Vermont Legislature SmartTranscripts:

[Unidentified staff/technician]: If you would like. They're fair game.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: See if I can pull myself up in this table. Oh, Back

[Anne Watson (Chair)]: to 02:24. Yep. Hey. We're live. Okay. This is Senate Natural Resources and Energy coming back from a break. From our hearing with Senate Transportation. And we are taking up S224, and we are joined by Mr. Bradley from the Vermont Federation of Sportsman's Clubs. Welcome.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Thank you so very much. I know it was a bit of a challenge to get us scheduled, so I really appreciate it. Thank you very much. Mike, for the record, my name is Chris Bradley. I have the honor of serving as the President and Executive Director of the Thought Federation Sportsman's Clubs. We've existed in Vermont since 1875. We actually started our organization when White Tail and Deer had been object to extinction and we were then pivotal in helping to start the, what is now the Fish and Wildlife Department, so we worked very closely with them. I represent 42 member clubs with approximately 14,000 members across the great state of Vermont. I am in receipt of the new version of the bill which I believe is 4.2. We had serious concerns with the initial version as introduced on section one. The map has been removed so I'll just I thank you for that consideration. I believe the other section was section eight but that has now been renumbered to section nine. Good evidence that the intervening sections of wayboats, a little bit out of our wheelhouse, but my head of AC1 got some challenges there. So thank you for dealing with that. We believe we fully understand the serious concerns expressed by the city of Geary regarding the desire and need to protect the Cook's Reservoir, which is the source of dairies drinking water. From our understanding, a primary impetus for this bill is that a fishing dirty is approved for the Dix Reservoir by the Fish and Wildlife Department through their permitting process but there was never any notice given to the city of Barrie or the operators of the Barrie water system that this event was to occur. We do not take the stance that there is zero risk to the Dix Reservoir when a fisherman is settled on that body of water. However, it would be our observation that history has shown that the risk is minimal to the logging system given the traditional outlet department through the official wildlife board have the ability to regulate things like the use of live bait, the use of motorized watercraft, as well as bag limits. It is our hope that all of us can see the real threat to water systems such as the Dixie Dress Board is not as a byproduct of the responsible use of these waters by anglers, either as individuals or as participants in a fishing journey. Just with many other activities such as hunting, the vast majority of people who participate carry a great deal about the environment. They have a vested interest in ensuring and minimizing any impact that they could have on the environment and therefore are very conscientious about things like litter and or actions that have the potential to cause harm. This would be even more true during an event like a fishing journey where there would be more people around that would see and then report or even intercede bad actors or bad actions. The more sinister threat to a water source such as Berlin Pond or the Ditch Press war is not public use. It is the potential for bad actors and those that would have a evil intent to consciously take actions which would and should amount to pure terrorist activity. From this perspective, the Federation worries that pushing a law such as this or the previous effort to restrict the use of rolling pawn serves to give bad people bad ideas. Our concern with Section nine is the same as we have in Section one, now gone, as both sections implicate the public trust doctrine, the Vermont constitution and 24 of USA 02/1995, a statute known as the pre empting statute, which has served Vermont well for thirty seven years. Specifically, section 82 allows a municipality to control a mission by being able to deny a missionary, something that is specifically disallowed under 24 of PSA 2295. Beyond that, there is no requirement that the legislative body must act chronically by approving or even denying such requests could be tabled indefinitely. I had served in the Northland sweat where I had not explained it, given my crabbed on his sweat. In listening to testimony, and especially Senator Rutland, It seemed clear that the approximate problem was not that history has shown that vicious turnments create significant exposure to law enforcement. The primary issue was a failure to communicate. Variant officials were given no notice of the proposed activity whatsoever and that is a problem. To address the communication failure, as well as staying true to '24 BSA 2295, would it have been acceptable that the sponsor of a fishing dirty or turtleneck is required to notify the municipality as part of the permit process without giving the municipality the specific ability to do soppling, I. E. Controlling. Such notification will reward the municipality of the planned event, thereby allowing them to be more proactive and observant. The other section which we see a problem is with D2. From the current wording of this section, the commissioner is put into a position that HESHU is responsible for forcing a turbine applicant to reimburse the municipality for any costs the municipality incurs in ensuring that the drinking water source is not contaminated. We're not aware of the litany of what these costs might entail. We have our concern. Our first concern here is that the Commissioner and Fish and Wildlife Department's current responsibility begins and ends with a consideration of whether to approve a permit or not shoulder responsibility to ensure the proposed event would not adversely affect fishing or specific species of fish. Our second concern here is that it is somewhat nebulous as to what the cost the municipality occurs in ensuring that drinking water is not contaminated. Does the city of Berry have records of the nature of the costs that have occurred today as a result of permits on that body of water and are they available? And just I do read a great deal of interest. The letter from the city of Barrie consumed the water treatment and their concerns. If there has been documented significant costs associated with the operation of fishing terminals and public bodies of water in Vermont, it would help us all better understand the scope of the possible problem, but we believe it has been proven that safe drinking water and fishing, either individually or as a result of the tournament, do not present significant risks to quality drinking water. We believe again that the real threat to drinking water supplies is hotericized and the purposeful contamination of public drinking water with agents that the water system was not designed to manage. Those potential threats were made until such time as we've invested in stream of ganzoom, which we know is ridiculously cost prohibitive. These threats, however, have little to do with the fishing or fishing tournaments by the public who wish to be rid of the diarrhea, as well as to enjoy more food security and history supports this. Please consider changing sections A to your required sponsor to notify a municipality of a pending term as part of the permitting process and remove the ability of the municipality to deny a permit. This seems like a logical first step, and if this is problematic, we then go to the second step, which is what is currently being proposed. Please also consider changing D2 to remove any responsibility of the commissioner of the Department of Fish and Wildlife to handle cost reimbursement to municipality from a sponsor for costs incurred. They should be between the sponsor and municipality, knowing beforehand that history appears to show negligible impact on the water quality or turbinates or germs. Do you have any questions?

