's an issue because we've heard that there's been tons of litigation. So there is a problem. There is a problem with this. And it does affect the financial well-being of the person that this has been put upon. And I guess if they didn't get the courtesy of the notice, they would never know about it. I think it's a good amendment. And if it's been fifteen years and we're still talking about it, then it's not working. It's just not working. And if the tax is not the financial entity that deals with it, which I agree, mean, that's not a reason to say, well, let's get to it when we can. I mean, there's people being harmed right now. There's no correction, and there should be period. And just in a sentence.

[Rep. Sarah "Sarita" Austin (Clerk)]: Yeah. Just to clarify, my understanding is it's not that septic is going to someone else's land. It's just that that other landowner may not be able to build a septic system on their property because of the shadow surrounding.

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

[Rep. Sarah "Sarita" Austin (Clerk)]: But it's not that septic is going on. No land. Yeah. Okay. Just to clarify.

[Rep. Michael "Mike" Tagliavia (Member)]: Yeah. If I could ask, mister Redmond for a little bit more clarification. We're talking about the movement of subsurface water. Okay.

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: So it's only going to restrict certain uses of the neighboring property.

[Rep. Michael "Mike" Tagliavia (Member)]: We're not talking about this subsurface water being very deep. Is that correct?

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: That depends on the local hydrogeology. Shallower water being more susceptible to the damage.

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

[Rep. Ela Chapin (Member)]: Yeah, I just want to agree with Representative Pritchard that there's a problem here and Representative Greer. And I'm really glad we're talking about it. It's hard to talk about these things at the very end of the session, but I think that there is a problem. And what my impression of the problem is, is that landowners feel on their own in one off situations to try and negotiate this with landowners and the state while they're in a permitting process. And there aren't clear guidelines, and they're all sort of being left to figure this out often through the end, and that leads to often utilizing the courts. You know, what I hear is from the state is that I really the notice is supposed to provide space before there's actual permit. And maybe there's maybe we could use some more information here on exactly what happens after notice. But what I presume, given what we've heard so far, is that after notice parties have a chance to sort of see if they have confined some agreement or some compensation or other adjacent landowners fine with it, it's not a big deal. And then the permitting process takes that into account in some way, I guess. I guess I'm not clear about that side of the process. Is the agency waiting to see how that works out before they finalize a permit? But what I can tell is the problem is that landowners feel stuck and negotiating this on their own. And I guess that's what I'm trying to say is there is a problem. I'm not sure a one size fits all solution is in the best interests of the state or of Vermonters, but maybe it is. And that's what we need to learn about and figure out.

[Rep. Kate Logan (Member)]: Representative Logan. My comment on this is that the issues, the new issues that are being brought up as potentially something that the TAC could, consider really kind of fall out of the jurisdiction of our committee, because the it's the the water quality issues that are really under our jurisdiction. But this seems to get into legal matters that I would I don't I would think judiciary would have something to say about, maybe. I don't know. Not good. We don't do property rights. We do land use, but we don't do property rights.

[Rep. Amy Sheldon (Chair)]: So interesting. Okay, who are the comments

[Rep. Ela Chapin (Member)]: on this?

[Rep. Kristi Morris (Member)]: Just one, if I may. I don't disagree with tasking the TAC with prioritizing or updating their report back to us on some of these issues. I don't know if we could I'm not in favor of legislating damages. I think that still is a civil issue if there is damage. And from a leaking septic system or a failed septic system, would would they would be egregious harm. Also, would the TAC give us a recommendation for suggesting alternative septic systems to reduce that overshadowing impact or perhaps because there are some new technologies maybe that could be used. So I'd like to have them consider that as a recommendation as well to try to reduce the impact on overshadowing.

[Rep. Amy Sheldon (Chair)]: Yeah, which I think they are working on and are in the underlying bill, as an emphasis, I would say. Right, folks ready to vote on this?

[Rep. Kristi Morris (Member)]: And and I just wanna put I amend that with saying that, if if we are looking at legislating damages to somebody, perhaps a different system, we'll keep that emphasis on the property that's developing the wastewater and put the cost there so it would not go compensatory damages to a neighboring property. It was a better system or a different system that could be used that may maybe cost more, but wouldn't have an effect on the neighborhood. But you wouldn't need to pay damages. Yeah. I see what

[Rep. Larry Labor (Vice Chair)]: you're saying.

[Rep. Kristi Morris (Member)]: I know. I could see you were struggling with how we're trying to get that out. Right.

[Rep. Amy Sheldon (Chair)]: Okay, all those in favor of this amendment before, all those opposed?

[Rep. Kristi Morris (Member)]: One, two, three, one, six, seven. But with that said, is there something we can do to emphasize with the attack? Some of the issues concerned that or are you doing that already?

[Brian Redmond (Director, Drinking Water & Groundwater Protection Division, VT DEC)]: There's a robust number of subcommittees on the attack working on specific issues, including overshadowing, evaluating new technology. So I think that work is already occurring.

[Rep. Kristi Morris (Member)]: Thank

[Rep. Amy Sheldon (Chair)]: you all. Let's take a five minute break and then we'll get into the rest of night.