Vermont Legislature SmartTranscripts:

[Anne Watson (Chair)]: You're live. Okay, good morning. This is Senate Natural Resources and Energy and it is February 12. It's a Thursday and we are starting the morning hearing from Judge Zonay about S224. And just to give a quick preview, we have a new draft of 02/23. We have a joint hearing together with transportation, which I'm pretty excited about. We're going to go back to 02/24, and then we have some, some 101 level of information about, Act two fifty coming from L. Cassidy. So that's sort of the rundown of the day. But yeah, we're gonna start with Judge Zomme, welcome.

[Chief Superior Judge Thomas Zonay]: Good morning, thank you. Tom Zomme, Chief Superior Judge. I have the version 4.2 from 02/1126 at 07:40 a.

[Anne Watson (Chair)]: M. Yes excellent thank you yeah so

[Chief Superior Judge Thomas Zonay]: I will touch base on I looked at section two is the one section as well as if we get into section two this it's all wakefuls and so lot of language is added the statute goes through pages two, three, it talks about what prohibitions are. When you get to page four on lines six through nine, what it says is all provisions of section fourteen fifty four, which is another section that the legislature has enacted dealing with the product nuisance inspections and things, it says they also apply here under this section which is the new section. So the question I had was, why and I leave the alleged counsel, but I don't under I don't know why that has to be there because fourteen fifty four applies to vessels. Yeah, so a wake boat is by definition a vessel because it is something that can be transported can go over the water and it's it's not one of the exceptions under the definition section. And so it was unclear to me why you needed to reiterate that here, because if it does add a potential bit of confusion as far as penalties, whether you want a penalty under this section or the other section, but I'll get to the penalty section in a minute, but I just don't know that that's absolutely necessary. And I have to smile because as I was reading it, I went, well there's no way, and I read it in order. So I didn't look at the definitions first or I it and I went, was this a wake loaded vessel? I've had a US Coast Guard master 50 ton master captain's license for a while and I'm going well the federal definition is this is a vessel and it would fit so your definition is the same. So in

[Terry Williams (Vice Chair)]: 1454 jet zoning, does 1454 require a vessel to drain their ballast tanks or any other tanks or bilges when they leave the water? It has, I don't have that all of that done, it has other restrictions I actually sat there last night looking to see if it was the same,

[Chief Superior Judge Thomas Zonay]: it has some different restrictions but you don't lose anything if you took that out. Yeah. Those restrictions still apply and for wager boats the new restrictions that you're imposing to apply to wager boats also so it's layered. So where does

[Terry Williams (Vice Chair)]: it say then if we didn't include the where does it say that a wake boat shall bring their vowel stings?

[Chief Superior Judge Thomas Zonay]: If it's not in 14, if it's in 1454

[Seth Bongartz (Member)]: right then

[Chief Superior Judge Thomas Zonay]: it's fine it's already there if it's not in 1454 this this doesn't change it it's in I believe it's in fourteen fifty four because this president says all provisions of section fourteen fifty four regarding aquatic nuisance lesions and rainbow users shall train immediately before so what you may want to do is you take the first clause all provisions of section fourteen fifty four for this title regarding product nuisance species inspection and private labelers and if you cross that out out you still have fourteen fifty four, it's all still there and then if you want to make it clear what you're asking about just start with everybody or is there wake boat users shall drain and it's not everybody getting here

[Anne Watson (Chair)]: actually so on page five the top, it says section four. Believe that is fourteen fifty four. That's right. We've got the immediately before or immediately after leaving the water.

[Michael Grady (Office of Legislative Counsel)]: I think we could stroke.

[Anne Watson (Chair)]: D? Yeah. And so that was my question was when you say that this section may not need to D, or you're talking about all of D?

[Chief Superior Judge Thomas Zonay]: All of those, that's correct. As long as you're comfortable with that, the drainage part is I see on page five, as long as you're comfortable that you don't need to add anything else it the provision is already applied by operation block because a wakeboat is a vessel. Okay

[Terry Williams (Vice Chair)]: and then the language that wait so wakeboat users, they revert these tanks as ballast tanks. They don't refer them to something else or

[Anne Watson (Chair)]: That's a good question. I don't I don't know. I

[Terry Williams (Vice Chair)]: mean, I think that makes sense.

[Anne Watson (Chair)]: Sure. Yeah.

[Chief Superior Judge Thomas Zonay]: Under on page seven is the definition of vessel. Vessel means every description of watercraft other than a sea plane on the water or a racing shell or rolling stone occupied by 12 inches under or capable of being used used or capable of interviews as a means of transportation and so really it's every description of watercraft used or capable of being used as a means of transportation on water then has exceptions. And then 20. And then 20 is a big part is go to vote. It has all it does is just define it as having battles. It's a subset of vessels.