[Anne Watson (Chair)]: Thank you so much. I have some questions that are percolating. Hold on. But yes, I'm on it, yes. Hi, sorry I

[Unidentified Committee Member]: missed the very beginning, but are you submitting that to, is it on the website already? Not yet, okay. Please send it.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: It was two days, three days ago, I believe. I have an extra copy.

[Unidentified Committee Member]: No, no, I'll talk about it on the website because I have too much paper as you'll see my desk in the sheets. But

[Helen (Office of Legislative Counsel)]: thank you. I'm curious,

[Unidentified Committee Member]: yes, I think, thank you for listening when I was saying, communication, communication.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Oh, it resonated quite well. That's the crux of this issue.

[Unidentified Committee Member]: There's so many issues, not just this one. But

[Helen (Office of Legislative Counsel)]: I'm wondering, I hear you on, I'm putting on page 20 on D2. I hear you on the sort of, what does it mean to costs

[Unidentified Committee Member]: to the municipality that incurs ensuring that drinking water source is not contaminated is not super clear. Oh, sorry. These are cookies from Terry for some, so people want to

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: find them. I'm

[Anne Watson (Chair)]: wondering,

[Unidentified Committee Member]: There are other costs. Mean, I think Senator Watson had a really great example the other day of when you do a five ks race in a town or something like that, or some kind of event in a town, and the town incurs costs for parking or police or litter, we control or whatever it is, they have to pay the cost of cleanup or the cost of extra security or whatever. And frankly, that's something that's more of a concern for me, the town of Berry has the extra costs for all the people who might show up on their land, and then they have to clean up. I've gone fishing in a lot of places in my area and seen just horrible litter that has been left. And not always by people who are fishing, but some by people who are fishing, like bait boxes and things like that. So I'm wondering about like having, and I think I hear you between the people who are doing the fishing tournament and the municipality about keeping the department out of it potentially, but so that the city can be reimbursed or the town can be reimbursed for the cost of those other things that incurred during a fishing tournament.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: If I could address that. Yeah, yeah. I mean it's my understanding, mean certainly there's a permit, a very inexpensive permitting cost for having a derby that it's

[Helen (Office of Legislative Counsel)]: never It's

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: super cheap. It's super cheap, which is good. That encourages people to be there. It does strike me that a tribal sponsor has some responsibility for, number one, public safety, make sure they're partaking and adequate parts, and that actually they should be on or any potential cleanup. And by notifying, hey, I'm the only fisherman by a city of Maryland, and McIodden is now in the crosshairs, so Michigan Fish and Wildlife, it's not confinement, we now have a direct correlation between your responsible business and what has been done to make sure it's mitigated.

[Unidentified Committee Member]: Yeah, but I don't think there's anything that requires that now, that is my understanding, or there's no penalty for them if they don't clean up.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Well, so you have a situation where the city knows exactly who to go out.

[Unidentified Committee Member]: Well, but if they can't, if there's nothing that allows them to enforce it, there's no agreement, there's no contract, there's no penalty, then what are they going to do? It's just going be the city manager, this left board yelling at fishy derby organizer.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Could this be accomplished with a simple standard medal of understanding that says, I'm running the chairman, these are the responsibilities that are in front of me, this is delivered to the municipality involved. I you know, I don't want to get camel's nerves under the tent or anything like that, but 24 BSN, 22.95 is served among exceptionally well. And I raise eyebrows, I've been served on a select board. When you're giving a select board, that sort of authority even in a situation where it's age breaking or in Berlin Pond. I mean I was involved in the Berlin Pond discussion. I don't think there's been any and again my huge concern, here's Bremerton pollen and x marks the intake. It was wow, that's kind of scary. But a memorable understanding of something like that, it will be and perhaps the commissioner towards drafting that up. It's just that we I I really have a problem with the municipality, you know, the the authority to say no. That lady, we've run a derby and it was an absolute disaster and you're never coming back again.

[Unidentified Committee Member]: Yeah, but if they don't have the authority to say no, mean that's another thing, like if there's a derby that causes a lot of problems.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Oh, well, certainly the commissioner does.

[Unidentified Committee Member]: I guess the commissioner could say no, but they could So

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: if the memo wasn't, I'm just

[Unidentified Committee Member]: Yeah, I think having some kind of document that documents what the responsibilities are, and maybe that's part of the permanent process, I don't know. And then having some kind of recourse if things go bad.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Well, I think a level of understanding might address that as a first step. Let's see, Again, I realized I started off by saying, I'm not saying there's zero threat here, but I am saying that by and large fishermen anglers are responsible. And yes, frankly, I've been a lot for other pond and numerous times. I'm one of those silly guys in my kayak that goes up to the shore and starts picking up at her and throwing at my kayak. Yeah, see that. And I know most people like me

[Unidentified Committee Member]: do that. Go to the

[Anne Watson (Chair)]: Dead Creek Wildlife Area, there's

[Unidentified Committee Member]: a ton of trash there. It's really sad along the fishing access. Yeah. That's pollen. Yeah.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: It is pollen. And there are bad actors. Yeah.

[Unidentified Committee Member]: We go fishing there and pick up trash.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Sounds like an invitation. Did

[Anne Watson (Chair)]: you have a question?

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Just thinking that,

[Anne Watson (Chair)]: you know,

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: if this fish can be small I'm runs the dirt. Why not? They have liability insurance. Somebody that they have to make sure the parking areas, plows, people are pushing the tarp. It's somebody slopes and falls and gets hurt or there's some liability involved that insurance your cover. I think it would be determined to sponsor to have some responsibilities and whether that's partly their public safety. Mean certainly they're charging something above the minimal cost for having their program, but not that you're looking to make money because most of these things are fundraisers, but to have an event and to not make any allowance for garbage pickup or public safety for making sure you're talking, then there's somebody a misinterrupt and they're properly run with an identified sponsor who has communicated with the town and also the commissioner as part of the permitting process. I think it addresses the major issue, one of the major issues, which was the attention. And I'm frankly appalled that could happen with nobody picking up a phone or an email or something to say, hey, by the way.

[Anne Watson (Chair)]: So the questions that I have, I Oh, sorry. That's okay. Of course. I think it comes back to a different topic, But before I get into it, thank you for your thoughtful engagement with the issue and acknowledging the conflict. One of the things that I am coming back to as I continue to understand the situation is that, for, particularly for this kind of situation, there was an issue around access and so there are some fishing access points, but the vision of having a tournament or a derby where there may be a lot of people and so there are people spilling out from that access point onto the shoreline becomes potentially a trespass issue. I guess I'm just, I'm feeling the tension between the use of the land around it as well, which I realize is probably an issue that you might have to engage with another context around just like the posting of land.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Paul had some strong feelings.