[Terry Williams (Vice Chair)]: Do we need to okay. Yeah. I think that's fine.

[Michael Grady (Office of Legislative Counsel)]: I think we can get everything.

[Anne Watson (Chair)]: Yeah. That that makes sense. I want to know if we should say on 20, wave boat means a voter boat, have vessel in the definition of wave boat.

[Chief Superior Judge Thomas Zonay]: You don't have it for any other types of boat. It is clear enough that it is a, because you say it's a watercraft and or motorboat, wake boat means a boat it's just it's a boat it's a vessel. That's a

[Terry Williams (Vice Chair)]: very common sense interpretation. Yeah, do. Yeah, that's if you want if

[Chief Superior Judge Thomas Zonay]: you wanted something indeed to really drive it home you can say a wake vote is a vessel but a wake is a vessel yeah yeah

[Terry Williams (Vice Chair)]: but I mean

[Seth Bongartz (Member)]: just because we put it

[Terry Williams (Vice Chair)]: in statute doesn't mean a way for I mean, it's that's that's at the agency level to make sure that in all their literature,

[Michael Grady (Office of Legislative Counsel)]: it's Mhmm. It's a good number on

[Seth Bongartz (Member)]: seven. Five is what actually specific it says.

[Chief Superior Judge Thomas Zonay]: Oh it does say. Does. As we sit here, is it a watercraft? Is it capable of being used as a transportation on water? Oh yeah that's what it's doing. The other part ties into the fourteen fifty four if you look under subsection e on page four lines 10 through 16 it says that you're that pursuant to eleven oh two, it talks about the violations and where they can be brought. They can either be brought in the initial bureau or in the environmental division. The question that comes up is what's the penalty if when they're brought and let me hand out as I can I thought it might be helpful the penalty structure is under what happens is it refers you back to 23 b s a thirty three seventeen subsection b under the code there? Me bring that up. And this is that section. Thank you. Great. That's okay. And so if you look, the highlighted is something and under my language I add. It says that the person who violates a requirement under 10 BSA fourteen fifty four because that's the section for aquatic nuisance raise a drink shall be subject to enforcement under 8,007 or 8,008 or a fine under this chapter then it has the penalty of not more than $1,000 for each violation. And so you're trying to link, it looks like this is a policy decision, the penalties for fourteen twenty four B with those for fourteen fifty four. If you add it under 23 BSA three thousand three and seventeen B as I show there, that makes it clear that the penalties under this new statute are the same.

[Anne Watson (Chair)]: So I want to make sure I understand it. Are you suggesting that on page four, line 12, we change?

[Chief Superior Judge Thomas Zonay]: No. Oh, okay. No, I'm saying on, you add, you need to add a section somewhere.

[Anne Watson (Chair)]: Okay.

[Chief Superior Judge Thomas Zonay]: I think that would make it clear that the 1424B violations that you're establishing by law and that you're providing under subsection E for the mechanism, you need to put somewhere and say, okay, here's where the penalty goes back to. And that because it's consistent between fourteen fifty. Mhmm.

[Seth Bongartz (Member)]: So you're suggesting we could figure out place D for

[Chief Superior Judge Thomas Zonay]: the language. You're saying you're saying at this clause somewhere. Yeah, I think it has to I think well I mean a new section of the bill. Yeah. Where everyone else I think I think but I think you have to bring it in to title 23 under 3,317 because that's also the place that allows waiver penalties and things like that to be a shadow. And again, it brings it right in line with what you do with fourteen fifty four. And that would also be consistent because section three at the bottom of page four that is added, the language is added fourteen twenty four to judicial bureaus. And so that would align everything. And

[Anne Watson (Chair)]: just to be clear, it aligns it with

[Chief Superior Judge Thomas Zonay]: fourteen fifty four. And those are my conch.

[Anne Watson (Chair)]: Okay. There another section of the bill that related to divorce? It was not

[Chief Superior Judge Thomas Zonay]: in his draft.

[Anne Watson (Chair)]: It's not in this draft. Okay, got to you.

[Chief Superior Judge Thomas Zonay]: I did not find it. Okay. I did several word searches too to make sure because I remember the old language. Yeah, there were.

[Anne Watson (Chair)]: Can Can I do that? It's asking my questions since I saw him. Just come in. Well, so we can relate to you because there were basically two suggestions that I heard from judge zoning. And so just to sum them up, I understood them. On page four, section D, the thought is that D is perhaps unnecessary, that it may already be covered and that perhaps adding the section may be confusing. Anything that you would want to add to that?

[Chief Superior Judge Thomas Zonay]: Wakeboat is a vessel already, and so there's there's no necessity to add something saying that the provisions that apply to vessels also apply to wakeboat tests.

[Michael Grady (Office of Legislative Counsel)]: That's fair. It's fair. It's a bit of bootstrapping, it's fair.