[Anne Watson (Chair)]: Yeah, yeah.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Studied economics where where it got punted over here

[Anne Watson (Chair)]: Yes.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Three fourteen ago. But but I aren't aren't you I got the issue with trespass. I think that is kind of touched upon, if I'm not mistaken, the form show requiring the applicant to identify an access point to lawyers and participants to other children. Yep. And I see that it's already here.

[Anne Watson (Chair)]: Are you not objecting to that?

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Private property is private property, but I ask very strong tools about that. And you never call it anybody's property unless you're giving permission, especially if it's posted no trust notice. My experience in properly and mostly approaching a landowner and explaining who you are and what your purpose is generally meets with favorable reaction. It's the soft laws that will just thumb their nose and everything and cause an answer to litter and that sort of thing that really gives good people a blackout.

[Anne Watson (Chair)]: Okay. Well, thank you. Appreciate your testimony. Any other questions at this point? Okay.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Thank you so very much. Yes. Thank you. Appreciate that. Especially juggling things around. Yep. And I'll probably see you again when Thank you

[Anne Watson (Chair)]: so very much. Thank you. To before we leave this as a topic, I just want to flag that my thinking around this is I want to have some committee discussion around the direction that we want to go with this. I don't necessarily want to have that right now, but I want to plan for some time because I think there's a lot of pieces up in the air about what we do with aquatic invasive use on access points and also what we want to do with this section. So before we see any new drafts, I want to get your thoughts about the direction of where we should go. So anyway, there we are. I anticipate that for next week. So for now, put this aside and we are transitioning now to talking about Act two fifty. And I know that where we are in general as a committee is, there's a, I'll speak for myself, there's a range of experience relating to that. I mean, I was here a couple of years ago when we did a sort of one on one on Act two fifty. That was very helpful. And so I've asked Helen to come back and do basically that again, just to, especially especially as we're looking at three twenty five and then act 181, which sits on top of that, give us the basics of like, this is what Act two fifty is, this is how it works.

[Unidentified Committee Member]: Yeah,

[Anne Watson (Chair)]: so that's where we're at. Okay, morning.

[Helen (Office of Legislative Counsel)]: Good morning. Good morning. I want to show you how to speak, Office of Legislative Council. So I am here on an overview of Act three fifty, ACT two fifty one hundred one. I did provide a slide deck, so I have a couple of slides. So I'm going to share my screen.

[Unidentified Committee Member]: All right.

[Helen (Office of Legislative Counsel)]: Maybe you got it. Yes. There we go. All right, so this is a brief introduction to Act two fifty. Act two fifty is the state land use and development law. It is codified in 10BSA Chapter 151. So when you see it in legislation, that is usually the citation that is provided. We don't generally refer to laws by their act name, but Act two fifty has been special in that way for fifty six years. So that is how it is known anecdotally. So Act two fifty is the state land use and development law. Broadly it requires permits for construction of large development. The operative language on what is required is in 10 BSA 6081A, which reads, No person shall sell a subdivision, commence development, or commence construction of development or subdivisions without an Act two fifty permit. The really operative language here is the definitions of development and subdivision. And those are what we also refer to as the jurisdictional triggers, what triggers the need for an Act two fifty permit. The definition of development is quite long. It has about 12 different definitions. The ones that we talk about most frequently are highlighted in yellow, but all these other things are part of the definition of development, which would trigger the need for an act of work. So they include the construction of improvements for commercial, industrial, or residential use at or above the elevation of 2,500 feet. You will see throughout that largely what the trigger is here is the construction of improvements. So we're talking about construction. The second bullet is the one that gets talked about a lot. The construction of improvements for any commercial or industrial purpose on more than 10 acres of land, or on more than one acre of land if the municipality doesn't have both permanent zoning and subdivision bylaws. We refer to this as the 10 acre town, one acre town distinction, a town that do not have zoning, construction for a commercial purpose on more than one acre of land triggers a need. If the town has zoning, it is on 10 or more acres. There is also this fun option for towns that have zoning they can opt to be a one acre town. So Waterbury has been a notable example of that. The theory behind this is that towns that have a zoning program do review of smaller projects, and so only larger projects that have more than 10 acres trigger the need for state review. The inverse of that is true that on towns that don't have zoning, one acre is a smaller threshold that requires a permit.

[Chris Bradley (President, Vermont Federation of Sportsmen’s Clubs)]: Quick clarification. This list, does it

[Unidentified Committee Member]: reflect your equipment that you want or not? It does.

[Unidentified Committee Member]: It does. In fact, okay.

[Helen (Office of Legislative Counsel)]: So Why are you trying to

[Unidentified Committee Member]: Well, I

[Helen (Office of Legislative Counsel)]: was looking at the same thing. This is as the law currently works. I'm not planning to talk about 01/1981. We can do, I'm currently just talking about the definition of development and what is defined as development. Okay. Yeah. So I have another question.

[Anne Watson (Chair)]: Under that second bullet, I'm just curious. So it's a one year town municipalities not have both permanent zoning and subdivision bylaws. I guess I'm wondering about those two things. Do sometimes have zoning but not subdivision bylaws? Yes. That's a thing? Yep. Wow.

[Helen (Office of Legislative Counsel)]: And sometimes do not have permanent zoning.

[Anne Watson (Chair)]: They have

[Helen (Office of Legislative Counsel)]: temporary zoning? They have interim zoning. Oh. Wow.

[Anne Watson (Chair)]: So like it would expire?

[Helen (Office of Legislative Counsel)]: It does, yes. And there are towns that have used that. You can, generally you're supposed to use interim zoning on an interim basis as you're developing further plans. There have been instances where accounts have sort of re opt their interim repeatedly. Interesting. So yes, the Land Use Review Board maintains a list of those towns that qualify as having both permanent zoning and subdivision by the rules. Thank you. Yeah. Commercial here is a very broad definition of commercial and it includes things that you think of historically as a commercial enterprise, like a source or something that is doing business or money. However, there's case law that under F-two 50 has a broader definition and can and does include nonprofit organizations or religious organizations if there's an exchange that happens. So it is broader here than maybe traditionally known. The next bullet is the construction of tenor units of housing, including construction or maintenance of mobile homes or mobile home parks with tenor units within a radius of five miles and within any continuous period of five years. So this is known as the 10x5x5 rule, 10 units within five miles within five years.

[Unidentified Committee Member]: What does within five years mean? You build a house and then a year later build another, and then a year later? Yeah. So all five have to be, all 10 built within five years?

[Helen (Office of Legislative Counsel)]: An permit is needed if you're going to construct 10 or more units within five miles of each other within a five year period.

[Anne Watson (Chair)]: Oh, I get it. By ten, okay. Yes. Which if I can comment or editorialize a little bit, that was one of the reasons why you sort of inadvertently were encouraging sprawl, because if you could just get a little further out, then you don't trigger. But with like, with nine units, you're a little further out and you don't, you don't trigger F-two 50.

[Helen (Office of Legislative Counsel)]: Anytime you set a limit in a statute, people will find a way to avoid it and do creative things. The intention here, I think initially was to avoid the problem of people doing that by saying, well, I'm building 10 units over here, but a little bit farther down, I'm building 10 units, actually they're gonna share a parking lot. It would be actually one major development that I was just trying to avoid. This is a very old part of the statute and whether or not it still applies, whether it has had unintended consequences is something for you all to discuss.

[Unidentified Committee Member]: And that was not changed in 01/1981?

[Helen (Office of Legislative Counsel)]: No, it was not. You sound sad. It felt

[Unidentified Committee Member]: like it was because it came off so much.