[Anne Watson (Chair)]: Okay. And then the other one is adding a reference to fourteen twenty four b, which is this new section to 23 BSA, 1317B about penalties.

[Michael Grady (Office of Legislative Counsel)]: I heard the judge say that. It totally makes sense. I totally understand this. Okay. I think that's

[Anne Watson (Chair)]: you. Yay. Thank you very much. Very good. Yeah. You as well.

[Chief Superior Judge Thomas Zonay]: Yeah. Do you mind if I can? Nope. Yep. Sounds good.

[Anne Watson (Chair)]: All right. Are from Terry. Oh, good. So just to be clear, Mr. Grady, we, you know, for some future drafts, if we can include those. Sure. I don't know when that will be, but for the next iteration.

[Michael Grady (Office of Legislative Counsel)]: I am working on the draft. I think the only thing from yesterday that I need to do is the education and outreach in public.

[Chief Superior Judge Thomas Zonay]: Yeah.

[Anne Watson (Chair)]: Well, and for what it's worth, I I'm feeling yet unsettled about the aquatic, or about the use of space via aquatic invasive bone stations, decon station locations, prioritized lists, and how we resolve that. I'm just putting a pin in I would love some more discussion.

[Michael Grady (Office of Legislative Counsel)]: I did send you an email this morning. Yes,

[Anne Watson (Chair)]: I have. Oh, I saw that you

[Chief Superior Judge Thomas Zonay]: said it. I haven't read it yet.

[Anne Watson (Chair)]: Thank you. But if you would go ahead and come on up because we're going to transition to a new draft of 02/23. And for this, I'm going to turn it over to Senator Bongartz to give a little introduction.

[Seth Bongartz (Member)]: So if you recall, truthfully, it's the study. And it was a little bit right at the beginning when we got it in under the deadline and began to realize it was a little advocates worked on it with me and it was a little buttery. It wasn't the best. Penis wrapping and white holding. It's wasn't just it was also a sense that we were asking that study committee to do so much, nothing would get accomplished in the amount of time. So we'll try to bring it down. Okay. So everybody is not worried. This was looking to add. I think we went from seven or points of things which we consider a five and just just basically just the usual second graph.

[Chief Superior Judge Thomas Zonay]: Mhmm.

[Seth Bongartz (Member)]: So

[Michael Grady (Office of Legislative Counsel)]: but. Go ahead. So this is micrograded with the state of council. As Senator Bongartz just noted, this is a redraft of s two twenty three as it was introduced. It does refine the bill as introduced, but there's still the focus, the three major focuses of this study group is to look at how water quality is analyzed and implemented, the water quality requirements are analyzed and implemented, how lakes are classified under the water classification system, and whether and how the state is implementing and complying with federal anti degradation requirements. And so you will see that's really the meaning of this group, the water quality classification and the anti degradation studies. It's created for evaluating the existing statutory framework for claims policies, etcetera, for water quality and classification of waters of the state. In page one, nine thirteen-seventeen, it recommends to you, the general assembly, whether the current regulatory framework of waters of the state is adequate, whether the rate changes to strengthen protection, provide certainty, and support other public interest. And see, there will be 11 members, two from the house, two from the senate, and secretary of medical resources are on her designated. A DEC scientist, water quality scientist, or technical staff, another appointed by the secretary. Two persons representing businesses or industry that basically interact with water quality permitting, such as anti degradation for classification. One's gonna be appointed by the speaker, one by the committee on committees. Two persons representing nonprofit environmental advocacy groups, one by the speaker, one by committee on committees. And one person representing the federation of mates and ponds, and pointed by the governor. But what is this group known to do? What are their powers? On page two, line 17, they developed an inventory of the waters of the sea with their existing classification system, including those waters that qualify right now for higher quality classifications, but haven't been reclassified. I believe you heard testimony about that. There's substantial number of those waters that could be reclassified for higher quality and better management. Page three, line one, they've also Sorry.

[Chief Superior Judge Thomas Zonay]: Seems their lines.

[Seth Bongartz (Member)]: Where does it actually say that? Is this the the clause the second clause?