[Helen (Office of Legislative Counsel)]: The next bullet is the construction of improvements for a governmental purpose. So a municipal, county, state, or public purpose if the project involves more than 10 acres. So state projects have to go through Act three fifty. There is a distinction here. There is a different definition of involved land for public projects than there are for commercial projects. Involved land, if it's a commercial purpose, is the entire tract of land. For government projects, it is if three So or four acres are being what that means is that it generally requires a higher level, more disturbance for the government to trigger Act two fifty, but parts of the government do have to go through Act two fifty and get a permit if they disturb 170 meters. And so then the rest of these are a little bit less well known. Construction of a support structure that is primarily for communication or broadcast purposes, and that extends 50 feet or more in height above ground level or 20 feet above the highest point of an attached structure. So telecom facilities, they have the option to go through the Act two fifty process or the 30 BSA 248A process. Other committees are working on language right now related to this. And there are telecommunications companies that still use the I-two 50 process as opposed to the PUC process. Interesting. You may hear more about in

[Anne Watson (Chair)]: the coming weeks. I suspect we're gonna see something after crossover on you.

[Helen (Office of Legislative Counsel)]: So the exploration for fissionable source materials beyond the reconnaissance phase or the extraction or processing of fissionable source material triggers an apron active 50 quorumin, as well as the drilling of an oil or gas well, as well as withdrawal of more than 340,000 gallons of groundwater per day. And then the addition from ACL-one 101 is this jurisdictional trigger called the road rule, but it's the private road jurisdictional trigger that says the construction of a private road longer than 800 feet or a combination of roads longer than 2,000 feet will trigger the May 30 five feet permit. That does not take effect until July 1. And the statute on this specific jurisdictional trigger is significantly longer than one sentence and has a lot more detail to it. So those are all the parts of the definition of development that triggered the need for a permit, but there are exemptions embedded in time USA 6001 and in 6081. There's also a definition of subdivision, and this is one we talk about a lot less, I think, but a subdivided land can trigger Act two fifteen when the land is partitioned or divided for the purpose of resale into 10 or more lots within five miles within the jurisdictional area of the same district commission within five years. So again, under 10x5x5 rules for more of a subdivision of land into 10 or more lots. And there's also another reason though for towns that don't have Parkinsonian subdivision bylaws, it is actually the subdivision of land into six or more lots within five years. Then there's also this interesting sort of caveat, which is if the sale is going be by public OSH, it will trigger the Napier Act 50 permit if there are five or more lots within five aisles within ten years. So, is an Act two fifty permit required? This is a question I get asked almost daily. And I have this very short, a brief and incomplete analysis for illustrative purposes. This is not legal advice. But if you're wondering to yourself, is this going to trigger the name for an Act 50 permit? Here's some of the common questions you've been asked to determine if it promptly will need an Act 50 permit. The big caveat here though is that Act two fifty is a statute that's designed to be site specific to acknowledge that all different sites are different. So even though it's the same type of structure that may be going in there, maybe site specific features that would trigger the need for permits to do. This is, if you need more information on this or have questions, the active safety district coordinators can help you as well as the land review board has staff that their job is to answer this and do this analysis. So when you're asking this, when you're trying to determine what you should ask first, what is the purpose of the development? Is it for a commercial purpose? It Is for a governmental purpose? Again, county, municipal, state, public. If it is for a commercial purpose, does the town in which it's located have permanent zoning and subdivision bylaws? Is it a one acre town or is it a 10 acre town? So if it's a commercial project in a one acre town, is more than one acre of land involved? If it's in a 10 acre town, are there more than 10 acres involved? For a commercial project, involved land includes the whole tract of land. So is the project going to be on a parcel of land that is greater than 10 acres in a 10 acre town or larger than one acre in a one acre town? If the answer is yes, if an Act two fifty permit is required, the applicant must demonstrate that the project will comply with all 10 criteria of Act two fifty. It says, review these requirements and address whether or not your project has taken them into account.

[Unidentified Committee Member]: So when measuring the acreage, does it include existing structures that might be already have been built? Yes. Okay, so there's a shopping mall already in a place and they're razing it and putting in a bigger shopping mall, something like that. The land that's already built on is measured

[Helen (Office of Legislative Counsel)]: as part

[Unidentified Committee Member]: of the one acre or 10 acres.

[Helen (Office of Legislative Counsel)]: For commercial development, it is the physical size of the tract of land that it will be built on. Okay. Just the parcel size.

[Anne Watson (Chair)]: And the question here?

[Unidentified Committee Member]: So if somebody owns Timberland, so some of it being about 2,500 feet, do we have to have an Act two fifty permit to cut their logs?

[Helen (Office of Legislative Counsel)]: 4th Street is exempt from Act two fifty. If some of it is going to take place above 2,500 feet, yes, it may need a permit.

[Unidentified Committee Member]: So if they stay below 2,500, I don't know how you do that, even the altimeter is there. They know where every square foot They know how to They can see it. They can see everything you do too.

[Anne Watson (Chair)]: Just as we're talking about exemptions, farming also exempt.

[Helen (Office of Legislative Counsel)]: Farming is exempt from Act 50, again with the caveat above 2500B. So you have heard of the Act 50 criteria. What are they? They are listed as detention criteria. There are 32 sub criteria. So when making an application, the applicant has to look at each of these criteria and address stuff. They need to address whether or not they are on the site. So while all 32 of these exist, every site might not need to address every criteria. A good example is primary agricultural soils. The type of criteria 9B asks if the development is going to destroy or convert any primary agricultural soils, which are mapped for the whole state. If there are no primary agricultural soils, the applicant just needs to address that we have investigated, there are no primary soils on this property, we do not need to do anything under this criteria. The same is true as for a number of other ones, including the one that was added most recently in ACC one, criterion AC, force blocks and habitat connectors. That criterion asks, will the development happen within a forest block or habitat connector? These are, I don't know if they're fully mapped, but the municipal maps have been required to have these on them for almost a decade. So looking at those maps, will the development take place in a forest block or an out of tag connector? If not, you probably don't need to address anything under that criterion. Okay, so what is the basic process? So as I mentioned before, any person can request a jurisdictional opinion from the district office if they don't know that a project will need a permit. So they can submit a request, That request goes to the district coordinator who reviews what the project, the basic proposal of the project is and whether or not it meets the definition of development or whether it fits under one of the 30 something exemptions. Any person can request this, whether they be an applicant, a proposed developer, or a member of the public. So once it is established that a permit will be needed, you submit your application to one of the nine district offices. The districts largely fall around counties. Most of them have two counties under the district, but District 4 is mostly just Chittenden County because that's a very busy district. The district itself is made up of three district commissioners and their alternates. District commissioners are appointed by the governor and have terms. They are basically volunteer. All they receive is a $50 per diem for days when they're holding the hearings on any permits, and so they only receive a nominal $50 There is also staff though, that staffs the district to assist them there. So at least one district coordinator per district. And then there's also a few members of support staff, like a legal technician and administrative staff. But it is a pretty lean operation largely given that there are usually around 400 or more permitted applications a year. So the district coordinators assist the district commissions who are working very limited amount of hours with the district coordinators, a full time position. They review applications for completeness and communicate with the applicant about what other information they're going to need to provide in order for their application to be accepted. Most applications do not have a hearing. The Ladies Review Board, which is the overarching administrative part of the ACRE-fifty process, which I usually didn't include in this slide, but they issue an annual report every February 15 on what has happened in the ACRE-fifty program in the last year. So you're about to get that report in a few days and they will have the statistics of how many applications there were last year, how many of those had hearing, how many of them were appealed, how long they took, they keep all those statistics, and they update them every year because you all are very interested in taking them. So most applications don't have a hearing. I looked at the annual report from prior year. There were only 11 hearings in 2024 out of more than 400 applications. The rest fall into what are called minor applications or administrative amendments. So there's a distinction between a major application and a minor application. Minor applications on their face do not raise any significant concerns or potential impacts under any of the criteria, therefore not needing a hearing. Members of the public can submit comments, however, or people can raise concerns about whether a project actually is going to have major implications so that they can request to have a hearing. If a hearing is needed, that's when it's considered a major and the commission itself hosts a public hearing on the application. If there is a hearing on an application, members of the public are allowed to attend and provide comment, but if only a person who's birthed in party status can submit evidence and participate in the hearing in a more full way, district commission, people can apply and only a person with a particularized interest in a specific criteria may be added as a party. So a person needs to have a particularized interest, an interest specific to them that is not considered an interest of the general public. That usually means that the land that they own is involved, and they have to apply for a specific concern with a specific criterion. So they can apply to be under all 10, that is actually fairly rare. Usually they say, Criterion eight, the aesthetics, my mucin is going to be impacted by this, or My property is adjacent. Concerned about runoff, I'm concerned about criterion one in storm water. And the district commission determines what things they're actually allowed to provide evidence on or testimony on. The district commission may approve, deny, or approve an application with conditions. Less than 1% of applications are denied. The majority of them are approved with conditions. Conditions allow the district commission to say, all right, you are going to have some runoff because of this project under criteria one, what are the storm water features that you're going to include to address that? And they will build that into a condition in the permit. Some applications are appealed. If they are appealed, the first review goes to the division, the Environmental Division of the Superior Court, where the case is sort of de novo. They put on the case as though the district commission level, when they have it, parties present their evidence. The only people who can appeal are those who participated in the hearing below and were granted and maintained third party status. So there is a requirement that if you want to appeal, you have to show up early and apply for status with the district commission and participate in that hearing with only then appeal on the criterion that you have participated on. After that appeal of the environmental court, you have the option to appeal to the Supreme Court. And there are around a dozen or so appeals to the E Court every year and less than half of that to the Environmental Court. Or to the Supreme Court, I'm sorry.