[Michael Grady (Office of Legislative Counsel)]: Yes. Where it meets or exceeds the minimum criteria for the request patients with sub waters. Okay. Those candidate high quality waters. Candidate, but not not a. Mhmm. Okay. Page three assess the state's obligation under the Clean Water Act to adopt an anti degradation rule and implement it, including an evaluation of the state and federal requirements, identification of any legal administrative policy or practical barriers. Page three, line seven, they will identify and evaluate the statutory framework rules and policies for governing class a waters, including whether modifications are needed to facilitate reclassification. So is there something that's prohibiting or, you know, barrier to reclassification now? Maybe it's rule making because you have to reclassify through rule making. Maybe it'd be easier if you didn't have to go to the rule making process. Page three, line 12, they'll also evaluate existing water classification framework and whether there should be a separate classification system for lakes and bonds. We discussed this previously, there are other states that have different classifications for lakes and bonds. Sometimes they're based on development, sometimes they're based on the environmental status of the lake, and so maybe there that should be something separate from the general classification water quality classification for all waters in the state. And that evaluation shall include an assessment of current and potential threats to water quality lakes and ponds, consider whether the existing classification systems protest against such threats. Page three line 18 recommend the Wednesday of amendments and identify any rules, policy, or procedures that may require revision and implement the study group's recommendation. The group will have the administrative, technical, and legal assistance of AMR and the legal and drafting assistance of the alleged counsel who can file with meeting needs. Page four, line four, there's a report back 12/30/2026, and it includes its findings. All of those findings are duties that it is required to deal with the subsection c. They call the first meeting on the report August 1. The chair is chosen from the four legislators. They cease to exist on 02/15/2027. You and the other members that received compensation get compensation for eight meetings, and then the effective date is passing. So I have to know because there's compensation, we'll go to herpes.

[Anne Watson (Chair)]: Okay. Thank you. Clear enough to me. I'm good about it. Any questions at this point?

[Terry Williams (Vice Chair)]: So somebody explained to me

[Seth Bongartz (Member)]: why we need this group and we shouldn't just trust ANR to do its work now?

[Chief Superior Judge Thomas Zonay]: That's a good question. I feel

[Anne Watson (Chair)]: like I'm taking a crack at it, but I defer to some of the people here.

[Michael Grady (Office of Legislative Counsel)]: So these just facts. So here are some of the facts. The Clean Water Act requires an anti degradation implementation policy, the state has in the water quality standards, water quality rules. But there's also supposed to be a policy that implement that. And you and you, the general assembly, in in legislation require the agency to adopt that policy by rule for about twenty years now. Okay. And it hasn't been adopted by. So what what are the requirements for that? Is the state in line with the federal water act requirements for anti degradation? That's part of this study. The second thing is those classifications of waters. It's like there are waters that qualify for higher classification, And anti degradation is part of that because under the Federal Green Water Act, you are not supposed to manage a water so that it degrades. So if a water is already meeting that standard, it should be reclassified so people know that it has to be managed not to be degraded, but those waters are not being reclassified. Now technically they can't be managed to degrade them anyway because that's both in state rule and federal law, but that's not being done. Why is that not being done? There are numerous waters that qualify for repassification. What's preventing that?

[Seth Bongartz (Member)]: That's a good question. Mean, I don't know. I mean, twenty years,

[Terry Williams (Vice Chair)]: we're lucky that the ENR of of a multi

[Chief Superior Judge Thomas Zonay]: It's not. Not a Republican. Exactly. Exactly. Yes. Yes. And and

[Michael Grady (Office of Legislative Counsel)]: then last, it's it it really is to an extent about whether lakes should be different from other waters. You can bring out it's just a uniform water classic water quality analysis, and should should it be different? Should you manage things and possibly Yeah. And that that's effectively why Yeah.

[Chief Superior Judge Thomas Zonay]: Alright. Thank you. It's a good question.

[Anne Watson (Chair)]: Right, thank you for that. Any other thoughts, questions, concerns at this meeting? Okay, super. All right, well- Yes. And we're going to hear from some folks about this tomorrow. So we'll be hearing more about that soon. All right, so our next engagement is at 10:15. So we've got some time, which is great. It's a joint hearing with transportation and we're going to be in Room 10. So I think we'll just meet there at 10:15. Oh, and actually, before we go offline, just to give that a little context. Thank you, I'm sorry. I'm going try to be better about giving context for previous. I feel like I have another tweak. Okay. Yesterday we saw a a new draft of S-three 25 tweaks to Act 181. One of the things that happened since Act one eighty one is there's been some impacts to transportation, and so We're going to be headed to this joint hearing to hear from the agency of transportation about what some of those impacts have been. Again, my filter for all of this is, are these, what kind of course corrections do we need to get to the vision of what we intended with F-one 181? Are these technical corrections? Are these relatively straightforward fixes? That's the filter that I want to have for anything that we end up adding to Act 181, but I want to at least give AOT the opportunity to make their case. Let's hear what the issues have been. Transportation was really not dealt with very particular. Yeah, exactly. Not in a robust way in Act 181, and if there are things that need to be adjusted or corrected, I'm going to be open to that. We'll hear what they have to say. That's the context for this upcoming hearing. Then again, just for context for the rest of the morning, we did have a request from Chris Bradley from the Ruma Federation of Sportsman's Clubs to speak on S2234, so we can do that. Then we'll hear from Alex Tchaikovsky Act two fifty