[Unidentified Committee Member]: A dozen appeals to the Supreme Court. Do they, no, you don't know? Far less

[Helen (Office of Legislative Counsel)]: than that, yes.

[Unidentified Committee Member]: Okay, yes. So that would be to the E Court. Yes, I like that, the E Court. Are they, does the Supreme Court, if they get appeal, do they also hear de novo or do And they look, we just were hearing some testimony about Act two fifty as it relates to transportation projects, but more generally, one of the arguments they were making and that I've heard from others is that, there are all the other permits you have to apply for, and you have to do that first before you go to an Act two fifty permit, because those permits help you make the case for meeting the 10 criteria. So do you have a sense, first of all, is that true? You're nodding, but is that true? And then second of all, is that required? And what about the timeline for that kind of thing to know?

[Helen (Office of Legislative Counsel)]: What do you mean is that required?

[Unidentified Committee Member]: Is it required that they get the other permits first or is that just generally how people do it? If they're

[Helen (Office of Legislative Counsel)]: going to use the permits as evidence under the criteria, yes, they

[Unidentified Committee Member]: have to receive that permit first. Okay. And then do you have a sense of the timeline for the Act two fifty process?

[Helen (Office of Legislative Counsel)]: And I would encourage you actually to hear from the LER when they issue their report next week. They track how long each permit takes, and I am nervous to say the statistics out loud, but I believe somewhere, well, we could get it right now, but I think it's somewhere around 80% is within sixty days. Okay. And then they have the sort of tranches. And part of that is because minor permits takes the union of parties very quick to issue because there's no hearing, which is a public comment period that they issue after that. And administrative amendments can happen within days. Administrative amendment is when there's already an existing active 50 permit and the permit holder needs to make some small change that is not gonna trigger much, you know, repaving the driveway or something like that. So like that, those can happen very quickly. And then very few majors can take up time. Okay. It is on your website under the reports page, and it is on their website, the annual report that has all those statistics. Has it already been issued? No, last year's.

[Unidentified Committee Member]: Okay, next year's constant state. Yes, or this year's constant Yeah, okay, cool.

[Anne Watson (Chair)]: Thank you. This was great. Yeah. This was really helpful. And you know, in part, I'm wondering, if we had more time, would you have more to say?

[Helen (Office of Legislative Counsel)]: I mean, I guess I didn't talk about the LERB at all. Okay. But I was talking about what the actual process for Act two fifty was and the LERB is not directly involved in most of it. Yeah. The district commissions function as positive judicial bodies and they are the ones who issue the permits, not the LERB.

[Anne Watson (Chair)]: Well, I'm wondering if we should have you back to, it's like a round two, like anything additional. But in any case, we are running out of time. Just to preview tomorrow really briefly, highlights of tomorrow, we're going have more testimony on 02/23, study that we looked at this morning, and then we have a joint hearing with Southern Economic Development again. I think we're going to do that one in sort of 10. The theme there is about tier

[Unidentified Committee Member]: 1B opt in versus opt out.